MINUTES OF THE
SENATE Committee on Judiciary
Seventy-First Session
April 13, 2001
The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:30 a.m., on Friday, April 13, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator Jon C. Porter, Vice Chairman
Senator Mike McGinness
Senator Maurice Washington
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
STAFF MEMBERS PRESENT:
Bradley A. Wilkinson, Committee Counsel
Allison Combs, Committee Policy Analyst
Heather Dion, Committee Secretary
OTHERS PRESENT:
Karen D. Dennison, Lobbyist, American Resort Development Association
Scott M. Craigie, Lobbyist, American Resort Development Association
Donald W. Winne, Deputy Attorney General, Human Resources Division, Office of Attorney General
Gemma Greene Waldron, Lobbyist, Nevada District Attorneys’ Association
Senator James declared the meeting of the Senate Committee on Judiciary would be a work session. Continuing, Senator James stated Senate Bill 242, which deals with the growing of marijuana, would not be heard until April 16, 2001, although it is included in the work session document (Exhibit C).
SENATE BILL 181: Makes various changes to retirement benefits of justices of supreme court and judges of district court. (BDR 1-518)
Senator James stated there was no opposition to Senate Bill (S.B.) 181. Continuing, Senator James said District Judge Gene T. Porter, Department 1, Eighth Judicial District, was representing the Judges’ Association. He said Judge Porter explained the Judges’ Association was supporting Assembly Bill (A.B.) 232, but would like to see S.B. 181 processed to the Senate Committee on Finance for exemption. Senator James remarked there is a $15 million fiscal note on A.B. 232. He noted the background information on S.B. 181 is contained in the work session document (Exhibit C). There were no proposed amendments to S.B. 181.
ASSEMBLY BILL 232: Establishes judicial retirement system for certain justices of the supreme court and district court judges. (BDR 1-208)
Senator James asked for a motion.
SENATOR MCGINNESS MOVED TO DO PASS AND RE-REFER S.B. 181.
SENATOR PORTER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS, SENATOR WIENER, AND SENATOR WASHINGTON WERE ABSENT FOR THE VOTE.)
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SENATE BILL 194: Makes changes pertaining to interstate compacts for supervision of offenders. (BDR 16-107)
Allison Combs, Committee Policy Analyst, noted there were two issues raised in the committee concerning S.B. 194, and Bradley A. Wilkinson, Committee Counsel, had drafted the language for the amendments. She said the first issue raised was the composition of the state council, concerning who appoints the members of the body. Continuing, Ms. Combs said, the second issue was the effect of rules adopted by the commission. Ms. Combs referred to the work session document for the proposed amendments (Exhibit C).
Senator James asked if the bill was necessary, or if it would be possible to do “extraditions” the way they are currently done.
Mr. Wilkinson replied Senator James’ proposal would be a policy decision of the committee. Mr. Wilkinson said, “There are quite a few states that have already adopted the revised interstate compact.” Mr. Wilkinson remarked, “We may end up in a situation where those states no longer have the current compact.”
Senator Porter asked if it was possible to make the bill permissive or enabling, and if the bill needed to be specific as written.
Mr. Wilkinson responded the bill has to be passed to allow adoption of the interstate compact. Continuing, he said, “It is entering into a contract with all other states that enact it.”
Senator Porter suggested the committee wait until Senator Washington arrived to make any decision on the bill.
Senator James noted Senator Washington requested the bill. He stated the Division of Parole and Probation, Department of Motor Vehicles and Public Safety, testified the bill would make it easier to get reciprocity to extradite people, and also to enter into supervision agreements for people who come to Nevada from other states. Senator James noted there is currently an existing statute. He continued saying, “My biggest concern is the language indicating the compact commission is made up of commissioners, who can make rules and laws which have the effect of state law.” Senator James indicated the commission would have authority to pass rules and laws without going through the state legislature.
Senator Care stated he is comfortable with the proposed amendments, which are found in the work session document (Exhibit C).
Senator Washington stated he had spoken to parole and probation prior to the bill being introduced. He said Nevada is currently under the interstate compact, but it has not been revised in the last 50 years. Continuing, Senator Washington questioned what would happen if 35 states ratify the compact, and the Legislature does not ratify the compact, which would allow Nevada to remain under the current compact. He noted, “The fear was that somewhere down the road the federal government was going to step in because of the transient nature of the offenders. They would supersede and take over, and this is an attempt to head that off.” Senator Washington pointed out he had attended two conferences on the subject, and said he believed it was the right measure for the state to take.
Senator James said he would accept a motion.
SENATOR WASHINGTON MOVED TO AMEND AND DO PASS S.B. 194.
SENATOR PORTER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS AND SENATOR WIENER WERE ABSENT FOR THE VOTE.)
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SENATE BILL 242: Prohibits growing, cultivating or propagating of marijuana. (BDR 40-469)
No action was taken on S.B. 242.
SENATE BILL 261: Makes various changes to provisions governing time shares. (BDR 10-819)
Karen D. Dennison, Lobbyist, American Resort Development Association, said the bill was a collective effort of a legislative study committee, to remove time-shares from Chapter 116 of Nevada Revised Statutes (NRS) and move them to Chapter 119A of NRS. Ms. Dennison indicated the move from Chapter 116 of NRS to Chapter 119A of NRS would prohibit two statutory schemes which govern time-shares.
Ms. Dennison referred to her prepared amendments (Exhibit D), which are amendments also included in the work session document (Exhibit C). Proposed amendments to S.B. 261 include the requirements for closing of escrow; information in agreements providing for the management of the time-share plan; and the project, budget provisions, collection of assessments, and the effective date of the bill.
Senator Care questioned the second amendment, which provides information in agreements providing for the management of the time-share plan and the project. He asked whether the disclosure was only to the board.
Ms. Dennison replied, “That is correct. There was an objection made by Joan Wright, on behalf of Resorts West, that the whole world not know the financial statement of the management company.”
Scott M. Craigie, Lobbyist, American Resort Development Association, remarked that Ms. Wright had suggested the information is proprietary and competitive in nature. Mr. Craigie indicated the regulatory community holds proprietary information confidential.
Senator Care asked if the board requests the information, and the manager provides the information, what happens if an association member requests the information from the board.
Ms. Dennison responded that the information would be a part of the books and records of the association, which under current law is available for member review.
Continuing, Ms. Dennison said the other requests made by Ms. Wright referred to consistency. Ms. Dennison stated the language, “If there is no association . . . the developer,” was crossed out. She pointed out there is no mandatory requirement for an association to adopt a budget. If there is no association, the developer will have the responsibility for adopting the annual budget, Ms. Dennison stated. Additionally, she said, “In my experience, the Real Estate Division reviews every single set of documents in a time-share project, and I have not seen one which has been approved without an association.”
Ms. Dennison referred to the amendment of the effective date of the bill, July 1, 2002, in order for local governments to prepare for the changes.
Mr. Craigie added local governments need a smooth transition for the proposed changes.
Ms. Dennison mentioned the proposal for the effective date came from the fundamental review process of the Executive Branch.
Senator James said he would accept a motion.
SENATOR CARE MOVED TO AMEND AND DO PASS S.B. 261.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR WIENER AND SENATOR TITUS WERE ABSENT FOR THE VOTE.)
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SENATE BILL 295: Provides for establishment of registry of putative fathers for purposes of adoption of children. (BDR 11-50)
Senator James said the proposed amendments, which are in the work session document (Exhibit C), are in regard to publication of the registry so people are aware that it exists.
Donald W. Winne, Deputy Attorney General, Human Resources Division, Office of Attorney General, said he had met with all interested parties to find amendments to S.B. 295. Mr. Winne indicated there were editing changes that needed to be made. First, he said, referring to the work session document, tab c, section 2, paragraph (a), “marriage child” should actually be “marriage.” Secondly, Mr. Winne said there was an editing change in section 12 because it should be put into Chapter 128 of NRS. Third, he indicated there needed to be a change in section 12, subsection 2, because there is no definition of “division,” so there is a proposal to add the agency described in NRS 127.050. Mr. Winne said the change would allow for a licensed child-placing agency for adoption, which is consistent with section 12.
Mr. Winne pointed out he was informed, “Sometimes home studies can be done years in advance before a couple has a child they can adopt, so, to require a search for a putative father who they may not know exists would be inappropriate.” Mr. Winne stated the “shall” of section 12, subsection 2, needs to be changed to “may.” Continuing, he said, “Further in the section they still have to do a due-diligence search, so it will not change the intent.”
Clarifying, Senator James stated, “It reads, ‘shall’ now and you are saying we should change it?”
Mr. Winne replied to Senator James, “Yes, the reason is because ‘shall’ in this particular section indicates they ‘shall’ at some time do a home study of due diligence for a father, and sometimes these home studies are done years before they actually identify a child for placement.”
Senator James asked Mr. Winne to point out where the requirement for due diligence was in the proposed amendments because it was not in the original bill.
Mr. Winne said, “What we can do instead of making the change from ‘shall’ to ‘may,’ is put a period after ‘for any putative father’ and then insert the language after the period.” The sentence would still read, “The agency described in NRS 127.050, which handles the placement of a child for adoption, shall conduct a diligent search for a putative father. This search may be concurrent with the investigation.”
However, said Senator James, the investigation must occur at a reasonable length of time prior to the adoption. Senator James declared the language would be required for the proposal by Mr. Winne.
Continuing, Senator James inquired about the access to the registry.
Mr. Winne replied proposed section 8 states an agency, as described in NRS 127.050, a person, or the attorney of a person filing a petition for termination of parental rights pursuant to this Chapter of NRS may request the division search the registry to determine whether a person who is the subject of the petition has registered as the putative father of the child.
Senator James responded to the proposed amendment, “I am going to make a new rule; if you propose an amendment, it has to be in the same format that we do the bill.” Senator James indicated he was finding the new amendments difficult to recognize.
Mr. Wilkinson stated, “Section 7 entails a common provision that an agency, a person, or person’s attorney . . . and it would work fine.” Mr. Wilkinson said he realized there was some discussion in which chapter the amendment should be placed. He pointed out Chapter 128 of NRS would be the appropriate place for the amendment.
Mr. Wilkinson stated, “The bill, as originally drafted, was as a putative father registry, as many states have drafted, which is setting up the registry.” He added, “If the father failed to register it would negate his right to consent to an adoption.” Mr. Wilkinson noted, “That was one way of facilitating adoptions without going through the termination-of-rights process.” Some states have used the putative father registry as a means of facilitating the termination of rights. Mr. Wilkinson said there are statutes in Chapter 128 of NRS that deal with notice to a putative father when a termination of rights is being sought.
Senator James inquired if there was a requirement that the notice statutes change.
Mr. Wilkinson replied, “NRS 128.150 addresses the exact situation when there is going to be a relinquishment for adoption and there may be a putative father somewhere, which has requirements to notice.”
Senator James asked if NRS 128.150 was consistent with what was proposed in S.B. 295.
Mr. Wilkinson answered, “I think the concept of a summary proceeding is not consistent with NRS 128.150. It would seem to me we could amend it into the existing statute.”
Senator James acknowledged the discussion of the committee (they felt) was that there was an embracing for the summary proceeding and the putative father registry. He continued, “There are two predicates; first, the registry needs to be well known, and secondly, we do not dispense with due process and a mandatory requirement that there be due diligence.”
Senator James indicated the bill would be moved forward, with the proposed amendments, for purposes of the Monday, April 16, 2001, deadline. He added he would require the specific language to be brought back to the committee.
Senator Care questioned the 23 days and 33 days contained in section 12, subsection 8 of the bill.
Mr. Winne responded the 23 days and 33 days were implemented to deal with mailing circumstances.
Senator James suggested working in terms of 5- or 10-day time periods to clarify the amendment.
Mr. Winne agreed to the suggestion of Senator James.
Senator James said he would accept a motion.
SENATOR PORTER MOVED TO AMEND AND RE-REFER S.B. 295.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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SENATE BILL 301: Revises provisions governing formation and operation of professional corporation or association by certain multiple disciplines. (BDR 7-634)
No action was taken on S.B. 301 (Exhibit C).
SENATE BILL 546: Revises penalties for second or subsequent offense of abuse or neglect of child. (BDR 15-471)
Gemma Greene Waldron, Lobbyist, Nevada District Attorneys’ Association, said she had proposed amendments to S.B. 546 (tab D, Exhibit C). There were also proposed amendments from Senator James and Senator Care included in the work session document under tab A.
Ms. Waldron said she was aware that Chairman James was concerned about, as a matter of policy, holding a person who is neglectful in allowing or permitting a child to become a victim of child abuse, to the same standard as the perpetrator. Continuing, she said, “If we change section 2, subsection 1, paragraph (a), the penalty would change from a Category A to a Category B felony for sexual abuse or exploitation resulting from allowing the child to suffer unjustifiable pain or mental suffering.” Ms. Waldron added that section 2, subsection 1, paragraph (a) would leave the provision of substantial bodily or mental harm that is not in the realm of sexual abuse as a Category B felony, with a term of 2 years’ to 20 years’ incarceration. Ms. Waldron said she believes the proposed level of punishment is the proper one.
Ms. Waldron commented in the case where a person allows a child to be abused, without substantial bodily harm, the first offense would make the person guilty of a gross misdemeanor and for subsequent offenses the penalty would be a Category C felony. Ms. Waldron remarked it is a matter of policy if the committee believes the penalties are appropriate.
Senator James referred to section 2, subsection 1, of S.B. 546, saying:
In NRS 200.508, the existing form states [in section 1]: “A person who (a) Willfully causes a child who is less than 18 years of age to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect . . . or (b) Is responsible for the safety or welfare of the child and who permits or allows that child to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect . . . is guilty of a gross misdemeanor.”
The first act is a gross misdemeanor . . . then subsection 2 says a person who violates any provision of subsection 1, if substantial bodily harm or mental harm results and the child is less than 14 years of age and it is a sexual act, then the crime is considered a Category A felony; if it is not a sexual act, then it is a Category B felony.
The amendment proposes to say, ‘if willful, and substantial bodily harm or mental harm does not result to the child,’ then it would be considered a Category B felony. Then in subsection 2, the wording of ‘permits or allows,’ which is the intent requirement, and includes the punishment of first offense as a gross misdemeanor, and for a second offense then the individual is guilty of a Category C felony.
The question arises that a person who willfully harms a child for sexual abuse or exploitation is a Category A felony, included in subsection [paragraph] (a). However, a person who does not have willful intent but permits or allows, which could be neglectful, is punishable under a Category A felony. The committee is faced with taking something and backing it down from a Category A to a Category B felony, which I do not believe we are comfortable doing. Can we change it from a life sentence minimum 10 years, to a life sentence minimum 15 years? And we will leave section 2, subsection 1, paragraph (a), as it is, as a Category A felony.
Senator James said he would accept a motion.
SENATOR PORTER MOVED TO AMEND AND DO PASS S.B. 546.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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There being no further business, Chairman James adjourned the meeting at 10:06 a.m.
RESPECTFULLY SUBMITTED:
Heather Dion,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE: