MINUTES OF THE
SENATE Committee on Judiciary
Seventy-First Session
April 19, 2001
The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:58 a.m., on Thursday, April 19, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was video conferenced to the Grant Sawyer State Office Building, 555 East Washington Avenue, Room 4401, Las Vegas, 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
GUEST LEGISLATORS PRESENT:
Assemblywoman Barbara E. Buckley, Clark County Assembly District No. 8
Assemblyman Joseph (Joe) E. Dini, Jr., Assembly District No. 38, Lyon and Storey Counties and part of Carson City
Assemblyman David F. Brown, Clark County Assembly District No. 22
STAFF MEMBERS PRESENT:
Bradley A. Wilkinson, Committee Counsel
Allison Combs, Committee Policy Analyst
Ann Bednarski, Committee Secretary
OTHERS PRESENT:
Peter L. Ashman, American Immigration Lawyer Association, Nevada Chapter
David S. Gibson, Lobbyist, Legislative Team, Clark County
Gemma Greene Waldron, Lobbyist, Deputy District Attorney, Criminal Division, Washoe County District Attorney
Charles Zumpft, City Attorney, City of Yerington
Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association
Peter D. Krueger, Lobbyist, Nevada Petroleum Marketers and Convenience Store Association
Warren B. Hardy II, Lobbyist
Chris Ferrari, Lobbyist, Retail Association of Nevada
Lucille Lusk, Lobbyist, Nevada Concerned Citizens
James F. Nadeau, Lobbyist, Captain, Detective Division, Washoe County Sheriff’s Office, and Nevada Sheriffs and Chiefs Association
Chairman James opened the hearing on Assembly Bill (A.B.) 394.
ASSEMBLY BILL 394: Requires court to advise defendant of immigration consequences of plea of guilty or nolo contendere. (BDR 14-1088)
Assemblywoman Barbara E. Buckley, Clark County Assembly District No. 8, indicated she is the sponsor of A.B. 394 which deals with the concept of immigration and immigration-law consequences in a criminal law proceeding. By way of background, Assemblywoman Buckley said last year she was invited by U.S. Senator Harry Reid to attend meetings in Las Vegas regarding immigration issues. She noted the participants gathered together with the new William S. Boyd School of Law and the University of Nevada, Las Vegas (UNLV) to discuss the possibility of an immigration-law clinic. Assemblywoman Buckley indicated she met Carlos Cantu and Peter Ashman, who are immigration lawyers in Las Vegas. She pointed out Mr. Ashman is the president of the American Immigration Lawyer Association, Nevada Chapter, and Mr. Cantu works for Catholic Charities, an organization representing low-income people with immigration problems. Assemblywoman Buckley said she also had an opportunity to meet with immigration-law judges in Las Vegas and learn about many problems in immigration law.
Continuing, Assemblywoman Buckley said, “notarios” are opening up on street corners and dispensing wrong legal information and advice to people which is causing them to be deported. Many individuals who have received erroneous information have children born in the United States and registered in school. Because of receiving wrong legal advice by notarios, a parent who might have worked in a casino for 20 years in the United States could be deported. Assemblywoman Buckley declared she learned a great deal of information which she found overwhelming.
Further, Assemblywoman Buckley indicated another area of focus, and one in which she learned a great deal from the immigration judges, are the consequences of the “nolo” immigration law passed in 1996. Basically, this law says, even should a person plead nolo contendere (nolo) (a plea in a criminal case which has a similar legal effect as pleading guilty) to a criminal offense . . . As an aside, Assemblywoman Buckley said the witnesses in Las Vegas defined criminal defense differently. She pointed out aggravated felonies, for example, are defined completely differently in federal law, and a crime such as shoplifting could be considered an aggravated felony. The assemblywoman said the bottom line is lawyers were always trained that should a person plead nolo, there are no consequences, and the person is basically not admitting anything, but accepting punishment. She noted the “feds” changed the rules, and even if a person pleads nolo, it is grounds for deportation from the United States.
Assemblywoman Buckley explained A.B. 394 does not change federal law, but addresses due process. She pointed out, the bill says, if a plea of guilty, or guilty but mentally ill, or nolo is made, the defendant must be advised that should they not be a citizen of the United States, such a plea may result in immigration consequences, and there is a list of what they might be. She noted it does not tell them exactly, based on the facts, what may happen to them, it just raises a red flag warning, due process notice, that there might be something else involved besides a criminal conviction.
Additionally, Assemblywoman Buckley said A.B. 394, in the plea agreement, adds a sentence that (she understood) is a consequence of the plea; and again, there may be consequences, such as removal, deportation, exclusion, or denial of naturalization. Referring to page 4 of A.B. 394, she pointed out, it includes “ . . . my attorney has answered all my questions, including immigration consequences.” She said A.B. 394, in a nutshell, would provide individuals due-process notice that there may be immigration consequences along with their plea.
Assemblywoman Buckley said there are two concerns in the Assembly regarding A.B. 394. The first concern is, if a person is told up-front there might be an immigration consequence to their action, it may later preclude collateral attack of the voluntariness of the plea agreement. She said she discussed it with some of the people in support of the bill, who asked her to sponsor it, who said, “Well, yes, it might do that, but wouldn’t you want that person to have all the information up-front?” Assemblywoman Buckley stated, as a practical matter, individuals who cannot afford attorneys do not have anybody to file an action attacking the judgment collaterally.
Further, Assemblywoman Buckley indicated the second concern heard in the Assembly was mostly from the public defender’s office, which basically said, “We are clueless about immigration law. How can we be expected to tell our clients what the immigration consequences might be?” To that response, Assemblywoman Buckley said, first, it is a lawyer’s job to represent their client and not rely upon lack of knowledge to escape it. Secondly, she noted, the immigration bar just held continuing legal education (CLE) for all criminal-defense lawyers, and the public defender’s office could develop a flyer containing the basics and supply it to their clients. She said Mr. Ashman and Mr. Cantu volunteered to help with this effort.
Senator Porter inquired whether there is a handbook that could be provided to explain immigration consequences. Answering, Assemblywoman Buckley said a handbook or flyer could easily be developed to explain immigration consequences. She pointed out, “It is not rocket science.” She explained the “feds” basically have “their” law, which could be reprinted, and basically says, “If you plead guilty to this, and we set forth the federal statute, here are the consequences.” Senator Porter asked whether or not it would be easy to understand. Assemblywoman Buckley responded, “Yes.” She explained she had asked the immigration judges about that particular concern and they recommended using the CLE manual to cull out the best “nuggets” for a flyer or pamphlet.
Senator Washington queried if a person is in the process of obtaining a green card in order to stay in the country, and they commit a crime, does it negate the process. Assemblywoman Buckley answered, “Yes, it does. It is amazing how federal law works.” She said many of these cases come to the attention of the Immigration and Naturalization Service (INS) when people are applying for naturalization. For example, a person may have been in the country for years and is applying for naturalization. Due to the fact they took advice to plead nolo in a domestic-battery situation, they are told a marshal will arrest them, they will be returned to a country they have not seen in 20 years, and must leave their children behind. Assemblywoman Buckley said there have been terrible results from this type of action.
Asked whether or not the same process would be in effect should the situation be hardship or life threatening, Assemblywoman Buckley deferred to the experts in Las Vegas as to whether or not asylum might be granted. However, in any event, she said the law is “pretty” rigid, which is the reason it is important to inform people they need advice and information before their lives are possibly ruined.
Senator Porter asked whether or not a federal regulation form could be provided. Assemblywoman Buckley said she was uncertain whether the “feds” had promulgated anything, but expressed doubt anything they have could be as effective as a creation developed in Nevada, using federal law and the good work of the people in Las Vegas. She also noted, although the INS has a good website, she felt something could be created locally that would work. Senator Porter maintained the consequences are broad and perhaps could be defined better. Assemblywoman Buckley said it could easily be done in a handout because federal law is “black and white” and in the United States Code.
Senator Wiener questioned whether or not pleading nolo prior to restructuring of the federal laws had the same consequences when applying for naturalization. It was Assemblywoman Buckley’s understanding the law was made retroactive; however, she deferred to the immigration lawyers in Las Vegas for a more expert answer. She pointed out it is difficult to believe that a person could plead under a different system of law and the rules be changed in the middle of the game.
Peter L. Ashman, American Immigration Lawyer Association, Nevada Chapter, testifying from Las Vegas, introduced Carlos Blumberg, presently a law clerk in Mr. Ashman’s law office, and formerly on U.S. Senator Reid’s staff in Washington, D.C. He noted Mr. Blumberg had helped him understand the legislative process. Mr. Ashman indicated the immigrant community in Nevada is the fastest growing in the country. He said immigrants make great contributions, both economically and to society. He pointed out the problems addressed by A.B. 394 are real and compelling, and he and his colleagues deal with them on a daily basis. Mr. Ashman said Congress passed a law in 1996 that drastically redefined conviction, as well as aggravated felony. He said the laws were made retroactive and have ridiculous consequences. Mr. Ashman pointed out a current case in which a man pled guilty to stealing a carton of cigarettes in 1984, and now faces deportation with no remedies. The man has a wife and children who are United States citizens, and owns a major construction company with a payroll of 500 employees. He said the only thing the man can rely upon is the prosecutorial discretion of the INS, which they may or may not be able to provide. Mr. Ashman said, although this is an extreme example, it illustrates the problem.
Continuing, Mr. Ashman said A.B. 394 is similar to laws presently on the books in many other states, including California, Oregon, Washington, Massachusetts, Connecticut, and Texas. He pointed out the law works well in those states. He said the immigration bar, given current technology, has the ability to assist and educate the criminal bar, and it would be very simple to put something on a website, and/or have members of the American Immigration Lawyers Association volunteer to answer questions. Mr. Ashman indicated Nevada could look to neighboring states to ascertain how their processes are administered. He said Assemblywoman Buckley was correct when she stated it is the responsibility of an attorney, when representing a person, to adequately and fully represent them. If an attorney does not have the answers to a question, he or she should research the answers. Mr. Ashman maintained should he not know the answer to a criminal question, he knows where to go to find out.
Further, Mr. Ashman said, in a nutshell, A.B. 394 makes a lot of sense. He noted this country believes very strongly in due process and the constitutional protections afforded. However, because these are not criminal procedures, the constitutional protections in a criminal context do not apply. Mr. Ashman said this is an issue that affects many residents, particularly newer residents, and there have been great consequences for many people.
David S. Gibson, Lobbyist, Public Defenders Office, Clark County, submitted a proposed amendment to A.B. 394 (Exhibit C). He pointed out he has been a Deputy Public Defender for approximately 21 years, does a good job, and is concerned about the rights of his clients. Mr. Gibson indicated some people think the public defender’s office does not inform its clients of everything it can. He declared nothing is easily done in the criminal-justice system.
Continuing, Mr. Gibson said A.B. 394 requires the judge to canvass at the time of an entry of plea. If the defendant, on the record, has a question of the court as to what the effect of the plea will be, in a canvass, the judge would have to answer. He indicated the judge would not have the knowledge and it would be impossible to attain it by attending one CLE class. Mr. Gibson remarked he had never attended a CLE class good enough to teach a person everything about anything, which is the reason lawyers must continue to take CLE classes.
Further, Mr. Gibson indicated, when he was in law school, well before the law was changed in 1996, he participated in some conferences. He noted there are individuals in the United States who have been accused of crimes, and the government pays attention to that. Mr. Gibson said:
The standard for deportation, because its administration is less than the burden of proof in the criminal-justice system . . . and the gentlemen in Las Vegas may be able to straighten me out on that, but that was what I was taught, and when I have talked to immigration attorneys on numerous occasions, they do not know the answer to what I asked, they must check with other people. We want the flyer they can provide to us, it would be wonderful; but it still would not, in my opinion, answer the requirements on page 4, lines 45 and 46 of A.B. 394, that we have advised them of every consequence. Without limitation means every consequence. I do not know if there is anybody who knows that. If the judge answers incorrectly at the time of a plea then that can be attacked. If we do not tell them everything they need to know, pursuant to this language, then that can be attacked. I think this builds error into the plea.
Senator James surmised they put in the wording “without limitation” because the sentence does not have any other specific things in regard to what questions are answered. He pointed out it is not just immigration “stuff” that was talked about, rather it is other “stuff” that used to be talked about under the old provision.
Mr. Gibson said:
I wish that anything I say would not be misinterpreted as criticism of anything in any way. Our office represents thousands and thousands of people . . . and that is how I kind of felt. Maybe my skin is too thin, I apologize for that. These folks are unfortunate folks who are charged with terrible crimes. The problem is, if one of those cases goes to an immigration hearing, even if they have not pled guilty, because that happens with the burden of proof, and they show that they stole a pack of cigarettes, or show that they robbed a bank, or show that they stole someone’s car, or show they did any one of the number of felonies, or gross misdemeanors, or misdemeanors, that we represent people on, even before they have been to trial, they are going to be deported because they have come to our country and they have done something that our country, or the “feds” apparently feel like, means they should not be here. I do not know that anybody can create a flyer that explains that completely to anybody.
In our office, since this bill was introduced, in fact, right after I talked with Ms. [Assemblywoman] Buckley, I should have paid more attention to it, I suppose, I did not . . . we called the office and they are preparing flyers. We do not know how to do it in every language, but we are preparing flyers to hand out to every client indicating to them that, as a result of their plea, there could be immigration consequences if they plea to anything. We are also putting signs in the waiting room. It will give them a greater idea that there are problems. I think when they come here they know that probably there will be problems if they get into trouble.
Mr. Gibson continued:
The other problem that we have is, quite frankly, when we talk to our clients, we have people who give us Social Security numbers and indicate they have lived here a long time. When you ask them if they are American citizens, or if they have a green card, they get offended by that. We have a delicate balance that we have to do when we are trying to work with people, and you try to tell them every aspect of what is going to happen to them with a plea, but it is not always possible. If this does mean what you say, then we are okay. If it does not mean what you say, we are not. I do not know what it means.
Senator James said page 3 of A.B. 394 includes the consequences of the plea, which takes in a lot of things. He pointed out, the fact is, if a person pleas, he may go to prison; the fact is, the judge is not bound by the recommendation; the fact is (line 37), the court is not obligated to accept a recommendation; and, the fact is, the report upon which the court may make part of its findings may contain hearsay (line 42). The senator indicated all these are similar types of deleterious consequences of a plea of guilty, nolo, or not guilty but mentally ill, and this is one more added to it. He noted everybody seems to support putting it in. Senator James opined the reason they put the language, “without limitation,” is because it means all those things. He said, “They did not just talk about immigration, but it is being put in there, and it probably does not need to be in there.” The senator said it could be left as is and put in the other “stuff” about immigration, which would mean the attorney discussed everything with the person. In that way, it would not single out immigration and Mr. Gibson would not have what he perceives as potential confusion over the words “without limitation.”
In response, Mr. Gibson pointed out, perhaps a clearer way to say that would be “there may be immigration consequences.” Mr. Gibson said when you say, “including without limitation immigration consequences if any,” it is clear that the judge needs to give the person a full, complete explanation of immigration consequences. He noted, “If I am attacking a plea because it was not voluntarily or knowingly made, that clause is perfect for me. I can show they did not explain this, they did not explain this, they did not explain this . . . “
In answer, Senator James said:
The word “consequences” on page 4, line 45, of A.B. 394 . . . if the new language was not put in there, it would include immigration consequences, and specifically would include it if the rest of the language being added were amended, which is the substance of the bill, the judge has to tell them this, and in the consequences of the plea that they signed, it will have the verbiage in lines 46 to 49. “Including without limitation immigration consequences” would not be needed, and the word “consequences” would cover all those things. It is already there, and it could be attacked on the basis that the person really did not understand the consequences.
Assemblywoman Buckley stated it is her belief that the language, “including without limitation,” means exactly what Senator James said, it is referring back to the previous clause to make sure it is included. She said immigration consequences were added to ensure it is clear to the person, when making their plea, that their attorney has advised them of immigration consequences. She noted, “without limitation” does not modify immigration consequences and require a public defender to magically know every nuance of immigration law. Assemblywoman Buckley said it is similar to laws in every other state which give people due process notice there may be immigration-law consequences.
Senator Care said there are all manner of consequences attached to entering into a guilty plea. He indicated owing to the Lautenberg amendment, someone who enters into a plea, even for a misdemeanor of domestic violence, loses the right to possess a firearm. (The Lautenberg Amendment is a special federal provision that allows certain nationals from the former Soviet Union, Vietnam, Laos or Cambodia to adjust their status after having resided in the United States for 1 year. Only individuals who are listed as refugees or “asylees” are eligible under this provision. Congress has been renewing this provision each year since it was created.) The senator pointed out he has been in courtrooms where the judge steps in, and after asking all those questions, says, “are you aware,” as opposed to, “has your attorney advised you.” He asked how does the public defender’s office handle plea agreement when there are firearms consequences.
In response, Mr. Gibson said in domestic-violence cases, people are informed that should they be found guilty of a domestic-violence charge, they will not be able to own, or handle, a firearm. He maintained the public defender’s office did not know about that federal consequence until somebody pointed it out, after which, it was explained to people. Mr. Gibson noted, “It is a fairly straightforward consequence because it was read in the paper, and they mostly found out about it because long-time police officers, who ended up with domestic-violence charges, could no longer carry a weapon.” He said the public defender’s office researched with the federal government only to find there was no case law to research, and they had to call to find out how the regulation was interpreted by the federal government. Mr. Gibson said that has also changed.
Senator Care queried, does the judge say to the defendant, “Do you understand there are certain consequences by entering this plea which result in your inability to carry a firearm,” or is the question phrased, “As your attorney advised you?” Mr. Gibson pointed out the judge says, “Has your attorney advised you of the penalty for this crime that you could receive as a result of your entry of a plea of guilty.” He noted judges do not ask any questions about firearms. He said the public defender’s office informs people because they know about it. Mr. Gibson mentioned there have been law-enforcement officers who have returned to court when they found they could not possess a firearm, and the public defender’s office has attempted to change the plea to a different crime which would allow the person to continue to be a policeman. He pointed out the judge asks whether or not the person understands the consequences of their plea as to the charge; but does not ask about other ramifications. The judge talks about the time they would have to serve, the fine, and elements of the offense, Mr. Gibson remarked.
Senator Care asked whether a judge had ever asked a defendant, “The consequences have been explained to you, now, what are the consequences?” Mr. Gibson answered, Judge Thompson, a former judge in the Eighth Judicial District Court, Department 1, asked that question. He said the first time the judge did so, everyone was shocked because many clients do not have the ability to remember the consequences. Mr. Gibson noted many clients cannot read and, on occasion, he has requested the judge allow him to explain to the person while the hearing was going on. Mr. Gibson said Judge Thompson wanted to know that the person had memorized the elements of the offense. He said it was very difficult to get a plea down in his court because of that information.
Senator Care queried whether or not the public defender’s office ever had the judge refuse to accept a plea of guilty because the judge is not convinced the consequences have been fully explained to the defendant. Mr. Gibson answered, “Absolutely. Judge Thompson did it all the time.” He explained, “Different judges will work with a person to make sure they understand. If a judge does not feel an individual is completely prepared, they have two ways to go, they can either send them back to the public defender’s office and do it over again, or help them through it, and most judges will help them through it.”
Assemblywoman Buckley said it might be newer consequences, and might be a little bit harder than you cannot carry a gun, but it is no less a lawyer’s job.
In conclusion, Mr. Gibson said:
I can see that we do not agree on what that means. I diagrammed it out, and I think if you diagram the sentences, my dear departed Mother taught me to do, it goes to all questions, and when you say, “if any” and “without limitation,” all those things exercise themselves in each area that the person is supposed to be informed of. I think that you are supposed to inform them of each of these things to the fullest, and I think immigration consequences is on the same list as everything else . . . then the amount of time they can do, what the elements are, what they actually did, whether it is probational, what the fine is . . . I believe immigration offense is . . . because of the way I diagram this thing, with my family English background, it creates a burden that we cannot meet. Certainly, if you pass the law, then, yes, we will do everything we can. But I believe it builds error into it, the particular way it is phrased.
Gemma Greene Waldron, Lobbyist, Deputy District Attorney, Criminal Division, Washoe County District Attorney, and Nevada District Attorneys’ Association, submitted a copy of the Guilty Plea Memorandum (Exhibit D) that is used in gross misdemeanor and felony cases. She pointed out, page 5, paragraph 13, is the language currently being used, which has been used for years in the Guilty Plea Memorandum, and basically states, “I understand that this plea and resulting conviction may have adverse effects upon my residence in this country if I am not a U.S. Citizen.” Ms. Waldron said that is the extent of what they are told given that the district attorney’s office does not include immigration attorneys. She explained the district attorney’s office prepares the plea agreement pursuant to the negotiation they have entered into with the defense. Then the defendant and his attorney go over the plea agreement prior to going before the court and being canvassed by the court, in addition to having signed the plea agreement. Ms. Waldron said if the purpose of A.B. 394 is to let the defendant know there are possible immigration consequences without getting into it in great detail, then the plea agreement they have been using for years covers that situation. She indicated if it is intended to go any further than that, it will be a real problem, at least in writing, without knowing the basic situation of the defendant, especially from the viewpoint of the state, to put any more than what is in this plea agreement at this point in time. Ms. Waldron said every person’s situation is different. They may have been born in another country but living in the United States since they were 2 months old; they may, or may not, have a green card; they may have just arrived in the United States; or may be from a country from which they are running away and are eligible for asylum. She pointed out, there are so many permutations of the immigration consequence, it would be difficult to put in anything more detailed than what is currently on page 3 of A.B. 394 to tailor it to an individual’s circumstance.
Senator James explained Assemblywoman Buckley just wants to say, removal, denial, exclusion from entry into the country, and rejection of an application for naturalization. Ms. Waldron responded if that is as far as it goes, it is fine, because they are basically doing that sort of thing at present. She expressed concern in regard to what Mr. Gibson pointed out in the voluntariness of plea portion. She said if it is interpreted that Mr. Gibson was supposed to say something tailored to the individual’s situation, and he does not do it, then there will be post-conviction problems. She indicated she did not want to see their pleas unravel because of it. From the district attorney’s point of view, Ms. Waldron said, “We do not explain anything to anybody, we just prepare the paperwork.”
Additionally, Ms. Waldron pointed out, evidently what could be a misdemeanor under state law could be considered an aggravated felony under federal law. She indicated they do not use plea agreements in misdemeanor cases; therefore, a canvass in justice court would be required to talk about immigration consequences if, in fact, the misdemeanor they are pleading to in state court is an aggravated felony in federal court. Ms. Waldron said it will complicate things. She noted, for felonies and gross misdemeanors, the language is already in the plea memorandum.
Senator Care recalled normally the defendant comes before the judge who asks a number of questions. Referring to page 5, paragraph 13 of Exhibit D, the Guilty Plea Memorandum, “I understand that this plea . . . ,” the senator said the implication is the attorney told the person the consequences. Having said that, Senator Care asked whether or not the judge in the Second Judicial District still, as a matter of course, goes down the list and asks the individual whether he understands each item.
Responding, Ms. Waldron indicated she had not seen it happen in the Second Judicial District when they talk about immigration consequences. She said they talk about the right to have an attorney and all the standard things in a canvass. She stated, as a general rule, the judge does not know there is an INS hold on the defendant, nor does he know whether or not the defendant is in the country legally or illegally. The judge may “get a clue” should there be a Spanish or Filipino interpreter translating for the defendant through the canvass.
Ms. Waldron noted she had never seen a judge ask a defendant whether or not he understood the immigration consequences to entering a plea. The judge will say the usual things that are said to every other defendant concerning the right to remain silent, the right to have an attorney, whether the defendant is happy with his attorney’s performance, and that sort of thing. She said the judge will ask the defendant, on a criminal plea, what he did; but on a nolo plea, the judge will ask the district attorney whether there is factual basis, and the defense attorney will usually stipulate to that as well, and the district attorney will stay with the factual basis for the plea. However, Ms. Waldron pointed out, she had never seen a judge ask specifically, “Do you understand there are immigration consequences?” She said, basically, it is because a judge usually does not know whether or not there is an INS hold, or the status of the defendant, at the time the plea is taken. However, it is included in the Guilty Plea Memorandum, which is perused by the defense attorney with the defendant, and that is not in the presence of the district attorney. Ms. Waldron remarked she is not aware what the defendant and defense attorney specifically discuss, but she presumed they go over every paragraph in the Guilty Plea Memorandum. The judge asks whether or not the defendant has read the Guilty Plea Memorandum, and if he understands it. She pointed out sometimes the judge will ask the defendant’s level of education, whether or not he can read and write English, whether he went over it with an interpreter, whether that is the defendant’s signature on the last page, whether the defendant is doing this voluntarily, and so forth.
Acting Chairman, Senator McGinness, closed the hearing on A.B. 394 and opened the hearing on A.B. 41.
ASSEMBLY BILL 41: Authorizes city attorneys to defend person in criminal proceeding under certain circumstances. (BDR 1-380)
Assemblyman Joseph (Joe) E. Dini, Jr., Assembly District No. 38, Lyon, Storey Counties, and part of Carson City, indicated he sponsored A.B. 41 on behalf of the City of Yerington. He explained last year the City of Yerington went out for bid and chose a new city attorney, Mr. Zumpft, who lives in Gardnerville, in a different county. Mr. Dini said, Mr. Zumpft took the “little job” in Yerington, which is a small city, with a small budget, and does not pay much; but the city is glad to receive his services. The assemblyman indicated, due to the law, Mr. Zumpft had to give up his criminal-defense practice in Douglas County. He pointed out A.B. 41 would allow him to continue practicing criminal defense in his jurisdiction, outside the Ninth Judicial District, which is Lyon County. Mr. Dini indicated A.B. 41 went through an extensive hearing in the Assembly, and an amendment was added.
Charles Zumpft, City Attorney, City of Yerington, said last year he was given the opportunity to become the city attorney for the city of Yerington. Although all attorneys are deemed to know the law of the state of Nevada, he indicated, he was regrettably unaware that becoming the city attorney in Yerington would preclude he, and possibly all members of his firm, from serving in a defense-attorney capacity. Mr. Zumpft pointed out, when he bid on behalf of his firm to become city attorney, he was under the false impression that he would be able to continue to do criminal-defense work; therefore, the amount of the bid reflected that. He said, through the course of practice, it came to his attention that it was impermissible and he ceased providing defense work. Mr. Zumpft expressed the opinion that the law imposes a burden upon some of the smaller cities, including Yerington. He surmised that Fernley would probably experience the same problem.
Continuing, Mr. Zumpft noted the problem is local attorneys, understanding they will not be able to continue making money on criminal-defense work will decline to make bids, or seek to become city attorney. He maintained city attorney is a part-time position and a fairly small contract; therefore, the pool from which the cities must select is very small. Mr. Zumpft suggested the pool could be larger and cities could have more qualified applicants should the restriction be removed from the law. He made it very clear that he would benefit from passage of A.B. 41, but the bigger picture would help to contain cost for the city. If the concern is that someone should not practice both sides of the fence (prosecution and criminal-defense), Mr. Zumpft affirmed, it is not a legitimate concern because there are already many loopholes in the law that allow it. He declared it can be done pro bono through a qualified organization under Nevada Revised Statutes (NRS) 7.065, and also if a lawyer is appointed as a short-term prosecutor for a conflict case.
Further, Mr. Zumpft asked the committee to keep in mind that city attorneys only have jurisdiction over misdemeanors, they cannot handle gross misdemeanors or felonies. He pointed out he travels to Yerington 2 days a month, usually for half a day, and prosecutes 6 or 8 cases. As a result of that very limited amount of effort, no criminal-defense work is permitted. Mr. Zumpft indicated the function of the bill is to provide some relief for part-time city attorneys, the contract city attorneys such as himself, and their deputies. He said the beauty of the bill is, if the city council does not want them to do it they can negate it, and if the city attorney does not want the deputies to have the flexibility, the city attorney can negate it. Mr. Zumpft opined A.B. 41 is a win-win situation and requested the committee’s support for passing it.
Senator Care commented he is not concerned with the bill as long as the city has the discretion; however, he said conceivably the day may possibly come when the city attorney could be representing a defendant who is going on trial which will begin the day he must be in court in the city of Yerington. He noted courts generally will grant a continuance for one or the other. The senator said that was the only problem he could foresee.
Mr. Zumpft said, in the practice of law, the nature of the game includes juggling schedules, even in civil cases. Senator Care inquired whether the city would grant permission on a case-by-case basis. Mr. Zumpft answered he supposed it could be; however, should A.B. 41 pass, if the city council does not object, he would seek blanket permission, via a resolution, allowing him to do so. He explained it would be done on a defendant-by-defendant basis, and he would obtain written permission to do it.
Senator James closed the hearing on A.B. 41 and opened the hearing on A.B. 162.
ASSEMBLY BILL 162: Makes various changes to provisions governing theft. (BDR 15-900)
Assemblyman David F. Brown, Clark County Assembly District No. 22, indicated he was requested to bring A.B. 162 on behalf of the Nevada Association of Automobile Service Professionals, which is Nevada’s largest auto repair association with approximately 100 members. He pointed out A.B. 162 would amend NRS 205.0832, otherwise known as actions which constitute theft, by further defining theft of services as it currently exists in section 1, subsection 1, paragraph (f), and by adding paragraph (j) to A.B. 162. Assemblyman Brown noted members of the Assembly Committee on Judiciary also added section 1, subsection 2 to A.B. 162.
Continuing, Assemblyman Brown said the law provides that a person commits theft if he, without lawful knowledge, knowingly and as stated in section 1, subsection 1, paragraph (f) of A.B. 162, obtains services which he knows are available only for compensation, without paying or agreeing to pay compensation, or diverts the services of another person to his own benefit, or that of another person without lawful authority to do so. He pointed out automobile-service professionals have not been availed the benefit of this statute because auto parts, which are affixed to an automobile, are deemed to become part of the auto. When, and if, an automobile is removed from a repair shop intentionally and without payment, the person is deemed to be merely removing his or her own property. Assemblyman Brown indicated a growing problem exists where persons are entering agreements for services which include auto parts installation, and returning at night with an extra set of keys and removing their vehicles without paying. He said auto shops are left only with civil remedies and there is not even a threat of criminal wrongdoing or prosecution. He maintained the bill would amend that.
Further, Assemblyman Brown said previous testimony in the Assembly set forth that annually there is about $1 million in theft of parts through repair and from repair shops. He pointed out an average theft is approximately $2200; therefore, this is not just a belt or a small installation, it is often a transmission, and so forth. He noted there was testimony regarding a male-female duo that had an automobile repaired. After the repair was completed, the woman returned to the shop with a set of keys. There was a window in the shop, and she informed the repairman her husband was paying the bill. The husband loitered by the desk at the front of the shop and appeared to be paying the bill, however, did not say anything to the person at the front desk. The repairman allowed the woman to take the car, she drove out to the front, the man walked out the door, got in the car, and they drove off. Assemblyman Brown said there have been quite a number of similar incidences. He noted some people have cut chain-link fences and broken locks in order to drive their automobile away without paying the bill.
The assemblyman indicated the amendment follows the lead of most states, which includes parts and products, which is what is being done in section 1, subsection 1, paragraph (f) of A.B. 162. He said it has covered services, but does not contain a description of parts, products, or other items related to such services. For those reasons, police departments have not been willing to view the crime as theft. Assemblyman Brown indicated it is being clarified. He pointed out the term “gasoline” is used. He indicated, Daryl Capurro, Lobbyist, Nevada Motor Transport Association, testified in the Assembly relative to commercial diesel repair shops, where they may go through hundreds of gallons of fuel that may be used in the process of a repair, which they wanted to include as well.
In addition, Assemblyman Brown said the typical theft penalties outlined in NRS 205.035 are: less than $250 is a misdemeanor, $250 to $2500 is a Category C felony, and $2500 or more is a Category B felony. He noted the amendment in the Assembly said, “A person who commits an act that is prohibited by subsection 1, which involves repair of a vehicle is not committed theft unless, before the repair was made, he receives a written estimate of the cost of the repair and agreed to pay the amount in the written estimate.” Assemblyman Brown said, personally, he did not think that is necessary and would be subject to the committee’s deliberation and desire. He remarked he considered the acts intentional and premeditated, which is not a necessary provision, and it is up to the committee to determine.
In reference to section 1, subsection 2 of A.B. 162, Senator Care said he agreed with Assemblyman Brown regarding before the repair is made. He indicated in a situation in which a person has a fleet of vehicles and, in the course of conduct over a period of years, it has become habit to just send a long-time and familiar customer a bill. The senator pointed out, theoretically, somebody could self-help and take the car and no crime would be committed although there was, obviously, criminal intent. Senator Care opined there is no need for the amendment.
Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association, indicated from time to time legislation is necessary to address specific facts. He said some of this may be covered under other theft statutes. The language in A.B. 162 gives notice to the public, police, and the law-enforcement community as to what acts are violative and, therefore, subject to punishment. It also provides specific elements which must be prosecuted, and gives notice to the public as well. Mr. Graham maintained it is a good step.
Further, in regard to section 1, subsection 2 of A.B. 162, Mr. Graham said the observations of Senator Care and Assemblyman Brown are accurate. He surmised it was included by some of the victim’s rights or consumer groups that expressed concern in the Assembly.
Senator James cautioned against legislating the issue into a corner which could cause somebody to argue that, because the crime is spelled out in the statute in this way, other crime must be spelled out as well. He pointed out it is always better to have language, “as long as it gives the public notice,” and a statute that is more generally written rather than one that is more specifically written. The senator said it seems like it should be covered, but, unfortunately, the police take a position it is not. Mr. Graham commented this way it is clear.
Assemblyman Brown expressed the opinion that the soul of A.B. 162 is in section 1, subsection 1, paragraph (f), “. . . or parts, products or other items related to such services . . .” which is a very general description, and, perhaps, what is needed. He said, section 1, subsection 1, paragraph (j) of A.B. 162, is more specific, and he reiterated that section 1, subsection 2 was necessary.
Senator McGinness declared he went to high school with a man who owned an auto-repair business for 30 years. The owner allows customers to drop off their vehicles at 5 a.m. and slip the keys under the door. After the repair, he calls the customer and informs them the amount of the bill, after which, he leaves the keys in the car and the customer picks up the automobile. Senator McGinness said the owner may never see the customer. He pointed out, “We do not want to throw our arms around those people if they do not receive a written estimate.” The senator said his friend’s concern is, should he be inspected, he would be in violation because a 40-year friend trusted him to repair their car. Senator McGinness agreed section 1, subsection 2 of A.B. 162 is, indeed, superfluous.
Senator James stated he agreed with Assemblyman Brown that better legislation is contained in section 1, paragraph (f) of A.B. 162. He noted should section 2 of A.B. 162 be included, it would then be required to be included in every kind of theft offense. The senator said lawyers learn in law school the crime of theft has elements which are: a person knowingly obtains something without lawful authority, and if a person did not knowingly obtain something without lawful authority, they would not be guilty of theft.
Assemblyman Brown pointed out that was the point they were attempting to make in the Assembly. He said this is the definition of theft, and section 1, subsection 2 of A.B. 162 is not necessary. Senator James remarked it might do violence to the statute to have an element of crime spelled out as an affirmative defense.
Senator Wiener asked whether section 1, subsection 1, paragraph (j) of A.B. 162 would fall under the issue because it is a specific product. Senator James indicated he had no problem with paragraph (j) because it is a different thing. He explained, paragraph (j) refers to another kind of thing that can be stolen; whereas, section 1, subsection 2 takes the element of crime in which it must be knowingly done, and reading it out in the statute as an affirmative defense. The senator noted he, like Senator Care, have seen people who over plea their affirmative defenses, which are really part of the proof of the other party in their prima facie case. Senator James explained in terms of A.B. 162, it goes without saying that the prosecution has to prove the perpetrator did the elements of the crime.
Mr. Graham noted an educated thief might deliberately not sign these things. Senator James remarked, “That is right, then they could squeak out of it.” Senator Care agreed.
Assemblyman Brown indicated his concern with the provision is that an educated thief may intentionally play the situation whereby he or she will call over the telephone and give a directive to repair his automobile. He said people tend to be trusting and would move forward with it.
Peter D. Krueger, Lobbyist, Nevada Petroleum Marketers and Convenience Store Association, expressed support for A.B. 162. He pointed out he supports “gasoline” being spelled out in section 1, subsection 1, paragraph (j) of A.B. 162. He explained, as the price of fuel, and gasoline in particular, rise, “drive-offs” will occur. Mr. Krueger said, unfortunately, it still maintains a misdemeanor status, and overburdened law enforcement is unable to give it the kind of attention he would prefer, however, that is reality. Nevertheless, he indicated support for A.B. 162.
Warren B. Hardy II, Lobbyist, indicated he was representing himself and expressed his utmost endorsement of A.B. 162. He pointed out his family was in the automotive business in Nevada for 43 years and he is aware of the problem. Mr. Hardy wholeheartedly agreed with the comments of the committee regarding section 1, subsection 2 of A.B. 162, which is part of the scam. He emphasized these acts are premeditated, are stealing services, and cost his family thousands of dollars a year. Mr. Hardy said this legislation is long overdue and he appreciated the committee’s consideration in passing it.
Chris Ferrari, Lobbyist, Retail Association of Nevada, indicated he testified in the Assembly in support of A.B. 162 without section 1, subsection 2, and echoed the comments of the previous speakers in regard to it.
Senator Care commented, a person can now drive up to a gasoline pump, slide their credit card into a slot, and never go inside the gas station. He asked whether there have been disputes as to whether or not a person actually paid for the gas.
Mr. Krueger answered, in that event, most gasoline pumps will not activate; therefore, fuel cannot be distributed under those conditions. Senator James added, should the card be broken and not read correctly and the gasoline is not charged, it is not the customer’s fault, and the person would not have committed theft.
Lucille Lusk, Lobbyist, Nevada Concerned Citizens, indicated she worked with the Nevada Association of Auto Service Professionals in their preparation of A.B. 162, and expressed support for the bill.
James F. Nadeau, Lobbyist, Captain, Detective Division, Washoe County Sheriff’s Office, and Nevada Sheriffs and Chiefs Association, indicated A.B. 162 would bring clarity to some of the issues. He said many cases regarding mechanical work are viewed as a civil issue. The captain pointed out the bill would provide clarification to law enforcement that it is a criminal matter in those kinds of situations.
Senator James entertained a motion on A.B. 41.
SENATOR MCGINNESS MOVED TO DO PASS A.B. 41.
SENATOR PORTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James requested Senator McGinness handle A.B. 41 on the Senate Floor.
Referring to A.B. 162, Senator James noted the consensus of the committee is to amend the bill to remove section 1, subsection 2.
SENATOR PORTER MOVED TO AMEND AND DO PASS A.B. 162.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James asked Senator Care to handle A.B. 162 on the Senate Floor.
At the request of Assemblyman Dennis Nolan, Clark County Assembly District No. 13, Senator James announced, with the assistance of the chairman of the Assembly Committee on Judiciary, he has assembled a bipartisan and multi-jurisdictional committee to consider the issue of breast-implant litigation. Senator James noted a group of people were left out of the settlements because they had a different type of breast implant and are seeking legislation to toll the statute of limitations. He said Assemblyman Nolan inquired whether the members of the Senate Committee on Judiciary would want to attend a meeting on April 26, 2001, at 3:30 p.m., in Room 3161 of the Legislative Building. Senator James indicated, should his schedule permit, he would be in attendance. It was his understanding it would be an informal hearing. He pointed out the committee currently consists of: Assemblywoman Ellen Koivisto, Chair; Assemblyman Dennis Nolan; Assemblywoman Kathy McClain; Assemblyman John Oceguera; Assemblywoman Merle Berman; and Assemblyman John Carpenter. Senator James remarked the public will be there as well. He said, should a chairperson be needed from the Senate Committee on Judiciary, he designated Senator Titus.
There being no further business to come before the committee, the hearing was adjourned at 10:24 a.m.
RESPECTFULLY SUBMITTED:
Barbara Moss,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE: