MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
April 18, 2001
The Committee on Judiciarywas called to order at 8:02 a.m. on Wednesday, April 18, 2001. Chairman Bernie Anderson 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:
Mr. Bernie Anderson, Chairman
Mr. Mark Manendo, Vice Chairman
Mr. Greg Brower
Ms. Barbara Buckley
Mr. John Carpenter
Mr. Jerry Claborn
Mr. Tom Collins
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Kathy McClain
Mr. Dennis Nolan
Mr. John Oceguera
Ms. Genie Ohrenschall
COMMITTEE MEMBERS ABSENT:
Mrs. Sharron Angle (Excused)
GUEST LEGISLATORS PRESENT:
Senator Valerie Wiener, Clark County Senatorial District 3
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Cindy Clampitt, Committee Secretary
OTHERS PRESENT:
Ms. May Shelton, Washoe County
Ms. Gemma Greene Waldron, Washoe County District Attorney’s Office
Ms. Susan Meuschke, Nevada Network Against Domestic Violence
Mr. Robert Crowell, Nevada Judges’ Association
Judge Bill Rogers, Dayton Township
Ms. Madelyn Shipman, Washoe County District Attorney’s Office
Mr. Paul Lipparelli, Washoe County District Attorney
Chairman Anderson made opening remarks and provided an overview of the status of bills still in committee.
Chairman Anderson stated 121 bills had been referred to the Assembly Judiciary Committee to date. The committee had approved 83 bills, 6 had been killed, and 32 were heard with no final action. There had been 27 Senate bills referred to the committee to date.
Staff had provided a ready-reference document for committee members listing each specific bill and their action or status.
Chairman Anderson opened the hearing on S.B. 87.
Senate Bill 87: Enacts provisions pertaining to child affected by battery, which constitutes domestic violence. (BDR 15-854)
Senator Valerie Wiener, Clark County Senatorial District 3, requested support of the bill that provided for the courts to order assessment, evaluation, or counseling for a minor impacted adversely by the commission of domestic violence.
Senator Wiener explained the bill was a product of many meetings with stakeholders who contributed wisdom and experience to development of the legislation. She stressed the bill was a starter bill that would offer assistance to affected juveniles.
Section 6 of the bill contained substantial enabling language and other qualifiers to the bill. She read that portion of the bill:
If it appears from information presented to the court that a child under the age of 18 years may need counseling as a result of the commission of a battery, which constitutes domestic violence pursuant to NRS 33.018, the court may refer the child to an agency, which provides protective services.
If the court refers a child to an agency that provides protective services, the court shall require the person convicted of the battery, which constitutes domestic violence, to reimburse the agency for the cost of those services.
Senator Wiener stated S.B. 87 also included reference to Nevada Revised Statutes (NRS) 217.160 related to victims in Section 2, subsection 4. Language was added for minors who might need an assessment, evaluation, or counseling due to emotional trauma as a result of a battery constituting domestic violence.
The new language would allow minors to qualify as victims and receive appropriate assistance. Section 3 provided language for court referrals. Senator Wiener explained once an agency for protective services received a court referral, the bill provided the agency with “may” conduct an assessment. If a psychological evaluation or counseling was needed, the agency “may” conduct the counseling or refer the juvenile to a qualified person with whom the agency had a contract.
Senator Wiener concluded the intent of the bill was to assist juvenile victims of domestic violence and perhaps keep them from becoming a part of the cycle of violence as they grew older. Chairman Anderson restated the intent of the bill was that violence did not become a learned behavior that would be mimicked because it was observed or because the children, themselves, had been battered.
Assemblywoman Buckley stated she supported Section 2 of the bill, but had concerns about the other sections in the bill. She agreed with the intent of the bill, but she was not sure the best way to provide that assistance was to place the juvenile in child protective services. She explained the system was overwhelmed in trying to meet the needs of existing services.
Ms. Buckley stressed the state was not even providing treatment for 30 percent of the children with severe emotional disturbances in child protective services because of lack of resources. She suggested the children addressed under the bill should be directed to a system with more resources to provide for their needs as soon as possible. She asked if those issues had been discussed in the Senate. Senator Wiener explained some of the discussions included whether the children should go to the court system first or whether the courts had the mechanism to send the children to child protective services. Agreement had been reached so that the bill could be passed with enabling and permissive language as a starter bill. She explained one significant provision was that there had to be a conviction for domestic violence to trigger other provisions of the bill. That would narrow the focus of how many children would qualify for the provisions in S.B. 87.
Ms. Buckley asked if the Senate had considered allowing the court to order the batterer to pay for counseling of the child without going through child protective services. Senator Wiener replied the Senate had focused on working through the child protective service system.
Assemblywoman Ohrenschall commended the sponsors of the bill for the attempt at stopping the cycle of domestic violence. It was a good starter piece of legislation. She suggested an amendment to allow alternative placement if such was available. Senator Wiener referred to Section 3, which allowed protective services to refer the child to another contracted provider if they chose.
Assemblyman Carpenter stated he liked the bill as it had been introduced prior to amendments. He assumed that the court should be able to order whatever counseling services were needed. Senator Wiener stated one concern voiced by southern Nevada representatives had been that because a child did not have to be present in the home when an arrest occurred to be identified as a victim, it had been felt it was important to determine, case by case, whether or not the particular child was impacted enough for counseling.
Ms. May Shelton, representing Washoe County, stated the county had worked with Senator Wiener in crafting the bill. There had been consideration of the possible impact on the child protective services agencies. The county was already getting referrals from law enforcement, the courts, and other resources of children in just such situations. Out of 6,159 reports in FY2000, 218 referrals were received that cited domestic violence in the home and the county had investigated 132 of those. The protective service agency’s responsibility was to abused and neglected children, so if those elements were not present, the agency would receive the complaint and might provide services that were voluntary or they might refer the child to other agencies for services.
Ms. Shelton said Washoe County Protective Services did pay for psychological evaluations, therapy, and other services. She stressed the cases could be tracked but she did not feel it would have a large impact on the agency.
Chairman Anderson asked if Ms. Shelton viewed the requirements of the bill as a burdensome task to an already overworked agency. Ms. Shelton stated no, because the agency’s responsibility had not changed. They would still investigate reports of child abuse or neglect. Referrals to another agency in the community might cost slightly more.
Ms. Buckley gave an example of a woman with a child who went through the court, which prosecuted the batterer, and the mother wanted to arrange for counseling at her convenience for the child. Ms. Buckley asked if there was any discussion of concern for the mother who might want to pay for services through her insurance or had a job and couldn’t attend counseling at the times required to seek assistance through the child protective services agency. Ms. Shelton stated that had been discussed. To the extent it was possible, families should be kept out of “the system” because of its stigmatization and expense to the taxpayer. The Washoe County agency did a broad family assessment and if domestic violence was one of the issues, it would be addressed in the case plan. The mother might pay for services if she was able, but cost might be one reason she was unable to protect her children. If children were not considered at risk, then no other agency was case-managing that family unit. That was one reason it was felt child protective services should be involved. Another reason was because the court might be able to order the perpetrator to an action, but it could not order any organization in the community to provide services for the victim.
Mr. Carpenter asked if S.B. 87 was written so that a judge was required to refer the child to the agency, or could the court make other types of assignments to services. Ms. Shelton replied Section 1, subsection 6, stated the court could refer to the child protection agency, but the court could also refer to any agency it deemed appropriate. She opined, the bill did not preclude the judge from doing that.
Ms. Gemma Greene Waldron, Washoe County District Attorney’s Office, replied Section 1, paragraph 6, was written with permissive language so that the judge might refer the child to child protective services and did not preclude him from having other options.
Ms. Waldron stated Section 2 allowed district attorney offices to make referrals also through the Victims of Crime Fund. She noted sometimes the district attorney’s office staff saw things a judge might not see.
Mr. Carpenter stated the current version of the bill would more than likely just pass the children on to child protective services and he was not very comfortable with that.
Ms. Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence, provided written testimony (Exhibit C). Ms. Meuschke testified that between 3.3 million and 10 million children in the United States lived in homes where domestic violence was present. During 1999 in Nevada, children were reported present in 38 percent of the 17,961 incidents to which law enforcement responded. She explained, while there was indeed much debate about the impact on a child who witnessed violence at home, there was some form of impact. Some children turned it outward in acts of violence against others and other children turned it inward in acts of self-mutilation, substance abuse, and suicide. Still others used their experiences to change the world through becoming law enforcement officers, social workers, advocates, or legislators.
She stated S.B. 87 provided two more avenues to identify and provide help for children who witnessed violence. (1) It asked that in cases where judges had such concerns, to refer the children to child welfare agencies for assessment and counseling. (2) The second section changed the victim’s compensation statute to allow the compensation funds to be used for counseling of such children.
Ms. Meuschke noted the second provision was critical to address those children who would never go before a judge or rise to the level of intervention by child protective services.
Assemblywoman Koivisto asked what currently happened to such children. Ms. Meuschke replied it depended whether the mother had resources to seek counseling and identified that the children needed counseling. If not, very little help was likely. She added that there were a few programs in the state that provided services to children. She added child counseling was a very specialized skill. That was one reason in early bill draft discussions the bill was written for children to be ordered to child protective services that had those skills or to other resources who did.
Assemblywoman McClain stated she wholeheartedly supported the bill because the whole cycle of violence needed to be broken and just throwing one person in jail could not do it. The state needed to know disposition of cases and whether children were receiving the help they needed.
Chairman Anderson closed the hearing on S.B. 87 without any action.
The Chair opened the hearing on S.B. 182.
Senate Bill 182: Removes authority for private person to take arrested person before nearest magistrate following arrest. (BDR 14-527)
Mr. Robert Crowell, representing the Nevada Judges’ Association, introduced Judge Bill Rogers of the Dayton Township.
Mr. Crowell supplied the history of the bill. S.B. 182 was passed unanimously and without opposition in the Senate. Section 2 was the heart of the bill. It eliminated a private person from making an arrest and bringing the person to a magistrate. The bill would require if a private citizen made an arrest, they were required to bring that person to law enforcement and law enforcement was to promptly deliver the arrested person to a magistrate for disposition.
The amendment in the Senate ensured that if an arrested person was taken to law enforcement, they would be promptly delivered to a magistrate as was done in an arrest by a public agency.
Judge Rogers stated the law, as it was currently written, allowed a private citizen to arrest someone and take them to the nearest magistrate or judge. He noted the problem was the existing law had been in effect for well over 100 years and conceptually, if one neighbor arrested another neighbor at gunpoint they could drag them to the home of the magistrate to “do something with.”
Judge Rogers explained judges were not equipped in their everyday lives to deal with people who were arrested. Judges tried people. The objective of the bill was to change the law to say if a private citizen made an arrest, they were to take that person to law enforcement first.
Other provisions in the law required any arrested person, whether by law enforcement or private parties to go before a judge in an expedited fashion. Nevada law required a hearing within 72 hours for anyone in custody. A federal requirement stated the hearing must be held within 48 hours.
Judge Rogers said S.B. 182 would take judges out of a custodial position of physically dealing with a person delivered to them by someone other than law enforcement. He noted in the 1800s magistrates set up camps and people were dragged in front of the magistrate to immediately hear the issue.
Mr. Crowell stated Ms. Shipman, from the Washoe County District Attorney’s Office, would be proposing an amendment and the sponsors of the bill had no objection to the amendment.
Mr. Carpenter noted the bill stated the peace officer must take the arrested person without unnecessary delay to the nearest available magistrate. He stated he thought in reality, a person was arrested, and made bail. He did not think the person went before a magistrate without a few other steps being followed. Judge Rogers replied that was correct in “normal” practice. The unnecessary delay language in the bill was the same language used under normal arrest conditions requiring an appearance within 48 hours. If a person made bail, they were released immediately. He noted the justice court judges rotated within counties so that they reviewed cases, even on weekends. He suggested 48 hours was the norm and if nothing had happened within 72 hours something would be done. As a very practical matter, beyond the rights of the people, if people were placed in jail and left there, the counties would go broke paying for jails. A fiscal and a constitutional issue was involved.
Assemblyman Collins asked if the normal situation was that a citizen made an arrest at gunpoint, and took the person to law enforcement. He asked if the officer still had the option of issuing a misdemeanor citation or whether the person had to be taken to the magistrate to be incarcerated. Mr. Crowell stated it depended on whether an officer could issue a misdemeanor citation without the crime having been committed in his presence. He opined an officer could, unless the offense was a felony. He would provide the answer to the committee.
Ms. Madelyn Shipman, representing the Washoe County District Attorney’s Office, introduced Mr. Paul Lipparelli, Washoe County Deputy District Attorney. Ms. Shipman stated Mr. Lipparelli had approached her the day before the hearing to request she watch for a piece of legislation that might be friendly to a certain amendment for clarification of law.
Ms. Shipman provided the committee with a proposed written amendment (Exhibit D) and noted if the amendment was not accepted, the bill should be sent forward without amendment.
Mr. Lipparelli described the amendment. He stated Judge Rogers had noted the proposed change in the private citizen arrest process. The amendment addressed another step in that process. He explained there was a potential for confusion between the current statutes that stated the district attorney was the prosecuting agent and had the responsibility of prosecution.
The amendment would address NRS 171.102 that could be construed to allow private citizens to file criminal complaints. It had happened in his and other jurisdictions. It was not an attempt to change the statutes dealing with arrest. The amendment might need further clarification in bill drafting to ensure it was not construed to affect the right of a private citizen to make an arrest.
Mr. Lipparelli explained his concern regarded that of a private citizen going to the courthouse and attempting to initiate a criminal action by filing a complaint. He gave examples. A private citizen went to the courthouse and filed a complaint for embezzlement against his son for stealing money out of the cookie jar; the private citizen went to the courthouse and attempted to file a complaint against his ex-wife because she walked across his lawn; or the private citizen was a political activist and tried to file a complaint against a public body for open meeting law violations.
The concern was that once the complaint was filed it set in motion a whole series of actions that public officials must adhere to. The district attorney must review the complaint and determine whether it had merit. An investigation might need to be done. Two reported cases illustrated the problems created by the proscribed procedures.
The Eissman case in Pennsylvania involved a citizen who filed a complaint against members of a public body because he disagreed with their hiring of a code enforcement officer, and using a statute similar to NRS 171.102 filed a complaint that was ultimately dismissed by the court because there was no merit. The next year, the Pennsylvania Legislature repealed that statute.
The 1992 Miller case in Nevada involved a relationship that broke down between a man and a woman. The woman had possession of the man’s money and would not give it back to him. He went to the courthouse and filed a criminal complaint for embezzlement, which resulted in the issuance of an arrest warrant, a trial, and an acquittal. Then the woman sued the man for malicious prosecution for initiating the criminal action.
The amendment would be in line with the original intent of the bill, that of cleaning up certain statutes.
Ms. Shipman referred to Exhibit D where the word “except” was inserted because she had not had time to insert additional language. The full text of the language should read, “Except as otherwise provided in NRS 171.177 through the end of the citation authority and must be filed only by . . . .“ It would not affect the citizen arrest process or the citation authority of other designated or authorized persons to issue citations.
Chairman Anderson stated the amendment broached two sensitive areas, including those of open meeting law questions and how the citizen felt the opening meeting law was violated, or a public body that had not followed proper notification or with whom they had serious questions.
The second question was that of the statutory ability in impacting a legislator’s ability to utilize statutes of NRS 218.5345 concerning truthful testimony. The Chair asked if the amendment would require a legislative or other public body to raise the standard so a district attorney would become the gatekeeper to the legal process. Mr. Lipparelli replied no, the amendment was not being amended into the statute concerning open meeting laws. He explained the Attorney General vigorously investigated and prosecuted violations of the open meeting law. The amendment would still allow citizens to complain to the Attorney General that a violation had occurred. It was not the intent of the amendment to affect NRS 218.5345. The intent was to address a situation where a private citizen appeared at a courthouse and tried to file a criminal case. He had used the open meeting law as an example because there were people who were very zealous in their opposition to public bodies.
Chairman Anderson noted the provision described was under current statute and such cases rarely took place. Mr. Lipparelli replied the concern arose out of the fact that different judges within the state were viewing the referenced statute differently.
Ms. Buckley noted citizens’ arrests were not used often, but were provided in law for a reason. She expressed concern that citizens’ arrests might be deleted through the legislation. Ms. Shipman stated citizens’ arrests were not being deleted and that was the reason for the exception clause in the amendment she had provided orally earlier. She explained the provisions were part of the citation authority in NRS 171.177 through NRS 171.1779. The citizen arrest portion of that was clearly present. The citizen could arrest a person and take the person to a law enforcement officer and the law enforcement officer, if the officer had reasonable belief that the actions had occurred, could move forward with either a citation or arrest. The only opportunity to go directly to the judges was the portion that S.B. 182 was attempting to correct.
Ms. Buckley stated, as a practical matter, if the citizen had to locate a peace officer to turn the arrested person over to and the action was not committed in front of law enforcement, it caused a whole different set of issues. Ms. Shipman stated she did not agree because many times persons had observed behavior that constituted criminal behavior and then used a cell phone to call law enforcement to the scene. She added the citizen arrest process consisted of the citizen explaining what the circumstances were or what they saw and the warrant was signed by the citizen. If the officer believed there was reasonable cause for arrest, it constituted the elements of a crime.
Mr. Carpenter stated his concern over the proposed amendment was that it took another right away from citizens. Mr. Lipparelli replied he thought it was true; district attorneys were required to be licensed attorneys and as such, they had ethical responsibilities to refrain from prosecution of charges for which there were no probable cause, which ultimately provided a safeguard to citizens. He stressed the concern was not whether citizens should have a right to complain about criminal violations, but rather the use of discretion by people trained, experienced, and elected to carry out that function. The intent of the bill was not to keep people from pursuing their rights. The bill sought clarification of situations of inconsistencies within various court systems.
Chairman Anderson stated his appreciation for the initial bill, but noted he still had some questions about the proposed amendments. He suggested some technical corrections would be needed if the amendments were to move forward.
The Chair requested Ms. Shipman to work with Legislative Counsel Bureau staff regarding technical corrections. He requested amendment language proposals be provided to the committee shortly after April 27, 2001. He concurred with Mr. Carpenter’s concerns and that of others in the committee regarding loss of privilege issues.
Assemblyman Gustavson shared the concerns of Mr. Carpenter. He commented he had made at least six citizen arrests since he had lived in Nevada. He urged support for the bill, but objected to the amendment.
Chairman Anderson commented it was probably easier to find a police officer than it was to find a magistrate. Mr. Gustavson replied in each arrest he made he had called local law enforcement, either through use of a cellular telephone or via landline.
Chairman Anderson closed the hearing on S.B. 182 and adjourned the meeting at 9:17 a.m.
Cindy Clampitt
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: