The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:30 a.m., on Monday, April 26, 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 Dina Titus

Senator Valerie Wiener

Senator Terry Care

COMMITTEE MEMBERS ABSENT:

Senator Maurice Washington (Excused)

STAFF MEMBERS PRESENT:

Janice McClure, Committee Secretary

OTHERS PRESENT:

Dennis Debacco, Supervisor, Central Repository for Nevada Records of Criminal History, Department of Motor Vehicles and Public Safety, said A.B. 621 aligns Nevada Revised Statutes (NRS) 179.275, and especially chapter 179A, with some of the new responsibilities the repository acquired during the Sixty-ninth Legislative Session and brings clarity to some of the repository’s business practices. Mr. Debacco stated A.B. 621 allows the repository to receive information electronically from its many users throughout the state and allows for a more efficient dissemination of information and preparation of records. He continued A.B. 621 fixes responsibility for agencies who report information to the repository. He said over the years there has been much confusion over what the various roles within the criminal justice community are to the repository, as to whom should be reporting what and when it should be reported. He furthered A.B. 621 creates a new class of record the repository refers to as a record of public safety.

Kalene Dickerson, Police Services Manager, Police Department, City of Reno, said she is the chairperson for the northern subcommittee for the criminal history repository representing nine counties in the northern half of the state. Ms. Dickerson pointed out section 3 of A.B. 621 allows for collection of information for the public safety record, section 6 allows for fingerprint-based information, and section 7 provides for fixed reporting responsibility. She continued section 7, subsection 5, provides for the dissemination of the public safety records. Ms. Dickerson pointed out the repository is not prepared to accept the personal identifying information outlined in section 7, subsection 8, of A.B. 621; however, the repository will have to start collecting personal identifying information in the future.

Senator Care inquired of Mr. Debacco if all the information contained in A.B. 621 would be included in the information that could be exchanged pursuant to the federal compact.

Mr. Debacco replied the only information of interest and value under the interstate compact agreement are records of criminal history. He stated records of public safety are not exchanged under the compact. He added the compact also provides for agencies who are making licensing, employment, and regulatory decisions based upon records of criminal history.

Senator Care voiced concern that in the future the federal government does not interpret the compact in such a fashion that all of this information must be exchanged.

Mr. Debacco offered to confirm in writing with the Federal Bureau of Investigation (FBI) that the public safety information would not have to be exchanged under the federal compact in the future. Mr. Debacco pointed out there are references within the federal compact that support the relationship between criminal history records and what is being exchanged currently from all states.

Senator Care stated he would certainly appreciate written confirmation. Mr. Debacco affirmed he would provide such a letter from the FBI to the Senate Committee on Judiciary.

Senator Wiener inquired why the towing of a vehicle would be essential to the repository database. Mr. Debacco responded police agencies throughout the state presently have individualized databases within their own departments on towed vehicle information. He indicated that creating a centralized database on towed vehicle information would streamline the process of tracking down stolen vehicles.

Senator Wiener asked why on page 4, line 40, of A.B. 621 the word "firearm" is used instead of "weapon." Mr. Debacco said "firearm" is indicative of any type of a gun. Senator Wiener pointed out "weapon" is much broader than "firearm."

Senator Wiener inquired if "computer generated image" included in the language on page 7, line 13, of A.B. 621, is the same as a digital image. Mr. Debacco replied yes, "computer generated image" is the same as a digital image.

Senator Care inquired if an employer would have access to all of the information referred to in A.B. 621. Mr. Debacco replied if a person authorizes someone to receive other information the repository might have, then the authorized agent would receive beyond criminal history record information.

Senator Wiener asked if the person authorizing release of information would have the ability to review the information before the authorized agent receives the requested information. Mr. Debacco replied the person authorizing release of information would not be able to review the information before it is released to the authorized agent. He continued if an employer requests a criminal history record, the repository also sends the requested information to the person authorizing the release of such information if that person requests a copy of the information released to the authorized agent.

Senator Care asked for clarity of the definition of "record of criminal history" as it is expanded to some degree as to "decisions of a district attorney or the attorney general not to prosecute" on page 2, lines 26 and 27, of A.B. 621. Mr. Debacco explained after arrest information has been entered into the repository’s database, the disposition of the arrest by the court is attached to the record. Mr. Debacco indicated that oftentimes records are disposed of prior to a court proceeding. He explained an arrest is filed before the district attorney, and the district attorney looks at the arrest and may decide not to proceed forward into the court process. The district attorney advises the repository of these decisions and the repository makes a notation to the arrest record so the record accurately reflects the case was never adjudicated in court, but rather disposed of at the district attorney level. Mr. Debacco added, "no charge is filed" is the most common disposition at the district attorney level.

Chairman James inquired if an arrest record is a criminal history record. Mr. Debacco replied yes, because notations of arrests are part of criminal history records information.

Lucille Lusk, Lobbyist, Nevada Concerned Citizens, said she had requested a specific statement be included in A.B. 621 that records of public safety would not be disseminated. She said there was some concern about total limitation on public safety record dissemination because the public safety record includes such things as follow-up on missing persons reports. Ms. Lusk voiced concern with the prior discussion of an arrest taking place which is later determined to be erroneous and the arrest remains on the record. She pointed out page 4, lines 8 through 13, of A.B. 621 specifically provides, "If an agency has submitted a record regarding the arrest of a person who is later determined by the agency not to be the person who committed the particular crime, the agency shall, immediately upon making that determination, so notify the division. The division shall delete all references in the central repository relating to that particular arrest." Ms. Lusk said she thought perhaps this language was not being followed up fully and needs some additional emphasis. She stated any time data is collected on citizens and kept in a database there are concerns with the use of the data.

Chairman James asked Mr. Debacco if the language Ms. Lusk referred to is being followed by the repository. Mr. Debacco said that language is followed and that he misspoke earlier in his example given to Senator Care. Mr. Debacco stated if it is discovered the wrong person was arrested the process outlined by Ms. Lusk is followed. He added there are other provisions in statute enabling the repository to seal records.

Chairman James pointed out the language "later determined by the agency not to be the person who committed the particular crime" is awkward. Mr. Debacco stated when a person is arrested for committing a crime and it is learned later that person did not commit the crime, the repository makes that right within its record system when advised by the agency where the record originated or when directed to do so by a court.

Chairman James asked why a record would be kept on a person arrested but never proven to be guilty of a crime. Mr. Debacco pointed out NRS chapter 179A deals with providing notice of information to employers who specifically ask for records pertaining to sex offenses. Mr. Debacco stated if a person was arrested for a sexual offense and the arrest did not result in a conviction, the repository is able to report that arrest information to someone making an inquiry.

Chairman James stated NRS 179A.210 provides the repository has to check the disposition of the arrest when giving information about sex offenses. Mr. Debacco pointed out language in NRS 179A.210, subsection 2 providing, "Notice of information relating to sexual offenses may be disseminated to an employer who has requested it only if a check of pertinent records indicates: (a) A conviction for a sexual offense, or a conviction based on an arrest or on an initial charge for a sexual offense." Mr. Debacco continued, "(b) An arrest or an initial charge for a sexual offense pending, at the time of the request; or (c) Two or more incidents resulting in arrest or initial charge for a sexual offense that have not resulted in a conviction."

Senator Wiener asked if erroneous information notification is statutorily required. Mr. Debacco replied the repository has mechanisms built into its program to remove erroneous information from the records. He pointed out, however, the repository does not know of errors unless the errors are reported by the agency which originally submitted the information or comes to the repository’s attention in a court disposition.

Senator Wiener asked if there is a statutory requirement that the reporting agency provide the corrected information to the repository. Mr. Debacco replied he did not believe there was a requirement for an agency to report errors to the repository.

Senator Care asked with regard to section 13 of A.B. 621 if there is any language which might be inconsistent as to penalties in relation to computer crime penalties outlined in S.B. 485.

Mr. Debacco indicated he could see where there would be a conflict if computer hacking is a felony under one area of NRS and a misdemeanor under another area of NRS.

Debi Williams, Records Manager, Washoe County Sheriff, testified in support of A.B. 621 because it fixes responsibility so the originator of the records submits the information which will significantly improve the disposition of reporting in the State of Nevada. She stressed the bill will make the Washoe County Sheriff’s job of releasing criminal history information much easier since they will not have to call all over the state to find certain information.

Ms. Dickerson stated, in addressing Senator Wiener’s question about challenging the record, page 10, section 12 of A.B. 621 requires notification be given to the repository and all other people who have inquired on a particular record within 90 days that there has been a challenge to the record.

There being no further testimony, Chairman James closed the hearing on A.B. 621 and opened the hearing on A.B. 545.

Morgan Baumgartner, Lobbyist, Nevada Court Reporters Association, addressed the requested changes in court reporter fees contained in A.B. 545. She indicated all the requested fee changes have been agreed to by Washoe County, Clark County, and the Nevada Association of Counties.

Chairman James asked the amount of the percentage increases. Ms. Baumgartner replied when the bill was originally presented to the Assembly Committee on Judiciary and prior to the counties looking at the fiscal analysis, the percentage increases were 10 percent. She continued through conversations, primarily with Clark County, the increase was dropped down from a percentage to a round number. She indicated the percentages vary depending on which amount is being reviewed.

Chairman James asked the date of the last increase. Ms. Baumgartner replied the last increase was in 1995.

Senator Wiener asked at how the amounts were arrived. Ms. Baumgartner replied the expedited fee is the regular fee per page doubled on a 24-hour request, and the fee for a 48-hour request is one and a half times the regular fee.

Senator Care asked why the Legislature has to approve the court reporting fees instead of the court reporting industry opening up to competition. Karen Yates, Certified Court Reporter, Sierra Nevada Reporters, replied the Nevada Court Reporters Association likes having uniformity and does not know how competition would affect the courtroom. Ms. Yates explained court reporters are part of the courtroom staff and to go from courtroom to courtroom there needs to be uniformity.

Ms. Baumgartner added the uniformity in court reporting fees also gives certainty to the courts in establishing their fiscal year budgets.

Senator Titus stated she supports the increases, but asked why the fee would vary in the copying costs. Ms. Yates replied the Nevada Court Reporters Association tries not to spread the cost to all those who need the service, and explained the charge is not just for the office supplies but the expertise that goes into the court reporting function.

Senator McGinness indicated only seven counties responded to the fiscal note and there is no showing of a response from Clark County. Ms. Baumgartner stated she had significant ongoing conversations with Clark County in which they have indicated it is a cost they are willing to bear because it is a regional increase and the court reporting services are worthwhile to them.

Ms. Baumgartner submitted amendments to A.B. 545 offered by the Nevada Court Reporters Association dated April 26, 1999 (Exhibit C), which is a further clarification of the process and fees for reporting when there are more than two reporters in the courtroom at the same time.

Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, interjected a reference to section 1, subsection 1, paragraph (f), subparagraph (1), also needs to be included in the amendment (Exhibit C), unless there is a reason that is not desired.

Ms. Baumgartner stated that is not desired because paragraph (f) is dealing with the cost of the translation on disk and because subparagraph (3) of paragraph (c) of subsection 1 requires an expedited transcript production, the people bearing the cost are paying for an expedited process.

There being no further testimony, Chairman James closed the hearing on A.B. 545 and opened the hearing on A.B. 548.

Henry Cavallera, Attorney, stated most of his law practice centers around dealing with legal issues of the elderly. He explained the passage of A.B. 548 will prevent people from having to access the Medicaid system before they need to, and will enable people to remain in a group home, if appropriate, rather than a nursing home.

Senator Care asked if a creditor could proceed against an estate after the judgment debtor dies. Mr. Cavallera said he did not have a problem with that scenario. Senator Care furthered if a judgment debtor was 62 years old, but the community assets are in the name of the 65-year-old spouse, could the creditor execute upon the community property under those circumstances. Mr. Cavallera replied no, if somehow the assets had been divided up and the share was held by the person who was institutionalized. Mr. Cavallera continued under subsection 11, section 1, if a judgment debtor had a $500,000 IRA account it would be exempt.

Senator Titus said several legislative sessions ago there was a concern about couples wherein one person goes into a nursing home and then the other person’s resources are totally wiped out so they are allowed to dissolve their revenues and wondered how that would tie in with A.B. 548.

Mr. Cavallera replied he did not think Senator Titus’ concern ties in with A.B. 548 and would not have an effect on the existing statute (NRS 123.259). He added he was involved in the drafting of NRS 123.259.

Senator Care asked Mr. Cavallera if he had ever heard of anybody going into a long-term care facility and then recovering to an extent where they go home. Mr. Cavallera stated he has had cases where people have gone home from long-term care facilities and if a person with a judgment against them ends up going home, maybe the statute does not work. Mr. Cavallera said, however, if the person had his money in an IRA account the statute would work. He pointed out there is a mixing of issues here.

There being no further business, Chairman James adjourned the meeting at 10:30 a.m.

RESPECTFULLY SUBMITTED:

Janice McClure,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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