ASSEMBLY COMMITTEE ON JUDICIARY

MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

Seventy-First Session

June 1, 2001

The Committee on Judiciarywas called to order at 9:30 a.m. on Friday, June 1, 2001. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. The meeting was simultaneously videoconferenced in Room 4412 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. Dennis Nolan

Mr. John Oceguera

Ms. Genie Ohrenschall

STAFF MEMBERS PRESENT:

Nicolas Anthony, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Cindy Clampitt, Recording Committee Secretary

Deborah Rengler, Transcribing Committee Secretary

OTHERS PRESENT:

Chris Escobar, Pico & Mitchell, Ltd. and Co-Chairman of Families Supporting Adoption

Rick Perry, Southern Nevada Adoption Coalition and the Director of the Latter-day Saints (LDS) Family Services

Kathleen Baker, Nevada Trial Lawyers Association (NTLA)

Don Winne, Office of the Attorney General

Alexis Miller, Planned Parenthood of Southern Nevada

Chairman Anderson made opening remarks and noted a quorum was present.

Chairman Anderson opened the hearing on S.B. 295.

Senate Bill 295: Provides for establishment of registry of putative fathers for purposes of facilitating termination of parental rights and adoption of certain children. (BDR 11-50)

Chris Escobar, Pico & Mitchell, Ltd. and Co-Chairman of Families Supporting Adoption, provided a brief procedural history. S.B. 295 was virtually identical to A.B. 298, which proposed to provide for the establishment of a registry of putative fathers for purposes of adoption of children, except for some time provisions. After the initial hearings in both the Assembly and the Senate, an agreement was reached between the Attorney General’s Office, the Nevada Trial Lawyers Association (NTLA), Assemblyman Collins, and all interested parties, to concentrate on S.B. 295. Don Winne, Office of the Attorney General, was directed by Senator Mark James to rewrite the bill with direct input from Kathleen Baker, Nevada Trial Lawyers Association (NTLA); Judge Nancy Saitta, Eighth Judicial District, Department 18; and himself, representing Families Supporting Adoption. A second amendment was necessary to clear up technical word issues and to address the fiscal note.

Mr. Escobar reported that on March 26, 2001, when A.B. 298 had been heard, the Attorney General’s Office proposed to separate the provisions for adoption from those of termination of parental rights. The NTLA opposed the bill because of the lack of a “due diligence requirement” in the attempt to locate putative fathers. Mr. Escobar said Chairman Anderson also had concerns regarding the 7-day period in the initial bill that was changed to 72 hours. Through the efforts of Don Winne, Kathleen Baker, and Judge Saitta, together with the advice of Assemblyman Collins and Senator Rawson, the bill was submitted twice, all the issues were addressed and resolved, and all parties concerned reached an agreement of support.

Mr. Escobar said one of the purposes of S.B. 295 was the registry of putative fathers, giving them an avenue in which to express their desire to be involved in the lives of their children. S.B. 295 would provide an independent method of registry and protection of their rights, if desired. Failure to register would not terminate the putative father’s parental rights, but the father would not be notified of a summary proceeding where his rights would be terminated. A summary judicial proceeding had been added, allowing the court to terminate parental rights after 35 days. There were three time frames discussed in the bill when a putative father could register -- before the birth, 30 days after the birth, or within 30 days of receiving notice of termination of parental rights or adoption. Specific due diligence requirements were added, which detailed what needed to be done in order to use the registry to terminate parental rights. Birth mothers must provide an affidavit to assist in the due diligence. S.B. 295 provided putative fathers with the ability to give notice of their interest in the child, as well as provided adoptive couples with peace of mind within 30 to 35 days of placement.

Chairman Anderson suggested that Assemblyman Collins’ name be added to the bill, since he had walked away from his legislation and had been instrumental in perfecting S.B. 295. Mr. Escobar said it had not been previously discussed, but agreed that Mr. Collins had been consulted during the processing of S.B. 295.

Rick Perry, Southern Nevada Adoption Coalition and the Director of the Latter- day Saints (LDS) Family Services, said S.B. 295 was introduced for two basic reasons: (1) to make adoptions safer, and (2) to provide a clear mechanism for fathers who wanted to be involved in planning for their children. It was recognized that there needed to be a proper balance between the rights of birth mothers, birth fathers, and adoptive parents. S.B. 295 represented the collaborative effort of legislators, adoption professionals, attorneys, and state workers. Mr. Perry believed it was good legislation and would improve the practice of adoption in Nevada.

Assemblyman Carpenter asked how S.B. 295 would work if a mother had already relinquished a child. Mr. Escobar said that under Nevada law a birth mother could not relinquish a child until 72 hours after birth then the child would be placed with a family who had completed a home study. The actual adoption could not be finalized until the father’s rights had been terminated. S.B. 295 would allow a summary proceeding to facilitate that termination within 35 days. Mr. Perry said in most cases it was not expected that the father would be registered. In that case, the summary petition could go forward. The real value to the adoption professionals would be to know if there was a father who had interest in the child.

Assemblywoman Ohrenschall asked how S.B. 295 would interact with the legislation just passed enabling mothers to drop off unwanted babies in “safe havens.” Mr. Escobar said if that child ended up being part of an adoption plan, they could use the summary petition but it would be difficult to proceed with due diligence since it was not known who the birth mother was. It would be better to use a “John Doe Termination” since the parentage was in question.

Assemblywoman Ohrenschall clarified that if a child was given up under the “safe haven” provision, was that not considered giving up parental rights. Mr. Perry said that provision was considered abandonment on the part of the parents, subject to an abandonment procedure. S.B. 295 dealt with a voluntary termination where the birth mother signed a document to relinquish the child for adoption.

Assemblywoman Ohrenschall asked what happened if a father appeared, questioning whether his girlfriend dropped off his child, and he expressed his interest in the child. Mr. Escobar said if a man came forward, claiming to be the father, the Department of Child and Family Services would order a paternity test. If the test proved positive, the father would be able to assert his parental rights.

Kathleen Baker, Nevada Trial Lawyers Association (NTLA), supported the bill. She anticipated that when a mother came in requesting to give up a child for adoption, at that point the agency would begin to conduct the due diligence search for the father. At the time the child was born, the due diligence search would have been completed. The putative father would have been notified he might be the father of a child that was to be placed for adoption, and if he was interested, he would need to register with the putative father registry.

Don Winne, Office of the Attorney General, said he worked on the bill and reported that S.B. 295 met the needs of the Attorney General’s Office.

Alexis Miller, Planned Parenthood of Southern Nevada, supported any legislation that would expedite or finalize adoptions. She was concerned about the mother’s privacy since her name would be added to the registry with or without her consent, whether or not she was pregnant, and possibly, whether or not the child was being put up for adoption.

Chairman Anderson said he understood that the birth mother would have already decided to put the child up for adoption. Ms. Miller said the man could register prior to the birth of the child, assuming that a woman might be pregnant; but that might not prove to be true and did not mean the mother would place the child for adoption. Ms. Miller said the bill was written in such a way that the woman did not need to have a confirmed pregnancy. Chairman Anderson asked if Ms. Miller knew of a solution to her concern. Ms. Miller did not believe there was a solution without compromising the woman’s privacy.

Assemblyman Brower said he did not know where in the bill it would allow a woman’s name to be besmirched. Section 6 discussed a person who was a putative father of a child; it clearly implied there was a pregnancy. Ms. Miller said that in previous testimony it was determined that having intercourse with a woman put the man on notice that she might be pregnant and he could register. Assemblyman Brower said he understood her concern, but did not believe it would happen often before the birth. Chairman Anderson asked if those concerns had been raised during the Senate hearing. Ms. Miller said they had.

Assemblywoman Buckley asked if a putative father believed a child was his, then why would he not go to family court, establish paternity and obtain parental rights.

Assemblywoman Ohrenschall asked if a young man could register as a putative father, affecting a young woman whose ethnic background prized virginity, what recourse would the woman have. Ms. Miller said the list was supposed to be confidential, but that was her concern.

Assemblyman Brower asked why the bill should allow registration before the birth, would it be better to make the registration a post-birth issue. Ms. Miller agreed that would alleviate her concerns.

Assemblywoman Ohrenschall asked what would happen if the putative father named a married woman without any factual basis. What recourse would the woman have?

Chairman Anderson asked if the question had arisen regarding the “say-so” issue; how would it be verified a person was the father. Was the Health Department responsible to determine paternity? Mr. Perry said the registry was part of the procedure leading to the hearing. Chairman Anderson asked what would happen if the young lady did not know who the father might be, having been with numerous partners. Mr. Perry said that according to the bill, the mother filled out an affidavit and it was the agency’s responsibility to find the father(s) to notify them of the registry and its purpose. Mr. Escobar said that in order to determine who the actual father was a paternity test would be conducted. Chairman Anderson asked if the father of the child agreed to the adoption, but another man on the registry did not agree, did this cause additional problems. Mr. Escobar said he dealt with those types of problems today; a paternity test would settle the issue.

Assemblyman Brower asked for clarification why the sponsor of the bill felt it was important to register before the birth of the child. Mr. Perry said there had been early concern that fathers were given too narrow a time frame for registration. Assemblyman Brower said he felt if a father was truly interested in a child, 30 days after the child was born was sufficient time to register. Registering before the birth, when there was no child, seemed premature. Mr. Escobar questioned what would happen if the child was born prematurely and the mother tried to hide the child from the father. Mr. Perry said registration and early notification allowed the father to become a client of the adoption agency, as well. As the bill was written, the list would be very private, held at the Department of Health. The current system allowed names to be published in a newspaper.

Assemblywoman Ohrenschall said she was not satisfied that the bill would not provide a putative father with the right to create a libel suit. Even though a paternity test would settle the issue, why put a woman through that. Assemblywoman Ohrenschall believed the bill needed a provision where the woman could deny a putative father’s claim.

Chairman Anderson asked for further testimony on S.B. 295. There being none, he closed the hearing on S.B. 295.

Chairman Anderson suggested that Assemblyman Collins’ name be amended to the bill in light of his work on A.B. 298 and his assistance on S.B. 295. Chairman Anderson entertained an amend and do pass motion on S.B. 295.

ASSEMBLYWOMAN ANGLE MOVED TO AMEND AND DO PASS S.B. 295 WITH THE AMENDMENT DISCUSSED.

ASSEMBLYMAN COLLINS SECONDED THE MOTION.

Assemblywoman Buckley offered a motion to amend the original motion to include the clarification of “only if there was a birth.” Discussion followed.

Risa Lang, Committee Counsel, said that amendment would involve removing Section 6, subsection 1(a), line 10, from the bill, which allowed a person to register before the birth of the child.

Assemblywoman Angle did not support the amendment, if the purpose of the bill was to encourage involvement by the fathers, they should be involved before the birth of the child.

ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND THE ORIGINAL MOTION TO AMEND AND DO PASS S.B. 295, ADDING MR. COLLINS’ NAME TO THE BILL, AS WELL AS THE AMENDMENT TO DELETE SECTION 6, SUBSECTION 1(a).

ASSEMBLYMAN CARPENTER SECONDED THE MOTION.

ROLL CALL VOTE WAS CALLED.

Assemblyman Collins clarified that if there was no birth, there was no need to discuss whether there was a mother or a father. Prior to the birth, with an obvious pregnancy, how would deleting that line affect the present operation of the state agency in how they handled unwed mothers. Would it affect their ability to find putative fathers before the child was born.

Mr. Winne said he did not feel the amendment would change the current process. The bill was designed to give putative fathers an opportunity to participate in the life of the child, whether or not the mother told the truth about who the father was. It was not intended to drag women into a slander process. It was a chance to balance the absolute knowledge of the mother as to who the father was, with the desire of the putative father to participate in the adoption process.

Assemblywoman Ohrenschall asked if an amendment for a “sunset” in the bill should be considered. Mr. Winne said Section 26, subsection 4, already included a sunset clause, expiring on June 30, 2003.

Assemblywoman McClain said she agreed with Assemblywoman Buckley, but suggested a 30-day window on either side of the birth.

Assemblyman Brower said he appreciated the suggestion, but there might still be a problem determining when 30 days prior to the birth might be.

Assemblyman Carpenter said it made sense to remove “before the birth of the child.” If the putative father was really interested in the child, 30 days should be plenty of time to register. Assemblywoman McClain agreed with Assemblyman Carpenter.

Chairman Anderson clarified the amendments to S.B. 295.

MOTION PASSED 11-3 WITH MRS. ANGLE, MR. COLLINS,

AND MR. GUSTAVSON VOTING NO.

Chairman Anderson asked Assemblywoman Angle if she wished to withdraw her original motion as a courtesy.

ASSEMBLYWOMAN ANGLE WITHDREW THE MOTION.

ASSEMBLYMAN COLLINS WITHDREW HIS SECOND.

Chairman Anderson entertained a motion to amend and do pass S.B. 295.

ASSEMBLYMAN COLLINS MOVED TO AMEND AND DO PASS S.B. 295.

ASSEMBLYMAN CARPENTER SECONDED THE MOTION.

ROLL CALL VOTE WAS CALLED.

Assemblywoman Angle asked for clarification of the motion. Chairman Anderson clarified the motion to amend and do pass S.B. 295 by adding Assemblyman Collins’ name and deleting line 10, Section 6, subsection 1(a).

Assemblyman Carpenter said he would vote for the bill because it had an expiration date and he wanted to see how it would work.

MOTION WAS DEFEATED 7-7 WITH NO CLEAR MAJORITY. MRS. ANGLE, MS. BUCKLEY, MRS. KOIVISTO, MS. McCLAIN, MR. OCEGUERA, MS. OHRENSCHALL, AND MR. ANDERSON VOTED NO.

Chairman Anderson indicated that he would put S.B. 295 “back on the board.”

Assemblywoman Angle asked to reconsider S.B. 295. Chairman Anderson said it would take a two-thirds vote of committee to reconsider the bill. Chairman Anderson said he would not entertain another motion.

Chairman Anderson drew attention to S.B. 261 and those issues raised in A.B. 484.

Senate Bill 261: Makes various changes to provisions governing time shares and common-interest communities. (BDR 10-819)

Assembly Bill 484: Revises provisions governing disclosure statement required upon sale of unit in common-interest community. (BDR 10-584)

A letter was submitted to the Chairman from Assemblywoman Vonne Chowning (Exhibit C) recommending further amendment to S.B. 261, deleting Amendment No. 1063 that addressed issues originally proposed in A.B. 484. Chairman Anderson announced that Assemblywoman Chowning reached an agreement with Joan Buchanan, Administrator of the Real Estate Division, Department of Business and Industry, to include a new section on the “Seller’s Real Property Disclosure Form.” With that understanding, the Assembly Committee on Judiciary would be able to recede from the amendment to the bill if it came back from the Senate.

ASSEMBLYWOMAN BUCKLEY MOVED TO RECEDE FROM THE AMENDMENT NO. 1063 TO S.B. 261.

ASSEMBLYMAN CARPENTER SECONDED THE MOTION.

MOTION PASSED UNANIMOUSLY.

Chairman Anderson took a brief break at 10:55 a.m. The committee would reconvene for work session.

Chairman Anderson reconvened the committee at 11:10 a.m. to proceed with the work session; he drew the committee’s attention to S.B. 577.

Senate Bill 577: Limits common-law and statutory liability of corporate stockholders, directors and officers and increases fees for filing certain documents with secretary of state. (BDR 7-1547)

Assemblywoman Buckley said the vote on S.B. 577 had been delayed at the request of Speaker Perkins, Chairman Anderson, and Assemblyman Goldwater, in an attempt to find additional revenue to assist in the plight of the educational system and teacher raises. As a result of working with Senator Raggio, the Governor’s Office, and many others, the Distributive School Account was able to increase what had previously been announced, adding additional funds for teachers’ health insurance and an additional percentage raise to be triggered if revenues were enough. Therefore, no more fees would be added to S.B. 577.

Chairman Anderson announced that the Research Division had prepared a revised amendment (Exhibit D) as submitted by the Nevada Trial Lawyers Association.

Ms. Lang said S.B. 51, that made various changes pertaining to business associations, had already been passed, gone to the Governor, and would be amended to be made consistent with S.B. 577, including the effective date so that the fees came into effect at the same time.

ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND DO PASS S.B. 577 WITH THE AMENDMENTS SET FORTH BY THE NEVADA TRIAL LAWYERS ASSOCIATION AND WITH ANY ADDITIONAL AMENDMENTS TO RESOLVE CONFLICTS WITH S.B. 51, ALLOWING THE FEES TO TAKE EFFECT AT THE EARLIEST POSSIBLE DATE.

ASSEMBLYMAN MANENDO SECONDED THE MOTION.

Chairman Anderson clarified the amendments.

Assemblyman Brower informed the committee that he would be voting no on the motion. He said he did not believe the amendment was necessary and was concerned about the ultimate success of the bill.

Assemblyman Carpenter said he did not want Nevada to become a haven for every corporate “crook” in America; he could not support the amendments. Assemblyman Carpenter said he would vote no on the bill.

Assemblywoman Buckley said she supported the motion because the fees were necessary to fund education. She said she had hoped for a more broad-based solution to address the larger issues of teacher salaries and adequately funding education, but if S.B. 577 was the best that could be done to ensure that schools were not left further behind, then she supported the fees. The Senate testimony offered corporations “more predictability under the law” in exchange for the increased fees. Nevada had always been very “business friendly” with the low tax structure, interim committees learning how to attract business, and implementing those recommendations. The amendment codified statutory law instead of relying on case law. It was necessary to make sure the language in S.B. 577 clearly expressed the intent of the Senate and those who testified – to have predictability in Nevada business law. S.B. 577, as amended, would provide the funds needed for education, as well as relief for victims in Nevada.

Assemblyman Nolan agreed with Assemblywoman Buckley. He said he was not in favor of the fees but in light of the alternative, he would support the bill. Assemblyman Nolan asked if the amendment presented (Exhibit D) included consensus language agreed upon by all parties.

Assemblywoman Buckley said the amendment was not consensus language. The additional funds for education agreed upon by the Governor’s Office and interested parties were included in the projections and closed in the Distributive School Account budget, adding additional funds for teachers’ health insurance and an additional 2 percent raise to be triggered by adequate revenues. Assemblywoman Buckley said S.B. 577 clarified and put forward the Senate’s intent by codifying law instead of relying on case law, and preserved the fees for education.

Chairman Anderson said there might have been some confusion regarding other provisions and subsequent agreements that were not reached.

Assemblyman Collins said he did not see the necessity of the amendment, but he did support education; he would vote for the bill.

Assemblywoman Angle said S.B. 577, as written, was a “wonderful way” to fund education and to make Nevada very friendly. Assemblywoman Angle said she supported the bill as it came from the Senate.

Assemblyman Gustavson said he supported education and trying to find every way possible to increase funding for education. He said he would support the fee increases; the bill as a whole was good. But he said he did not support the amendment, so he would be voting no.

Assemblyman Brower asked if the Chair would reconsider the original motion to “do pass” rather than “amend and do pass.”

Assemblyman Carpenter said he did not agree with the amendments to Section 1. He suggested only amending the language to include “or promote an injustice.”

Chairman Anderson restated the motion from Assemblywoman Buckley, seconded by Assemblyman Manendo to amend and do pass S.B. 577.

Assemblyman Brower said he had made a motion. Chairman Anderson stated that he had not recognized the motion. Assemblyman Brower said he would be forced to vote no.

A ROLL CALL VOTE WAS CALLED.

Assemblyman Nolan asked if the motion failed, would the Chair reconsider a do pass motion. Chairman Anderson said, “No.”

MOTION PASSED 10-4 WITH MRS. ANGLE, MR. BROWER, MR. CARPENTER, AND MR. GUSTAVSON VOTING NO.

Chairman Anderson recessed the meeting at 11:30 a.m. to the call of the Chair.

RESPECTFULLY SUBMITTED:

Deborah Rengler

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

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