The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:48 a.m., on Tuesday, April 13, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

STAFF MEMBERS PRESENT:

Janice McClure, Committee Secretary

OTHERS PRESENT:

Lisa A. Gianoli, Lobbyist, Washoe County, said A.B. 122 was being brought forward to clarify what Washoe County does with restitution when it is unable to locate a party after making reasonable good-faith efforts. Ms. Gianoli said Washoe County is requesting the unclaimed restitution funds be put into a local victims’ assistance fund.

Janet M. Garner, Diversion Program Coordinator, Fraudulent Check Diversion Program, Washoe County District Attorney, said she collects court-ordered restitution out of justice court and disburses the money to the victims. She stated she has estimated that since 1992 Washoe County has approximately $20,000 it has not been able to return to the victims due to an inability to locate the victims.

Lidia Osmetti, Director, Victim Witness Assistance Center, Washoe County District Attorney, said the victim witness unit assists victims and witnesses in the criminal justice process. She stated in the early 1980s a fund was established strictly from donations. She pointed out Washoe County collaborates with other agencies in law enforcement to stretch the fund.

Chairman James stated it is mandatory if a justice court has money, it shall deposit the money in a fund for the compensation of victims of crime.

Ms. Gianoli indicated both the Nevada District Attorneys’ Association and the Clark County District Attorney’s Office are in support of A.B. 122.

Senator Care asked what Washoe County considers to be a good-faith effort to locate victims who are entitled to restitution. Ms. Garner replied when a check is returned as undeliverable she then makes telephone calls in an attempt to locate the victim. If the telephone calls are futile, Ms. Garner said she checks with the Department of Motor Vehicles and Public Safety for a current address and runs credit checks also in an attempt to obtain a new address. She continued if none of these efforts turn up a new address, the money just sits in the account.

Senator Wiener asked if Washoe County has kept any record on how much money is sought from the court for restitution compared to how much is collected. Ms. Garner replied the county does not keep track of that.

There being no further testimony, Chairman James asked for a motion to do pass A.B. 122 and place the bill on the consent calendar.

Chairman James closed the hearing on A.B. 122 and opened the hearing on A.B. 336.

Assemblyman P. M. "Roy" Neighbors, Esmeralda, Lincoln, Mineral and Nye counties, Assembly District No. 36, said A.B. 336 requires drug offenders to pay restitution for the costs of young victims to participate in drug-abuse treatment programs. Assemblyman Neighbors stated the bill requires the payment of such restitution by a person convicted of distributing or selling an imitation controlled substance; selling a control substance to a person under 18 years of age; and provides the court must notify the parent, guardian, or other person legally responsible for the minor that such restitution has been ordered. Assemblyman Neighbors furthered the provisions of A.B. 336 do not apply to an offense committed before October 1, 1999, and the only fiscal impact on this bill is going to be on the criminal who sells the drug.

Richard L. (Rocky) McKellip, Sheriff, Mineral County, said A.B. 336 is another tool needed to fight against drug crimes. The current statute does not provide for restitution. He stated it costs an average of at least $100 per day to put a person through a rehabilitation program and most parents cannot afford it.

Senator Wiener asked why there is a focus on imitation controlled substances. Sheriff McKellip said there are people who pass powdered sugar off as cocaine. He stated if children are unknowingly taking imitation drugs, then they think drugs do not really have an effect and ultimately they end up taking real drugs. He pointed out the Nevada Revised Statutes (NRS) already has a provision for the furnishing of imitation drugs because it is a way for sellers to make more money or actually get someone hooked on a drug.

Chairman James stressed a child buying drugs, whether he is actually buying a real drug or not, has a problem and needs some counseling. Chairman James suggested obtaining the legislative history of "imitation" being added to NRS 453.332 to find out what the policy decision was at that time.

Delbert E. Dyer, Undersheriff, Mineral County, testified on behalf of a woman from Mineral County who previously testified on A.B. 336 and was unable to attend this hearing. He said this woman found that two adults were selling her daughter drugs and one of the adults was on probation for a second offense for distributing drugs. He declared the daughter underwent rehabilitation at a cost of approximately $23,000. He pointed out that although A.B. 336 will not help the families who have already undergone financial hardships in an effort to have their children rehabilitated, the passage of this bill might help other people financially who experience this same type of situation in the future.

Janis Scott, Member, Mineral County Sheriff’s Core Group, narrated her experience of putting her 15-year-old daughter through drug rehabilitation a couple of years ago. She said the 10-month rehabilitation was at a cost of $37,440. She stated although the rehabilitation was worth the expense, not every parent can afford the cost of rehabilitation and therefore, Ms. Scott said she supports A.B. 336.

David S. Gibson, Lobbyist, Clark County Public Defender, suggested amending A.B. 336 on page 1, line 11, and on page 3, lines 6 and 16, to read "restitution for any reasonable costs" because this could perhaps give a judge leeway to make a more realistic assessment. Assemblyman Neighbors said he had no problem with Mr. Gibson’s suggested amendment to A.B. 336.

Senator McGinness asked Mr. Gibson what he believed was "reasonable cost." Senator McGinness expressed concern the addition of the word "reasonable" could lead to attorneys arguing in court over what is a "reasonable" cost.

Mr. Gibson said depending on the victims, there are going to be differing amounts of restitution. He stated it would be meaningless for a judge to order a person below the poverty line to make restitution of $50,000; but if a judge ordered a person below the poverty line to make restitution of $1,000, that restitution could possibly be made.

Chairman James asked if there would be a program for treatment involved in each of the causes outlined in A.B. 336 for restitution. He asked what the current law provides. Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, said currently a judge has the authority to order restitution, but it is discretionary, not mandatory. Chairman James asked why restitution should be made mandatory. He stated a judge might want to fashion a different remedy depending on the case. Mr. Wilkinson said that would be a policy decision.

Assemblyman Neighbors said A.B. 336 would provide a judge the opportunity to set the dollar amount for restitution. Chairman James said he was not against the concept, but using the words "the court shall" is taking discretion away from a judge. Assemblyman Neighbors suggested changing the word "shall" to "may."

There being no further testimony, Chairman James asked for a motion to amend and do pass A.B. 336.

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George T. Crown, Compensation Officer, Victims of Crime, Hearings Division, Department of Administration, said the language being requested for removal in A.B. 353 is in violation of the federal standards for the victims of crime program to obtain federal money.

Chairman James stated the language being requested for removal was added to the Nevada Revised Statutes (NRS) 217.220 by a request from the governor’s administration to the Legislature during either the 1995 or 1997 Legislative Session. He asked Mr. Crown if Nevada actually loses federal money if the language remains unchanged.

Mr. Crown replied yes, the current language discriminates against people from other states who get injured in the State of Nevada. He added all the other states have policies of reciprocity for victims.

Chairman James asked if other states will compensate Nevada victims. Mr. Crown replied yes, and pointed out all the other states are members of the federal programs. Chairman James asked Mr. Crown if he remembered the legislative history on the current statute. Mr. Crown replied the language being requested for deletion in A.B. 353 was added last session because there was a concern Nevada would be tied to the federal government with regard to highway dollars. He indicated Nevada has received some federal funds.

Senator Wiener asked how some federal money has been obtained even though Nevada is not in compliance with the federal government requirements and also, she wanted to know how much money Nevada has received from the federal government. Mr. Crown said he believed Nevada received $636,000 last year with the caveat to clean up the language in NRS 217.220.

Seeing no further testimony, Chairman James asked for a motion to do pass A.B. 353.

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Robert Crowell, Lobbyist, Nevada Judges Association, stated A.B. 648 allows the attorney general to represent a justice of the peace or municipal judge for the district attorney in a locality where there might be a potential conflict. He said pursuant to his analysis this provision would have been useful at least three times over the last 10 years.

Anne B. Cathcart, Senior Deputy Attorney General, Office of the Attorney General, commended Karen Kavanau, Court Administrator and Director of the Administrative Office of the Courts, Office of Court Administrator, on drafting the language in A.B. 648. She said the attorney general’s office believes in any circumstance a public official who has been sued in his or her official capacity is deserving of a defense.

Brian Doran, Deputy Court Administrator and Deputy Director of the Administrative Office of the Courts, Office of Court Administrator, said A.B. 648 will be used as a pilot project to see if it fills a need with the justices of the peace and the municipal court judges.

Senator Care asked what a cause of action would be wherein the attorney general would represent a justice of the peace or a municipal judge.

Mr. Doran said when he was a court administrator for the Sparks Municipal Court there were disagreements between the city council and the judges pertaining to budgets or court procedures. He stated in these instances the city attorney had to represent the city council and a private attorney was hired to represent the judge whom the city reimbursed after the case was resolved.

Mr. Crowell said he knew of one recent case wherein a district attorney filed an ethics complaint against a justice of the peace for having what the district attorney believed was an unlawful contact with someone who was cited for a criminal action. Mr. Crowell continued that was one case where it was clear the justice of the peace was entitled to have independent counsel representation.

Senator Care asked Mr. Crowell if he contemplated counsel being available in the event an ethics complaint is filed against a justice of the peace or municipal judge for the execution of his judicial duties. Mr. Crowell referred Senator Care to section 3 of A.B. 648 pertaining to the attorney general determining whether to tender the defense of a justice of the peace or municipal judge.

Chairman James expressed concern about the provisions of NRS 41.03415 because the only way A.B. 648 plays in is if the official attorney determines not to represent the justice of the peace or municipal judge.

Mr. Doran explained that in one of the municipal courts the judge felt he had the discretion to set salaries for some of the employees and the city council disagreed. He said the city attorney had to represent the city council in that civil suit in district court and the judge obtained private counsel.

Chairman James pointed out A.B. 648 only applies if an official attorney determines a person is not entitled to a defense. He said if the official attorney determines the action was not within the public duty of the person, then he will not tender the defense. Chairman James stated that person can then go to the attorney general who will make the exact same determination. He stressed this bill does not cover a situation where the official attorney feels he has a conflict and elects not to undertake the representation as a matter of the rules of ethics. He further stressed A.B. 648 is deficient to cover the aforementioned ethic situations, but it is fine for a situation where the official attorney determines that the person did not act within his scope of employment. Chairman James said the committee would not move A.B. 648 today.

Mr. Crowell said he had read A.B. 648 differently and he had not looked at the specifics of NRS 41.03415. He stated it was his understanding the 1997 bill died because there was concern about the financial obligation of the counties to pay the attorney general. He continued in the Assembly, both the Nevada League of Cities and Municipalities and the Nevada Association of Counties said they had no difficulty with A.B. 648.

Chairman James suggested adding in language where representation is declined based upon NRS 41.03415, or an obligation under the Nevada Supreme Court Rules.

There being no further testimony, Chairman James closed the hearing on A.B. 648 and adjourned the meeting at 9:50 a.m.

RESPECTFULLY SUBMITTED:

Janice McClure,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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