MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
May 4, 2001
The Committee on Judiciarywas called to order at 8:20 a.m. on Friday, May 4, 2001. Chairman Bernie Anderson 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. Bernie Anderson, Chairman
Mr. Mark Manendo, Vice 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. John Oceguera
Ms. Genie Ohrenschall
COMMITTEE MEMBERS ABSENT:
Mr. Dennis Nolan (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
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Scott Cook, Douglas County Chief Juvenile Probation Officer
Kimberly Rushton, Chief Deputy Attorney General
Matthew Dushoff, Deputy Attorney General, President-elect Nevada Coalition Against Sexual Violence (NCASV)
Terri Miller, Survivors of Educator Sexual Abuse and Misconduct Emerge (SESAME)
Theresa Malone, State Board of Education
Todd Torvinen, Nevada Trial Lawyers Association (NTLA)
Rich Myers, Nevada Trial Lawyers Association (NTLA)
Joe Guild, Nevada Cattlemen’s Association
Ben Graham, Nevada District Attorney’s Association (NDAA)
James Jackson, Nevada Attorneys for Criminal Justice (NACJ)
Chairman Anderson made opening remarks and noted a quorum was present.
Chairman Anderson opened the hearing on S.B. 231 and acknowledged Senator Valerie Wiener as she approached the witness table.
Senate Bill 231: Revises provisions relating to detention homes for temporary detention of children. (BDR 5-574)
Senator Wiener appeared before the committee as the interim Chair of the A.C.R. 13 Interim Subcommittee to study the system of juvenile justice in Nevada. S.B. 231 was one of four bills produced by the interim committee. S.B. 231 was an issue that needed to be brought before the legislature and was requested by the Nevada Association of Juvenile Justice Administrators (NAJJA). The bill required compliance with Chapter 28 of the Code of Federal Regulations (CFR) that related to co-located facilities and allowed a detention facility to be located on the same grounds, share common facilities, or share common grounds with an adult jail or an adult lockup. Juvenile facilities could not share facilities or location with an adult prison.
Chairman Anderson, as a member of the interim subcommittee, assured those present that S.B. 231 was not proposing a “common holding” facility.
Scott Cook, Chief Juvenile Probation Officer for Douglas County, said S.B. 231 would not allow placing juveniles in a common holding facility. The bill would bring Nevada in line with current federal regulations. Even if sharing laundry or kitchen facilities or sharing the land, the juvenile facility must be operated independently from the adult facility; this meant the juvenile facility would have its own staff, as well as sight and sound separation.
Chairman Anderson asked for further testimony. There being none, he closed the hearing on S.B. 231.
ASSEMBLYMAN CARPENTER MOVED TO DO PASS S.B. 231.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
MOTION PASSED WITH MR. NOLAN AND MR. OCEGUERA ABSENT.
Chairman Anderson asked Assemblyman Carpenter to present the bill on the Assembly floor.
Chairman Anderson opened the hearing on S.B. 183.
Senate Bill 183: Revises provisions governing sexual conduct between pupils and persons in position of authority at schools. (BDR 15-483)
Kimberly Rushton, Chief Deputy Attorney General, said S.B. 183 proposed to amend Nevada Revised Statutes (NRS) 201.540 that pertained to sexual relationships between teachers and pupils. The bill would expand the category of defendants to include not only teachers but also any adult in a position of authority within a public or private school.
Matthew Dushoff, Deputy Attorney General, also the president-elect of the Nevada Coalition Against Sexual Violence, stated that currently NRS 201.540 protected 16- and 17-year-old students, but it was determined the 14- and 15-year-old students also needed protection. S.B. 183 also asked to increase the penalty for teachers having sexual relations with their students from a “C” felony to a “B” felony for those with 14- and 15-year-old students. Unfortunately, those children were not protected under the statutory rape provisions. Lastly, S.B. 183 included volunteers who worked at the schools.
Chairman Anderson asked why S.B. 183 was not concerned with any child regardless of age? Instead of moving it down incrementally, why not move to any child in a child care facility or school.
Mr. Dushoff agreed that was a valid point. NRS 201.230 discussed lewdness with a minor and covered anyone having sexual contact with a child under the age of 14; that was an “A” felony with a 10-to-life sentence. Chairman Anderson wanted that answer on the record so the committee was not left with the impression the younger children were not protected. Mr. Dushoff reiterated a conviction for sex with a 16- or 17-year-old child was a “C” felony; with a 14- or 15-year-old child a “B” felony; and with a child under the age of 14 it was an “A” felony.
Assemblyman Collins asked why a bill could not change the age of consent to 18 years old. Mr. Dushoff said that would touch on many different areas. The focus of S.B. 183 was the “relationship” between teachers and students. The age of consent in Nevada was 16 years old; consequently, having sex with somebody 16 and over was not crime.
Terri Miller was Nevada’s sole representative of Survivors of Educator Sexual Abuse and Misconduct Emerge (SESAME), as well as the founder of Nevada’s law to prohibit educator sexual abuse (NRS 201.540). S.B. 183 was an effort to fine-tune S.B. 122 of the 69th Session to broaden the age in the current law to include 14- and 15-year-olds, increase the penalty, and include volunteers (Exhibit C). She concluded her testimony with the following statement:
The harm inflicted upon children by educator sexual abuse is a concern for all and calls for review by state and federal legislators, recognition by professionals and all of society, research and funding by government and academia, responsibility undertaken by educational institutions, reform in how teachers are trained and offenders are punished, so that risky situations are prevented and all children are protected. We must adopt an attitude that promotes “saving children” above “saving face.”
Chairman Anderson asked if SESAME was a national group. Ms. Miller said SESAME was a national organization based out of New York with Ms. Miller being the sole working member in Nevada. Chairman Anderson asked if Ms. Miller had worked with any other legislators. Ms. Miller reported she had worked with Senator Mike McGinness, Central Nevada Senatorial District, who introduced S.B. 122 of the 69th Session. Senator McGinness put Ms. Miller in contact with the Attorney General’s Office, who was also asking for an amendment.
Theresa Malone, elected member of the State Board of Education, supported S.B. 183. Ms. Malone felt it was obvious this law needed to be strengthened. She wanted a short turnaround on teacher application background check investigations. Chairman Anderson stated that already existed; teacher re-certification cost $85.
Chairman Anderson asked for further testimony. There being none, he closed the hearing on S.B. 183.
ASSEMBLYWOMAN ANGLE MOVED TO DO PASS S.B. 183.
ASSEMBLYWOMAN McCLAIN SECONDED THE MOTION.
MOTION PASSED WITH MR. NOLAN, MR. BROWER, AND MR. OCEGUERA ABSENT.
Chairman Anderson asked Assemblywoman McClain to present the bill on the Assembly floor.
Chairman Anderson recessed the meeting at 9:00 a.m. to prepare for the work session.
Chairman Anderson reconvened the meeting at 9:20 a.m. for the work session.
Nicolas Anthony, Committee Policy Analyst, read the summary on S.B. 34 from the work session document (Exhibit D).
Senate Bill 34: Revises provisions relating to appointment of temporary guardians. (BDR 13-1070)
Todd Torvinen, Nevada Trial Lawyers Association (NTLA), supported S.B. 34 and its amendments. Chairman Anderson clarified the amendments.
Rich Myers, NTLA, said currently some judges adhered strictly to the existing law; some did not. There were two problems with the existing law: (1) the required interest-bearing accounts bore very low interest rates, and (2) all the money must go to the child at the age of majority, age 18. Mr. Myers related a variety of good and bad experiences. The amendment would expand the definition of the block trust account and allow flexibility to tailor settlements to the needs of the children. Chairman Anderson asked if the amendment changed the age. Mr. Myers said the age would remain at 18, but the bill would allow for structured payments.
Assemblyman Carpenter asked whether the public guardians supported the bill with the proposed amendments. Mr. Torvinen reported he had discussions with the public guardians and they supported S.B. 34 with the proposed amendments.
Assemblywoman Buckley asked if Mr. Torvinen had talked to Jennifer Henry, Guardianship Commissioner. Mr. Torvinen had talked to Kathleen Buchanan, Clark County Public Administrator, and he corresponded with Don Cavallo and Harriett Rowland. He believed Ms. Henry e-mailed a response but he did not remember what her position was. Chairman Anderson asked if Ms. Henry had logged any objections during the Senate hearing. Assemblywoman Buckley said, after the bill had passed the Senate, Ms. Henry sent her a letter indicating a number of problems with the bill; the same issues were addressed by others in the hearing.
Chairman Anderson clarified three amendments and entertained a motion to amend and do pass.
ASSEMBLYWOMAN OHRENSCHALL MOVED TO AMEND AND DO PASS S.B. 34.
ASSEMBLYWOMAN ANGLE SECONDED THE MOTION.
MOTION PASSED WITH MR. NOLAN AND MR. OCEGUERA ABSENT, MS. BUCKLEY EXPRESSED RESERVATIONS.
Chairman Anderson asked Assemblywoman Ohrenschall to present the bill on the Assembly floor.
Mr. Anthony read the summary on S.B. 87 from the work session document (Exhibit D).
Senate Bill 87: Enacts provisions pertaining to child affected by battery which constitutes domestic violence. (BDR 15-854)
Chairman Anderson and Assemblywoman Buckley began discussion on the bill but realized the current version of the bill was not available in the bill book; discussion was delayed while the correct version of the bill was retrieved.
Mr. Anthony read the summary on S.B. 88 from the work session document (Exhibit D).
Senate Bill 88: Provides for creation and foreclosure of liens for farm products. (BDR 9-643)
Chairman Anderson asked Assemblyman Carpenter if his concerns had been resolved. Assemblyman Carpenter had conversations with Joe Guild, Nevada Cattlemen’s Association, and still had reservations, but would reluctantly support the bill. Assemblyman Collins had not been present the day of the original hearing, so he asked Mr. Guild to explain how the liens would work. Mr. Guild gave examples of problem situations and how liens would benefit those involved. The problem for Nevada had been that Nevada did not have a lien law, S.B. 88 would rectify that situation; S.B. 88 was not an amendment to a “dusty old law,” S.B. 88 was creating a new law for Nevada.
ASSEMBLYMAN COLLINS MOVED TO DO PASS S.B. 88.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
MOTION PASSED WITH MR. NOLAN AND MR. OCEGUERA ABSENT.
Chairman Anderson asked Assemblyman Collins to present the bill on the Assembly floor.
Chairman Anderson returned the discussion to S.B. 87.
Senate Bill 87: Enacts provisions pertaining to child affected by battery, which constitutes domestic violence. (BDR 15-854)
Assemblywoman Buckley said S.B. 87 was better since the Senate had amended it, but she still had concerns with Sections 1 and 3. Ms. Buckley supported the intent of the bill, to get counseling for victims of domestic violence, but did not believe the best way to get counseling for the child was to refer that child to the Abuse and Neglect Protective Service system. It would be better to send the child to community agencies that offered counseling because once sent to Child Protective Services (CPS) a caseworker would get involved, which was not always the friendliest of situations. Ms. Buckley did believe Section 2, that provided access to counseling money from the victims’ restitution fund, was a “good idea.”
Chairman Anderson clarified Assemblywoman Buckley would support an amendment deleting Sections 1 and 3, leaving Section 2.
Assemblywoman McClain agreed with Assemblywoman Buckley, but asked who would determine whether the child required “the assessment” as discussed in Section 2. Assemblywoman Buckley said when a battery charge against the perpetrator involved a child who needed counseling; the court would make the referral to the victim’s compensation. Unfortunately, it might be unknown whether a child was involved if the child was not the person being battered. Assemblywoman McClain was unaware the court would not know when children were involved in a situation; should some language be put in the legislation that would ensure the situation was addressed.
Assemblywoman Buckley said S.B. 87 dealt with the criminal acts (NRS 200). The judge would only hear the elements of the crime and the defense of that crime. It would not be heard in the family court arena where the judge could talk about the child and what he/she had been through. Section 2 would be a tool; it was not perfect, but it was a start.
Chairman Anderson asked if Section 2 could stand by itself, or did it need a burden placed on the court to make a determination. Ms. Lang believed Section 2 stood by itself already; it would be at the committee’s discretion whether further clarification was needed.
Chairman Anderson verified the amendments proposed, keeping Sections 2 and 4 only, deleting Sections 1 and 3, and entertained a motion to amend and do pass.
ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND DO PASS
S.B. 87.
ASSEMBLYWOMAN KOIVISTO SECONDED THE MOTION.
MOTION PASSED WITH MR. NOLAN AND MR. OCEGUERA ABSENT.
Chairman Anderson asked Assemblywoman Buckley to present the bill on the Assembly floor, and to be ready for the first conference committee.
Mr. Anthony read the summary on S.B. 179 from the work session document (Exhibit D).
Senate Bill 179: Revises provisions governing admissibility in criminal proceeding of certain statements made by child. (BDR 4-472)
Chairman Anderson noted S.B. 179 was similar to A.B. 396 that made the statement of a child describing an act of physical abuse admissible in criminal proceedings under certain circumstances. S.B. 179 went into greater detail regarding repetitive questioning, motivation and fabrication, and stable mental state.
Assemblywoman McClain stressed if the defense already raised such questions, why should they be codified, allowing the potential for further abuse?
Assemblyman Carpenter agreed with Assemblywoman McClain and was concerned about putting such language in the statute. It could raise the possibility of not having the child “tell their story”; he felt A.B. 396 had been appropriate. If a child was able to testify, he/she should be allowed to do so.
Ben Graham, Nevada District Attorney’s Association (NDAA), felt those were issues that would be raised by defense attorneys and judges. S.B. 179 provided guidelines for the court to be used with discretion. The list benefited the bill, but the absence would not be fatal either.
Assemblyman Brower said if the intent of the bill was good, to make it easier for certain statements by children to be entered into evidence, and the district attorneys’ offices felt it was appropriate, the committee should not be overly concerned by the inclusion of Section 1, subsection 2. Assemblyman Brower did not believe it weakened the bill. To amend the bill, deleting the list, might raise further opposition from the criminal defense bar.
Chairman Anderson compared concerns from those who had previously testified on A.B. 396 to the concerns raised in testimony on S.B. 179. Chairman Anderson asked James Jackson, Nevada Attorneys for Criminal Justice (NACJ), to address concerns regarding issues where the defense bar could challenge an abused child and their testimony might not come forward.
Mr. Jackson said when the bill was presented in the Senate, objections were raised; it was determined the additional language helped, it did not hurt. It did provide additional grounds for the defense to challenge the testimony.
Assemblyman Carpenter felt the committee “was not doing the right thing”; it should be left up to the judge and the attorneys who should consider testimony without limitations. Assemblyman Carpenter was concerned it would be used to the disadvantage of the child.
Assemblywoman Buckley agreed with Assemblyman Carpenter regarding the bill without that language, but she questioned the reasoning of the Senate Judiciary Committee in adding that language. Assemblywoman Buckley asked if knowing the details of the recent Nevada Supreme Court case dictated the inclusion of that language. Mr. Jackson said the case in question was State of Nevada vs. Martha Felix, which was a landmark case in respect to the testimony of child witnesses, the ability to cross-examine them, and confrontation. Keeping in mind the sensitivity surrounding child witnesses, those factors were adopted out of that case.
Assemblywoman Buckley stated if S.B. 179 was passed without the questionable language and the defense attorneys did everything on the list anyway, why was that language needed in the statute? Mr. Jackson said that was “part and parcel” of the testimony against the bill in the Senate. The Felix case was looked at as being instructive and directive as to how testimony and cross-examination of child witnesses should come in.
Chairman Anderson reminded the committee that A.B. 396 had been in the Senate for some time where it could be subject to amendment adding their preferred language, while discussion continued to take their language out of S.B. 179. This would accomplish nothing.
Mr. Graham said Section 1, subsection 2, had been added as a checklist, which already existed in practice.
Chairman Anderson said concerns from the initial hearing had not been addressed to the committee’s satisfaction. S.B. 179 would remain “on the board” until further investigation into the Supreme Court case could be completed.
Mr. Anthony read the summary on S.B. 182 from the work session document (Exhibit D).
Senate Bill 182: Removes authority for private person to take arrested person before nearest magistrate following arrest. (BDR 14-527)
Chairman Anderson clarified the bill and its amendments.
Ms. Lang said the amendment was a technical correction to clarify a conflict.
ASSEMBLYWOMAN KOIVISTO MOVED TO AMEND AND DO PASS
S.B. 182 WITH THE Legislative Counsel Bureau AMENDMENT.
ASSEMBLYWOMAN McCLAIN SECONDED THE MOTION.
MOTION PASSED WITH MR. NOLAN, MR. OCEGUERA, AND MR.
GUSTAVSON ABSENT.
Chairman Anderson asked Assemblywoman Koivisto to present the bill on the Assembly floor.
Mr. Anthony read the summary on S.B. 234 from the work session document (Exhibit D).
Senate Bill 234: Revises provisions governing statements of victims of crimes at sentencing hearings. (BDR 14-1079)
Chairman Anderson commented this was a precedent setting opportunity. There were some concerns but Chairman Anderson recognized the trend for greater visibility and the rights of victims.
Assemblyman Collins asked how many times did the victims need to be the “last speaker” to get closure. Chairman Anderson said the order of testimony had been left to the judge’s discretion, S.B. 234 would provide consistency.
Assemblyman Manendo said victims might never have closure; it was difficult when a person lost a friend or loved one.
Assemblyman Carpenter had concerns but felt the testimony convinced him to vote for the bill. If the concept did not work, it would come back.
ASSEMBLYMAN CARPENTER MOVED TO DO PASS S.B. 234.
ASSEMBLYMAN MANENDO SECONDED THE MOTION.
MOTION PASSED WITH MR. NOLAN AND MR. OCEGUERA ABSENT.
Chairman Anderson asked Assemblyman Gustavson to present the bill on the Assembly floor.
Chairman Anderson said S.B. 263 would be put “back on the board” awaiting information on how it would affect the permanent distributive school fund, if it involved dollars lost out of the permanent fund and specific accounting data. Limits might be needed in the legislation.
Senate Bill 263: Authorizes court to sentence person convicted of misdemeanor to make donation of money to charitable or educational organization under certain circumstances. (BDR 15-473)
Chairman Anderson informed the committee S.B. 254 was placed on the work document to receive additional information, but it was not his intent to vote on S.B. 254.
Senate Bill 254: Establishes moratorium on execution of sentences of death of certain persons until July 1, 2003, and provides for study of issues regarding death penalty. (BDR S-871)
Mr. Anthony said two additional handouts were being passed out to the committee members: (1) Post-Furman Botched Executions by Michael Radelet (Exhibit E), and (2) a memorandum (Exhibit F) prepared in response to Assemblyman Nolan’s questions during the original hearing, regarding race as it related to life versus death sentence cases.
Chairman Anderson commented on a “curiosity” in the bill where it made reference to sexual orientation, Section 2, subsection 2(a); this might need to be amended to say “gender” making reference to male/female and possible discrimination against women. Ms. Lang said the list had been taken from a current list of enhancements for penalties; there were statistics for women versus men. Chairman Anderson said gender equity was not a positive aspect of the enhanced penalties, but if the study was to be meaningful there should not be any discrimination against gender. Chairman Anderson suggested adding “gender.”
Chairman Anderson said the question should be whether to do the study or not do the study. S.B. 254 would need to go to the Assembly Committee on Elections, Procedures and Ethics to determine whether to do the study. Chairman Anderson said he had purposely not included Exhibit E during the original hearing of S.B. 254 because it seemed prejudicial. Ben Graham commented the district attorney’s office made figures available, but he had asked for additional information that would be available the following week.
Chairman Anderson asked for further testimony or requests for additional research. There being none, he adjourned the meeting at 10:50 a.m.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: