MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-First Session

February 26, 2001

 

 

The Committee on Judiciary was called to order at 9:03 a.m., on Monday, February 26, 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.    John Carpenter

Mr.    Jerry Claborn

Mr.    Tom Collins

Mr.    Don Gustavson

Mrs.  Ellen Koivisto

Ms.   Kathy McClain

Mr.    Dennis Nolan

Mr.    John Oceguera

 

COMMITTEE MEMBERS ABSENT:

 

Ms.   Genie Ohrenschall, (Excused)

 

STAFF MEMBERS PRESENT:

 

Nicolas Anthony, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Sandra Johnson, Committee Secretary

 

 

OTHERS PRESENT:

 

James Nadeau, Captain, Detective Division of the Washoe County Sheriff’s Office, also representing the Nevada Sheriffs and Chiefs Association

Aaron Crawford, Investigator/Bomb Technician/Coroner, of the Douglas County Sheriff’s Department

Chris Carter, Bomb Technician/Diver/K9, of the Consolidated Bomb Squad of the Reno Police Department, President, International Association of Bomb Technicians and Investigators

Ben Graham, Legislative Representative, Nevada District Attorney’s Association

 

 

Chairman Anderson opened the hearing at 9:03 a.m. and noted there was a quorum present.  Chairman Anderson then asked if there were any Bill Draft Requests (BDRs), and noted that it was the last legislative day that the committee could act on any new requests.  He advised the committee that he had received a BDR from Mr. Brian Hutchins, Chief Deputy Attorney General, Chief Council of the Nevada Department of Transportation, to alleviate some problems with the current eminent domain legislation.  The BDR dealt specifically with Nevada Revised Statutes (NRS) 37.210, regarding date of value questions and the statute for inverse condemnation actions.  Chairman Anderson asserted it would indeed be possible to combine the two topics into a single draft.  He informed the committee that the Board of Transportation had not yet met regarding the draft, and that meeting may result in not needing it at all.  He asked if the committee felt it should use its last BDR to address Mr. Hutchins concerns.  Chairman Anderson clarified the vote would not be an agreement to the bill, just an agreement to have it drafted.

 

MR. COLLINS MOVED TO REQUEST A BDR TO ADDRESS THE CONCERNS OF MR. HUTCHINS ON BEHALF OF THE NEVADA DEPARTMENT OF TRANSPORTATION, WITH EMINENT DOMAIN LEGISLATION REGARDING NRS 37.210, CONCERNING DATE OF VALUE QUESTIONS AND INVERSE CONDEMNATION ACTIONS.

 

MR. GUSTAVSON SECONDED THE MOTION.

 

THE MOTION PASSED UNANIMOUSLY.  MR. BROWER,
MS. BUCKLEY, AND MR. NOLAN WERE NOT PRESENT FOR THE VOTE.

 

 

• BDR 2-298 - Increases certain court filing fees. (A.B. 239).

 

Chairman Anderson presented BDR 2-298 (A.B. 239), which would authorize the Board of County Commissioners to impose additional fees for filing certain actions and responses thereto in district and county justice’s courts to offset costs of providing legal services without charge to abused and neglected children, victims of domestic violence and other needy persons, for introduction.

 

MS. MCCLAIN MOVED TO INTRODUCE BDR 2-298, TO AUTHORIZE THE BOARD OF COUNTY COMMISSIONERS TO IMPOSE ADDITIONAL FEES FOR FILING CERTAIN ACTIONS AND RESPONSES.

 

MR. CLABORN SECONDED THE MOTION.

 

THE MOTION PASSED UNANIMOUSLY.  MR. BROWER,
MS. BUCKLEY, AND MR. NOLAN WERE NOT PRESENT FOR THE VOTE.

 

Assembly Bill 105:  Revises provisions pertaining to explosive and incendiary devices. (BDR 15-425)

 

At 9:09 a.m., Chairman Anderson opened the hearing on A.B. 105, and called the witnesses to testify in support of it.

 

Captain James Nadeau, Detective Division of the Washoe County Sheriff’s Office, who also represented the Nevada Sheriffs and Chiefs Association, introduced Mr. Chris Carter, Bomb Technician/Diver/K9, of the Consolidated Bomb Squad of the Reno Police Department.  Captain Nadeau advised the committee that Mr. Carter had 28 years of experience as a bomb technician and had spent time in the Special Forces S.A.S. Unit in England.  Captain Nadeau also noted that Mr. Carter was President of the Nevada Chapter of the International Association of Bomb Technicians and Investigators.  Captain Nadeau then introduced Mr. Aaron Crawford, Investigator/Bomb Technician/Coroner, of the Douglas County Sheriff’s Department.  Captain Nadeau advised the committee that Mr. Crawford had been with the Tahoe Douglas Fire District Bomb Squad for 13 years as a bomb technician and had worked in law enforcement for 15 years.  Captain Nadeau then cited his own 22 years of experience as a bomb technician for the Washoe County Sheriff’s Office.

 

Captain Nadeau cited that possession of an explosive device was not currently illegal in the state of Nevada.  It was only illegal if they could prove that the person in possession intended to damage property or injure people with the device.

 

Captain Nadeau offered a few incidents where people were arrested for possession of bombs, but they were not able to be prosecuted because the District Attorney was not able to conclusively prove the intent of the person to damage property or injure people.  Captain Nadeau then explained the purpose of the proposed amendment of A.B. 105 (Exhibit C) was to make the possession of a bomb and/or its components illegal.  Captain Nadeau noted that workers in the mining industry and other persons lawfully using explosive and incendiary devices would be excluded from prosecution under A.B. 105.

 

Captain Nadeau informed the committee that he drafted A.B. 105 in cooperation with the Nevada Mining Association, Nevada Workers Association, Defense Bar and Prosecutors in Washoe County.  Captain Nadeau explained the bill would protect those lawfully in possession of explosive devices, while providing law enforcement the latitude necessary to prosecute those who possessed the explosive devices with harmful and malicious intentions.

 

Mr. Carter addressed the committee on behalf of A.B. 105, and offered specific incidents where they were not able to prosecute people in malicious possession of explosives due to the current language of the law, which placed the burden of proof upon law enforcement that the person intended to damage property or injure people with the explosives.  Mr. Carter described a gentleman who was in possession of a container filled with explosives that were capped and contained a fuse inside his vehicle, which was located between casinos in Douglas Alley, Reno.  The gentleman was ultimately arrested for trespassing but was not charged for possession of the explosive because they could not prove conclusively that he had the intent to damage property or injure people.

 

Mr. Carter then described a second incident involving a young gentleman in Reno who was stealing motor vehicles.  The police department was given information that the gentleman was carrying pipe bombs with the intent to throw them at any law enforcement that would pursue him.  The young gentleman never actually used the pipe bombs and was eventually arrested in a sting operation.  When arrested, the young gentleman was indeed in possession of the pipe bombs.  However, they could not prosecute him for possession of the explosive devices because, again, they could not conclusively prove he intended to damage property or injure people with the pipe bombs.

 

Mr. Carter described the coverage area that he served, which included all of northern Nevada, and parts of California on occasion, and supplied information that he gathered regarding frequency of incidents with explosive and incendiary devices.  Mr. Carter first referenced that in 1997, they had 136 call-outs, 29 involved improvised explosive devices that were viable and 7 were hoax devices.  In 1998, they had 142 call-outs, 19 involved improvised explosive devices that were viable and 4 were hoax devices.  In 1999, they had 158 call-outs, 19 involved improvised explosive devices that were viable and 7 hoaxes.  Mr. Carter noted to date, they had not tracked possession of components of explosive devices not yet assembled into explosive devices, due to the current inability to prosecute.

 

Mr. Collins requested clarification regarding the definition of explosive device.  Mr. Collins wanted to verify the bill was not describing lawful possession of normal ammunition and shells, et cetera.  Captain Nadeau clarified the bill did not refer to gunpowder and black smokeless powder; they were separate components.  Captain Nadeau explained the components for the explosive devices described in the bill were typically not found together when used lawfully.  Captain Nadeau also clarified the bill would require the presence of the components to be located together in the same place.

 

Chairman Anderson expressed his concerns over the precise language of the proposed amendment to A.B. 105.

 

Mr. Aaron Crawford, Investigator/Bomb Technician/Coroner, of the Douglas County Sheriff’s Department, introduced himself as an experienced bomb technician for 13 years.  Mr. Crawford informed the committee he had been in contact with several other law enforcement agencies in Nevada.  He described the coverage area of his agency, which included Douglas County, South Lake Tahoe, Carson City, and provided occasional assistance to other counties throughout the state of Nevada.

 

Mr. Crawford noted the common problems the agencies had experienced with individuals in possession of explosive devices.  He informed the committee of his research of laws in other states with similar problems, and indicated that he had concentrated on the states of California, New York, and Florida.  California law appeared to be more suited to Nevada’s needs.  Mr. Crawford informed the committee the proposed amendment to A.B. 105 was drafted to shadow California law regarding possession of explosive and incendiary devices.  Information was taken into consideration in the drafting of the proposed amendment to A.B. 105 from professions that would need to be excluded.  He then described an incident at a casino in Tahoe, where they found a bag full of explosive components obviously meant to create bombs for harmful purposes.  Another incident involved a CO₂ container capped and lined with BB’s for the purpose of defragmentation.  When attempting to prosecute, the gentleman claimed the bomb was being used against gophers.

 

Ms. Buckley asked how the bill would address the problems of prosecution as described.  She noted that under the current bill language, they would still have to prove intent to damage property or injure people.  Captain Nadeau called the committees attention to the proposed amendment to A.B. 105 (Exhibit C).  Ms. Buckley noted that she was still concerned about the language of the amendment that required intent.  Captain Nadeau informed the committee that the intention of the proposed amendment was to remove the intent language from A.B. 105, and change it to mere possession of the components of an explosive or incendiary device.  Ms. Buckley voiced her concern that the language was too vague.  She suggested the definition of what legal activity would be, should be included in the proposed amendment.  Captain Nadeau referred the committee back to page one, line five of Exhibit C.

 

Chairman Anderson inquired if the proposed amendment to A.B. 105 had been shown to the Assembly’s bill drafters.  Captain Nadeau responded that the Douglas County District Attorney drafted the proposed amendment.

 

Mr. Oceguera voiced his concerns regarding the removal of intent from the proposed amendment of A.B. 105.  Mr. Oceguera asked how the proposed amendment would affect those who became unlawfully in possession by accident, such as a new tenant in a former miner’s dwelling, which contained old explosive components.  Mr. Carter answered they received frequent calls regarding the described situation.  He asserted that to his knowledge, they had never attempted to prosecute in situations of that nature.

 

Mr. Oceguera expressed that his concern remained and posed another example.  Captain Nadeau explained anybody who lawfully used explosive devices would not keep the components all together in the same place.  Captain Nadeau described that persons in lawful possession would be careful to keep the components separate.  He also noted that experienced blasters would travel with sticks of dynamite, but would keep components separate.  Persons in legal possession already displayed appropriate placards on their vehicles in accordance with current laws, which would prevent such situations from occurring.

 

Chairman Anderson inquired if dropping the term “knowingly,” on page 1, line 3 of the proposed amendment, would open the question of requiring a higher burden of proof for the prosecution.  Captain Nadeau cited the language of the bill would be replaced by the proposed amendment.  He explained the options for wording of the proposed amendment.  He described an option that would include possession with intent to build an explosive or incendiary device, and another, which would specifically deal with pipe bombs and like explosives.  Chairman Anderson clarified the proposed amendment to A.B. 105, intended to change the language from “knowingly,” to “reckless and malicious possession” to become the point of proof, inclusive of the components of assembly of the explosive and incendiary device.  Chairman Anderson also noted the locations of “recklessness and maliciousness” were added to the amendment to include in or about a public street, or highway, or near any private habitation, or near a public conveyance.

 

Chairman Anderson informed Captain Nadeau that the bill drafter would change the language of the proposed amendment to A.B. 105 to reflect the appropriate style of the NRS.  Chairman Anderson emphasized drafting would be done to meet NRS.  He then inquired why the language “or” was dropped from page 2, line 3 in the proposed amendment.  Captain Nadeau called the committee’s attention to page 2, line 3, of the proposed amendment, and explained it wasn’t really dropped.  He explained the language was just moved from Section 2.2 of A.B. 105, to page 2, line 3 of the proposed amendment.  Captain Nadeau requested assistance in the cleanup of the language.  Chairman Anderson then concluded the question to be handled by the committee, was the movement of the burden of proof to become “reckless and maliciousness,” and cleanup language of the proposed amendment for statutes.

 

Mr. Carpenter raised a concern that “reckless” would be too vague.  He noted the interpretation of “reckless” would be relative to the reader.  Mr. Carpenter requested the bill drafter to specifically exclude mining, agriculture and construction industries from the provisions of the proposed amendment to A.B. 105.  Captain Nadeau explained the intent of the proposed amendment was not to affect legitimate uses, but to allow the prosecution of reckless and malicious possession.  Law enforcement agencies wanted the latitude to be able to stop the destruction of property and injury to people by stopping the perpetrator before it could happen.  Mr. Carpenter reiterated his concern of specifically excluding mining, construction, and agriculture industries.

 

Chairman Anderson announced bill drafters would handle the necessary corrections if the bill were to move forward.

 

Captain Nadeau indicated it would be up to the prosecution to convince the court of the definition of reckless and malicious possession.

 

Chairman Anderson thanked the witnesses and called upon Mr. Ben Graham, Legislative Representative, Clark County District Attorney’s Office, representing the Nevada District Attorney’s Association to testify.  Chairman Anderson placed the question concerning the language of the proposed amendment of A.B. 105, as discussed.  He advised the committee of the previous concerns that the bill was too inclusive and the proposed amendment resolved the issue.  Mr. Graham informed the committee of two ways to address their concerns about the language and intent of the proposed amendment.  He noted one option would be to include the phrase “possess with the intent to manufacture.”  Mr. Graham agreed the proposed amendment needed additional language of “reckless and malicious possession.”  He noted any lawful purpose would be exempted and that any prosecution of illegal use would have to be proven beyond a reasonable doubt.

 

Ms. Risa B. Lang, Committee Counsel, addressed the committee with her concerns regarding limitations to placement of “intent” and “reckless and malicious possession.”  She advised the committee to adjust the proposed amendment to A.B. 105 to separate intent, and reckless and malicious possession to be separate crimes.  Mr. Graham responded in agreement with her concern.  He noted his concern that intent would affect some instances of lawful possession, and advised the committee to include some form of mens rea in the proposed amendment.

 

Chairman Anderson specified for the record the intent of the proposed amendment to A.B. 105 was not to affect the mining industry.  The committee had additional concerns regarding other lawful industries that would be affected such as agriculture and construction as pointed out by Mr. Carpenter.  The committee recognized the question regarding whether lawful activity needed to be listed specifically in an amendment to A.B. 105.

 

Chairman Anderson requested Mr. Graham to assist the bill drafters to provide the proposed amendment of A.B. 105 to the next committee work session. 
Mr. Graham acknowledged and agreed with the Chairman.  Chairman Anderson inquired if the proposed amendment reopened to question the legislative issue of nonexplosive devices constructed to appear as explosive and incendiary devices.  Mr. Graham assured the committee the proposed amendment would not in any way affect that issue.

 

Chairman Anderson closed the hearing on A.B. 105.

 

Chairman Anderson announced the committee was referred 43 bills, had already heard 14, approved 9, and none had been indefinitely postponed; they had 23 bills still to be heard.  Chairman Anderson advised the committee that there were 35 committee meeting dates remaining before the April 16, 2001, deadline for committee passage in the first house.

A.B. 126:  Revises provision regarding recording of certain documents relating to real property. (BDR 10-842)

 

Chairman Anderson informed the committee he would take A.B. 126 with its amendment to the floor that afternoon.  He referred the committee to the amendment to the bill for their review, and discussed the actual changes of the amendment since the work session on February 23, 2001 (Exhibit D). 
Ms. Lang summarized the requested changes to the amendment from the work session meeting.  She stated changes made to subsection 3, would require the name and mailing address of the person who authored the legal description of real property in meets and bounds, when recorded for the first time.  She specifically cited the exception under subsection 4, which indicated if the document was previously recorded, the document would need to include all information necessary to identify and locate the previous recording.  Under that situation, the name and mailing address of the person who prepared the legal description would not be required for the document to be recorded.

 

Chairman Anderson inquired if Mr. Alan Glover, Carson City Recorder and Representative of Nevada Association of County Clerk & Election Officials had the opportunity to review and approve whether the amendments answered their concerns.  Ms. Lang answered they had not; however, the legal department had made the requested changes.  Chairman Anderson announced he intended to take A.B. 126 to the floor on February 27, 2001.

 

Mr. Collins inquired if the bill would actually resolve specific situations in the Las Vegas area.  No response was provided.

 

Chairman Anderson informed the committee he intended to present to the floor the proposed amendments to A.B. 41, A.B. 108, to A.B. 82, A.B. 38, all of which had previously been reviewed by the committee.

 

Mr. Anthony summarized his committee handout (Exhibit E), which listed potential BDRs to be considered by the committee.

 

There being no further discussion, Chairman Anderson adjourned the meeting
at 10:05 a.m.

 

RESPECTFULLY SUBMITTED:

 

 

 

           

Sandra C. Johnson

Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Assemblyman Bernie Anderson, Chairman

 

 

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