ASSEMBLY COMMITTEE ON JUDICIARY

MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

Seventy-First Session

February 14, 2001

The Committee on Judiciarywas called to order at 8:00 a.m., on Wednesday, February 14, 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)

GUEST LEGISLATORS PRESENT:

Assemblywoman Merle Berman

STAFF MEMBERS PRESENT:

Nicolas Anthony, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Deborah Rengler, Committee Secretary

OTHERS PRESENT:

John Albrecht, Senior Deputy Attorney General, Human Services Division, State of Nevada, Office of the Attorney General, Reno, NV

Jim Nadeau, Captain, Detective Division, Legislative Liaison, Washoe County Sheriff’s Office, Reno, NV

Maureen Brower, American Cancer Society

Denise Brodsky, Nevada Tobacco Prevention Coalition

Robin Camacho, American Heart Association, Director of Advocacy & Communications, Western States Affiliate, Las Vegas, NV

Peter Krueger, Nevada Petroleum Marketers & Convenience Store Association (NPM&CSA), Reno, NV

Samuel McMullen, 3 associations

Kami Dempsey, Director Government Affairs, Las Vegas Chamber of Commerce, Las Vegas, NV

Helen Foley, Clark County Health District

Gemma Waldron, District Attorney’s Association, Reno, NV

Ernie Adler (Former Senator - Capital Senatorial District), Carson City, NV

John Morrow, Chief Deputy, Washoe County Public Defender, Reno, NV

Al Walker (representing himself), Douglas County, NV

David Graham, Incline Village, NV

Pete Bachstadt, Carson City, NV

Myra Sheehan, Esq., Nevada Trial Lawyers Association, Reno, NV

Ann Price McCarthy, Nevada Trial Lawyers Association, Carson City, NV

May Shelton, Consultant Human Services, Sparks, NV

Lucille Lusk, Co-Chairman, Nevada Concerned Citizens, Las Vegas, NV

Chairman Anderson called the meeting to order and asked the secretary to call the roll. Chairman Anderson stated a quorum was present and continued with his opening remarks.

Assembly Bill No. 25: Makes various changes concerning minor who falsely represents his age to purchase tobacco products. (BDR 5-60)

Chairman Anderson opened the hearing on A.B. 25 and called Assemblyman John Carpenter (sponsor) to begin testimony.

Assemblyman Carpenter, Assembly District 33, Elko County, gave a brief background before he discussed the merits of A.B. 25. He stated it was not illegal to smoke at any age, it was not illegal to manufacture cigarettes, it was not even illegal to buy cigarettes if one is age 18 or older, and it was not illegal to advertise cigarettes as depicted in the ad distributed (Exhibit C). The only activity that was illegal was to sell cigarettes to someone under the age of 18. He did not have a problem with not selling cigarettes to someone under the age of 18; what he did have a problem with was the person under the age of 18 attempting to purchase cigarettes with no reprisal. “Sting” operations had been in effect for the purpose of identifying store clerks who sold cigarettes to minors. He believed it was wrong to penalize only one of the parties in such a situation.

Assemblyman Carpenter said it was time to put some equity back into the equation. The store clerk was subject to a fine up to $500 and a civil penalty of $500, while the real perpetrator walked away scott-free. To believe that preventing the sale of cigarettes to someone under the age of 18 would reduce under-age smoking was not realistic. Since it was not illegal to give an under-age person cigarettes, and it was not illegal for parents to supply their children with cigarettes, a tremendous black market could be created. The advertising war had become a lost cause as illustrated in the ad where a young man was not looking at the surgeon general’s warning on the label, but at the scantily clad girl standing next to him (Exhibit C).

Assemblyman Carpenter continued his discussion of A.B. 25. The most positive feature of A.B. 25 would be posting a sign that said persons under the age of 18 attempting to purchase cigarettes may be detained. He went on to say he believed A.B. 25 needed amendments: 1) It should be mandatory to post the sign that you would detain someone. 2) The judge should be able to require a person under the age of 18 to do community service -- like picking up 200 cigarette butts from school grounds or parks. 3) The fake IDs should be confiscated and given over to the police, which would amend NRS 202.2493.

Nothing in A.B. 25 was mandatory. Assemblyman Carpenter continued by defining what would be meant by “detaining” – in simple terms, asking a person to remain until the authorities arrived. If they ran, they ran. It would only take one time, the word would get around and they would not be back in the establishment again. A.B. 25 would become a tool for those who wished not to sell cigarettes to underage individuals and would give the store clerks a sense of satisfaction that they would not be discriminated against.

As the sponsor of the bill, Assemblyman Carpenter would be willing to listen to any amendments to the bill. Anything that could be done to prevent children from smoking should be done, but there should be a level playing field.

Chairman Anderson inquired as to whether proposed amendments had been shared with Assemblyman Carpenter.

Assemblyman Carpenter relied “yes” and “no”.

Assemblywoman Buckley voiced concerns that existed during the Seventieth Legislative Session (1999). Of concern would be criminalizing the child, putting them into a “strapped” juvenile justice system with kids that “aren’t so nice” or had done things a lot worse than smoking. Would that really achieve the goals of the bill, to prevent children from smoking and to prevent children from buying cigarettes? Criminalizing kids for smoking could be as successful as prohibition. Education, working on the programs funded through the tobacco task force, and new advertising campaigns targeted at youth, would seem a more effective focus. Also of concern would be the safety of the merchants.

Assemblyman Carpenter shared Ms. Buckley’s concerns but believed that word of mouth regarding the “first detention” could curb further incidents. As far as criminalizing children, being taken to juvenile court and the subsequent community service would get the message out. Unfortunately, most merchants would not even do that, but that would be their prerogative. Obviously, the way it had been taken care of in the past had not worked. A.B. 25 would be more of a tool than a method to criminalize kids. Maybe reverse psychology – advertising that they should smoke – would be a more effective method to stop smoking. In Elko’s teen court, where the recidivism rate has been only two percent, the defense bar, the prosecutor, the judge and the jury consist of teens. That type of court could handle such cases.

Chairman Anderson asked Assemblyman Carpenter to rejoin the committee. He acknowledged there were eleven people who wished to speak regarding A.B. 25 and three who wished to offer amendments.

Mr. John Albrecht, Senior Deputy Attorney General, approached the witness table and reported the Attorney General’s Office had conducted over 12,000 inspections of retail stores over the past 5 years. His office supported A.B. 25 as an incremental step in discouraging tobacco use by children. The Attorney General’s Office would commit to educating youth about this new law if the legislature passed it, bringing together retail groups, schools and other youth groups to inform them about the consequences of misrepresenting their age when they entered a store. It was Mr. Albrecht’s opinion that the bill needed to exempt those children that assisted in tobacco compliance checks under the Attorney General or local law enforcement programs. Under state law, children were required to tell the truth when asked about their age. Their ID would indicate they were minors. So there should be no problem if the children presented an ID. A possible problem would be when a child correctly disclosed their age, but the merchant would not hear it correctly.

Mr. Albrecht believed another concern would be if the merchant interfered with an inspection. The merchant could refuse to release the child to anyone other than the police, even after the inspector identified himself as being from the Attorney General’s Office. During the time the child was detained, waiting for the police, that merchant could be liable for a civil action between the child and the store.

Mr. Albrecht also mentioned that the Attorney General’s Office would be interested in a bill that would ban cigarette vending machines except in “adult only” areas. Most casinos and bars have been very accommodating and had promptly moved machines when asked. There were only 37 machines identified in the whole state of Nevada that have not been moved out of areas where children would have access.

Chairman Anderson asked Mr. Albrecht to have the Attorney General’s Office prepare documents and present them to Nick Anthony, Committee Policy Analyst, to be included in the forthcoming work session.

Vice Chairman Mark Manendo asked Mr. Albrecht to be kept informed as to the status of the movement of those 37 vending machines that have been accessible to children.

Mr. Albrecht replied that nothing could be done about the 37 machines. The vending machines were located in smaller establishments where the owners monitor the machines, and it was perfectly legal. All the Attorney General’s Office would be allowed to do would be to talk to the owners and ask that the machines be moved.

Assemblyman Greg Brower asked how the Attorney General’s Office used children in their “sting” operation and how they were recruited.

Mr. Albrecht answered the children were recruited from Explorer Scout groups which were affiliated with law enforcement and through high schools by contacting principals. Only children who did not use tobacco products, did not use alcohol, and did not use illegal drugs were allowed to participate.

Assemblyman Brower asked if these children were paid.

Mr. Albrecht disclosed that the children were paid; they were state employees, which allowed them to be disciplined, suspended, or terminated for not following the procedures of the inspection. They were also covered under Workers’ Compensation to cover any injuries incurred in the performance of an inspection. If they did not show up to work, they would be terminated. There are children that showed up for work and did what they were told because they were paid.

Chairman Anderson recognized Captain Jim Nadeau from the Washoe County Sheriff’s office, also representing Nevada Sheriffs and Chiefs Association.

Captain Nadeau supported A.B. 25. It had been looked at from various aspects and a variety of issues. He believed that the bill would be good legislation. Chairman Anderson asked if Captain Nadeau would also support Mr. Albrecht’s recommendations regarding “sting” operations. Captain Nadeau said he would support Mr. Albrecht’s recommendations.

Chairman Anderson asked that Ms. Maureen Brower from the American Cancer Society approach the witness table.

Ms. Brower said that as a matter of policy the American Cancer Society would not support legislation that criminalized youth for possession of tobacco products. Nor would they take a position on the use of false ID. She had spoken to the author of A.B. 25 (Assemblyman Carpenter) who was in agreement with an amendment, which would make A.B. 25 supportable by the American Cancer Society. The amendment proposed that instead of imposing a $100 fine on the youth, it was suggested that the youth would be required to attend and take part in a cessation program to get them off tobacco. Another consequence could be community service, which would further deter the person from the use of tobacco. With these amendments, the American Cancer Society could then support the bill.

Chairman Anderson recited that Chapter 62 already requires that the child attend counseling. Ms. Brower asked if that would include a tobacco cessation program. Chairman Anderson said that it would be hoped that it would include whatever would be needed – tobacco and alcohol. He asked that any suggested amendment be submitted to be included in the upcoming work session.

Chairman Anderson recognized Denise Brodsky from the Nevada Tobacco Prevention Coalition.

Ms. Brodsky was not in support of A.B. 25 as written but would like to work with the committee in proposing amendments for the bill. Her group had worked statewide with other coalitions to reduce tobacco use by youth and its accessibility, as well. It was recommended that an amendment should include an intense cessation program to resist tobacco. It was noted that product placement should be very important along with clerk-assisted sales. Chairman Anderson said that Ms. Brodsky should review NRS 62.212 in drafting amendments for A.B. 25 in relation to children that need supervision, and asked that all amendments be submitted in a timely manner.

Ms. Robin Camacho, American Heart Association, shared Assemblywoman Buckley’s concerns about criminalization, but found that Assemblyman Carpenter was willing to work on an amendment. The American Heart Association, the American Cancer Society and the Nevada Tobacco Prevention Coalition would work together on such an amendment.

Peter Krueger, Nevada Petroleum Marketers & Convenience Store Association (NPM&CSA), supported A.B 25 and many of the amendments proposed. Moreover he supported the concept of placing the responsibility on the young people who were not of age to purchase a product that they were not entitled to purchase. The NPM&CSA would not support any amendment that would require “clerk-assisted sales only” transactions or placing the product away from the consumer. Mr. Krueger reiterated that the NPM&CSA would be willing to work amendments to this bill.

Assemblyman Brower asked what was meant by “clerk-assisted sales”. Mr. Krueger replied that “clerk-assisted sales”, a term used previously by Ms. Brodsky, referred to those transactions where a clerk reached behind a counter and handed the customer the product, one-on-one.

Assemblyman Brower repeated his understanding of the question as the product behind the counter or in a locked cabinet as seen in some grocery stores.

Chairman Anderson brought to light the fact that issues regarding product placement and accessibility were dealt with in the past. He went on to say that it was his understanding that it was not Assemblyman Carpenter’s intention to let store clerks who would sell tobacco products to underage individuals off the hook.

Mr. Krueger said that he supported Chairman Anderson’s comments 100 percent.

Chairman Anderson acknowledged Ms. Kami Dempsey and Mr. Samuel McMullen.

Mr. McMullen represented the Las Vegas Chamber of Commerce and the Retail Association of Nevada that included the grocery stores, pharmacies, and retail stores in Nevada. He believed the state of Nevada should issue a statement of policy that it was wrong for a child under the age of 18 to try to purchase cigarettes. Debate would follow on what the penalties should be and the enforcement. It should be noted that federal funding for drug abuse and substance abuse dollars could be affected by the outcome of A.B. 25.

Ms. Dempsey, also from the Las Vegas Chamber of Commerce, wanted to reiterate that she supported the merits of A.B. 25, and was willing to work on amendments.

Assemblyman Brower asked Mr. McMullen to clarify the legality of underage persons purchasing cigarettes and the legality of an underage person’s possession of cigarettes. Mr. McMullen replied that it was his belief that Mr. Brower was correct. It was only illegal to sell cigarettes to a minor.

Helen Foley, Clark County Health District, was concerned about the $100 fine and the criminalization issue. She favored the youth attending a cessation program, and even the parents paying for the program.

Chairman Anderson commented on the issue of “sealed records” and whether the use of a false identification listed in the record could be interpreted as associated with drug or alcohol products other than tobacco.

Gemma Waldron, District Attorney’s Association, did not come to the witness table but wanted her support of the bill to be indicated for the record.

Mr. Ernie Adler (former Senator, Capital Senatorial District) stated that he brought this bill before the Sixty-Ninth Legislative Session in 1997, which the Assembly Judiciary Committee artfully killed. Mr. Carpenter led the charge, which was ironic. Regarding amendments, in the 1997 bill would have resulted in a civil penalty and not a juvenile justice criminal penalty. Also in the 1997 bill, the $100 fine was refundable upon completion of a smoker’s cessation course, which made the fine a deposit, which would be refunded upon completion of the course. He stated he felt it was a bad idea to make it a criminal offense or even a juvenile offense because even though you would be able to seal juvenile records, the offenses still would show up on the FBI computer. Further, there would be no way to remove an arrest from an FBI file.

Chairman Anderson acknowledged John Morrow from the Washoe County Public Defenders Office.

Mr. Morrow stated that A.B. 25 was definitely a bill that deserved support. Anything that could be done to curb smoking in youth should be encouraged. There should be some consequence for those indulging in this conduct. Perhaps criminalization was not the answer, but a consequence for this unacceptable behavior should be included in the bill. In his experience with the juvenile justice system, there had been a frightening number of youth that were armed with knives and firearms. The concept of an armed child with little or no feeling for consequences and a merchant attempting to detain that individual could result in a very volatile situation that could result in disaster. We should proceed with great caution in encouraging or authorizing merchants who might detain youth under these circumstances.

Chairman Anderson stated that A.B. 25 as written did not criminalize this offense. In fact under NRS 62.350 it would prohibit turning fingerprints or records over to the FBI. A closer look at Senator Adler’s previous suggestion was needed, but he appreciated Mr. Morrow’s comment that the possibility of the firearms could put merchants and clerks at risk.

Assemblywoman Buckley, in response to Mr. Morrow, remarked that there were already consequences for children coming home smelling like smoke and having an observant parent dole out parental discipline. Responsible parents would know when their children smoke. Ms. Buckley continued,

We all agree smoking is bad, we all agree there should be consequences, we all agree that teens need to know that this is serious, they can get addicted and there are serious health consequences, but I don’t think we can overlook that a lot of parents who care are trying to do something about their child smoking. And for the parents that don’t care … putting them into the juvenile justice system and requiring them to pay a fine, I don’t know if that is going to make parents care more about their children.”

Mr. Morrow totally agreed with Assemblywoman Buckley. If the world were full of responsible parents there probably would not be a teen smoking problem.

Assemblywoman Buckley did not want to be misunderstood in a belief that parents were irresponsible when their children smoke; there was peer pressure involved. The best parents in the world could have a child that went through rebellious years and started to smoke. She believed the best response would be through community-based programs and education programs that have been tested to be successful … allowing parental involvement would be more effective than the juvenile court involvement.

Mr. Morrow thoroughly agreed with Assemblywoman Buckley, but sometimes the best lessons were learned at the end of a punitive “kick in the rear end” so to speak. Sometimes that would be necessary to get the youth’s attention. Obviously, criminalizing the child might not be the answer, but some consequence like attending a class might seem a punitive consequence to the child and would be more productive.

Chairman Anderson recognized Mr. Al Walker and reminded the audience that witnesses were limited to five minutes of testimony.

Mr. Walker represented himself, a citizen of Douglas County. He was concerned about the terms “custody” and “detention”. He tried to find something in the law and in NRS 62.170 that defined custody and detention in terms of juveniles and found only two types of people that were allowed to do it – police officers and probation officers. Mr. Walker was concerned about giving this type of authority to someone that worked in a 7-11 store (as an example), who was not trained and who might be dealing with kids that could be dangerous. This would set a terrible precedent to allow and make into law that someone working in such a position as a clerk in a store would have the right to detain a juvenile for something that was not being made a crime. The ideas that had been presented all morning were wonderful but something needed to be done. Mr. Walker went on to say that he felt, for a layman, which was what store clerks were, custody and detention were bad ideas – that should be left to trained police officers.

Chairman Anderson stated that the power of one should never be under-estimated. He went on to say, just for the committee’s information, under NRS 597.850 merchants were allowed to detain those who were shoplifters, so there was a little bit of a statute that provided some preemption.

Mr. David Graham from Incline Village, a new resident of Nevada, approached the witness table. One reason he moved to Nevada was the structure of the Nevada Legislature – this was closer representation, citizen to those who govern, than was available in many other states. When he viewed the bill, he was concerned as a private citizen. Of concern was giving police powers to private citizens, and unfortunately our society had those among us that reacted badly to concepts like detention and being turned over to the police. His concern was even though the bill tried to shield the merchant from civil liability in the event that someone they detained wanted to sue them, the truth of the matter was that people still got sued even when they acted lawfully. The only thing that would correct that would be if the state would take on the liability for that defense and any challenges that might arise from that action.

Mr. Graham related his family situation and said he believed that solid family and religious values should encourage children to make their own decisions. His concern as a parent was that he felt the child would look at this legislation as another slap by parents and authority in general.

Chairman Anderson commented to committee members that Mr. Graham had presented a letter (Exhibit D), which would become part of the record, which outlined the six points his testimony.

Chairman Anderson closed the hearing on A.B. 25. He stated he would be polling members of the committee as to their intent regarding the bill. This was an issue that had been looked at several times and it would be put into a work session if that was in the interest of the committee.

Assembly Bill No. 33: Expressly validates trust for care of animals. (BDR 13-17)

Chairman Anderson opened the hearing on Assembly Bill 33 (A.B. 33), which was a carry-over piece of legislation from the Seventieth Legislative Session (1999) and acknowledged Mr. Pete Bachstadt and Ernie Adler. This bill was reintroduced on behalf of the committee. Given the deadlines of the last session, it was not possible to hear every bill at that time.

Ernie Adler commented that this concept had been around since the last century. Essentially the bill was a rewrite of the Uniform Probate Code Provision on Animal Trusts. This bill codified and set down some basic rules as to how the trusts would operate. There were a number of people, especially elderly people, who had no direct relatives and were leaving money in trust for animals. This bill made the rules understandable. Mr. Adler had prepared a couple of these trusts in recent years. One provision provided for excess distribution on over-funded trusts, which would be determined by a judge, to other heirs who would have had to wait for the animal to die (i.e. $1 million trust for one dog was deemed over-funded). It also provided for another person to petition the court to care for the animal if the originally-named trustee would not or could not care for the animal. These provisions have also been approved by the Uniform Commissioners on State Laws.

Pete Bachstadt began his testimony by correcting the title of his presentation to “Animal Trusts” not “Pet Trusts” (Exhibit E) since these trusts should cover any animal including prize breeding stock, both agricultural and domestic (in the case of dogs and cats). It was not his intent to amend the bill, he believed that it was adequate and met his criteria. He continued his testimony by reading his exhibit, which included references to previous court cases, and those states that already have established animal trusts.

Chairman Anderson entertained questions from committee members. There were none so he closed the hearing on A.B. 33.

Chairman Anderson entertained motions from committee members.

ASSEMBLYWOMAN KOIVISTO MADE THE MOTION TO DO PASS.

ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.

THE MOTION WAS PASSED UNANIMOUSLY.

A.B. 33 was assigned to the Chair for presentation to the floor.

Assembly Bill No. 34: Revises provisions governing granting of rights to visitation with child to persons other than parents of child. (BDR 11-193)

Chairman Anderson opened the hearing on Assembly Bill 34 (A.B. 34). He had already requested that several members of the committee sit on a subcommittee if one was created. Assemblywoman Merle Berman (bill sponsor) was asked to make her presentation.

Assemblywoman Berman, District 2, Clark County, said that during the Seventieth Legislative Session (1999) she sponsored a bill that expanded the rights of grandparents to visit their grandchildren in cases where parents were not married. Assembly Bill 436 of the Seventieth Session allowed continuation of direct contact between grandparents and their grandchildren under specific circumstances. Nevada Revised Statutes (NRS) 125C.050 provided that a district court could grant visitation rights to a third party if certain findings were made regarding the best interest of the child. A judge had to review all the factors and consider what would constitute a meaningful relationship in each case. Recently, laws of this kind had been under legal challenge. State legislators faced a challenge of balancing the rights of the grandparents against those of the custodial parents. In June 2000, the United States Supreme Court issued a decision regarding the visitation rights of grandparents (Troxel v. Granville). This decision required the court to give great weight to the parent’s decision whether to allow grandparents to visit their grandchildren. This case also mentioned other factors that courts must consider when making visitation decision. A.B. 34 would bring Nevada law into compliance with the Troxel decision. However, since this decision, Ms. Berman had been convinced that it would be necessary to go beyond “arguable compliance”. It was necessary to go far enough to avoid the appearance of any area that might be the basis of an appeal to the Nevada Supreme Court. The goal was to craft a strong and clearly defensible statute that would avoid the continued cycle of appeals over visitation rights. Also, the Nevada Trial Lawyers Association proposed amendments to this bill that would create an even stronger version.

Chairman Anderson stated, due to the 120-day limit, the Speaker, under the standing rules, had asked that committee chairmen should be very judicious in the use of the Legislative Counsel Bureau’s (LCB) time and staff in terms of drafting language for amendments so that committees could have a full hearing of important legislation. A member of the LCB had met with Chairman Anderson on the previous day to discuss how the amendment would impact the bill. The quandary the committee would face would be whether to: (a) have the bill returned to the floor, (b) have the amendment redrafted and schedule another hearing of the bill, or (c) put the bill into a subcommittee and take the amendment with any other proposed suggestions. This would put the committee in an awkward situation.

Assemblywoman Berman was aware there were conflicting issues in the Troxel decision and more scrutiny would be needed.

Chairman Anderson reiterated that he was concerned with the amendment question.

Chairman Anderson emphasized that although the committee had a posted agenda, he wanted the committee to be given the opportunity to hear the bill in its entirety. He also stated the Troxel decision was limited in its scope to the State of Washington, and thus those states that already operated in the best interest of the child would be in a quandary as to how far they could go. Clear guidelines needed to be set for judges so that Nevada laws could be made stronger. He also recognized that a companion piece of legislation was introduced on the Senate side.

Chairman Anderson asked for clarification regarding the status of the amendment; was it ready for distribution to the committee. Assemblywoman Berman said she had the amendment.

Chairman Anderson recognized Myra Sheehan and Ann McCarthy from the Nevada Trial Lawyers Association (NTLA).

Myra Sheehan, President of the NTLA for this legislative session, reported her practice was exclusively in family law. Ms. Sheehan believed that A.B. 34 was a great bill, which could provide a balancing act between the rights of parental autonomy to decide what was in the best interest of the their children and the rights of third parties that had significant relationships with the child. It was Ms. Sheehan’s opinion that the Troxel v. Granville decision could not be ignored. This statute had been used to fight cases on both sides; biological parents who fought nonbiological (step) parents, as well as grandparents’ rights. It would not be the goal to say biological parents had the “absolute right” because even the United States Constitution would not give them absolute right. But a state must meet a higher standard if they hoped to overrule a “fit” parent’s decision, which denied contact with significant others. It would be hoped that the Nevada legislation could become the model. Because the family structure has changed, it would be important to make sure that no one would be denied a relationship with a child.

Mr. Sheehan went on to say, besides dealing with the Troxel issue, some “clean up” language would be needed. In Section 1 Subsection D there was a residential requirement, which should be carried through to Section 2, which could be just an oversight. Ms. Sheehan said she was willing to work with the committee. The Senate bill used a “preponderance” of evidence as the evidentiary standard; whereas the Assembly bill used “clear and convincing” evidence. If an evidentiary standard would be used, the Assembly side would be correct in using “clear and convincing” evidence.

Ann Price McCarthy, a lawyer in private practice in Carson City, reported that the NTLA supported Assemblywoman Berman’s A.B. 34. Ms. McCarthy read from a prepared statement (Exhibit F) that repeated many of the thoughts stated by Ms. Sheehan. Ms. McCarthy also read some of the details of the Troxel v. Granville case. Ms. McCarthy closed her statement with a plea to make Nevada legislation a model that would protect parents, grandparents and children. Again, it was stated that the NTLA would work with the committee in whatever way would be necessary.

Chairman Anderson stated that children did not lose their constitutional rights when they were away from their parents. They were not chattel as once treated by our society, so, when the concept of the best interest of the child as a judicial standard was set forth, he stated his support. At the same time, one of the great complaints about our society was the lack of parental involvement in the day-to-day activities of children and their need for supervision. Again, it needed to be understood that it was not the intention of the bill to take away the right of the parents, but to reaffirm parents’ responsibility for their child. We must realize there were bad parents and that there were grandparents who had a legitimate reason to come forward. Chairman Anderson was concerned about the bill and reassured the audience that he would not abandon it.

Ms. Sheehan said she felt the United States Supreme Court had been very sensitive to the exact issues Chairman Anderson spoke about. What the U.S. Supreme Court had decided was that a district court judge could not substitute their opinion of what was good or what was best over the rights of a “fit” parent. The dilemma was the protection of the rights of parents without the destruction of the rights of third parties that have significant relationships. This bill might take a lot of heat from both sides, but she believed that it could become a “win-win” situation.

Assemblyman Claborn asked if the term “biological parents” also included adoptive parents. Ms. Sheehan said that when a child was adopted they acquired full rights as though they had been born to those parents. Consequently, an adopted child would have equal standing in the eyes of the court.

Chairman Anderson asked the Research department to examine the overall question. There was a summary previously done by Research that answered some of the questions and he said he would get that to the committee for their review.

May Shelton, a contract lobbyist from Washoe County who dealt with human services issues, stated she asked Judge Scott Jordan, Judge McGee and others to review and comment on A.B. 34 when it was introduced. Ms. Shelton, as a messenger, reported that Judge Jordan was in favor of the bill with some tighter language to protect everybody’s rights. The District Attorney’s Office, specifically Elizabeth Farley, gave Ms. Shelton some comments along with Ms. Farley’s support of the bill.

Lucille Lusk, Nevada Concerned Citizens, spoke in support of A.B. 34. She hoped the result of this effort would develop a solid constitutional bill that would indeed protect the rights of all concerned.

Chairman Anderson reiterated that the legislation should deal with “clear and convincing fence” that would be set at a higher level.

Chairman Anderson closed the hearing on A.B. 34 and assigned the bill to a subcommittee that consisted of Mr. Carpenter, Mr. Anderson and Ms. Buckley. The subcommittee Chair would be Mr. Anderson. All committee members would be kept informed as materials and amendments would be brought before the subcommittee. The record would remain open so that testimony could be added to the record for this particular day on this particular issue.

Assemblyman Collins had a question regarding A.B. 33 in relation to the Heil Trust (horses) that had been in existence in Nevada for a long time. Were they aware of any conflict? Chairman Anderson asked legal counsel to review that question.

Chairman Anderson said that he would be calendaring for future meetings.

Chairman Anderson adjourned the meeting at 10:30 a.m.

RESPECTFULLY SUBMITTED:

Deborah Rengler

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: