The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 3:20 p.m., on Saturday, May 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 Dina Titus

Senator Valerie Wiener

Senator Terry Care

GUEST LEGISLATORS PRESENT:

Senator Joseph M. Neal Jr., Clark County Senatorial District No. 4

Assemblyman David E. Goldwater, Clark County Assembly District No. 10

STAFF MEMBERS PRESENT:

Jo Greenslate, Committee Secretary

OTHERS PRESENT:

Assemblyman David E. Goldwater, Clark County Assembly District No. 10, testified A.B. 72 was one of two recommended pieces of legislation brought about from the interim committee to study the regulation of mortgage investments. He stated it was further inspired by the collapse of one of southern Nevada’s largest mortgage investment businesses, the Harley Harmon Mortgage Investment Company. He advised that investors in that company lost in excess of $20 million, most of which has not been recovered. Assemblyman Goldwater stated the losses were mainly due to fraudulent activity by the mortgage company itself and inappropriate statutory and regulatory framework. Continuing, Assemblyman Goldwater remarked during the course of the interim committee hearings, Nevada Secretary of State Dean Heller pointed out to the committee an exemption exists in Nevada’s securities law that exempts mortgage investment companies from securities law. He commented when this was brought to the attention of the committee, the committee suggested A.B. 72, which simply removes the exemption and provides safeguards for the people transacting this type of business.

Dean Heller, Secretary of State, concurred with Assemblyman Goldwater’s statements. He remarked the purpose of A.B. 72 is disclosure. Mr. Heller further commented the purpose of the securities act and the "Blue Sky Law" is to allow the investor to have all necessary information to make an informed decision as to whether or not to invest in a particular product. Disastrous investment decisions have been made in the past due to a lack of information, according to Mr. Heller. Chairman James inquired whether Mr. Heller’s attorney was present. Mr. Heller answered negatively. Chairman James mentioned that federal law appears pretty clear in that a promissory note secured by a lien on real estate is a security. Therefore, under federal law a mortgage company would have to be in compliance with federal securities laws to sell those securities to the public at large. Chairman James asked if mortgage companies were in compliance with federal law when selling these types of securities. Assemblyman Goldwater replied his interpretation of the Securities Exchange Act of 1934 would lead him to believe they would not be subject to that act if they sold only in the State of Nevada. He said that would be an inter/intrastate interpretation, and he was not certain it was correct.

Chairman James asked Kevin Powers the same question.

Kevin C. Powers, Senior Deputy Legislative Counsel, Legal Division, Legislative Counsel Bureau, confirmed Assemblyman Goldwater’s assessment of the federal securities laws was correct. He restated as long as the transactions occur wholly within the State of Nevada they would not be subject to federal securities laws. Chairman James inquired if that would be the case even if they used a telephone or the mail. Mr. Powers replied as long as they were not soliciting money from out of state, they should be exempt under the securities laws, dealing in these types of transactions with notes secured by liens on real property. Chairman James observed this was a loophole. Mr. Powers remarked the case law indicates the U.S. Congress intended to leave regulation of real property issues for the most part to local jurisdictions. Chairman James asked if that would apply even if a person were selling an interest in real property, which would be a security. Mr. Powers said that brought up an interesting situation, because not all mortgages are securities, and not all deeds of trusts are securities. He explained if it was a face-to-face transaction between a lender and a borrower in which they negotiate terms as, for example, a purchaser of a single-family residence and a bank, that deed of trust or mortgage would not be a security. However, if the bank sells the participating interest in the deed of trust or mortgage, then those participating interests would become securities even though the deed of trust itself is not a security. Chairman James pointed out that would be a gaping hole in the disclosure requirements for the sale of a security. Mr. Powers answered affirmatively. Assemblyman Goldwater reiterated it is a gaping hole, and stated the purpose of this legislation is to bridge that gaping hole.

Senator Care asked what was included in the provisions of 17 Code of Federal Regulations (C.F.R.) 230.501 through 508. Mr. Powers explained initially the provisions of A.B. 72 were derived from the Director of Enforcement of the Securities Division, Charles Moore. He said Mr. Moore was basing the C.F.R. Regulation D exemption on an existing exemption in Nevada Revised Statutes (NRS) 90.372 of the securities chapter. Regulation D, according to Mr. Powers, is focused on exempting certain transactions securities that are sold to accredited investors, which are defined in Regulation D to include large institutional investors, such as banks and trust companies that have large holdings and assets. It also applies to two types of individual investors: 1) a natural person whose individual or joint net worth with his or her spouse, at the time of the purchase, exceeds $1 million; and 2) any natural person with an individual income in excess of $200,000 in each of the two most recent years or joint income with his or her spouse in excess of $300,000 in each of the two most recent years and a reasonable expectation of reaching that same level of income in the current year.

Senator Care inquired what the impact to the industry would be by deleting the exemption in section 2, subsection 21, of the bill and not adding the new language in section 3, subsection 1. He said, in other words, there would not be any exemptions in the industry. Assemblyman Goldwater answered, in his opinion, the effect of that would be minimal because removal of the exemption in section 3, subsection 1, paragraph (b), that states, "Any other requirements imposed by the administrator by regulation or order" would unearth a lot of situations that should be exempted. He speculated the secretary of state would draft regulations that would create a whole "family" of exemptions.

Mr. Heller added the exemption in section 2, subsection 21, is a nonuniform exemption. He further stated he knows of no other state that has that particular exemption and no other state that has been unable to transact business due to this particular provision in the securities act. Mr. Heller agreed with Assemblyman Goldwater in that removal of that exemption would have minimal, if any effect on the industry.

Chairman James made the following recommendations if the exemption is eliminated and Regulation D is complied with: 1) changing "may" to "shall" in section 3; and 2) putting a period after "inclusive" in section 3, subsection 1, paragraph (a) and adopting by reference the entire Regulation D, 17 C.F.R. 230.501 to 230.508. He stated the effect would be only to sales of securities to the public. Mr. Heller agreed to Chairman James’ suggested change.

Marty LeVasseur, Chairman, Federal Legislation, Nevada Association of Mortgage Brokers, testified his association opposes A.B. 72, as written, because of the hardship it would put on small mortgage brokers currently using the exemption to provide credit to an industry that is unable to obtain credit from banks and other institutional investors. He stated one reason the exemption was created was to provide an alternative source of credit to the industry builders, homeowners, and people in foreclosure. Mr. LeVasseur added there is enough disclosure in other statutes to negate the need for this to be drafted over into the secretary of state’s jurisdiction. Mr. LeVasseur concluded the Nevada Association of Mortgage Brokers and the industry practitioners see no need for this to go in that direction. Chairman James stated his concern is the lack of specific securities regulation of this particular type of sale. He maintained protection is needed for the nonaccredited investors, and mortgage brokers will still be able to put packages together for sale to accredited investors. Mr. LeVasseur asserted his industry does disclose, and has been disclosing, in the form of appraisals, analyses of income, and analyses of ability to repay. He expressed his concern that there are too few security attorneys to explain to small investors and mortgage brokers how this bill will affect them and how to do the things this bill outlines. Mr. LeVasseur stated he understands Chairman James’ concern about disclosure. He further advised his association would like the advisory committee created by A.B. 64, as the industry citizens advisory committee, to be able to work with the attorney general’s and secretary of state’s offices to be able to further define this question.

Chairman James mentioned the secretary of state needs to be involved, and the way the exemption is written takes the secretary of state out of the process. He asserted A.B. 72 would put the secretary of state back in on a limited basis, because the accredited-investor exception would remain. Mr. LeVasseur commented he has had a problem receiving clear, defined answers for small investors in the business from the secretary of state’s office. Therefore, he stated his association still opposes A.B. 72, and recommends the disclosure requirements and other provisions of A.B. 64 be adopted since they serve the small investor well.

Senator Porter asked if there were problems with A.B. 72 on the Assembly side. Assemblyman Goldwater replied there were two issues. The first was money and additional staff requested by the secretary of state in the original version of the bill. He advised that the secretary of state has since decided additional staff may not be needed. Assemblyman Goldwater said the second issue brought up in the Assembly Committee on Judiciary regarding A.B. 72 was that the Senate amendments to A.B. 64 drastically cut back the protection afforded to investors. It was the opinion of Assembly members and others that if those investor protections were removed from A.B. 64, this exemption definitely needed to be provided in A.B. 72.

Chairman James inquired of Mr. Powers if the proposed changes were made to section 3, subsection 1 of the bill, the changes would also need to be made to section 1, subsection 1, paragraph (a), subparagraph (2). Mr. Powers stated, regarding the changes to section 1, as mentioned above, since this section was enacted, 17 C.F.R. sections 230.507 and 230.508 of Regulation D were enacted. He explained if section 3 is changed, as suggested by Chairman James, section 1 would no longer be necessary.

Robert R. Barengo, Lobbyist, Nevada Consumer Finance Association, pointed out if the committee passes A.B. 72, there needs to be a change to section 3, subsection 1 wherein it says, " . . . by a mortgage company licensed pursuant to chapter 645B of NRS . . . ." He advised assuming A.B. 64 passes, it would change how mortgage companies are licensed. Mr. Barengo asserted it would take a mortgage company, defined as somebody who lends their own money, which are the clients Mr. Barengo represents. Further, he advised there would also be a mortgage broker who would be somebody else and a mortgage agent who would be yet somebody else. Currently, they would all be covered under chapter 645B of NRS, but if A.B. 64 passes, they will be in different chapters. Chairman James pointed out it would not matter whether it was a mortgage broker or a mortgage company as long as they comply with Regulation D. Mr. Barengo affirmed it would not, so the bill needs to allow any of the mortgage types the exemption.

Mr. Wilkinson advised the committee could not change this bill at this point based on a change that might be made in A.B. 64. He explained the committee would have to wait until A.B. 64 is actually enrolled to make a change to A.B. 72. Chairman James asked if there would be a question of the committee’s intent if they say "mortgage company" that they would have to wait until next session to correct. Mr. Wilkinson stated it is something they would want to correct this session. He said they could change A.B. 72 after A.B. 64 is enrolled or change A.B. 64 after A.B. 72 was enrolled if that occurred first, this session.

Senator Washington inquired whether the changes would affect the fiscal note on A.B. 72. Mr. Heller replied the fiscal note has been removed.

There being no further testimony on the bill, Chairman James closed the hearing on A.B. 72. He then opened the hearing on A.B. 287.

Assemblywoman Gene Wines Segerblom, Clark County Assembly District No. 22, testified this bill establishes a preference in the processing of actions related to eminent domain. She continued, saying all proceedings relating to eminent domain would take precedence over all other causes in actions not involving the public interest. Additionally, the bill states the courts must quickly hear and determine such cases. Assemblywoman Segerblom stated the measure also changes the procedure for determining the value of property and the amount of interest imposed in condemnation proceedings relating to eminent domain. She mentioned there were two people with her at the meeting who had researched this topic and originated the bill. Assemblywoman Segerblom turned the witness table over to Laura Fitzsimmons.

Laura Fitzsimmons, Lobbyist, Attorney, remarked she represents landowners throughout the state when their property is taken by eminent domain. She stated this bill was originally much broader in scope. Ms. Fitzsimmons said the bill being discussed currently was the product of first, amendments in the Assembly Committee on Judiciary, and then amendments in the Assembly Committee on Ways and Means. She further advised the proponents and opponents have worked approximately 2 months to draft a bill that would be passed. Ms. Fitzsimmons commented the bill would ensure cases in which the government seizes property get tried quickly, minimizing expense to the government and loss to the landowner. She remarked currently preferential trial settings only apply to condemnation initiated by the Nevada Department of Transportation; this would apply preferential trial settings to all condemnation actions undertaken, no matter who undertakes them. The second section of the bill, according to Ms. Fitzsimmons, goes back to basically what the Nevada law was prior to the 1991 Legislative Session. According to Ms. Fitzsimmons, problems originated between the clear intent of the Legislature and the application of an amendment made in 1991. She said property values are rising in the current real estate market in Nevada, particularly in Las Vegas. Ms. Fitzsimmons explained A.B. 287 says if it takes more than 2 years to commence a trial, and if the court makes a finding the delay was due to the court backlog or was the fault of the government agency taking the land, the landowner will receive a later and higher value for his or her property. She maintained it would encourage courts and the condemnors that are taking the land to move more quickly on condemnation cases. Ms. Fitzsimmons mentioned an amendment in 1991 that took prejudgment interest out of the general statute and put in a much lower interest rate of a 1-year "T" bill. She stated this bill will put landowners of condemned property back in the same position as everyone else in Nevada, which is that they would get prejudgment interest at the prime rate plus 2 percent. Ms. Fitzsimmons maintained that is a higher, fairer interest rate.

Senator Care referred to section 2, subsection 1 (page 2, lines 13-15) that states, "If a new trial is ordered by a court, the date of valuation used in the new trial must be the date of valuation used in the original trial." He inquired if it would not be better if the valuation at the time of the new trial were used. Ms. Fitzsimmons agreed he was correct, and said he focused on the sentence that held the bill drafters up for approximately 6 weeks. She explained this was the result of an agreement reached in order to move the bill out of the Assembly Committee on Ways and Means.

Ivan R Ashleman II, Lobbyist, Clark County, testified this is indeed compromise legislation. He explained the policy reason behind the language is that they have found without that language, it is absolutely useless for governments to appeal at all, because by the time they get the amount back down, the property value has gone up enough that their appeal is useless. He remarked it was Clark County’s opinion this was the most fair thing to do under these circumstances, and that they should try this policy for a while to determine whether it was satisfactory to both sides. Chairman James commented he agreed with Senator Care’s remark. He pointed out if for some reason there was a trial, an appeal, a new trial, and ultimately a judgment in the landowner’s favor, they were merely talking about the value of the property at the time the person actually receives his or her money. Mr. Ashleman noted that by going to the higher rate of interest, they were offsetting, to some degree, Chairman James’ concerns. In Mr. Ashleman’s opinion, the parties have worked hard, reached a compromise, and have arrived at some justice. He urged the committee to leave the bill as it is currently written, or in his opinion, the Assembly Committee on Ways and Means will not pass it.

Lucille Lusk, Lobbyist, Nevada Concerned Citizens, stated she was speaking from the perspective of citizens whose property may be or has been taken. She remarked there have been various instances in which the outcome has not been fair to the citizen. Ms. Lusk said her organization supported this bill in its original form, and that version did more for the citizen. She remarked this bill does not do much, but it does do a little, and her organization continues to support A.B. 287.

There being no further testimony on the bill, Chairman James closed the hearing on A.B. 287. He then opened the hearing on Assembly Joint Resolution (A.J.R.) 6.

Ronald M. Rentner, Lobbyist, Lutheran Advocacy Ministry in Nevada, and Religious Alliance in Nevada, testified his organizations support A.J.R. 6 enthusiastically. He remarked there is a place for punishment, which is built into the society, but he also believes in restoration and rehabilitation, of which the right to vote is an important signal. Mr. Rentner stated he was unsure of how many ex-convicts will make use of the right to vote if it is extended to them. However, in his opinion, it is an important right that many individuals who have made a mistake in their youth come to value once they have matured.

Bree Carlson, Field Organizer, Progressive Leadership Alliance of Nevada, asked that people think critically about the current law before making any decisions. Ms. Carlson advised that Nevada is one of only ten states in the United States that bars felons from voting for the remainder of their lives. She also pointed out that in looking at the current law, the citizens of Nevada should ask themselves if they believe in rehabilitation and if so, why they are disenfranchising people for life. Ms. Carlson also questioned why people are punished in this way without regard to the seriousness of their crime, and why if this is an appropriate way to punish people for felonies, it is not something decided by a judge as part of a criminal sentence. She concluded that as one of the last states to have this law in place, she hopes Nevada is not one of the last states to think about this law and eliminate it.

Mary Wilson, Political Action Chairperson, Reno/Sparks National Association for the Advancement of Colored People, and Advocacy Committee for the League of United Latin American Citizens, testified that both organizations unanimously support A.J.R. 6. She concluded by stating once a felon has completed his sentence, his right to vote should be reinstated.

Assemblyman Wendell P. Williams, Clark County Assembly District No. 6, remarked he was at the hearing to testify in favor of A.J.R. 6. He remarked this bill has nothing to do with being soft on crime, but is something that has already been issued by the judicial system. Assemblyman Williams stated if a person has committed a heinous crime, the person should remain in custody. However, once the judicial system has identified a penalty for a particular crime and the person has served that penalty and paid restitution to society, that person should come back into society. He pointed out once an ex-convict returns to society, he is not denied freedom of speech, freedom to practice religion, he is counted in the census, and pays his taxes. Assemblyman Williams asserted if we believe our incarceration system is based on rehabilitation, the person should be able to return to society. He pointed out if when the person returns to society, he is not allowed to vote, he is being punished not for what he did, but for who he is.

Another problem addressed by Assemblyman Williams is that every state has a different statute regarding this issue. He told of instances in which a person served time for a crime committed in another state and earned his right to vote in that state, and then moved to Nevada and was not allowed to vote. Additionally, Assemblyman Williams said often a crime is considered a gross misdemeanor in one state, and a felony in Nevada. Therefore, a person moving to Nevada is denied his right to vote, after committing a lesser crime and paying restitution in another state. Assemblyman Williams maintained this is a question of human rights rather than restoration of civil rights. He reiterated if a person commits an extremely heinous crime, they should be kept in prison. However, once a criminal is released, he should have his right to vote reinstated. Assemblyman Williams asserted if not, he is not an ex-felon, he is still a felon and is still being punished for things he has done, after paying the penalty the justice system says should free him of his obligation. He mentioned four states that currently allow felons to vote while in prison. The states are Vermont, Massachusetts, Utah, and Rhode Island. Assemblyman Williams told of 14 states that ban ex-convicts from voting for life. The remaining states have different policies. Assemblyman Williams stated that in states that allow ex-convicts to resume voting after they have paid their debt to society, the recidivism rate has been decreasing.

Senator Porter inquired whether Assemblyman Williams had considered the type of crime committed when deliberating about this bill. He mentioned some violent offenders do not become rehabilitated. Assemblyman Williams remarked if a person does not become rehabilitated, he should not be released back into society. However, if a person serves the term the court says will "clean the slate," he should be able to resume voting. Assemblyman Williams suggested, perhaps as a society, we should be looking at increasing the penalties for crimes. He noted the United States is viewed as the country that leads the world in democracy. At the same time, this is the only country in the world that has the punitive policy that does not allow a person to regain the rights he was granted as a human being once he has paid his debt to society. Assemblyman Williams remarked we teach children that once they have done what they need to do to make restitution, they should be able to start over with a clean slate. However, our judicial system does not put that into practice.

Chairman James observed he recognized the spirit in which Assemblyman Williams was bringing this bill before the committee. He pointed out the law says an ex-convict can get his civil rights back, and asked if the people who make that decision are not allowing that to happen. Chairman James stated if the current system were working properly, this bill would not be necessary. Assemblyman Williams maintained the law in Nevada is flawed. He indicated current statute allows a person to apply for reinstatement of his civil rights after 5 years. However, a person applying prior to the Assembly Committee on Judiciary’s hearing of A.J.R. 6, would have received a form letter stating, "An informal rule of thumb is that you should contact us in 10 years." Assemblyman Williams reported he had spoken to Governor Guinn about this matter, and the Governor agreed the system is flawed. Governor Guinn told Assemblyman Williams he would issue information through executive order to try to solve the problem and get the system working properly. Chairman James offered to submit a letter to the Governor from the committee stating the system should work in a discretionary way.

Jan Gilbert, Lobbyist, League of Women Voters of Nevada, and Progressive Leadership Alliance of Nevada (PLAN), stated, unfortunately, many of PLAN’s members were unable to attend. She remarked the first hearing was quite educational, because the people who came forward to talk had been disenfranchised from the system for over 30 years. Many of them had voted in other states for many years before moving to Nevada and then were no longer allowed to vote. Ms. Gilbert submitted a copy of an article titled "Restoring Voting Fairness" by Rachel King, from the June/July 1999 issue of The National Voter (Exhibit C). She quoted several passages from the article. The first was "The U.S. Supreme Court has repeatedly ruled that the right to vote in this country is fundamental." Ms. Gilbert noted it does not say whether a person has committed a crime or not, it is fundamental. Secondly, she quoted a remark from Representative John Conyers from Michigan as follows:

Ms. Gilbert maintained the statistics are "horrifying." One in 50 adults are disenfranchised in this country. Further, she stated 1 million who have completed their criminal sentences are disenfranchised. Ms. Gilbert mentioned that a person who was helping her research this issue before session talked to the head of the Division of Parole and Probation to find out how a person goes about getting his rights reinstated. She said before the hearing in the Assembly Committee on Judiciary, there was nothing in writing regarding the process. Ms. Gilbert reported there are three types of people and three different procedures for having civil rights restored. She remarked the process is so involved, it is not surprising that people do not do it. Ms. Gilbert urged the committee to pass some form of legislation that gets people back into society.

Senator Porter clarified that an ex-convict’s rights could be restored upon release from prison now, but that is not happening. Assemblyman Williams reiterated a problem in Nevada is that the statutes say a person can apply to have his rights reinstated in 5 years, but the letter they receive says 10 years, and the parole board only meets twice a year. He stated he only knows of two people who have had their full rights reinstated in Nevada, and they are prominent Nevadans. Assemblyman Williams asserted it is not something that is easily done.

Benjamin Blinn, Concerned Citizen, testified that 17 years ago, he was a convicted felon. He was arrested for possession of marijuana and lysergic acid diethylamide (LSD). Mr. Blinn reported he served all but 6 weeks of his sentence in a maximum-security penitentiary, where he was the inmate lawyer and schoolteacher. He said once he was restored to a place in society, the attorney general gave an opinion that his crime was not one of moral turpitude, and that he could get his teaching credential restored. Mr. Blinn stated he taught in various rural areas of Nevada. He also indicated he has raised five daughters, all honor students, and one son. Mr. Blinn mentioned it is expensive to put five daughters through school, and he did not have extra money to fight for reinstatement of his civil rights. He addressed Senator Porter’s remarks regarding violent criminals who are not rehabilitated. Mr. Blinn said people who are serving life sentences do not qualify for reinstatement of their right to vote. He asserted this bill addresses those who finish paying their debt to society.

Mr. Blinn remarked last year in Clark County approximately 2,000 people were convicted of felonies for which they will serve less than 24 months. He pointed out in 5 years, they will have to go through the court system once again to have their rights restored. Mr. Blinn mentioned that Michael L. Douglas, District Court Judge, Department 11, Eighth Judicial District, and Charles M. McGee, District Court Judge, Department 2, Second Judicial District, both testified in support of A.J.R. 6, in the original hearing.

Chairman James pointed out this bill would give the right to vote to some people who have committed Category A felonies. Mr. Blinn asked how anybody could do restitution for a Category A felony. Chairman James answered restitution is in every statute. Therefore, if a person has served his sentence, he would be eligible for restoration of his civil rights. Chairman James suggested perhaps a better procedure is needed for handling the restoration of civil rights. He agreed with a lot of what Mr. Blinn said, but remarked he did not know whether they could do a blanket constitutional change because there would be no discretion left in the system. Mr. Blinn advised he was asking the committee to turn the decision over to the will of the people. Chairman James remarked if that was done, it would take 5 years before the people reached a decision. He indicated, alternatively, if a procedure could be agreed upon wherein individuals who should have their rights restored would have that done in a bill next session, time would be saved.

Carlos Concha, Chief, Division of Parole and Probation, Department of Motor Vehicles and Public Safety, referred to a document he had distributed regarding how an offender can receive restoration of his civil rights (Exhibit D). The first category listed on Exhibit D was probationers. Mr. Concha pointed out probationers that have been convicted and then granted probation are able to receive restoration of civil rights after application 6 months after discharge. The next category is that of parolees. He said parolees are able to receive restoration upon discharge of parole if the parole board so wishes. If the parole board does not wish to grant restoration, that parolee can request restoration after 5 years. The next category explained by Mr. Concha is the inmate who is expired from prison, who can apply for restoration of civil rights after 5 years of discharge. Finally, Mr. Concha mentioned the pardons board restoration, which is through the pardons board. The pardons board is comprised of the Governor, the attorney general, and the supreme court justices.

Mr. Concha referred to the letter mentioned by Assemblyman Williams, stating "The rule of thumb was application could be made after 10 years," and said it was a letter issued through the secretary of the pardons board, as a request of that pardons board. He maintained one of the problems discussed earlier in the hearing was that the Division of Parole and Probation did not provide enough information to the inmate, to the parolee probationer, regarding the process of obtaining restoration of civil rights. As a result, Mr. Concha stated Assemblyman Robert (Bob) E. Price, Chairman, Assembly Committee on Constitutional Amendments, in his letter contained in Exhibit D, requested the division provide to every discharged parolee or probationer the process in which they can apply for restoration of civil rights through the division. Mr. Concha explained he provided a directive to all staff directing them provide each parolee or probationer, upon discharge, a document addressing who they have to call, what they need to do, and the specific statutes that apply to them upon discharge or restoration of civil rights. He said he processes and forwards those discharges and restorations through the courts or parole board for the dischargees. Mr. Concha maintained he processes all restoration requests whether received from an attorney or an ex-convict.

Senator Titus inquired whether Mr. Concha has statistics regarding how many ex-convicts have applied for restoration, how many have been granted, and how many have been turned down. Mr. Concha replied prior to last year, his division did not maintain statistics. He informed Senator Titus each region was handling restoration of civil rights. Mr. Concha indicated in the last 6 months, he has brought all those requests into the main office. In the last few months, Mr. Concha indicated he has received eight requests. He said a lot of those have come after the initial hearing on A.J.R. 6. Senator Titus asked if any of the eight have been restored. Mr. Concha stated probably all of them have been restored. He remarked the only time they are not restored is if there is a subsequent arrest after discharge. Senator Titus inquired whether anything could be done to correct the information contained in the letter saying restoration would take 10 years. Mr. Concha replied, to his knowledge, the secretary of the pardons board has withdrawn that letter. Senator Titus asked if there was anything the committee could do to help expedite the process or to make it more fair. Mr. Concha answered the fairness is that he processes the requests for restoration of rights unless there is a subsequent arrest. Senator Titus queried whether the procedure is simple enough to complete without an attorney. Mr. Concha answered affirmatively.

Senator Joseph M. Neal Jr., Clark County Senatorial District No. 4, informed the committee the original bill that was passed in 1973 was his bill, and the intent of that legislation was to have the ex-felon apply for restoration of his civil rights if he had been out for 3 years and had no offense other than a traffic ticket. However, it originally stated in the statute the person had to be out of prison for 10 years before applying. Senator Neal mentioned near the end of the 1970s the length of time was reduced to 5 years. He said the controlling factor in determining whether a person’s civil rights were to be restored were that he had no offense greater than a traffic ticket, and then it was supposed to be automatic. Senator Neal pointed out from what he had heard in the hearing, that process has become so encumbered it is difficult for the individual to apply for his or her civil rights unless he or she is powerful or wealthy.

Senator Titus observed people in the audience from the Governor’s Office, and asked if they would be willing to work to improve the process of regaining civil rights after a prisoner has served time and made restitution.

Pete Ernaut, Chief of Staff, Governor’s Office, testified the Governor and he had discussed this bill early on. He remarked common sense would dictate that whatever time frame this committee and others found appropriate, once a convicted felon served his time and a proper amount of time had elapsed, would have some sort of expedited way in which to restore his civil rights. Mr. Ernaut stated he had discussed this with Assemblyman Williams, and now that this is in the form of a resolution, the Governor’s Office is comfortable with it. Chairman James suggested the Governor look at how the current statute with the 5-year time frame is functioning if this resolution does not pass. Mr. Ernaut agreed.

Ms. Lusk remarked Nevada Concerned Citizens’ concern with A.J.R. 6 is the automatic restoration of civil rights to felons without first having some time out in society to demonstrate their behavior has genuinely changed and they are, and will continue to be, responsible members of society. She stated the principle underlying the current law is that loss of civil rights is part of the natural consequences of the egregious crimes against society that are designated as felonies. It presupposes that the debt to society for that crime is not fully paid until their responsible behavior over a period of time earns the restoration of civil rights. Ms. Lusk commented her organization recognizes there is such a wide range of crimes now designated as felonies that the time required to obtain a restoration of rights should not be the same in all instances. She said what is needed is a case-by-case review and an appropriate decision in each case. Ms. Lusk emphasized there are unquestionably those who have committed felonies who through responsible behavior over a period of time have earned the restoration of civil rights. She asserted these success stories ought to be rewarded with a return of society’s trust.

Ms. Lusk further stated if the process of applying for restoration of civil rights is unreasonably cumbersome, as it apparently has been, that whole process ought to be thoroughly reviewed. The seriousness of the original offense and the person’s subsequent behavior should be considered, in Ms. Lusk’s opinion. She continued, there not only should be no arbitrary tenure rule, but in Ms. Lusk’s understanding, that is an illegal practice by the parole and pardons boards under existing law. However, she maintained, where correction is needed, progress may be made more effectively and quickly through a correction of the process for seeking restoration of rights than through a constitutional amendment. Ms. Lusk indicated it is important to select the right wording when making a constitutional amendment because once it is passed and then passed the second time in the process, it cannot be changed in that process without starting all over. In Ms. Lusk’s opinion, A.J.R. 6 in its current form is not well worded. She suggested there is nothing in Nevada’s Constitution that would preclude the Legislature from dealing with this matter statutorily. Ms. Lusk pointed out it does not even appear to be necessary to make a statutory change, because the law is clear that if certain conditions are met, the parole and pardons boards are supposed to petition the court for restoration of these rights. She remarked all they have the right to do statutorily is determine if the requirements are met. Ms. Lusk stated there are two different situations; one dealing with 6 months for an honorably discharged person, and the other a 5-year period. She asserted there is no circumstance in which, if the person meets the requirements, they should have to wait more than 5 years for restoration of civil rights.

Ms. Lusk noted the law already addresses some things that were apparently not being done prior to the Assembly Committee on Judiciary’s hearing on this bill, and in her opinion, the process of bringing this forward has been tremendously important. She pointed out some of those corrections have already been made internally as the result of the discussion. In Ms. Lusk’s opinion, more corrections to the civil rights restoration process are still needed.

Janine Hansen, Lobbyist, Nevada Eagle Forum, testified in her opinion, it has indeed been a positive process that this was brought forward, and there has been much progress. She stated there has been, and continues to be, injustices in this matter that can be addressed outside of this constitutional amendment. Ms. Hansen stressed the importance of addressing these injustices and said it is an example of "bureaucracy gone amuck." Her concern is that a lot of new felonies laws are being passed, particularly for such issues as campaign finance reform and ethics. In Ms. Hansen’s opinion, such laws violate citizens’ fundamental rights of freedom of speech and trial by jury, and could result in felony convictions. Further, Ms. Hansen is concerned that a constitutional amendment may not get past the people, and, in her opinion, remedy through the Governor or direction from the Legislature is far more assured to accomplish the desired goals.

Chairman James stated several members of the committee recommended a letter be written to the relevant authorities, and said he would entertain a letter on this issue from any member of the committee.

There being no further testimony on the bill, Chairman James closed the hearing on A.J.R. 6. He then opened the hearing on A.B. 688.

Scott Scherer, General Counsel, Governor’s Office, remarked A.B. 688 is a trailer bill that was requested by his office as the result of a concern regarding a previous bill, A.B. 456, that had passed.

Mr. Scherer explained the original intent of the bill sponsor was to prohibit a parent that is convicted of murdering the other parent of the child from getting custody or visitation rights. There was concern expressed by some of the witnesses that there may at times be no other suitable alternative. Mr. Scherer advised the words "best interest of the child" were added back in as the standard for a judge to decide, in A.B. 456, whether a court could award custody to the parent who had been convicted of the first-degree murder of the other parent of the child. Mr. Scherer added "best interest of the child" is the standard for anyone to get custody of a child. Therefore, the bill had the anomaly of causing someone who was merely accused of domestic violence having a tougher standard to meet to gain custody than someone who had been convicted of first-degree murder. He remarked A.B. 688 would create a rebuttable presumption and a series of findings the court would have to make in order to award custody or visitation to the parent who has been convicted of first-degree murder of the other parent of the child.

There being no further testimony on the bill, Chairman James closed the hearing on A.B. 688. He opened a work session with Senate Bill (S.B.) 149.

Chairman James remarked S.B. 149 is the gassing bill that he requested on behalf of the committee during the interim. He stated it creates the crime of gassing and it refuses good-time credits to a person under suspension. Chairman James advised that a $3 million fiscal note was added to the bill. He said he had requested the bill be revised back to refusal of good-time credits if the prisoner was being disciplined for gassing, and was told that would be a $1 million fiscal note. Chairman James commented, ultimately, the Assembly Committee on Ways and Means amended the bill to remove the good-time credit provision. He said it is now back to addressing gassing only, and the bill sponsors are supportive of a concurrence.

Allison Combs, Committee Policy Analyst, Research Division, Legislative Counsel Bureau, explained in the bill there was an exemption for bringing a civil action for victims of certain Internet crimes where the Internet service provider failed to keep an individual’s confidentiality. She added there was an exception to that crime that came out of the attorney general’s office from the original bill, and as it proceeded through, the attorney general’s office was not sure why that exemption was in the bill when they testified before the Assembly Committee on Judiciary. Ms. Combs advised the effect of the amendment is to allow victims of that crime to be able to bring a civil action.

*****

There being no further business to come before the committee, Chairman James adjourned the meeting at 5:13 p.m.

RESPECTFULLY SUBMITTED:

Jo Greenslate,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

DATE: