The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:50 a.m., on Thursday, April 29, 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 Valerie Wiener

Senator Terry Care

COMMITTEE MEMBERS ABSENT:

Senator Dina Titus (Excused)

GUEST LEGISLATORS PRESENT:

Assemblyman Richard (Rick) D. Perkins, Clark County Assembly District No. 23

Assemblywoman Vivian L. Freeman, Washoe County Assembly District No. 24

STAFF MEMBERS PRESENT:

Silvia Motta, Committee Secretary

OTHERS PRESENT:

Chairman James opened the hearing on Assembly Bill (A.B.) 267 indicating a number of changes had been made since the joint meeting and those changes would be taken under consideration at this hearing.

Assemblyman Richard (Rick) D. Perkins, Clark County Assembly District No. 23, pointed out A.B. 267 had changed from a 19-page bill to a 4-page bill. He said the remaining revisions appeared to be somewhat simplistic and there were some concerns about what was deleted from the original bill. Assemblyman Perkins stated there were a number of areas in A.B. 267 where there now appeared to be conflicts between statutes. He deferred to the wisdom of the Senate Committee on Judiciary to put back into A.B. 267 the provisions they saw appropriate and then both the Senate Committee on Judiciary and the Assembly Committee on Judiciary could work together to form a consensus.

Chairman James suggested Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, take the Senate Committee on Judiciary through the changes in A.B. 267 and point out the apparent conflicts that might arise.

Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, pointed out there was a technical drafting error which occurred during the amendment of section 4, lines 10 through 12. The phrase "whether or not the person who committed the act is or has been prosecuted or convicted in this state for the offense" was inadvertently not removed in the amendment when the requirement in section 5, subsection 3, was added to A.B. 267.

Chairman James intervened although Mr. Wilkinson was referring to a drafting error, it brings up a bigger policy question of whether or not section 4, lines 10 through 12, should be removed from A.B. 267. Chairman James asked Mr. Wilkinson to explain the effect of taking out the language that there is no requirement the underlying offense be brought to a conviction prior to prosecution on the reporting requirement.

Mr. Wilkinson explained the penalty for failure to report is set at a misdemeanor in A.B. 267 which means the statute of limitations for the crime would be 1 year and the prosecution would have to commence within 1 year after the offense was discovered. He said as a result there could be numerous circumstances under which the perpetrator of the offense against the child was not convicted within the 1-year time period. He stated there would always be the chance the perpetrator of the crime would never be convicted if the perpetrator were incompetent to stand trial or had died.

Assemblyman Perkins said there had been discussion over charging somebody in a situation where somebody else had not been convicted, but he did not think the Assembly Committee on Judiciary had taken into account the ramifications set out by Mr. Wilkinson.

Chairman James said in order to convict someone of the crime of not reporting it would have to be proved that the underlying crime was committed. He said he believed part of the prosecution would be proving the crime was committed and that it was not reported.

Mr. Wilkinson stated the original draft of A.B. 267 did not require proof that the underlying crime was committed. He said there would still be the statute-of-limitations issue because it will occur at some time during the judicial process that the perpetrator will have to be proved he committed the crime. Mr. Wilkinson said there might be some way of tolling the statute of limitations.

Chairman James stated in the prosecution of the reporting offense there has to be a finding that there was a crime; not prove up a conviction, but prove up that a crime was committed.

Mr. Wilkinson continued the standard for when reporting is required was also removed from A.B. 267. He said the bill as originally drafted had definitions of "reasonable cause to believe" and "as soon as reasonably practicable." He indicated those definitions were consistent throughout the reporting statutes for child abuse and for elder abuse. Mr. Wilkinson stated one of the reasons those definitions were added to A.B. 267 was to add in a "reasonable person" standard, which is something that has been upheld by courts repeatedly. He furthered there is overlap between the child abuse reporting statute and the reporting requirement in A.B. 267. He explained some of the offenses against a child in the reporting scheme of this bill would also constitute child abuse under chapter 432B of the Nevada Revised Statutes (NRS). He indicated there is no immunity from making a report in good faith under A.B. 267 which exists under NRS chapter 432B (child abuse) and NRS chapter 200 (elder abuse). Mr. Wilkinson pointed out the provisions of NRS chapter 432B regarding what occurs after a report is made and how the matter will be handled do not appear in A.B. 267.

Assemblyman Perkins stated he was in accord with all of the issues identified by Mr. Wilkinson.

Lucille Lusk, Lobbyist, Nevada Concerned Citizens, expressed that she had a number of concerns with A.B. 267, as originally written, and had discussed those concerns with the Assembly. She said one of those concerns was prosecuting someone for failing to report if the perpetrator had not been convicted or prosecuted. She said she believes it is an incongruous situation where someone could be prosecuted and convicted for failure to report something in which there was perhaps not enough evidence to convict the actual perpetrator. Ms. Lusk stated her concern with the first reprint of A.B. 267 was that the family exemption was deleted and she would appreciate serious consideration in restoring the family exemption which was in the original bill.

John C. Morrow, Lobbyist, Washoe County Public Defender, enlightened the Senate Committee on Judiciary as to what the Washoe County Public Defender’s position was with the Assembly Committee on Judiciary on A.B. 267. He reminded the committee that the statute of limitations does not start until a charge is actually filed. He suggested extending the statute of limitations for a misdemeanor in instances where incompetent people are involved. He said he believed a better way to handle this, rather than going back to the old provision, would be to toll the running of the statute of limitations until after the conviction. Mr. Morrow said he thought this would accomplish Assemblyman Perkins’ intent to be sure people are prosecuted. Mr. Morrow furthered in the original draft of A.B. 267 all privileges were suspended in that there were no privileged communications allowed. He stated the Washoe County Public Defender objected to the attorney-client privilege being stricken. He said he had no problem in applying NRS chapter 432B definitions and applications of the privilege. He pointed out situations that relate to A.B. 267 are found through family counselors and the like. He surmised page 3, lines 40 through 42 of the first reprint of A.B. 267 be amended to read "in accordance with the same statement of privileges set forth in chapter 432B of NRS." He stated this would bring about consistency with the two statutes involving the same situations and would solve the Washoe County Public Defender’s concern with the attorney-client privilege.

Gemma Greene, Lobbyist, Nevada District Attorney’s Association, and Washoe County District Attorney’s Office, concurred with Mr. Morrow’s statements.

Nile D. Carson, Jr., Lobbyist, Reno Police Department, said he supports the efforts of the Senate Committee on Judiciary and the Assembly Committee on Judiciary in making sure the language of A.B. 267 is consistent with the existing laws regarding offenses against children.

There being no further testimony, Chairman James closed the hearing on A.B. 267 and opened the hearing on A.B. 616.

C. Joseph Guild, Lobbyist, International Anticounterfeiting Coalition, stated A.B. 616 was brought to the Legislature by the International Anticounterfeiting Coalition to increase penalties for counterfeiting from a misdemeanor to a felony, in certain cases. He pointed out the provisions of A.B. 616 are targeted at the counterfeiters of large dollar amounts and/or counterfeiters with prior convictions. Mr. Guild submitted a packet of information consisting of the International Anticounterfeiting Coalition’s profile, fact sheets, consumer tips, and an article by John S. Bliss, Esq. titled Counterfeiting In the Information Age: A Global Threat to Intellectual Property Protection (Exhibit C).

Senator Wiener questioned the significance of the language "at least 26 salable units" on page 2, line 19 of A.B. 616. Mr. Guild replied he did not think 26 was an absolute fixed number. He said usually a counterfeiter has a large number of items for sale and the International Anticounterfeiting Coalition does not want to get into a situation where a person becomes a felon for having three counterfeited items he may have intended to share with family or friends rather than sell for personal gain. Mr. Guild pointed out in response to the International Anticounterfeiting Coalition’s efforts 22 states have already passed laws making certain crimes involving unauthorized, forged or counterfeit trademark or design violations a felony and five states, including Nevada, are considering passing the same law this year.

Mr. Guild submitted a letter dated March 27, 1999 from Brand Security Corporation (Exhibit D) which he received in support of the bill in anticipation of the Assembly Committee on Judiciary hearing on A.B. 616. Mr. Guild added James F. Nadeau, Lobbyist, Nevada Sheriffs and Chiefs Association, and Washoe County Sheriff’s Office; Stan R. Olsen, Lobbyist, Las Vegas Metropolitan Police Department, and Nevada Sheriffs and Chiefs Association; and Ben Graham, Lobbyist, Clark County District Attorney, had told him he could use their names at this hearing in support of A.B. 616.

Chairman James clarified that a person who wholesales counterfeited baby food to a store is liable, but the store is not criminally liable unless it had actual knowledge the baby food was counterfeited. Mr. Guild replied that Chairman James was correct in that scenario.

Chairman James asked if the language in A.B. 616 "at least 26 salable units of the goods" would qualify a case of merchandise as one salable unit, or if each item contained in the case would be a salable unit. Mr. Guild said he believed a case of 24 items would be considered to be one salable unit.

Chairman James said the presumption factor of the bill caused him the most concern. He pointed out many people buy large quantities of an item for the purpose of saving money. Chairman James explained he would not want there to be a presumption that a person committed a crime because that person bought a large quantity of an item that happened to be counterfeited when the person’s intent was to buy the item at a lower cost, not to resell the item. Mr. Guild stressed in order for the counterfeiting crime to be a felony, there has to be at least 100 units of an item involved, or those units would have to be sold for more than $1,000. Mr. Guild added there also has to be the intent to knowingly sell, display or advertise the counterfeited items in accordance with section 1, subsection 1, of A.B. 616.

Chairman James stated pursuant to section 1, subsection 1 of A.B. 616, the crime is complete if a person has in his possession counterfeited items with the intent to sell.

Senator Care said he would be interested in knowing what criminal laws contain language setting forth possession as deemed to be intent. Senator Care asked Mr. Guild if the language "previous conviction" in A.B. 616 refers to convictions in Nevada or takes into account convictions in other jurisdictions. Mr. Guild said he did not know the answer to Senator Care’s "previous conviction" question.

Mr. Wilkinson interjected the "previous conviction" provision of A.B. 616 specifically refers to a conviction of the provisions of this specific statute. He said he believed this language would be interpreted to apply to convictions of this bill only, since other similar statutes differentiate between convictions in this state or in any other state for conduct that would constitute a violation of this statute. Ms. Greene agreed with Mr. Wilkinson on the "previous conviction" issue.

Stan R. Olsen, Lobbyist, Las Vegas Metropolitan Police Department, and Nevada Sheriffs and Chiefs Association, expressed his support of A.B. 616 and said counterfeiting is a major issue for law enforcement.

There being no further testimony, Chairman James closed the hearing on A.B. 616 and opened the hearing on A.B. 464.

Assemblywoman Vivian L. Freeman, Washoe County Assembly District No. 24, said in a low-income area of Reno there is small park built several years ago by volunteers consisting of people living in the community and since the park was built there have been problems with the sale and use of drugs in the area. She stated the City of Reno has declared the park drug and alcohol free, but that declaration really has not made a difference. Assemblywoman Freeman submitted a copy of a newspaper article outlining the problem of drug trafficking in parks in more detail (Exhibit E).

Mr. Carson said the park Assemblywoman Freeman was speaking of is probably the worst example in the Reno community. He stated the Reno Police Department has gone into this particular park at least twice a year on special enforcement and clean up efforts. He indicated this is not the only park in Reno jeopardizing children with drug use and sales. Mr. Carson stressed the importance of not permitting drug trafficking in areas where children congregate and encouraged the passage of A.B. 464.

Senator Wiener asked if there was a distinguishable difference between the reference to "public park" on page 1, lines 5 and 6 and the reference to "park" on page 1, line 11, of A.B. 464.

Mr. Wilkinson said he believed the reference to "park" on page 1, line 11, of the bill just refers back to the reference to "public park" on page 1, lines 5 and 6, of the bill, so there is not a distinguishable difference between the two references.

There being no further testimony, Chairman James closed the hearing on A.B. 464 and asked for a motion on A.B. 464.

*****

Chairman James said there were a number of policy issues to deal with on A.B. 267. On the issue of a person being convicted of the underlying offense as a predicate to the prosecution of the reporting offense, Chairman James proposed Mr. Morrow’s suggestion of tolling the statute on the reporting offense while the underlying offense is being prosecuted.

Mr. Wilkinson said Chairman James’ proposal would address the statute-of-limitations issue.

Chairman James suggested taking a vote separately on each issue. He asked for a vote to add an amendment back into the bill requiring a conviction of the underlying offense, but would toll the statute of limitations on the reporting offense.

*****

Chairman James said the next matter to discuss was that of the uniform definitions. He said the original statute contained a "reasonable cause to believe" and "as soon as reasonably practicable" standard in the reporting requirement which puts a "reasonable person" standard into the statute.

Mr. Wilkinson said the present standard is a person who knows or has reasonable cause to believe. He stated that phrase had been defined as a "reasonable person" standard. He pointed out it is a different standard which currently exists for the other related reporting statutes. Mr. Wilkinson indicated the original bill made all the reporting statutes consistent and added in definitions of the phrase used in the amended bill, but the definition was taken out. Thus, the original bill contained the "reasonable person" standard and added the new standard of reporting being required when a person knows or has reasonable cause to believe and would require reporting be made as soon as reasonably practicable instead of immediately, but no later than 24 hours, because the standard has been found to be unconstitutionally vague by the Nevada Supreme Court.

Chairman James said the next issue to vote on would be to put back into the statute the definition of "reasonable" as the reasonable person standard, as it appeared in the original bill (page 2, subsections 1 and 2).

*****

Chairman James said the next issue of A.B. 267 to discuss was the good-faith immunity for making a report. He pointed out NRS chapter 432B, the child abuse statute, and NRS chapter 200, the elder abuse statute, includes the good-faith immunity, as did the original A.B. 267. Chairman James stressed it would be problematic to leave out the immunity factor from A.B. 267 as it would make A.B. 267 inconsistent with NRS chapters 432B and 200.

Chairman James asked Mr. Wilkinson to explain to the Senate Committee on Judiciary the making and use of a report. Mr. Wilkinson stated there was a provision in the original A.B. 267 providing if a report was made under the new statute, which could fall under the existing statute in NRS chapter 432B, the report could be deemed for the purposes of NRS chapter 432B. Mr. Wilkinson said this was designed to eliminate any conflict between the two statutes and the report would be handled in the same manner. He said if it were a report of child abuse under the new statute, it would be handled as a report of child abuse under the existing statute.

Chairman James explained he was taking separate votes on the issues under discussion in order to bring back to the Senate Committee on Judiciary an amendment to A.B. 267 for committee review and an amend and do pass motion at a later work session. He said the next item to vote on would be to amend back into A.B. 267 the provision of the person to whom the report is to be made which would also make A.B. 267 consistent with the other related statutes.

Chairman James said another inconsistency with A.B. 267, in its current form, is which privileges apply there and which privileges apply to the reporting requirements under the elder abuse and child abuse statutes.

Mr. Wilkinson stated at present there are only a few privileges provided under the child abuse reporting statute for a clergyman, practitioner of Christian Science, or religious healer if such person acquires the knowledge during a confession, and for an attorney who acquires the knowledge from a client. He said A.B. 267 in its current amended form excludes all privileges, including the privileges not excluded under NRS 432B. Mr. Wilkinson suggested making the privileges provision consistent in A.B. 267 with maintaining the same privileges which exist under NRS chapter 432B.

Chairman James asked if there was a reason for having fewer privileges under A.B. 267 than there is under the other statutes. Senator Care said he was loath to ever see a statutory privilege struck down. Chairman James asked Senator Care if he was in favor of leaving the privileges in A.B. 267, as originally drafted. Senator Care said he was in favor of keeping those privileges in A.B. 267.

Mr. Wilkinson said aside from how far the privileges will be extended, which is a policy issue, there is also the issue of an overlap between the crimes in common in the new reporting statute and in the child abuse reporting statute. Chairman James said it just means a person could not be prosecuted for one and could be prosecuted for the other.

Chairman James pointed out the family exemption had been deleted from the original bill draft and asked Mr. Wilkinson what family members are currently obligated to do about reporting child abuse.

Mr. Wilkinson said he did not believe family members are now currently required to report child abuse. Mr. Wilkinson said he believed the family member exemption was included in the original draft of A.B. 267 because those relatives also could not be charged as accessories for harboring, concealing, or aiding a member of their family. He furthered it seemed incongruous a relative could do this greater crime and not be punished, but be punished for the lesser crime of failing to report what occurred.

Chairman James asked for a vote to amend the family exemption back into A.B. 267.

Senator Care said he believed there were two ways to read section 5 of the reprint of A.B. 267. He said it is one thing to say a person has reasonable cause to believe that another person has committed a crime against a child who is 12 years of age or younger, and it is another thing to say a person has reasonable cause to believe that the crime has been committed against a child who you have reasonable cause to believe is 12 years of age or younger. Senator Care asked how a witness is necessarily going to know the age of a child.

Chairman James stated he was confident the "reasonable cause to believe" standard applies to either way section 5 is read. Mr. Wilkinson agreed with Chairman James.

Chairman James informed the Senate Committee on Judiciary that A.B. 267 in the form voted on at this hearing would be brought back to the committee for further discussion, amendment and a vote on the bill in its entirety. 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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