MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
April 23, 2001
The Committee on Judiciarywas called to order at 9:38 a.m. on Monday, April 23, 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
Mrs. Sharron Angle
Mr. Greg Brower
Mr. John Carpenter
Mr. Jerry Claborn
Mr. Tom Collins
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Kathy McClain
Mr. Dennis Nolan
COMMITTEE MEMBERS ABSENT:
Ms. Barbara Buckley (excused)
Mr. John Oceguera (excused)
Ms. Genie Ohrenschall (excused)
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Ben Graham, Nevada District Attorney Association, Las Vegas
Gemma Waldron, Nevada District Attorney Association, Reno
Lieutenant Stan Olsen, Las Vegas Metropolitan Police and Nevada Chiefs and Sheriffs Association, Las Vegas
Debbie Cahill, Nevada State Education Association, Reno
Rose McKinney James, Clark County School District, Las Vegas
John Morrow, Washoe County Public Defenders, Reno
Janine Hansen, Nevada Eagle Forum, Sparks
Lucille Lusk, Nevada Concerned Citizens, Carson City
Chairman Anderson made opening remarks and noted a quorum was present.
Chairman Anderson opened the hearing on S.B. 36.
Senate Bill 36: Revises provisions governing forfeiture of property. (BDR 14-14)
Ben Graham, Nevada District Attorney Association (NDAA), submitted an amendment (Exhibit C) to S.B. 36. Mr. Graham explained the bill dealt with the forfeiture of proceeds and assets connected with criminal activity. Currently the standard of proof when going after a criminal in a civil action was “preponderance of the evidence”; 85 to 90 percent of those cases were resolved by default, the person whose property was seized “heads out of town.” There had been a trend to raise the burden of proof to “clear and convincing evidence.” The bill was to change the burden of proof as of October 1, 2001, and was to create a mechanism by which schools would receive funding; after expenses were paid, the excess over $100,000 on a yearly basis would be divided with 30 percent remaining with the law enforcement jurisdiction and 70 percent going to the school districts. The way the bill came out, law enforcement got to keep $400,000 a year and the proceeds were divided quarterly. From a practical standpoint, law enforcement did not know each quarter how much cleanup would be conducted from one quarter to the next. The intent was to use a “yearly” accounting system.
Chairman Anderson asked if Mr. Graham was suggesting an amendment to S.B. 36. Mr. Graham said the amendment had been prepared by Gemma Waldron, had been reviewed by the bill drafters on the Senate side, and given to Senator James.
Gemma Waldron, Washoe County District Attorney’s Office, said the amendment started at line 3-22 and lines 3-33 through 3-35.
Chairman Anderson asked about language at line 3-22. Mr. Graham said that language needed to be deleted otherwise expenses could not be paid. Chairman Anderson asked if the Senate understood bills would be paid out of that account. Mr. Graham answered, “Absolutely.”
Assemblyman Carpenter understood the bill worked on a yearly basis so that funding would be available for cleanup of methamphetamine labs. Mr. Graham said that was accurate and recounted how operations could overlap quarters. Assemblyman Carpenter asked if $100,000 was sufficient to carry over into the next year. Mr. Graham said that was correct. There was a regular procedure, a long, drawn-out process.
Assemblyman Manendo asked, since S.B. 36 would require redrafting, if a priority could be set for at-risk schools.
Lieutenant Stan Olsen, Las Vegas Metropolitan Police Department and Nevada Chiefs and Sheriffs Association, said the funding was directed to the classroom for books and computers. There would be an audit accomplished to ensure that.
Assemblyman Manendo said at-risk schools could be earmarked first priority.
Mr. Graham said the intent of the bill was for funding to go to the district within the jurisdiction where the proceeds were seized. If it was a multiple jurisdiction, the funding would be divided. Chairman Anderson said they were all multiple jurisdictions, and that all school districts were countywide. Chairman Anderson asked if the county district attorney would fund the county school board. Mr. Graham understood it would go to the judicial district and, if it were a multiple county jurisdiction, it would go to the respective jurisdiction in those counties.
Assemblyman Manendo wanted to see the at-risk schools given first priority.
Assemblyman Brower was more interested in the fundamental policy issue than the accounting details. It had been said this type of legislation was the best thing to happen for drug dealers; would S.B. 36 make it more difficult for law enforcement to seize assets?
Mr. Graham said the NDAA had taken a very cautious role on seizure of property, “if in doubt, don’t seize the property.” He did not believe the bill would significantly affect the ability to seize property from those people who were doing wrong. He would accept the higher burden of proof, if that would make everyone feel better. Assemblyman Brower verified the NDAA was already using the higher burden of proof as a matter of internal policy; S.B. 36 would not hamper the NDAA’s efforts. Mr. Graham said, “It’s not without controversy, but it’s not significant.”
Debbie Cahill, Nevada State Education Association (NSEA), recognized S.B. 36 was not a long-term solution to the funding problems for the schools. S.B. 36 would not address the problems of schools in all the districts; but for some districts it might result in a “good chunk of change” for the schools to use. Because the bill was designated for books, computer software and hardware, there was concern regarding earmarking the funding for at-risk schools. The NSEA was comfortable allowing the district to make the determination on how best to distribute the funding. The NSEA supported the amendment that addressed the quarterly versus yearly accounting; it had been Ms. Cahill’s understanding all along that the bill would be based on annual figures.
Rose McKinney James, Clark County School District, indicated strong support from the school district.
John Morrow, Washoe County Public Defenders, stated that his concerns had been addressed.
Janine Hansen, State President of the Nevada Eagle Forum (NEF), wanted to refocus the committee’s attention to page 1 of the bill, lines 11 through 13. NEF was very much in favor of raising the burden of proof to a higher standard. There was a problem balancing individual liberties against the need for effective law enforcement. She believed in many civil cases the owners were forced to prove their innocence instead of the government proving they were guilty; an intrusion on individual rights. On the federal level there was included an “innocent owner defense” for those cases where a renter was misusing property; Ms. Hansen asked if Nevada law had that protection.
Lucille Lusk, Nevada Concerned Citizens, said her issues had been resolved; she supported S.B. 36.
Chairman Anderson asked about a reference to the accounting principle based on a March 1, 2001, date. Mr. Graham said the figures had been demonstrated over a five-year period, he wanted the same number process used in the future.
Assemblywoman McClain asked Mr. Graham to explain the safeguards for property owners. Mr. Graham said the situation happened when a landlord rented to the wrong people, or with an innocent spouse. The NDAA must show with preponderance of evidence, clear and convincing evidence, and from an administrative standpoint from a reasonable doubt, that a spouse was involved before the NDAA could go after the spousal interest in property. Mr. Graham said there were significant safeguards, which had caused frustration for law enforcement many times.
Chairman Anderson also had an e-mail (Exhibit D) from James Jackson representing Nevada Attorneys for Criminal Justice and the Nevada State Education Association in support of S.B. 36.
Chairman Anderson closed the hearing on S.B. 36.
ASSEMBLYMAN CARPENTER MOVED TO AMEND AND DO PASS
S.B. 36 WITH THE NDAA AMENDMENT.
ASSEMBLYWOMAN McCLAIN SECONDED THE MOTION.
Assemblyman Manendo was concerned why testimony regarding earmarking was different now than for previous legislation. To expedite S.B. 36, Mr. Manendo said he would look into the issue later.
Chairman Anderson cautioned S.B. 36 funding should not replace funding or be used as an excuse not to fund the special programs for at-risk schools. What was needed was a solid funding base for special needs schools on a regular basis; the funds from S.B. 36 should be considered “special project” dollars. Assemblyman Manendo agreed the funds from S.B. 36 would not be a stable funding source but only because the dollars were limited. Assemblyman Brower said his concerns had been satisfied; he agreed with Assemblyman Manendo. Chairman Anderson agreed with the analysis; someone would need to turn their attention to the at-risk schools to determine how they were identified and how they were funded.
Chairman Anderson clarified the motion.
MOTION PASSED UNANIMOUSLY.
Chairman Anderson asked Assemblyman Claborn to present the bill on the Assembly floor.
Chairman Anderson adjourned the meeting at 10:25 a.m.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: