MINUTES OF THE meeting
of the
ASSEMBLY Committee on Elections, Procedures, and Ethics
Seventy-First Session
May 22, 2001
The Committee on Elections, Procedures, and Ethics was called to order at 4:06 p.m. on Tuesday, May 22, 2001. Vice Chairman Price presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Ms. Chris Giunchigliani, Chairwoman
Mr. Bob Price, Vice Chairman
Mr. Bernie Anderson
Mr. Douglas Bache
Mr. Bob Beers
Mr. Greg Brower
Ms. Barbara Buckley
Mr. Joseph Dini, Jr.
Mr. Lynn Hettrick
Mr. Richard D. Perkins
Ms. Kathy Von Tobel
COMMITTEE MEMBERS EXCUSED:
Assemblywoman Vivian Freeman
GUEST LEGISLATORS PRESENT:
Assemblywoman Sheila Leslie, Washoe Assembly District 27
STAFF MEMBERS PRESENT:
Scott G. Wasserman, Committee Counsel
Michael Stewart, Committee Policy Analyst
Ann M. VanNostrand, Committee Secretary
OTHERS PRESENT:
Carlos Brandenberg, Ph.D., Administrator, Division of Mental Health and Developmental Services, Department of Human Resources
Tom Stephens, P.E., Director, Nevada Department of Transportation
Dr. Jane Foraker-Thompson, Criminologist and Priest, Episcopal Diocese of Nevada
Richard Siegel, President, Civil Liberties Unit – Unity Coalition, American Civil Liberties Union of Nevada
Ronald Morris, Chief Executive Officer, Community Counseling Center, Las Vegas
Bill Mark, Nevada Supreme Court, Law Clerk assigned to Justice Rose, Western Nevada Community College, Professor of Cyberspace Law
Tom Clark, Millennium 3 Venture Group
John Morrow, Washoe County Public Defender
Larry Struve, Advocate for Religious Alliance, representative of the Catholic, Methodist, Presbyterian, and Episcopal Dioceses
David Gibson, Clark County Public Defender
James Jackson, representative for public and private criminal lawyers
Jan Gilbert, Progressive Leadership Alliance of Nevada (PLAN)
Vice Chairman Price called the meeting to order as a subcommittee and opened the hearing on A.C.R. 22.
Assembly Concurrent Resolution 22: Directs Legislative Commission to conduct interim study relating to co-occurring disorders. (BDR R-1167)
Assemblywoman Sheila Leslie, Washoe Assembly District 27, presented her bill verbatim as found in Exhibit C.
Carlos Brandenberg, Administrator, Division of Mental Health and Developmental Services, Department of Human Resources, presented testimony on A.C.R. 22 verbatim as found in Exhibit D.
Ronald Morris, Chief Executive Officer of the Community Counseling Center in Las Vegas, stated last year the facility treated 5,328 individuals. The center was funded by the Bureau of Alcohol and Drug Abuse (BADA) to treat people with substance abuse problems. No monies were received from the Division of Mental Health and yet 75 percent of the patients seen during the past year had some other type of psychiatric disorder besides substance abuse. The problem was accessing resources for their patients. The most outstanding elements happening in the field was that had the Community Counseling Center had become so accustomed to dealing with a lack of resources, it had become a way of life for them. The counseling center found the patients had co-occurring disorders, most of whom were uninsured or poorly insured with huge deductibles to meet, thus they ended up case managing patients by finding some particular type of services with medication needs. As a co-occurring disorders treatment organization having a psychiatrist on staff to prescribe needed medications would be an asset. One of the ways to present the urgency of the issue was by profiling a patient with a co-occurring disorder and to describe how the co-occurring disorder connected with substance abuse.
As typically happened in their agency, a patient was brought into the office and they discovered extreme difficulty in treating him because he had been shuffled through mental health and substance abuse programs throughout the 50 states for approximately 50 years. He was 60 years old and as a child was taken to Auschwitz and suffered from severe Post-traumatic Stress Disorder (PTSD). In his adult lifetime he had actually perpetrated one murder under the auspices of a flashback from his PTSD, for which he had never been treated. During the course of the man’s treatment, the agency pled for medications to manage his anxiety, and also his substance abuse disorder. The patient, at the age of 61, was a successfully treated patient whose primary disorder was mental health with substance abuse. The gentleman was the typical co-occurring disorders patient. Mental health disorders connected with substance abuse disorders included PTSD, anxiety disorders, depression, and other types of mental illnesses. Those people were marginally functional individuals who could sometimes attend work every day, but not unusual for that type of patient to vacillate over into suicidal ideation. Therefore, those in the field of helping such patients had a huge task of trying to treat with no resources. He stressed the study was absolutely necessary, as it would lead to treatment efficiency, and less relapse of both the psychiatric and substance abuse disorders. The agency needed funds and dually trained staff working in the area of co-occurring disorders.
Richard Siegel, President of the Civil Liberties Union of Nevada and representative of a statewide coalition of 25 human services organizations testified. He emphasized that when the 25 organization representatives came together, the common issue and problem consistently discussed was the frustration of the co-occurring situations. Mr. Siegel stated the issue deserved serious attention and support.
With no further testimony, Vice Chairman Price closed the hearing on A.C.R. 22 and opened the hearing on A.C.R. 31.
Assembly Concurrent Resolution 31: Directs Legislative Commission to conduct interim study of issues related to Internet commerce. (BDR R-1530)
Assemblyman Bob Beers, Clark County Assembly District 4, stated a bill regarding this issue was caught up in last minute deadlines so it was returned as an interim study project. Bill Mark, Law Clerk for Justice Rose, and a private sector technology company employee, approached Mr. Beers for introduction of the legislation. Mr. Beers felt Mr. Mark’s idea made a tremendous amount of sense and was worth the committee’s consideration.
Bill Mark introduced himself as a Law Clerk and Western Nevada Community College (WNCC) professor of Business and Cyberspace Law. He stated if one looked at a map of the nation’s communication routes, the first thing noticed was that Reno sat on huge communication arteries that extended east from Silicone Valley. Similarly, down south, Las Vegas, sits on arteries, which extended from Los Angles and San Diego. When paring the phenomena of Reno’s communication infrastructure with Nevada’s business and tax laws, Nevada should be the premier Internet commerce state. But, unfortunately Nevada had not tapped into the full potential of the information technology sphere. In fact, Nevada lagged behind in what was dubbed “the new economy.” Out of fifty states, Nevada ranked forty-ninth in knowledge jobs and thirty-ninth in technological innovation. Recognizing this problem, various government and private groups acted to make Nevada more Internet friendly, i.e., Lt. Governor Hunt and Bob Schriver of the Economic Development Commission, had recently spearheaded an assessment of Nevada’s technological resources. The commission’s number one recommendation was, “To focus the state’s economic development efforts on technology based opportunities. On the private front, native tech companies banned together in collaborative organizations such as the Internet Business Alliance of Nevada (IBAN) in the south, and Tech Alliance of the north. The groups encouraged local entrepreneurs and marketed Nevada’s advantages to companies in other states.” While that was somewhat successful, the time had arrived to coordinate the top leaders from governments and industry to brainstorm and identify the economic and technological logjams that prevented the state from becoming a true Internet commerce magnet. Nevada needed to develop an over-arching strategy to transform Nevada into a digital economy. A.C.R. 31 was the first step to insure that Nevada excelled in the new economy.
Assemblyman Beers stated the envisioned plan was not a typical interim study committee, but a consortium of private and public sector individuals using brain storming to address specific ideas to facilitate the development of significant economic diversification.
Tom Clark, Representing the Millennium 3 Venture Group (M3VG), stated M3VG was the only venture capitalist in Nevada and they liked the study concept. Once the concept was reviewed, the CEO of M3VG requested the legislature somehow make the study work. Millennium 3 Venture Group invested in such companies whether they were located in California or on the borders. The companies they were trying to acquire in California had serious issues with Nevada even though the business tax structure was fantastic and there was some fiber optics, though Nevada lacked education of labor and the workforce. Those issues alone required additional capital for the companies. To have the opportunities to get together with his colleagues in companies that he had either funded, or were prosperous, to hammer out the issues was a unique opportunity that M3VG fully supported. They were anxious to work with the committee and bring back solid recommendations to the legislature to make the economic infrastructure happen.
Chairwoman Giunchigliani closed the hearing on A.C.R. 31 and opened the hearing on A.C.R. 21 as a full committee.
Assembly Concurrent Resolution 21: Directs Legislative Commission to conduct interim study of issues regarding death penalty and related DNA testing. (BDR R-1265)
Assemblyman Bernie Anderson, Washoe County Assembly District 31, presented his interim study verbatim as seen in Exhibits E, F, and G. In part, his testimony called for the Legislative Commission to conduct an interim study of issues regarding the death penalty and related deoxyribonucleic acid testing (DNA) testing. He spoke to say the death penalty touched on a multitude of issues and that, beyond moral arguments, it was apparent the current system was antiquated and failed the citizens of the state. In regard to questions about DNA evidence, he noted there was an alarming possibility that a system filled with error, might wrongly execute an innocent person. Advancements and technology had led to the exoneration of at least nine death row inmates across the nation. He remarked research had indicated 64 percent of all Americans supported a moratorium on capital punishment.
Chairwoman Giunchigliani commended Assemblyman Anderson for his presentation and confirmed that if the study was processed, the additional language (Exhibit F) was to be processed as well. He answered in the affirmative.
Mr. Siegel, President of the ACLU returned to the table supporting the proposal for the study as outlined with the amendment from Assemblyman Anderson. He emphasized that all sides of the discussion had agreed they did not have all the answers. The Attorney General’s Office had undertaken studies of its own in counterpoint to the University of Columbia studies that left some debate and discussion about the points in the Columbia studies. That study focused on the error rate in death penalty trials as well as discrimination issues. The discrimination issues needed to be resolved as there was much misunderstanding about the subject. He emphasized there was a great deal of misunderstanding with regard to discrimination. It was vitally important that the race of the victim be included in all discussions. The evidence from a Georgia case that went to the United States Supreme Court was that the race of the victim was a much more telling element of discrimination than the race of the perpetrator. If a black man killed a black man, nationally he was not as likely to go prison as a black man who killed a white person.
Mr. Siegel did not know how the victim study would come out in Nevada, and he was not aware that anyone in Nevada had looked at the race of the victim. In southern states, there was a five to one ratio that the death penalty was charged, depending on whether the victim was white or non-white. He believed that was the most informative finding in a study of this type. He did not expect the four or five to one ratio, but he wanted very much to see the results of such a survey.
Initially the discussions centered on the race of the perpetrator, and debate was much easier to counter when looking at it according to the actual number of murders and a variety of other types of evidence. But, it was much more difficult to counter the race of the perpetrator element. The other thing he wanted to say in support of all of Assemblyman Anderson’s testimony was Jim Richardson, who was responsible for the Center for Justice Studies at the University of Nevada Reno (UNR), and a founder of that program, and Ron Dillahay, who had testified in various committees and was a nationally recognized expert on the death penalty and the Center for Justice Studies, would both be interested in participating in such an interim study. He also would like to be personally involved though he understood he was an advocate and partisan in the debate. He was something of an expert on the death penalty and would like to suggest to the committee some areas that were more appropriate to review than others.
Chairwoman Giunchigliani had not realized the issue of the victim’s race had not been reviewed and the possible impact it could have.
Dr. Jane Foraker-Thompson introduced herself as a criminologist and Episcopal Priest. She was a criminologist first and spent the first half of her career in that field and the second half as a professor. She seconded all of the testimony given by both Assemblyman Anderson and Mr. Siegel. She stated she represented the Religious Alliance of Nevada (RAIN) and the Episcopal Diocese of Nevada, and both bodies were against the death penalty for any reason. Her associates were very pleased to see the legislature propose three different bills this session, even though all had hit difficulty. It pleased the clergy to watch the legislators listening in the various committees and the moral courage of those who carried forward A.B. 353 and S.B. 254, but the clergy was saddened that they had been defeated. They continued to favor the moratorium and wanted to see it resurrected. She stated the churches of RAIN, who represented several hundred thousand voters in Nevada, considered the use of the death penalty unchristian. It was against the teachings of Jesus as well as being immoral and diminishing to the state to use such a punishment. But, if there was going to be the use of the death penalty, as a criminologist she urged certain standards be used if it was to be employed. One of the standards was deoxyribonucleic acid testing (DNA) in all cases where that type of evidence existed, as it did not exist automatically in every case. It was available; it was something that was objective, and accurate. It could give a real “clue” as to whether or not the right person had been detained.
She went on to say another area of concern was the racial bias issue. Reverend Thompson had received in the mail a study from the U.S. Justice Department that profiled the racial bias in the criminal justice system. She emphasized it was totally outrageous and appalling. If the death penalty was going to be used, as a just society, it must be done justly and based not on bias, discriminatory practices, or racial profiling, but on pure information that could not be refuted. She stated the race of the victim was pertinent. If the victim was white and the perpetrator a person of color, they were very much apt to get the death penalty. If the victim was a person of color, the perpetrator was less apt to be given the death penalty regardless of the color or admission of the perpetrator, a fact known for several decades. The system unfortunately had a bias role worked into it.
Reverend Thompson had been a victims’ advocate for 24 years and worked with victims personally as a facilitator of healing groups and taught the subject of victims of crime. Most victims did not want a death penalty though there were heinous cases where there was an outcry for the death penalty, one being the Timothy McVeigh case. She stated if one was going to use the death penalty; that seemed an obvious place for its use. Basically, most victims wanted justice and to be secure from the perpetrator. When expressed from people in the law enforcement field, an area she had worked in, as well as in the Criminal Justice Department, the attitude and mindset was very narrow. She mentioned the “Thin Blue Line” and the studies on the narrow viewpoint that law enforcement had in general. They did not see the world as the rest of the population did, but through the very narrow area in which they worked. A study by experts looking at all of the data was imperative if “we were to call ourselves a just and fair society.”
Washoe County Public Defender, John Morrow, was in support of the death penalty although he was a defense attorney. He stated the things discussed by Assemblyman Anderson in his preamble caused him to question if it was right or not. The system did have problems as pointed out through the Innocence Projects and the examples of DNA exoneration. Throughout all the studies debated during this legislative session, no one had said anything about Nevada. He thought the interim study should be conducted on an intellectual as opposed to an emotional level. Every hearing on death penalty bills had degenerated into proponent and opponent shouting matches. He hoped the study committee could look at it through the eyes of a detached panel that focused on doing the right thing, whether it be retaining, modifying the procedures, or abolishing the death penalty.
Chairwoman Giunchigliani acknowledged the amendments that were compared to Senator James’ bill, which were discussed in committee, and suggested that committee members should stay focused on the outline of A.C.R. 21 while trying to avoid emotionalism.
Larry Struve, advocate for the Religious Alliance in Nevada (RAIN) who supported S.B. 254, focused on the need for a study. He reiterated his testimony before the Senate Judiciary Committee. The Religious Alliance of Nevada represented the Catholic Dioceses of Las Vegas and Reno, Lutheran, Presbyterian, Methodist, and Episcopal Churches. What united all five of the judicatories was that, at the national level those church bodies had done extensive studies of the death penalty and they all five came out with positions in opposition. It seemed that on behalf of the residents of Nevada who were members of those churches, and, who were obviously struggling with the issue, it would be very fair to have the study. In light of what had occurred during the legislative session, a careful look at the death penalty was needed to see if it was being administered properly and whether Nevada needed to make any changes. He suspected that many in the RAIN Alliance who testified in connection with the bills would like to participate in some appropriate way if such a study were authorized. On behalf of the RAIN board, he echoed Reverend Thompson’s testimony and urged adoption of the A.C.R. 21 interim study as one of the three to be held during the interim.
David Gibson, Clark County Public Defender, stated it was difficult to find people who stood apart from the issue. If the study went through, people would be polarized, though he felt the study a good idea to provide information to review and understand. As a practitioner, in preparing for a death penalty case, all the issues brought up were previously thought about when he prepared and gave a client an assessment of what their chances were. He hoped that through any study done, someone with working experience of the process itself from the defense perspective was included. Generally speaking things were done by those representatives of the defense bar that had little experience. He felt the committee needed to have someone on it that understood the process. He also felt the race of the victim was a huge factor but other competing factors should be included such as the socioeconomic considerations of the victim, defendant, and the jury’s perspective. He was in favor of the proposed study.
Assemblyman Hettrick stated he heard the major comment added to the bill was the need to study race and outlined the steps of the study as he viewed the issues:
1. The first resolve was to study the costs;
2. The number of persons executed compared to the number sentenced. Simply, 86 were sentenced to death and only eight had been executed during the past ten years;
3. Cost of DNA testing throughout the nation, a subject that could be handled by research with the current policies presented within ten minutes;
4. The use and storing of DNA information was a ten minute presentation by experts on the subject; and
5. Post conviction DNA testing and criteria for request by prisoners and procedures for handling, if any at all, would not take much of a study.
When all was said and done, what was being asked for was the emotional arguments of who was for and against, though the racial question would provide very interesting results. Whether liked or not, what Assemblyman Hettrick saw were questions which could be answered by research in an hour’s time. He did not disagree with the study, and made it clear he was a proponent of the death penalty, but did not see in the bill information that was different from what everyone presently knew, yet still ended up in the same polarized position. He wanted to see something in the study that would provide more information than proposed in the bill or had not been covered before, yet he did not know how to get to that area.
James Jackson, Criminal Lawyers and Nevada Attorney’s representative, noted the bill did say “without limitations.” The study also needed to look at the whole procedure of the trial, prosecution, defense, training, and education of judges in the handling of death penalty cases. It was one thing to go from practice to the bench and start handling a death penalty case, but having tried one of the cases and defended those facing the death penalty not only in trial, but also on appeal, plus having witnessed an execution, the death penalty was an issue that needed to be looked at. He agreed there was more “meat on the bone” than might be seen in the bill, but he hoped the language “without limitations” allowed the committee to look at any issue they felt relevant to the death penalty.
Mr. Jackson did agree with Assemblyman Hettrick and Mr. Gibson in that there was no way to extract all of the emotion out of the issue. It was an impossible human process involving tragic loss of lives and an attempt by the state to take the life of someone else. There was no way to remove the emotion. Hopefully there would be knowledgeable legislators and dedicated attorneys and experts on both sides of the issues that would come together and set aside that emotion for the two or three meetings in which the subject was discussed. He encouraged passage and adoption of A.C.R. 21. Having heard all of the death penalty hearings as had Mr. Gibson and Ms. Gilbert; he had not heard opposition to a study of the death penalty, particularly within the moratorium bill. He thought the feeling was pretty much universal that a study was needed.
Chairwoman Giunchigliani asked if a study was considered, should the committee deal with the expertise of the attorneys and judges as well as pondering the situation itself. She did not see interaction in that aspect within the language of the bill.
Mr. Jackson stated an article in the Washoe County Bar Journal suggested a 23- to 27-percent error rate was tolerable in death penalty cases because of incompetent counsel and mistakes made by judges or prosecutors. He stated that was a horrible result and a rebuttal article by Pat Flanagan suggested the same. He thought if that issue was addressed with resolution, they would, if the death penalty process was kept, have improved the system overall.
Jan Gilbert of the Progressive Leadership Alliance of Nevada (PLAN) strongly urged the bill as one of the three interim studies held by the Assembly. Dr. Siegel suggested the cost figures in Nevada might be more difficult to find than just within a research project in the short time suggested by Assemblyman Hettrick. Also, the appeals process was quite difficult and lengthy, and that might be looked at as well. Many members of the coalition wanted to be present but they were unable to appear.
Chairwoman Giunchigliani stated a decision would not be made during the present meeting. She stated she signed on to A.C.R. 21 as well as the study for the moratorium. She thought the study, regardless of the emotional side, could be part of the legislative policy procedure, as well as educating the legislators and the public. It was a very timely process to find out if what was being done was right, wrong, or otherwise. If maintaining the death penalty, the problems within the process needed to be discovered. It was not a foregone conclusion, but a proposal would be resolved to recommend back to the 2003 Legislature. An interim study done statewide, with the public watching throughout the process was better than a law being developed behind the walls of the legislative building in Carson City. She then closed the hearing on A.C.R. 21 and opened the hearing on S.B. 56.
Senate Bill 56: Creates legislative oversight committee on transportation.
(BDR 17-68)
Senator Carlton introduced the concept to the committee though it was Senator O’Donnell’s bill. Chairwoman Giunchigliani asked Tom Stephens, Director, Nevada Department of Transportation, to walk through the intent of the bill. She stated the bill was referred concurrently to the Assembly Committee on Elections, Procedures, and Ethics and the Committee on Transportation, though it never went to the Committee on Transportation.
Mr. Stephens was opposed to the bill and his verbatim testimony was found in Exhibit H. His concerns were summarized as follows:
He closed by stating any citizen in the state could log onto the NDOT Web site and learn all they needed to know about what the department was doing.
Chairwoman Giunchigliani referenced S.B. 415 introduced by Senator Titus. Mr. Stephens stated that was a bill that audited projects. He testified against S.B. 415 based on the cost, stating it was not as adamant an opposition as with S.B. 56. He stated he did not want to appear to be hiding anything and thought it funny they wanted to assign a special, permanent oversight committee. Chairwoman Giunchigliani noted she had a long standing problem with all of the statutory standing committees, though she was not sure where she stood on the bill in question. She did show concern about the comments on page 3(b) where it said, “The chairman of the committee, upon the recommendation, may issue subpoenas.” She asked what the subpoenas would be issued for.
Mr. Stephens had no idea, because anyone who wanted to look into any of the NDOT records was more than welcome to come look. He was not in the business to play “hide the ball” and never had been. Chairwoman Giunchigliani asked who currently sat on the State Transportation Board. Mr. Stephens answered the Governor, Lieutenant Governor, Controller, Attorney General, and three appointed members inclusive of a former contractor, who was a city councilman in Reno, a Catholic priest from Las Vegas who proposed land and construction projects for the diocese, and a banker from Elko County. She asked for confirmation that Nevada Revised Statutes, Chapter 408, dealt with the board. He confirmed. She asked if there was any delineation of expertise regarding the Public Works Board or others. Mr. Stephens stated yes, though he did not have the information with him. Chairwoman Giunchigliani stated she did not readily know to the number of the non-audit bill. Mr. Stephens stated there were two bills, the one they were speaking about and S.B. 415, which covered the audit on projects and right-of-ways. Because of problems with the right-of-ways, NDOT had added staff. The Chair noted there was a resolution coming to look at how to work with NDOT around the state on minority and female hiring, but that was a positive step to be more proactive. Mr. Stephens commented that if something was found in the audit, a committee should be created as proposed in the bill, but felt this bill was premature. The Chair took his testimony under advisement and closed the hearing on S.B. 56.
Having neither questions nor further business to discuss, the meeting was adjourned at 5:25 p.m.
RESPECTFULLY SUBMITTED:
Kelly Minton, for
Ann VanNostrand
Committee Secretary
APPROVED BY:
Assemblywoman Chris Giunchigliani, Chairwoman
DATE: