MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
February 16, 2001
The Committee on Judiciarywas called to order at 8:00 a.m., on Friday, February 16, 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
Ms. Barbara Buckley
Mr. Jerry Claborn
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Kathy McClain
Mr. John Oceguera
COMMITTEE MEMBERS ABSENT:
Mr. John Carpenter (Excused)
Mr. Tom Collins (Excused)
Mr. Dennis Nolan (Excused)
Ms. Genie Ohrenschall (Excused)
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
John P. Sande, Nevada Bankers Association, Reno, NV
Debbie Young, Asst. General Counsel, Bank of America, Los Angeles, CA
Ted Wehking, Executive Vice President, Nevada Bankers Association, Reno, NV
Gary Milliken, GEM Consulting, Las Vegas, NV
Maryanne Ingemanson, Vivian Lane Homeowners Association, Incline Village, NV
Fred England, Woodland Village Homeowners Association
Jim Nadeau, Captain Detective Division, Legislative Liaison, Washoe County Sheriff’s Office, Reno, NV
Don Means, Commander Forensic Science Division, Washoe County Sheriff’s Office. Reno, NV
Ben Graham, Legislative Representative, Nevada District Attorney’s Association, Carson City, NV
Stephanie Garcia, Legislative Advocate, City of Henderson, NV
David Gibson, Legislative Team – Clark County, Nevada, NACO, Carson City, NV
John Morrow, Chief Deputy, Washoe County Public Defender, Reno, NV
Chairman Anderson changed the order of business to discuss Assembly Bill 62 (A.B. 62) first. He continued his opening remarks and opened the hearing on A.B. 62.
Assembly Bill No. 62: Makes various changes concerning garnishment. (BDR 3-777)
Mr. John Sande from the law firm of Jones-Vargas, represented the Nevada Bankers Association (NBA), which had requested A.B. 62. A.B. 62 would be a clarification of the garnishment statutes, with the hope that the procedures currently being used would be codified into law. He introduced Ted Wehking, head of NBA, and Debbie Young, Assistant General Counsel with Bank of America.
Mr. Sande said A.B. 62 would do two things: (1) clarify who received the answer to a writ of garnishment since it was unclear in the current statute Nevada Revised Statute (NRS) 31.291; and (2) clarify what the bank would be liable for when the garnishment was served.
Ms. Young believed the underlying purpose of the garnishment statute was very clear; to create a lien only in the debtor’s account. But the creditor’s counsel, in an effort to make a bank the guarantor of the depositor’s debts, had twisted the statute. Thus Bank of America had been asked to be a guarantor of judgments assessed against its depositors. Bank of America had lawsuits brought against them seeking to hold the bank liable for judgments against depositors where discrepancies had been as much as eight times the amount of the deposit. Ms. Young believed banks in general were very responsible and garnishments were processed responsibly. Given the volume of garnishments handled, some errors had occurred. In Nevada, the bank processed over 1,000 garnishments each year. Since 1994, there had been only eleven instances in which an attempt was made to apply the statute against the bank, holding the bank responsible for the entire judgment. In each case, the bank was not held responsible. This was an error rate of two per year. Ms. Young also stated if the statute was corrected so that it was clear banks were not the guarantor of depositor’s judgments, and the banks were only responsible for the amount of money held in the bank on the date the banks were served with the garnishment, it would deprive attorneys of the incentive to hold the banks liable for the entire judgment.
Mr. Wehking who represented all the banks in the state through the Nevada Bankers Association (NBA), added although Ms. Young gave testimony for Bank of America, all the banks in Nevada were in the same situation regarding this issue. The clarification of the statute would make procedures run more smoothly.
Assemblywoman Koivisto asked for clarification as to whether this would apply to all financial institutions, including as credit unions. Mr. Wehking answered in the affirmative.
Mr. Sande stated NRS 31.291 refers to “bank” which he believed included other financial institutions. Mr. Wehking reiterated that he had reviewed the statute and it referred to banks, credit unions, and saving and loan associations.
Chairman Anderson asked for clarification of the process. Were there sufficient funds to cover the garnishment in the account at one time, but transactions occurred, the bank was unaware of garnishment, and then there were insufficient funds when the garnishment was actually processed? Or were there never sufficient funds in the account?
Ms. Young said the scenarios ran the gamut. Sometimes there were never any funds if the account was closed, and sometimes there were less funds than the amount of the garnishment. Bank of America checked the time and paid the amount of money at the time of the service, which might mean they would assume responsibility for money withdrawn from the account during the time the bank had the garnishment. They would not try to escape liability for their procedures regarding the garnishment, but they were not responsible for the money not being in the debtor’s account to begin with.
Chairman Anderson emphasized the change in statute would not lessen the bank’s responsibility for garnishments. Ms. Young agreed.
Chairman Anderson asked if what had been presented was common banking procedure. Mr. Wehking replied that was correct.
Mr. Sande stated that NRS 31.291 Subsection 2 indicated credit unions and saving and loan associations would be treated the same as banks.
Chairman Anderson asked if there were others who wished to testify in favor or in opposition to A.B. 62. There being none, he closed the hearing on A.B. 62.
Assemblyman Brower indicated he would abstain from any vote on A.B. 62 because he practiced law with Mr. Sande.
Assemblywoman Koivisto MOVED to DO PASS A.B. 62.
Assemblywoman Angle seconded the motion.
THE motion passed WITH Mr. Brower abstainING.
A.B. 62 was assigned to Vice Chairman Manendo for presentation on the floor.
Chairman Anderson opened the hearing on Assembly Bill 38.
Assembly Bill No. 38: Authorizes notice of meetings of units’ owners and executive boards of associations of common-interest communities to be sent by electronic mail upon request. (BDR 10-279)
Assemblyman Donald Gustavson, District 32, Washoe County, approached the witness table. He sponsored A.B. 38 in response to concerns raised by constituents regarding the legality of providing notification of homeowners’ association meetings by way of electronic mail (e-mail) messages. NRS 116.3108 and 116.31083 did not specifically prohibit e-mail notifications, but neither did the statute clearly permit the use of this technology. According to CommerceNet/Nielson Media research from April 1999, there were approximately 83.3 million Internet users in the United States. According to Computer Industry Almanac, it was also estimated that by 2002, there could be approximately 165 million users. An additional benefit to using e-mail would be that many programs would permit the sender to confirm delivery and/or opening of the e-mail message, a process that had been difficult and expensive in the past.
Assemblyman Gustavson went on to say for those people who do not have Internet or e-mail access, A.B. 38 would allow the homeowner to request e-mail notification; A.B. 38 would not require e-mail be used. Amending NRS 116.3108 and NRS 116.31083, A.B. 38 would eliminate the question of legality regarding e-mail notification.
Assemblywoman Buckley asked what would happen when the homeowners’ association did not have e-mail capabilities. If the homeowner requested e-mail notification, would this then become a mandatory requirement? Assemblyman Gustavson was aware of the concern and reported an amendment could be prepared to handle the issue, making the use of e-mail voluntary for all parties concerned.
Chairman Anderson asked if the possible amendments had been shared with Assemblyman Gustavson, and if they were as agreed. Assemblyman Gustavson said the amendments had been shared and he did agree with them.
Chairman Anderson entertained questions from committee members for Assemblyman Gustavson.
Mr. Milliken, Community Associations Institute, supported the bill regarding the cost and time saving effort. A.B. 38 would also make confirmation of attendance easier for the homeowner. Mr. Milliken shared Assemblywoman Buckley’s concerns and quoted Page 1, Section 1, Subsection 2, starting at line 17 and stated that adding the words “may be” and “providing the association agrees” could eliminate concerns. Mr. Milliken provided a copy of his proposed changes (Exhibit C). This would give the owner, as well as the association, the option. The same changes would be necessary on Page 3, Section 2, Subsection 2(b), lines 9 and 10.
Chairman Anderson recognized Ms. Maryanne Ingemanson, Vivian Lane Homeowners Association, Incline Village, Nevada.
Ms. Ingemanson stated the Vivian Lane Homeowners Association did not have a formal management group and she herself did not have e-mail capability. She said NRS 116.1203 required a minimum number of 12 units for associations that must comply with the regulations. Her association, comprised of 16 units of which only three were permanent, had difficulty with numerous regulations. Her request would be to amend NRS 116.1203 to increase the minimum.
Chairman Anderson verified NRS 116.1203 was the statute under discussion. He also verified the number of units in the Vivian Lane Homeowners Association.
Assemblywoman Buckley commented previous legislation for this particular chapter was in reaction to abuses by homeowners’ associations. She agreed smaller associations could experience problems.
Assemblyman Brower agreed with Assemblywoman Buckley and stated if A.B. 38 went to a work session, it would be given further consideration. He told Ms. Ingemanson he appreciated her insight.
Assemblywoman Angle asked what Ms. Ingemanson would consider a reasonable number. Ms. Ingemanson answered possibly 25.
Chairman Anderson queried if condominium/homeowner associations fell under the purview of the Commerce Committee, rather than the Committee on Judiciary. Assemblywoman Buckley stated homeowner associations were the responsibility of the Judiciary Committee by chapter, but had been referred to Commerce in the past.
Chairman Anderson said he needed to look into that. He would ask the Research Division to research what had been done, how the numbers were originally established, and get some background on this issue. He asked if there were other questions.
Assemblyman Gustavson was concerned about Ms. Ingemanson’s issues and would be happy to work on them, but stated he did not know if A.B. 38 was the vehicle to accomplish that.
Chairman Anderson recognized Mr. Fred England.
Mr. Fred England represented Woodland Village Homeowners Association. He supported the bill. He reported when Woodland Village was completely built out, there would be approximately 2,000 homes. The association meets on a monthly basis. If he was able to notify even half of the residents, he could save up to $5,000 a year.
Chairman Anderson entertained questions from committee members. He asked if there were any other witnesses who wished to testify in favor or in opposition to A.B. 38. There being none, he closed the hearing on A.B. 38.
Chairman Anderson stated his intention to move A.B. 38 to the work session scheduled on Friday, February 23. An amendment would be discussed at that time. Research and Legal would confirm if A.B. 38 could be used to answer questions brought before the committee.
Chairman Anderson corrected the record relative to A.B. 62. Since he was the sponsor; he would present the bill himself.
Chairman Anderson opened the hearing on Assembly Bill 54, also sponsored by Mr. Anderson and requested by police agencies. He recognized Captain Jim Nadeau and Commander Don Means of the Washoe County Sheriff’s Office, and Ben Graham of the Nevada District Attorney’s Association.
Assembly Bill No. 54: Revises provisions relating to time within which prosecution for certain felonies must be commenced and certain provisions concerning genetic marker testing. (BDR 14-296)
Captain Nadeau, also representing the Nevada Chief’s Association, reported A.B. 54 was in two sections. Section one dealt with DNA marking and changing the terminology/language in the bill specifically changing the work “blood” to “biological specimen.” The second portion of the bill dealt with the statute of limitations specifically removing the statute of limitations on kidnapping, attempted murder and felony aggravated stalking. Proposed amendments (Exhibit D) outlined two changes in wording (from “blood” to “genetic”) and adding kidnapping to the list of crimes when the court ordered DNA testing.
Chairman Anderson verified those changes requested.
Captain Nadeau introduced Commander Don Means who was the requestor of A.B. 54. Captain Nadeau expressed his understanding there might be proposed amendments especially in light of reporting period issues. Chairman Anderson clarified there have been concerns regarding the statute of limitations and the committee would be hearing from others regarding those issues.
Captain. Nadeau made an additional comment regarding Lt. Stan Olsen from Las Vegas Metro, who was unable to attend the hearing, but wanted his support expressed for A.B. 54.
Commander Don Means, Lab Director for the Washoe County Crime Lab, explained the reasoning behind the bill request. DNA technology had solved many high profile cases. That would be of tremendous assistance in “hard specific evidence cases.” With the technology and procedure improving, if the evidence was packaged correctly, the evidence could be good forever.
Mr. Ben Graham, Nevada District Attorney’s Association, recounted some of his experience with statute of limitation cases. In effect, what law enforcement wanted was to amend legislation to add “kidnapping, attempted murder and felony aggravated stalking” while at the same time using the current statute of limitation (a three-year window) to handle the “reporting period” limitation – the time within which the crime would be originally reported. If the crime was not reported within that limitation, then the open-ended provision for prosecution would not be triggered. A concern regarding “mischief” which could violate due process rights causing prejudice to the defendant was discussed briefly. If it was ever demonstrated that the state deliberately delayed or did not proceed in a timely manner, resulting in a prejudice to the defendant, then the case would likely be dismissed.
Captain Nadeau restated some details of the 23-year old kidnapping case previously discussed. The suspect in the case was a previous sex offender who subsequently pled guilty and was now serving time. The case did not go to trial. One reason those types of crimes were to be included in the legislation was because those crimes impacted the victim until the crime could actually be resolved, and resolution of crime would be very difficult if it was not prosecuted.
Chairman Anderson entertained questions from committee members.
Assemblywoman Buckley asked, regarding the biological specimen amendment, if that covered DNA as well as anything else that could be recovered.
Captain Means stated law enforcement had gone from blood to saliva for DNA, so a decision was made to refer to biological specimens. What was being used was a Styrofoam swab that would be rubbed on the inside of the mouth. Blood had not been used for quite some time.
Assemblywoman Buckley asked if that would create a DNA/genetic database. Would it become a database with genetic samples of all citizens? She was in favor of using that as a tool against sexual predators.
Captain Means reported that the process was not new. Washoe County was one of the original ten pilot labs for the DNA coded database. In conjunction with the Las Vegas Metropolitan Lab, a database had been compiled with approximately 2,000 people, each one a convicted offender. The current statute was written in 1989 and updated in 1995. But, he said, it should be remembered that this did not include citizens, rather only murderers, sex offenders, burglars, and those committing violent crimes. Law enforcement only had the technology for DNA identification and only within the confines of the crime lab.
Captain Nadeau reported it was a confidential national FBI database, which included only convicted offenders and would only be court-ordered.
Mr. Graham reiterated there was a database but it was limited to convicted offenders. Interestingly, DNA identification also released or proved innocent some defendants, but there would always be those who would not want to use DNA identification for convictions.
Chairman Anderson asked that the following testimony be recorded verbatim to establish legislative intent.
Assemblywoman Buckley asked “from the previous statutes, saliva or blood, you could already get the DNA that you needed? So biological specimen doesn’t really change your ability to get those already, is that right?”
Captain Means answered, “That is correct.”
Assemblywoman Buckley clarified, “the crimes include the serious ones that you mentioned but also burglaries, home invasion, attempted burglaries, all the crimes listed on page 3, in addition to the sex crimes and murder crimes. Although these are some of the more serious ones, but it is just not those felonies that you indicated previously, is that right?”
Assemblywoman Buckley continued, “just wanted the record to be clear because you said this applies to murderers and people who assault children but the record should reflect that no it’s not just those, but that list on page 3.”
Captain Means answered, “Yes.”
Chairman Anderson clarified “Assemblywoman Buckley’s intent was to establish a very clear statement, not to justify what’s happening, but the extent of the marking, and which crimes are going to be included.”
Chairman Anderson asked Assemblywoman Buckley to restate her question and asked for a “yes” or “no” answer from Captain Means.
Assemblywoman Buckley “wanted to confirm the collection of specimen applied to all those crimes listed on page 3, lines 5-22 and not just the ones indicated in testimony.”
Captain Means answered, “Yes.”
Chairman Anderson went on “it would be your intent then also to include, if the committee is to move to include the amended provisions, kidnapping pursuant to among that list of events?”
Captain Nadeau answered, “Yes, we would like to add kidnapping.”
Chairman Anderson asked if there was anybody else who wished to speak in support of A.B. 54. He recognized Ms. Stephanie Garcia, Legislative Advocate for the city of Henderson.
Ms. Garcia reported the city of Henderson was in full support of A.B. 54.
Chairman Anderson recognized David Gibson, Legislative Team – Clark County, NV, and John Morrow, Chief Deputy – Washoe County Public Defender.
Mr. Gibson was present to speak for Mr. Jackson, the spokesperson for the Nevada Attorneys for Criminal Justice, in opposition to A.B. 54. A written statement (Exhibit E) was handed out to committee members. In the statement, three reasons were given for having a statute of limitations:
Mr. Gibson wanted the committee to have all the issues before them when A.B. 54 went to subcommittee.
Mr. Morrow stated he felt very strongly the statute of limitation had a valid purpose and should continue to be part of our jurisprudence.
Chairman Anderson asked if there were others who wanted to testify. There being none, he closed the hearing on A.B. 54.
Chairman Anderson reported A.B. 54 would be turned over to a subcommittee. The record would remain open to allow for further testimony, in order to reach a decision and compromise. The proposed amendment submitted by Captain Nadeau would also be discussed. The subcommittee was established with Mr. Manendo as the Chair, Mr. Brower and Mr. Oceguera.
· BDR 1303 – Revises provisions concerning interception and disclosure of wire, radio or oral communications.
Chairman Anderson said that Assemblywoman Giunchigliani had made a request for a Bill Draft Request (BDR) introduction dealing with wiretap legislation. Ms. Giunchigliani wanted a redraft of the previous legislation to include clarification in language. Given the technological change, it seemed to be a worthy discussion.
Assemblyman Manendo MOVED to have the committee introduce BDR 1303.
Chairman Anderson noted it would result in giving up a committee introduction, reducing the committee to one remaining introduction.
ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
Mr. Anthony presented the Judiciary Committee schedule for the following 11 days, which included a work session.
Chairman Anderson noted a subcommittee meeting was tentatively planned for A.B. 34. He also drew attention to the starting times of meetings Thursday and Friday of the following week, which were 9:00 a.m. He cautioned committee members to place their bills on the schedule as quickly as possible. There were a number of “big time” events coming up for the committee including a senate joint meeting relative to a presentation on the change in the prison system.
Chairman Anderson adjourned the meeting at 9:27 a.m.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: