MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
April 6, 2001
The Committee on Judiciarywas called to order at 7:40 a.m. on Friday, April 6, 2001. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. The meeting was simultaneously video conferenced 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
GUEST LEGISLATORS PRESENT:
Assemblyman Wendell Williams, District 6
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Sandra Johnson, Recording Committee Secretary
Deborah Rengler, Transcribing Committee Secretary
OTHERS PRESENT:
Judge Robey Willis, Carson City Justice/Municipal Court and Chairman of the Mandatory Minimum Sentencing Review Commission, Carson City
Stewart Bell, Clark County District Attorney, Las Vegas
Anne Langer, Chief Deputy District Attorney, Criminal Division, and Mandatory Minimum Sentencing Review Commission, Carson City
Scott Freeman, Attorney, Mandatory Minimum Sentencing Review Commission and “The Law” talk show host, Reno
Richard Kirkland, Director, Department of Motor Vehicles & Public Safety (DMV&PS), Carson City
Julie Butler, Chief of the Nevada Office of Traffic Safety, Department of Motor Vehicles & Public Safety (DMV&PS), Carson City
Charles Keller, Chief of Alternative Sentencing for Carson City, Mandatory Minimum Sentencing Review Commission
Ben Little, Supervisor of the Criminal Division, Office of the Las Vegas City Attorney, Las Vegas
Sandy Heverly, Executive Director and Co-founder, Stop DUI, Las Vegas
Laurel Stadler, Lyon County Chapter Director, Mothers Against Drunk Driving (MADD), Reno
Judy Jacoboni, Victim Advocate for Mothers Against Drunk Driving (MADD), Reno
Jim Holmes, Chairman of the Northern Nevada DUI Task Force, Reno
Nancy Hart, Deputy Attorney General, Office of the Attorney General, Reno
Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence (NNADV), Reno
Judge Deborah Schumacher, Second Judicial District Court, Reno
May Shelton, Lobbyist for Washoe County, Reno
Paula Berkley, Nevada Network Against Domestic Violence (NNADV) and Reno-Sparks Indian Colony, Reno
John Morrow, Chief Deputy, Washoe County Public Defenders, Reno
Stephen Shaw, Administrator, Department of Human Resources, Division of Child and Family Services (DCFS), Carson City
Noel Fischer, representing self and intern for Assemblyman Williams
Thomas Patton, First Assistant Attorney General, Office of the Attorney General, Carson City
Gene Collins, National Association for the Advancement of Colored People (NAACP), Las Vegas
Reverend Gary Hunter, Greater St. James Baptist Church, Las Vegas
Gary Peck, American Civil Liberties Union (ACLU), Las Vegas
JoNell Thomas, American Civil Liberties Union (ACLU) and Nevada Attorneys for Criminal Justice (NACJ), Las Vegas
Colonel Michael Hood, Department of Motor Vehicles & Public Safety (DMV&PS), Chief, Nevada Highway Patrol, Carson City
Captain Jim Nadeau, Legislative Liaison, Washoe County Sheriff’s Office, Reno
Nile Carson, Reno Police Department
Susan Morandi, Deputy Secretary of State for Elections, Office of the Secretary of State, Carson City
Chairman Anderson made opening remarks; a quorum was not present, the committee started as a subcommittee. Chairman Anderson stated the order in which the bills would be heard.
Chairman Anderson opened the hearing on A.B. 585 and acknowledged the first set of speakers as they approached the witness table.
Assembly Bill 585: Makes various changes to provisions concerning domestic violence and driving under the influence of intoxicating liquor or controlled substances. (BDR 15-514)
Judge Robey Willis, Carson City Justice/Municipal Court and Chairman of the Mandatory Minimum Sentencing Review Commission, introduced those at the witness table with him: Stewart Bell, Clark County District Attorney; Anne Langer, Chief Deputy District Attorney, Criminal Division; and Scott Freeman, attorney and “The Law” talk show host. Judge Willis went on to list other members of the Mandatory Minimum Sentencing Review Commission.
Chairman Anderson noted a quorum was present; the hearing continued as a committee.
Judge Willis said the Supreme Court had authorized the existence of the Commission with its first meeting in January 2000. The commission was composed of individuals within the judicial system who worked with the mandatory minimum sentencing laws on a regular basis. The commission’s defined mission was to review the existing legislation in this area, to determine the overall effect on the court system, and to recommend possible amendments to improve the existing laws. The commission decided to work exclusively on serious flaws in the DUI and domestic violence laws; the resulting recommendations were reflected in A.B. 585.
Judge Willis said mandatory sentencing started in Nevada in 1985 with the strengthening of the DUI laws. Since then the concept had been incorporated into other areas of the law. There had been time to evaluate what parts of mandatory sentencing worked and what parts did not work, preventing prosecutors and judges from dispensing justice. Judge Willis gave some examples where mandatory minimum sentencing in domestic battery cases had unintended consequences. The law must be applied fairly but reasonably. Each case needed to be adjudicated individually taking into consideration the situation, circumstances, and past history of each person; this discretion was key to making laws work in the constantly changing society. More accountability, not more laws, was needed. Judge Willis concluded, “Mandatory sentencing is not an equation for justice.”
Chairman Anderson said laws had been passed in previous sessions based on some serious concerns, but there was a fine line between the branches of government where the laws were made and the laws were interpreted. Although the committee had concerns with issues where sentencing was not strong enough, the unintended consequences of “who has control of the mouse” was not part of those concerns.
Stewart Bell, Clark County District Attorney, reported the Supreme Court asked a group that represented the judiciary, the prosecution, and the defense to look at the domestic violence law and DUI law to see if the administration of the laws could be more effective, easier, and cheaper. Mr. Bell stated, “The common thread of domestic violence and DUI was simply this – a DUI offender and a domestic batterer left unchecked would eventually kill somebody.” What could be done to prevent them from becoming a recidivist? What could be done systematically to maximize the chances they would not do it again? In order to save lives, those repeat offenders needed to be locked up.
Stewart Bell shared statistics in regard to domestic violence recidivism, stating 60 percent would not become repeat criminals if effectively prosecuted, convicted, and forced into long-term counseling. So although very difficult, the conviction rate must be increased, domestic batterers must be induced to admit their conduct and plead guilty. Currently DUI offenders were required to complete 48 hours of community service or 48 hours in jail; domestic battery required both but offenders did not plead themselves into jail. If this situation could be changed, giving attorneys the option of recommending community service and counseling for their clients, the recidivism rate would go down. While it might seem that a more severe penalty would be better, in fact, more convictions and counseling could lead to more lives saved. Severe consequences, fines, and community services were still needed; the key to success was convictions and long-term counseling.
Mr. Bell went on to discuss DUI convictions. When a person convicted of a DUI had their driver’s license taken away, but had been given the ability to drive to, from, and during work only, he had never seen that abused; those persons had respect for the limitations placed on them. When the license was totally taken away, those people did not go to work, lost their jobs, stayed home, got drunk, got in their cars, or they just cheated going to and from work without a license, without insurance, threatening everyone on the road. The proposal was to allow those persons a six-month period to drive to, from, and during work resulting in a lower recidivism rate. As a result of legislation over the last 20 years, nobody had the right to refuse a chemical test and the conviction rate had increased to almost 100 percent.
Anne Langer, Chief Deputy District Attorney, Criminal Division, looked at the definition of domestic violence in terms of “patterns of violence” and those persons included in the legislation that should not be there, such as young siblings. The prosecution had no choice and no discretion. There should be no comparison between domestic battery cases and DUI cases. Ms. Langer believed the effects of previous legislation, while good at the time, were now overwhelming and having the reverse effect of what was originally intended since there was no discretion.
Scott Freeman, a criminal defense attorney, said the Mandatory Minimum Sentencing Review Commission had a unique approach based on the variety of its members; it was a judge-driven committee. The judges’ association supported A.B. 585. It was a unanimous decision from the prosecution and defense attorneys, as well as the judges, that these changes were needed. The proposed amendment (Exhibit C) cleaned up language in regard to domestic violence. It did not propose taking away the penalties, but gave discretion for making decisions to those who worked in those areas on a daily basis and explained why counseling and education were the keys to prevent recidivism.
Chairman Anderson said the Legal Division had prepared an explanation of A.B. 585 (Exhibit D). It was a complicated question divided into two basic areas: (1) DUI and (2) domestic battery.
Assemblyman Carpenter asked why community service had been reduced from 120 hours to 96 hours for first offenders of domestic violence, and for second offenders community service was eliminated?
Judge Willis said first time domestic violence offenders were required to complete community service and jail time, which was appropriate, especially for “push and shove” cases. For second time batterers, it was proposed that community service be eliminated and fines be increased in order to have time to complete one year of counseling and whatever other tasks resulted from the conviction. For those that could not pay the fine, they would do community service in lieu of their fines.
Assemblyman Collins said more plea bargains could result in less court cases that would benefit judges, but even with the common sense benefits, there would be political recourse; those who would believe the judges were not tough on crime. Judge Willis said he would still hand down the maximum sentence for those severe cases, but he needed the discretion for the low-risk borderline cases. Mr. Bell said no one was as committed as he and his staff to stop DUIs and domestic battery. Sometimes political risk must be taken to serve justice.
Assemblywoman McClain verified Mr. Bell prosecuted between 3,500 to 4,000 DUI cases and 3,500 to 4,000 domestic violence cases a year. Mr. Bell agreed. Assemblywoman McClain said Mr. Bell had the discretion to not take someone to court and might have discretion to not prosecute. Mr. Bell agreed. Assemblyman McClain believed there was no reason to “weaken” the law. Mr. Bell believed A.B. 585 would not weaken the law; it would strengthen the law and provide more flexibility in order to obtain guilty pleas. Assemblywoman McClain did not understand how removing community service and raising the fines would act as a deterrent. Mr. Bell related the thought process of the commission, in relation to recidivist offenders, was to have them spend the most amount of time, when not feeding their families, in intensive counseling programs and in jail, not in community service.
Assemblywoman Ohrenschall said she trusted those at the witness table, but was concerned about who would be exercising this discretion in the future. Judge Willis understood the fear that discretion would be used too much and punishment would not be dispensed appropriately; but there was no discretion now in any case. Ms. Langer replied A.B. 585 was not a “soft on crime” bill. It had been her experience that with less discretion more cases were being lost from a prosecutor’s standpoint.
Assemblyman Manendo asked if suspending or revoking a license was a deterrent. Mr. Freeman stated revocation of a license was a penalty; offenders recognized that penalty. The pending loss of license actually assisted the prosecutor to convict. Mr. Bell restated that a suspended license with the ability to drive to and from work did act as a deterrent toward further DUIs. When a license was revoked, the person would violate that order, so it was not a deterrent. Assemblyman Manendo asked how was it verified the person was only driving to and from work? Mr. Bell said it was determined when that person got stopped going to the corner bar, they would be prosecuted for driving with a revoked or suspended license and would be sentenced to 30 days in jail. Mr. Bell believed A.B. 585 would keep drunk drivers off the road.
Assemblyman Carpenter asked where in the legislation did it say that those who could not pay the fine could do community service in lieu of the fine. Judge Willis said in the municipal court and justice of the peace sections it allowed sentences “in the best interest of justice,” which had allowed sentences to be commuted to community service. Assemblyman Carpenter asked where those statutes were referenced. Judge Willis said it was within the Municipal Code, Nevada Revised Statutes (NRS) 4 and 5.
Assemblywoman Ohrenschall asked Mr. Bell to clarify the statement he had made. Mr. Bell restated those convicted of DUI and had suspended licenses, but were given the ability to drive to and from work, had not cheated. After the suspension period was over, there was recidivism.
Richard Kirkland, Director, Department of Motor Vehicles and Public Safety (DMV&PS), supported A.B. 585 and was not trying to reduce the effectiveness of the existing laws. Mr. Kirkland said he could produce statistics of those driving with revoked or suspended licenses, which was a significant number; the revoking of a driver’s license did not prevent people from driving.
Julie Butler, Chief, Nevada Office of Traffic Safety, a division of DMV&PS, was concerned the present wording of A.B. 585 repealed the administrative license revocation (ALR) provision for DUI offenders, which could have significant monetary repercussions. Nevada was the first state in the region, which included Nevada, Arizona, California, Hawaii, and the Pacific Islands, to pass the license revocation law in 1983. That statute had been used as a model for other states that were considering that type of legislation. The National Traffic Safety Administration (NTSA) conducted a study in Nevada in 1991 and found a reduction in alcohol-related crashes following implementation of publicity campaigns to inform the public about the ALR procedure. Forty states and the District of Columbia currently had such laws.
Ms. Butler stated the monetary concern was evident in the grants received by Ms. Butler’s office from the NTSA under Section 410 (Alcohol Incentive Grants), of which approximately $250,000 was given to local law enforcement agencies for alcohol countermeasure programs such as DUI saturation patrols, check points, and training for officers. Ms. Butler supported A.B. 585 for its effort to strengthen the DUI laws, but cautioned that A.B. 585 must comply with NTSA requirements in order to continue receiving the grant, which included the following:
(1) Immediate revocation of the license at the scene for 30 days
(2) Request for hearing would not delay the revocation
(3) After the 30 days, a 60-day restricted driving period would be required
Chairman Anderson stated if there were any proposed amendments, they should be given to the committee in a timely manner. Judge Willis said he was willing to work with the committee on any amendments that might be needed to comply with the NTSA requirements. Ms. Butler did not have any proposed amendments to submit to the committee.
Mr. Kirkland commented the way the bill was written it eliminated the state hearings office; that was not the intention nor would it be the outcome. The state hearings office would continue to hear DUI cases.
Assemblyman Manendo asked if Section 26 of the bill, which repealed NRS 484.384, 484.385 and 484.387, was deleted, would A.B. 585 comply with the NTSA. Ms. Butler believed it would, but had asked Paul Snodgrass from her regional office to forward the bill to his office’s general counsel to look at the bill.
Chairman Anderson reminded those in attendance of the upcoming deadlines if the bill needed to be amended before passage out of the committee. Mr. Kirkland said his department would not support eliminating the state hearings office; it would be processed in a different manner. The question facing him now was whether it worked better in a bifurcated system, half run by the state and half run by the local authorities. It was the commission’s thought process that the local authorities should handle it all. This could have advantages, as long as the outcome remained the same or better.
Assemblyman Manendo asked Mr. Kirkland if during his testimony he had said there was no deterrent to revocation of a license. Mr. Kirkland said in his experience many people who had their license revoked, ignored the fact. Of those who had a restricted license, there were less incidents of violating the requirements.
Assemblyman Collins asked for clarification of the NTSA requirements and exceptions. Ms. Butler said A.B. 585 had to be at least as strong as the NTSA requirements to qualify for funding.
Assemblyman Gustavson objected to the administrative revocation of a license because a judgment of “guilty” was being made prior to going to trial. Were there instances of people whose license was revoked being found “not guilty” at the trial? Ms. Butler said the license revocation was based on a person’s Breathalyzer test at the scene; if the result was an alcohol level of .10 or above, the officer would have probable cause to revoke the license. Mr. Kirkland said he would provide the information requested.
Charles Keller, Chief of Alternative Sentencing for Carson City, saw those persons after they had been convicted to ensure the counseling and the programs were completed. In domestic violence cases, persons might need psychological counseling as well as alcohol or drug abuse programs. Mr. Keller asked for extended time periods and a way of working with numerous mandatory and alternative programs in the time allotted.
Ben Little, Supervisor of the Criminal Division, Las Vegas City Attorney’s Office, handled approximately 4,000 domestic violence cases per year. Mr. Little opposed the alteration of the definition of domestic violence victim; the proposal would eliminate children and older parents and seemed limited to cohabitants and siblings as possible victims of domestic violence. Mr. Little felt A.B. 170 of the Sixty-Ninth Session dealt with the “cohabitant issue” allowing many arrests to be charged as misdemeanor battery domestic violence offenses. Chairman Anderson said Mr. Little’s concerns would be addressed in a proposed amendment.
Sandy Heverly, Executive Director and Co-founder of Stop DUI, Las Vegas, said the reason tough laws had been passed in 1983 was because when judges had discretion, DUI offenders were given a “slap on the hand.” Ms. Heverly believed that provisions within A.B. 585 as written would take the system back 20 years, an incredible travesty. There were concerns about the ALR issue and removing the mandate for installation of an ignition interlock on a second offense, an important public safety issue that should be mandated on the first offense as well. Ms. Heverly believed having offenders wear “distinctive garb” was effective; the victims carried scars, burns, prosthetic devices, and used wheelchairs for the rest of their lives.
Laurel Stadler, Lyon County Chapter Director, Mothers Against Drunk Driving (MADD), opposed A.B. 585, Sections 12 through 27, specifically the repealing of the ALR. Ms. Stadler was opposed to changing the ALR to a post-conviction penalty. She submitted statistics (Exhibit E) concerning DUIs and revocations.
Judy Jacoboni, Victim Advocate for MADD, preferred the bill be divided and then not pass the DUI provisions.
Jim Holmes, Chairman of the Northern Nevada DUI Task Force, did not oppose the domestic violence provisions of A.B. 585, but was opposed to any elimination of the ALR. Over the last five to six years, the victim impact panel had seen approximately 13,500 offenders and was constantly faced with people driving with revoked licenses.
Nancy Hart, Deputy Attorney General, Reno, opposed the legislation because it was harmful to the efforts made by the Attorney General’s Office toward ending domestic violence in Nevada; it was unnecessary and put the Attorney General’s Office in a difficult position (Exhibit F). While the Attorney General’s Office supported giving prosecutors tools to strengthen their ability to successfully prosecute domestic violence cases, the Attorney General’s Office opposed reducing the scope of domestic battery coverage until there was hard data to demonstrate the need for the proposed changes.
Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence (NNADV), opposed A.B. 585, Sections 1 through 11, as written. She had heard no testimony regarding amendments. NNADV supported giving prosecutors discretion, but NNADV was opposed to changing the definition of domestic violence and was opposed to changing sentencing requirements.
Chairman Anderson asked if Ms. Meuschke had agreed to the amendments. Ms. Meuschke reiterated that the NNADV had only agreed to give the prosecutors discretion to move forward with cases. Ms. Hart said the Attorney General’s Office had not participated in any discussion regarding amendments.
Assemblywoman McClain disagreed with Ms. Meuschke. Assemblywoman McClain believed prosecutors had all the discretion they needed in current law.
Chairman Anderson closed the hearing on A.B. 585 and brought it back to committee. Amendments would be reviewed.
There were a number of exhibits submitted without verbal testimony:
Exhibit G – Letter from Reno City Attorney’s Office signed by Kathrine Berning, Chief Criminal Deputy on behalf of Patricia Lynch, Reno City Attorney
Exhibit H – Letter from Nevada Domestic Violence Prevention Council signed by Kathrine Berning on behalf of Patricia Lynch, Co-Chair Legislation Committee
Exhibit I - DUI Adjustment/First Offense submitted by Ben Graham
Chairman Anderson opened the hearing on A.B. 577 and acknowledged Judge Deborah Schumacher, Second Judicial District Court, Family Division, Reno.
Assembly Bill 577: Makes various changes concerning permanent guardianship of certain abused or neglected children. (BDR 13-1333)
Judge Schumacher spoke in favor of A.B. 577. The purpose of the bill was to bring guardianship statutes in accord with mandates of the Adoption and Safe Families Act (ASFA). The most publicized portions of the ASFA shortened time for permanency and required initiation of termination of parental rights. The ASFA also changed the statutory text regarding what would be appropriate permanent placements in the foster care system. NRS 159 had a category of guardianship that had the nominal name of “permanent guardianship” but was not a true permanent guardianship. In the case Litz vs. Benum it was demonstrated how impermanent that type of guardianship was. That type of guardianship would not comply with the provisions of the ASFA. The proposed bill (Exhibit J) created a permanent placement for the child and still provided safeguards for the birth parents. An investigation would determine that same type of criteria to create the permanent guardianship as would be used to terminate a parent’s rights.
Judge Schumacher went on to describe the difference between a permanent guardianship and adoption. During guardianship the child did not lose rights of inheritance or any potential public benefits from the birth parents; it might be possible for the court to order the birth parents to provide financial support for the child, and the court retain jurisdiction to potentially order visitation and contact between the birth parents and the child who was in guardianship. If the guardianship was dissolved for any reason, the birth parents would be notified and informed as to who would become the new guardian. The birth parents might be given the opportunity to regain custody of the child. In an ordinary adoption the birth parents and child became legal strangers and the court did not retain jurisdiction.
Judge Schumacher said there were psychological considerations in those situations also. There were circumstances where children, in a very articulate way, knew their parents could not take care of them, did not want to be adopted, but wanted a permanent home. Other family members might be willing to accept guardianship, but they were not willing to litigate against family members to terminate parental rights. The proposed bill would create a permanent placement for the child until they were grown, but not necessarily terminate the parental rights.
Chairman Anderson reviewed the proposed amendment (Exhibit J) with Judge Schumacher. Chairman Anderson questioned the references to NRS 128.105 through NRS 128.109. Judge Schumacher stated those statutes had to do with the termination of parental rights and applied in circumstances where parents with chronic drug abuse problems had a permanent inability to parent. Judge Schumacher was concerned whatever happened to A.B. 577 would “not run afoul” of the United States Constitution’s protection of parental rights.
Chairman Anderson commented this part of the law was already being amended to comply with the Troxel decision; it was important to avoid conflicting amendments. Judge Schumacher said her amendment dealt with terminating parental rights and guardianship; she believed A.B. 577 did not cover those issues addressed by the Troxel decision.
Chairman Anderson conferred with Risa Lang, Committee Counsel, regarding whether previous legislation dealt with the same issues. Ms. Lang believed Troxel dealt with grandparents’ rights and parents already had custody of the child and in her opinion Troxel would not affect A.B. 577.
Chairman Anderson continued his discussion with Judge Schumacher in reviewing the proposed amendment and questioned the changing of the child’s age from 12 to 14. Judge Schumacher said the rest of the guardianship statute used the age of 14; this change would make A.B. 577 consistent. Another consideration was the statutes did not conform to the Indian Child Welfare Act (ICWA). In cases where statutes and the ICWA did not concur, it was expected to follow the stricter regulations of the ICWA in cases involving Indian children. Judge Schumacher was concerned with the references to the Indian Child Welfare Act and suggested those sections be deleted. She did not want to imply anything that was not intended by limiting the application of the ICWA to this type of guardianship and not others. In addition, it was wrong to incorporate part of the ICWA in the bill and not all of the ICWA, which raised questions on behalf of the deputy district attorney.
Chairman Anderson was concerned about removing references to the Indian Child Welfare Act in Sections 2, 3, and 7 of the bill. Ms. Lang said there were similar references in NRS 127, dealing with adoptions, and NRS 128, dealing with termination of parental rights. Ms. Lang did not disagree with Judge Schumacher; the bill drafters believed it was more consistent with what had been done in the past.
Assemblywoman Buckley was concerned about past cases in Clark County where guardianship cases were closed with no caseworker follow-up to assist with future problems when a birth parent tried to revoke the guardianship. Would there be a way to build in protection so those types of situations did not happen. Judge Schumacher agreed with Assemblywoman Buckley’s concerns but believed A.B. 577 did not impact those situations. Judge Schumacher said similar situations that involved child protection cases would not be affected either. Assemblywoman Buckley asked if this bill would provide an opportunity to specify what services the county would provide to protect the child if a parent tried to revoke guardianship. Assemblywoman Buckley said, “A law always helps in the message.” Judge Schumacher replied the guardianship proposed in the bill was meant to be permanent and would be less subject to revocation possibilities.
May Shelton, lobbyist for Washoe County, submitted a letter (Exhibit K) from Judge Charles McGee, Second Judicial District Court, Department Two, into the record. Washoe County Social Services supported A.B. 577.
Chairman Anderson wanted Clark County Social Services to review A.B. 577. Ms. Shelton said the bill had been brought to the attention of the Clark County Family and Youth Services.
Paula Berkley, Reno-Sparks Indian Colony, was neutral on the bill, but wanted to discuss the inclusion or deletion of the ICWA references in A.B. 577. Historically, the ICWA had been included in NRS provisions for those judges and attorneys not familiar with laws pertaining to Indians.
John Morrow, Chief Deputy, Washoe County Public Defenders Office, supported the amendment submitted by Judge Schumacher. He also was concerned about possible impacts by the Troxel decision, especially those involving fundamental rights of parents. Mr. Morrow suggested an amendment that he felt would add safeguards for parental rights and procedural safeguards. He said he would provide the proposed language to the committee by e-mail or fax by the end of the day.
Chairman Anderson asked for further testimony on A.B. 577.
Assemblywoman Buckley had a question for Stephen Shaw, Administrator, Department of Human Resources, Division of Child and Family Services (DCFS), who was recognized by Chairman Anderson and asked to come to the witness table. Assemblywoman Buckley asked when a permanent placement had been completed, did the state officially close the abuse and neglect file. Mr. Shaw said that was up to the judge; on any guardianship case, the judge could terminate the juvenile court jurisdiction or the jurisdiction could be maintained.
Chairman Anderson closed the hearing on A.B. 577 and said the amendments would be held for the next work session. Chairman Anderson recessed the meeting for a short break.
Chairman Anderson reconvened the meeting and opened the hearing on A.B. 500.
Assembly Bill 500: Directs Attorney General to conduct study of traffic stops by Nevada Highway Patrol and by law enforcement officers in certain counties. (BDR 23-386)
Assemblyman Wendell Williams, District 6, introduced A.B. 500. He stated he was not present to debate whether the practice of racial profiling existed in Nevada; he wanted to make that determination and to collect the data in order to eliminate a practice that over 80 percent of Americans admit happens. Nevada, by undertaking this particular study, would have taken a huge step in eliminating the epidemic of racial profiling in America. Assemblyman Williams said Nevada’s Attorney General Frankie Sue Del Papa had indicated her support of the study.
Noel Fischer, intern to Assemblyman Williams, drew attention to a letter (Exhibit L) from Congressman John Conyers, Jr., ranking member of the House of Representatives Committee on the Judiciary, stating his support for the bill, which Mr. Fischer read to the committee. Also submitted were proposed amendments (Exhibit M) for A.B. 500. Assemblyman Williams said he, Mr. Fischer and the Attorney General’s Office agreed on the amendments to A.B. 500.
Assemblyman Williams said there were ways to assist with the fiscal impact of A.B. 500. While some issues might already be addressed by law enforcement agencies, there was nothing in place to gather data to address the issue on a long-term basis. A collective, statewide effort “channeled” through the Attorney General’s Office was needed to allow documentation to be used in a unified manner.
Thomas Patton, First Assistant Attorney General, Office of the Attorney General, Carson City, appeared on behalf of Frankie Sue Del Papa and the Office of the Attorney General, in support of A.B. 500. He believed there were details to be worked out; there were seven law enforcement agencies that would be impacted by A.B. 500:
q Las Vegas Metropolitan Police Department
q Henderson Police Department
q Boulder Police Department
q North Las Vegas Police Department
q Washoe County Sheriff’s Office
q Reno Police Department
q Sparks Police Department
The purpose of the bill was not to make accusations of wrongdoing; it was to determine if race was a factor utilized by Nevada law enforcement in detentions, arrests, searches, etcetera. There was a lot of room for debate, all the facts were not known; but unfortunately there was a strong perception of racial profiling throughout the country. This effort would help build trust and confidence if the study could demonstrate there was not evidence of racial profiling occurring by Nevada law enforcement agencies. Mr. Patton said the Nevada Highway Patrol conducted 300,000 stops annually in Washoe and Clark Counties; Las Vegas Metropolitan Police conducted 600,000 stops annually. He believed a complete compilation of all eight effective agencies would exceed one million stops, which his office was not prepared to begin receiving. The gathering of this information would need to be done electronically.
Chairman Anderson asked Mr. Patton what the amendment (Exhibit M) would do to A.B. 500; would it replace Section 1 of A.B. 500 in its entirety. Mr. Patton said a conceptual idea had been agreed upon with the definition of racial profiling to include “illegally relying on race as a factor”; it did not have to be the sole factor or the primary factor, just “a factor.” In the Supreme Court case, U.S. vs. Montero Cameringo, it was stated it was a violation of an individual’s civil rights for race, ethnic, or national background to be considered as a factor.
Mr. Patton submitted a memo (Exhibit N) with two sentences of proposed language for Section 1, paragraph 2, which still needed work with the affected law enforcement agencies to determine the capabilities of each agency.
Mr. Patton remarked on two pieces of federal legislation that dealt with racial profiling. The first was HR 1443 that mandated the collection of data; the bill died. A new bill, HR 965, that would result in the loss of federal highway funding if states did not adopt and implement guidelines to prohibit racial profiling, but it did not mandate the collection of data.
Gene Collins, President of the National Association for the Advancement of Colored People (NAACP), did not view A.B. 500 as an anti-law enforcement piece of legislation but as pro-justice legislation that was much needed.
Reverend Gary Hunter, Greater St. James Baptist Church in Las Vegas, was concerned that A.B. 500 did not affect those areas between the counties with populations of 100,000 or more. The bill should encompass all citizens being granted the right to be innocent without being judged guilty based upon a profile of color. And the law should not be limited to just law enforcement agencies, but should include those other agencies exercising power similar to law enforcement, such as casino security. Reverend Hunter suggested an alternative to paperwork would be to use cameras to record the incident and the filmed encounter could be entered into a database to be used during court or trial as evidence of the real situation. Paperwork should be a worry of the past, finance should not be an excuse; a team needed to be put together to accomplish this task.
Assemblyman Williams said the proposed amendments encompassed the concerns of Mr. Hunter. Amendments had also been received from the NAACP in Clark County as well as northern Nevada.
Gary Peck, Director of the American Civil Liberties Union (ACLU) of Nevada, was also the Nevada citizen representative on the governing board of the United States Justice Department’s Western Community Policing Center, a position he was nominated for by the Las Vegas Metropolitan Police Department. The Western Center provided “technical assistance to police and citizens striving to form partnerships to enhance public safety in our communities.” Mr. Peck believed racial profiling was the “quintessential kind of unlawful assault on people’s fundamental rights, an impediment to building effective partnerships between police and community members.” Currently there were at least 40 major law enforcement agencies around the country that acknowledged the problem and were beginning to remedy the problem.
Mr. Peck believed A.B. 500 was an important step for the Nevada Legislature, the Attorney General’s Office, and Nevada law enforcement to eradicate the practice of racial profiling. Racial profiling undermined public confidence in the police in particular and the justice system in general. Mr. Peck stressed that A.B. 500 should not be limited to jurisdictions exceeding 100,000 and went on to ask that whatever information was gathered would become public record.
JoNell Thomas, President of the Nevada Attorneys for Criminal Justice, also appeared as Nevada’s representative to the National ACLU board. She had extensive anecdotal evidence of racial profiling she was willing to provide to the committee. A.B. 500 was a good start and long overdue, although Ms. Thomas felt it should be applied to pedestrian stops as well, along with the rural and urban communities. She hoped the fiscal numbers would be kept to a minimum. Ms. Thomas said she was willing to work with the committee on any amending language that might be required.
Assemblyman Williams reiterated there was no time limit for the study, only for a report to be submitted to the Seventy-Second Legislature in 2003, which could be a progress report. It was a priority for Assemblyman Williams that the study be done correctly and that law enforcement participate in the study willingly and not be forced.
Mr. Kirkland, Director of DMV&PS, was not opposed to the bill and had already implemented a similar system in the drug interdiction team. For the past five months, data had been collected for management and reporting processes. That report was available to Assemblyman Williams and/or the committee members and would be provided within the week. There was no training program, no authorization, no policy nor procedure that authorized or suggested any kind of racial profiling. Certainly there might be problems with data gathering and/or submission of that data, but Mr. Kirkland indicated he was happy to utilize the existing hardware and software programs to provide the information. Mr. Kirkland did not believe there would be a large financial impact; the pilot program would give them a chance to determine that.
Colonel Michael Hood, Chief of Nevada Highway Patrol, DMV&PS, agreed with Mr. Kirkland and had no further comments.
Captain Jim Nadeau, Washoe County Sheriff’s Office and Nevada Chiefs and Sheriffs Association, stated he was willing to participate with new software that might help additionally. He was also working with Las Vegas Metro in an effort to capture this type of data electronically. He did support Mr. Patton’s amendment. Chairman Anderson verified A.B. 500 had the support of Washoe County Sheriffs, Las Vegas Metro, Nevada Highway Patrol, and DMV&PS. Captain Nadeau said the law enforcement agencies would work to find methods to capture the data and mitigate the costs.
Nile Carson, Reno Police Department, agreed with Captain Nadeau and passed on a request from the Commander of Field Operations, Chief Andrew Barry, to include on the driver’s license the race/ethnicity national background block which was taken off many years ago. Chairman Anderson said that would need to be coordinated with Mr. Patton.
Chairman Anderson asked for further testimony. There being none, Chairman Anderson closed the hearing on A.B. 500 and brought it back to the committee. A.B. 500 would be placed on the work session document.
Chairman Anderson opened the hearing on A.B. 464 and recalled Assemblyman Williams.
Assembly Bill 464: Provides increased penalties for fourth or subsequent offense for operating vehicle while under influence of intoxicating liquor or controlled substance. (BDR 43-205)
Chairman Anderson indicated A.B. 464 provided potential conflict to legislation already passed. Chairman Anderson was willing to take testimony on the bill, but preferred to incorporate the concepts from A.B. 464 into other existing legislation. Assemblyman Williams was in agreement; it was his understanding there were several pieces of legislation where the issues could be addressed.
Chairman Anderson opened the hearing on A.B. 586.
Assembly Bill 586: Revises provisions governing program to assist victims of certain crimes in maintaining confidential addresses. (BDR 16-609)
Susan Morandi, Deputy Secretary of State for Elections, believed A.B. 586 was very simple and straightforward. The Secretary of State’s office administered a program called Confidential Address Program (CAP). A.B. 586 proposed to include in the Confidential Address Program those victims of sexual assault in addition to the existing category of victims of domestic violence. Chairman Anderson asked if there could be any “unintended consequences.” Ms. Morandi was not aware of any.
Chairman Anderson asked for further testimony. There being none, Chairman Anderson closed the hearing on A.B. 586.
ASSEMBLYMAN CARPENTER MOVED TO DO PASS A.B. 586.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
MOTION PASSED UNANIMOUSLY.
Chairman Anderson asked Assemblywoman Ohrenschall to present the bill on the Assembly floor.
Chairman Anderson adjourned the meeting at 11:05 a.m.
RESPECTFULLY SUBMITTED:
Sandra Johnson
Recording Committee Secretary
Deborah Rengler
Transcribing Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: