MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
May 3, 2001
The Committee on Judiciarywas called to order at 8:10 a.m. on Thursday, May 3, 2001. Chairman Mark Manendo presided in Room 3138 of the Legislative Building, Carson City, Nevada. The meeting was simultaneously videoconferenced in Room 4401 of the Grant Sawyer Office Building, Las Vegas. 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. Mark Manendo, Chairman
Mrs. Sharron Angle
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:
Mr. Bernie Anderson (excused)
GUEST LEGISLATORS PRESENT:
Senator Michael A. Schneider, Clark County Senatorial District 8
Senator Terry Care, Clark County Senatorial District 7
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Rich Myers, Nevada Trial Lawyers Association (NTLA), Las Vegas
Ben Graham, Legislative Representative, Nevada District Attorney’s Association, Las Vegas
Lieutenant Stan Olsen, Government Liaison, Office of Governmental Services, Las Vegas Metropolitan Police Department and the Nevada Chiefs and Sheriffs’ Association
John Morrow, Chief Deputy, Washoe County Public Defender, Reno
Ben Blinn, Citizen
Gemma Waldron, Deputy District Attorney, Criminal Division, Washoe County District Attorney, Reno
Detective Sergeant David Kinamon, Consolidated Narcotics Unit, Washoe County Sheriff’s Office, Reno
Lieutenant Doug Cardwell, Consolidated Narcotics Unit, Washoe County Sheriff’s Office, Reno
Elizabeth MacMenamin, Retail Association of Nevada, Carson City
Chairman Manendo made opening remarks and noted a quorum was present.
Chairman Manendo opened the hearing on S.B. 15 and acknowledged Rich Myers, Nevada Trial Lawyers Association, testifying by videoconference from Las Vegas.
Senate Bill 15: Enacts provisions regarding payment of fees to arbitrators. (BDR 3-34)
Mr. Myers supported S.B. 15. As originally written, S.B. 15 faced much opposition during discussions in the Senate, and as a result “troubling” language was amended out of the bill. Also during the hearings, Senator Mark James, District 8, and Senator Jon Porter, District 1, amended S.B. 15 to increase the amount of compensation received by the arbitrators. Mr. Myers believed the bill as amended would encourage lawyers to participate in the arbitration system. Last session, the arbitration laws were amended to recognize the value of services rendered by the arbitrator and that the arbitrator’s award was even more important than it had been in the past.
Assemblywoman Koivisto clarified that the bill did not cover labor disagreements and arbitration. Mr. Myers said S.B. 15 covered all civil actions under $40,000, with some exceptions.
Assemblyman Brower said S.B. 15 applied to only those cases required to be submitted for mandatory non-binding arbitration; the typical labor dispute would not necessarily be the subject of a lawsuit. The cases in question would probably be tort type lawsuits. Mr. Myers agreed the bill applied to civil actions where a lawsuit was filed in district court.
Assemblyman Carpenter verified arbitration fees could still be waived. Mr. Myers agreed the amendment increased the dollar amounts charged; the practice of waiving fees could still continue.
Senator Michael A. Schneider, District 8, said the original bill had been drafted based on the belief that a “conflict of interest” might exist if personal injury attorneys did personal injury arbitration. This belief had been proven wrong to Senator Schneider, which resulted in “gutting the bill” and leaving only the fee increase.
Chairman Manendo asked for further testimony. There being none, Chairman Manendo closed the hearing on S.B. 15.
Chairman Manendo opened the hearing on S.B. 32.
Senate Bill 32: Allows witness to testify at preliminary examination or before grand jury through use of audiovisual technology under certain circumstances. (BDR 14-637)
Senator Terry Care, District 7, said S.B. 32 covered those situations involving a tourist who was a witness to a crime, but had returned home prior to the preliminary hearing or grand jury proceeding. The bill allowed the taxpayers to save money by having the witnesses testify via televised videoconferencing at the court’s discretion. There was a lively discussion on the Senate floor regarding constitutional safeguards, especially the confrontation clause in the Sixth Amendment; those concerns had been addressed. There was precedence in other parts of the country to allow videoconferencing, primarily tourist destinations.
Chairman Manendo asked how the 500-mile radius had been determined. Senator Care said the 500-mile radius was a compromise reached during Senate discussions.
Assemblyman Brower believed the United States Supreme Court had decided the issue previously and said the confrontation clause did not guarantee an absolute right to a face-to-face cross-examination. Senator Care said the confrontation clause was “absolute” at trial, but the preliminary hearing was a different matter.
Assemblyman Collins asked if S.B. 32 created a new exception for grand juries, but not trials. Senator Care clarified the grand jury proceeding was not a trial, it was an “exploration of the evidence” to determine whether probable cause existed to indict. The preliminary hearing was another instance to determine whether someone should go to trial, but there was “live testimony” and the defendant was present. At a trial, there was the right to confront the accuser. Assemblyman Collins was confused by the 500-mile radius and medical illness. Senator Care reiterated it was a 500-mile radius “or” medical illness.
Ben Graham, Nevada District Attorney’s Association, said S.B. 32 did not create any exceptions. With the advent of technology, S.B. 32 was a bill for the future expecting courtrooms to be “wired” for video and teleconferencing; technical witnesses would be most involved for short periods of time. It should also be noted that preliminary hearings were “creatures of statute” and simply a way to get a person to trial in district court, keeping in mind that 98.6 percent of all cases in district court were plea-bargained. Once the preliminary hearing or grand jury proceeding was completed and if the matter went to trial, the witnesses were required to appear, testify and be confronted. Numerous safeguards had been included in the bill such as sworn testimony, certified videologist, transcripts, and notice; a very protracted process with significant protection for all the witnesses. If identity was the only issue, it could not happen via video; the witness could only testify regarding other issues.
Chairman Manendo asked how many other states had similar legislation. Mr. Graham knew Florida and Hawaii had enacted similar legislation.
Assemblywoman McClain believed the 500-mile radius was arbitrary; what about 250 miles. Mr. Graham reiterated the 500-mile radius was a compromise figure; it was a figure the criminal justice system could live with while it was determined whether the concept would work.
Assemblyman Brower asked if rules of evidence applied in preliminary hearings and grand jury proceedings. Mr. Graham said rules of evidence definitely applied, but the issue of constitutional confrontation was different. Assemblyman Brower stated Marilyn vs. Craig 1990 U.S. Supreme Court Case said a witness “could” testify by television at trial. If the United States Supreme Court said it was acceptable to do this at trial, it should be available for a preliminary hearing or a grand jury proceeding. Obviously, S.B. 32 was not taking as big a step as the constitution would allow. Mr. Graham agreed and reiterated Nevada would rather err on the side of caution.
Lieutenant Stan Olsen, Las Vegas Metropolitan Police Department and the Nevada Chiefs and Sheriffs’ Association, supported S.B. 32. Tourists, and crime involving tourism, were quite an issue in Clark County; with 36 million tourists a year in that jurisdiction, it was inevitable that a great number of them would become witnesses to, or victims of, crime. An entire detail was developed dedicated to tourist crimes. S.B. 32 was an effort involving technology to work smarter, saving local and state tax dollars in the process.
Gemma Waldron, Washoe County District Attorney’s Office and Nevada District Attorney’s Association, had a packet of information concerning Florida and Hawaii’s use of this type of legislation.
John Morrow, Chief Deputy, Washoe County Public Defender, said anytime technology intervened rather than having a face-to-face confrontation between an examiner and the person being examined, something would be lost. Mr. Morrow acknowledged this was an accepted procedure, one that met constitutional requirements. Mr. Morrow was absent the day the bill came before the Senate Committee on Judiciary.
Ben Blinn, citizen, agreed with Mr. Morrow but remained neutral on S.B. 32. Mr. Blinn took offense when others said they believed liberty was cheap; the justice system should not be based on cost. He believed S.B. 32 was a move of convenience. Assemblyman Brower said no one should make law enforcement’s job easier if it undermined the fairness of the proceeding or the process and infringed on the defendant’s rights. Mr. Brower did not believe S.B. 32 did that.
Chairman Manendo asked for further testimony on S.B. 32. There being none, he closed the hearing on S.B. 32.
Chairman Manendo opened the hearing on S.B. 204.
Senate Bill 204: Revises definition of “manufacture” of substance. (BDR 40-470)
Ben Graham said he had reminded himself and his students to always use the statute books to know the exact wording of the law. If he had asked anyone during the last 20 years if it was legal to manufacture a controlled substance in a garage or kitchen, everyone would have said, “No.” Surprisingly, a few years ago it was discovered it was not illegal in Nevada to manufacture a “small amount” of a controlled substance; it was illegal to possess it, it was illegal to traffic in it, and it was illegal to sell it. Many prominent defense attorneys were not aware that this exception was still on the books; although nobody knew about it for over 25 years, they know now. S.B. 204 proposed to eliminate the built-in defense of “manufacture for personal use.”
Assemblyman Gustavson understood the bill addressed “controlled substances” but asked if S.B. 204 would affect those people who grew herbs. Could the “preparation compounding” be construed in any way to affect those who made herbal drinks? Mr. Graham said the issue had been addressed in the Senate. S.B. 204 addressed toxic materials that were explosive as outlined in ten pages of specific chemicals that were presented to the Senate; nothing out of the garden was listed. If a person was truly manufacturing a substance just for personal use, nobody would know unless it blew up. Assemblyman Gustavson did not believe S.B. 204 clarified that. Mr. Graham said Gemma Waldron did extensive research on the substances in question.
Assemblyman Nolan said the substances being discussed were all common household items that could be purchased at a drug store and auto parts store. Nobody would have the combination of items plus the lab equipment unless they were “manufacturing drugs.”
Assemblyman Carpenter did not find where S.B. 204 said “manufacturing” or “preparations” were illegal; was that covered somewhere else in the statute. Assemblyman Carpenter felt the wording was too broad. Risa Lang, Committee Counsel, clarified S.B. 204 was a definition for “act of manufacturing” used in the statutes. The list of substances was in NRS 453.322; that was where it was prohibited. Assemblyman Carpenter asked Ms. Lang if she believed it was correct. Ms. Lang said S.B. 204 did not expand the list of illegal substances in NRS 453.322; it changed the exclusion to “manufacture for personal use.” Assemblyman Carpenter asked if it would be appropriate to add the word “prohibited” to the bill. Mr. Graham said S.B. 204 amended the introduction to a long list of substances that were currently illegal to manufacture; it should be read as a whole chapter, not separately. Assemblyman Carpenter understood what Ms. Lang was saying, but would be more comfortable if the list of illegal substances was referred to. Mr. Graham shared Assemblyman Carpenter’s concern and was willing to work with Mr. Carpenter. Ms. Lang said during drafting the substantive provisions were kept separate from the definitions; she believed Assemblyman Carpenter’s concerns were addressed.
Assemblyman Gustavson clarified that every chapter of the Nevada Revised Statutes had definitions listed prior to the substantive provisions; therefore, the word “manufacture” meant something different in NRS 453 than it would mean in the health food section or any other section.
Assemblyman Brower asked when a person was “busted,” was it common to hear “it was only for my personal use”? Was the quantity obviously not for personal use. Had law enforcement not heard that excuse because the detail of the statute had not been known.
Ms. Waldron said before this last “notorious” case, nobody knew to say “it was for personal use.” She continued by introducing Detective Sergeant David Kinamon and Lieutenant Doug Cardwell, both of the Consolidated Narcotics Unit, Washoe County Sheriff’s Office. Ms. Waldron had prepared the search warrant for the case where Mr. Isbister was manufacturing methamphetamine at his home. There were not the usual “trappings” of sales receipts, buy-and-owe pay sheets, scales, etcetera, which a drug dealer would have when distributing drugs to other persons. As a result of surveillance it was determined that he was manufacturing small quantities several times a week and people were observed coming and going frequently. Even while HazMat was taking the lab down, people still came to the property looking for Mr. Isbister. Numerous prosecuting attorneys were involved in the preliminary hearing, but it was not until the case came to the district court before it was realized the statute on manufacturing did not include personal use -- the case was thrown out of court. The Nevada Administrative Code contained a list of five schedules for controlled substances, adapted from the Uniform Controlled Substances Act, which was a federal law. That information was submitted to the Senate hearing and could be made available to this committee, if requested.
Assemblyman Carpenter asked if it was possible for a physician or dentist to avoid prosecution by saying he was doing it for his/her own use. Ms. Waldron said if it was not within the professional or medical license, he/she would be prosecuted. They might be licensed to “handle” controlled substances to dispense during the course of their medical practice, but not to become the “drug dealer next door.” Assemblyman Carpenter felt there was a need for a qualifier as in other statutes. Ms. Lang said a qualifier was present in the section where it talked about the pharmacists; “It had to be as an incident to his administering or dispensing the substance in the course of his professional practice or by his authorized agent under his supervision.”
Assemblyman Brower asked if different or additional questions had been asked regarding the appearance of intent to sell, etc., could the prosecution have been successful? Ms. Waldron said, “Possession of controlled substances was illegal”; it did not matter whether the person was manufacturing for personal use, there should not be that exception in the law.
Detective Sergeant David Kinamon was the lead case agent on the Isbister case. Manufacturing of a controlled substance, whether one gram or 1,000 pounds, was still manufacturing of a controlled substance; quantity did not matter. Weights for controlled substances were divided into four groups:
|
Weight |
Use |
|
0 to 4 grams |
Personal Use |
|
4 to 14 grams |
Level 1 Trafficking |
|
14 to 28 grams |
Level 2 Trafficking |
|
28 grams and above |
Level 3 Trafficking |
Detective Sergeant Kinamon said he had a search warrant and a large quantity of waste and trash consistent with manufacturing methamphetamine was found; it was so large, it took 16 people from his unit 6 hours to clean up with assistance from the Washoe County Health Department and the FIS crime lab. For every one pound of methamphetamine, five gallons of chemical waste was produced, which was never disposed of properly. It was this chemical waste and the resultant poisonous gas that exploded. Small, personal use labs were a high risk to the community because the people did not have the knowledge, they were not disposing of the waste, the tell-tale odor was not always evident, but they were still causing explosions.
Lieutenant Doug Cardwell shared his personal experience with meth labs over the last two years. Many small meth lab fires (explosions) were not reported and were only discovered after numerous incidents or during remodeling. Some small meth labs disposed of their waste down the toilets, which left a residue and then contaminated wherever the wastewater went. The current problem was the increase of small labs resulting in the blowing up of homes, apartments, mobile homes, hotels, motels, and cars, as well as contamination by those meth labs not reported and cleaned up. In 1999, 59 meth labs in Washoe County were cleaned up; in 2000 there were 55. In educating the public on what to look for, the “crooks” had also been educated, resulting in smaller labs without the obvious evidence.
Assemblyman Carpenter asked what were the main ingredients used in meth labs. Detective Sergeant Kinamon disclosed numerous ingredients and their common names.
Assemblywoman Angle said since the subject of the discussion was “manufacture of controlled substances,” she suggested amending the language to include “manufacture of controlled substances” in the bill. Ms. Waldron believed it was not necessary because it appeared in the Uniform Controlled Substances Act for Nevada. The definition of “manufacture” only related to “manufacture of controlled substances.”
Lieutenant Olsen supported S.B. 204. He said the “personal use” defense was starting to spread into southern Nevada; compared to Washoe County’s 55 lab clean ups in 2000, Clark County had 300 labs last year and 400 labs in 1999. It cost Clark County $1 million a year minimum to clean up those labs; Clark County would call the federal government and have the Environmental Protection Agency (EPA) clean up a “super” lab with their superfund. Lieutenant Olsen shared his experience with meth labs in Las Vegas.
Assemblyman Gustavson said because of the loophole in the law, the meth labs were becoming smaller, in essence, safer for the community than a large lab. Changing the law would not stop the problem, but might encourage those “small” labs to develop into large labs, thus creating additional problems. Lieutenant Olsen said any explosion was dangerous and lives were at risk. Ms. Waldron believed because people were cooking smaller amounts more often, the danger was increased.
Ben Blinn spoke on Indian remedies, as well as Chinese and Eastern remedies. He believed better law enforcement was needed.
Elizabeth MacMenamin, Retail Association of Nevada, supported the bill and said her concerns had been addressed.
Chairman Manendo asked for further testimony. There being none, he closed the hearing on S.B. 204.
Chairman Manendo entertained a motion on S.B. 15.
ASSEMBLYWOMAN BUCKLEY MOVED TO DO PASS S.B. 15.
ASSEMBLYWOMAN KOIVISTO SECONDED THE MOTION.
MOTION PASSED WITH MR. NOLAN ABSENT.
Chairman Manendo asked Assemblyman Collins to present the bill on the Assembly floor.
Chairman Manendo entertained a motion on S.B. 32.
ASSEMBLYWOMAN McCLAIN MOVED TO DO PASS S.B. 32.
ASSEMBLYMAN GUSTAVSON SECONDED THE MOTION.
MOTION PASSED WITH MR. NOLAN ABSENT.
Chairman Manendo asked Assemblywoman McClain to present the bill on the Assembly floor.
Chairman Manendo entertained a motion on S.B. 204.
ASSEMBLYMAN OCEGUERA MOVED TO DO PASS S.B. 204.
ASSEMBLYMAN BROWER SECONDED THE MOTION.
MOTION PASSED UNANIMOUSLY.
Chairman Manendo asked Assemblywoman Ohrenschall to present the bill on the Assembly floor.
Chairman Manendo adjourned the meeting at 10:00 a.m.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Mark Manendo, Chairman
DATE: