SENATE COMMITTEE ON JUDICIARY

MINUTES OF THE

SENATE Committee on Judiciary

Seventy-First Session

April 25, 2001

The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:46 a.m., on Wednesday, April 25, 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 Valerie Wiener

Senator Terry Care

COMMITTEE MEMBERS ABSENT:

Senator Maurice Washington (Excused)

Senator Dina Titus (Excused)

GUEST LEGISLATORS PRESENT:

Assemblyman Bernard (Bernie) Anderson, Washoe County Assembly District No. 31

STAFF MEMBERS PRESENT:

Bradley A. Wilkinson, Committee Counsel

Allison Combs, Committee Policy Analyst

Barbara Moss, Committee Secretary

OTHERS PRESENT:

James F. Nadeau, Lobbyist, Captain, Washoe County Sheriff’s Office, and Nevada Sheriffs and Chiefs Association

Don L. Means, Captain, Washoe County Sheriff’s Office

Richard A. Berger, Washoe County Sheriff’s Office

Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorney’s Association

Gemma Greene Waldron, Lobbyist, Washoe County District Attorney’s Office

John C. Morrow, Lobbyist, Washoe County Public Defender

Mike Ebright, District Administrator, Division of Parole and Probation, Department of Motor Vehicles and Public Safety

Pete Bachstadt, Lobbyist, Carson/Eagle Valley Human Society

Fritz Schlottman, Research Analyst, Department of Prisons

Senator James opened the hearing on Assembly Bill (A.B.) 54.

ASSEMBLY BILL 54: Revises provisions relating to time within which prosecution for certain felonies must be commenced and certain provisions concerning genetic marker testing. (BDR 14-296)

Assemblyman Bernard (Bernie) Anderson, Washoe County Assembly District No. 31, indicated A.B. 54 broadens the scope of genetic marker testing, and he deferred to forensic experts to explain the bill.

James F. Nadeau, Lobbyist, Captain, Washoe County Sheriff’s Office, and Nevada Sheriffs and Chiefs Association, said A.B. 54 is a two-part bill. The first part deals with extending or increasing the statute of limitations on kidnapping, attempted murder, and felony aggravated stalking. Captain Nadeau indicated part of the reason for extending the statute of limitations is because, currently, the statute of limitations on those three crimes is 3 years. With the advent of deoxyribonucleic acid (DNA) and the advances that have come from it, the time is right to make a change to extend the statute of limitations. The captain noted he worked with the defense bar (State Bar of Nevada) in putting the statute of limitations together when A.B. 54 was heard in the Assembly.

Continuing, Captain Nadeau indicated in a kidnapping situation the person who has been kidnapped must live with the fact for the remainder of his/her life. However, the perpetrator, under current law, after 3 years and 1 day, can admit guilt and nothing can be done about it. Should evidence later lead law enforcement to the kidnapper, the person cannot be prosecuted after the 3 years. He explained A.B. 54 would mandate a report must be made within the current statute of limitations, which is 3 years. If the report is made to a police agency the statute of limitations is extended another 12 years, which makes it a total of 15 years. Captain Nadeau pointed out this time frame would avoid situations of repressed memory in which years later a person could come forward with allegations. He said although the statute of limitations is being extended, it is not necessarily a “slam dunk” and is still subject to all evidentiary procedures, retention of the evidence, and everything associated with the prosecution of any other crime. Assembly Bill 54 only extends the prosecution and the bringing of the complaints.

Further, Captain Nadeau indicated the second part of A.B. 54 deals with changing the term “blood” to “biological specimen.” He explained the rationale is that with technology things change. The captain deferred to the expertise of the forensic science criminalist.

Don L. Means, Captain, Washoe County Sheriff’s Office, pointed out he is the Laboratory Director and was the catalyst for A.B. 54. He noted year 2000 was a banner year in DNA wherein four unsolved homicides were solved, the earliest of which was 10 years old. One in particular was the Lisa Bonham case, which was a 23-year-old homicide involving a 7-year-old-girl. Captain Means said in the process of dealing with Steven R. Smith, a suspect in the case, several child abductions and kidnappings were researched. One case was a 9-year-old girl who had been taken from a first-floor apartment in Sparks. He pointed out technology has advanced to a point “that they had already used up the entire head of the swab,” and a technician actually shaved the stick of the swab and was able to extract DNA information. The DNA was not Mr. Smith’s and another subject was identified; however, the case was past the statute of limitations and nothing could be done, Captain Means said.

Continuing, Captain Means indicated A.B. 54 is based on real world casework. He said extractions from DNA samples have been successfully accomplished as far back as 23 years, and even farther back on some old cases that are still pending. The captain emphasized A.B. 54 is in answer to real world situations, and not just a “pie in the sky” request to extend the statute of limitations for no particular reason.

Senator Care asked, “Why have a statute of limitations?” He surmised it is a matter of public policy that states uniformly put no statute of limitation on murder because it is a heinous and serious crime on which the clock should never run out. However, there are other periods of limitation. The senator speculated one approach might be that life must go on, and should an indictment or arrest not be made within 3 or 4 years, that is just the way it goes and the world continues to revolve. Senator Care said he understood the argument, for example, with DNA, where with an extended period of limitation, evidence might be uncovered. However, it begs the question. He pondered extending the statute of limitations to 12 years for every crime. The senator remarked 12 years is an extremely long time and he did not favor those who could hide their crime for the period necessary to escape prosecution during the period of the statute of limitations. He asked, “Where did the 12 years come from, and why do we have a statute of limitations in criminal matters?”

Captain Nadeau pointed out when A.B. 54 first came forward there was no statute of limitations on the three crimes. He said the three particular crimes—kidnapping, attempted murder, and felony aggravated stalking—were chosen because of their onerous aspects. The captain noted the crimes are twofold: (1) they are crimes against a person and seriously impact the victim; and (2) in many cases there is evidence available in order to prosecute within the time frame. He noted there are recent cases in which the prosecution is several years old. The cases are still bound by the same evidentiary rules regarding the retention and storing of evidence, and it must be done appropriately. Captain Nadeau indicated prosecutors still must do what they can do, and the accused still has the ability to face the accuser and do the things they must do under current law. Senator James interjected, “12 years later,” and Captain Nadeau agreed.

Senator James indicated statutes of limitations are designed to be a fair process for both sides. He pointed out after years and years memories fade, witnesses die, and facts and circumstances are no longer able to be assembled in order to make either a prosecution or defense. The senator noted in murder there is a corpus delicti (body of an offense) and everything leading toward a pool of evidence that is associated with a person having been killed. He reflected formerly a body had to be found in order to prove a murder; however, now there are cases in which a body is unnecessary, but usually there is evidence that a person has been killed. Senator James affirmed there is a difference in regard to a statute of limitations. He said the problem with extending the statute of limitations for 12 years due to the anticipation of discovering genetic evidence, is a person is entitled to their defense, and the genetic evidence may be explained or refuted by other evidence that is gone after a decade. The senator asked if a person files a complaint that is an offense against another person, why not file a complaint, or get an indictment, and start the process?

Answering, Captain Nadeau said part of the rationale of bringing the law into conjunction with the DNA portion of A.B. 54 is, when the case is filed, many times the suspect is unknown. If the suspect is identified, the district attorney files the complaint, obtains the indictment, or whatever is appropriate. He said in many cases warrants are issued but prosecution may not happen for several years when the identity of a suspect is known.

Asked how DNA changes the situation, Captain Nadeau explained the Combined DNA Indexing System (CODIS), a nationwide, Federal Bureau of Investigation (FBI), database of offenders, is now being compiled. He noted Steven R. Smith’s (the suspect in the murder of Lisa Bonham) genetic marking was not placed in that database until approximately 2 years ago. At that point, his DNA was matched from a previous case. The captain said a crime can be committed and the suspect can continue doing dastardly deeds until the time he is apprehended. At that point, the DNA can be obtained and entered into the database, the suspect is identified, and the prosecution can proceed. Captain Nadeau said that was how today’s technology changes those kinds of things.

Captain Nadeau pointed out the statutes of limitations were designed to allow time and distance. After a period of time, if a crime is not that onerous, and the suspect has not committed any other crimes, the case is closed and the suspect moves on. However, the victim continues to live with, adjust, and deal with the crime. The captain noted a couple of years ago the Senate opted to change sexual assault law because of DNA evidence derived from those kinds of crimes. He noted sexual assault has no statute of limitations after the report is filed. The captain said, in a sense, sexual assault takes on the same role as murder.

In conclusion, Captain Nadeau stated DNA brought new technology to an area where, previously, prosecution was impossible.

Senator James expressed concern and said fairness dictates that after a certain period of time a case cannot be put together for either side. He pointed out people are no longer around, witnesses are gone, dead, unavailable, or have forgotten what occurred. The senator pointed out the difficulty of remembering what a person was doing on a certain date, whether he saw a suspect come out of a store and get into a blue or green car, which direction it traveled, what the suspect looked like, and what he was wearing. He said those are the kinds of things people give in terms of identification and alibi testimony. In addition, Senator James said people do not keep calendars for that length of time.

In response, Captain Nadeau said he could not dispute the senator’s remarks, and indicated it was a matter of putting a case together and whether or not it could be prosecuted and defended. Specifically, Steven R. Smith is now in state prison because he confessed to the crime based on DNA evidence. Senator James clarified the statute had run out in the case of the other suspect whose DNA was found on the swab, and Captain Nadeau agreed.

In addition, Senator James noted the capacity for DNA matching should speed up the identification process and the ability to initiate prosecution. Answering, Captain Means pointed out he worked 17 years in violent crime prior to being assigned to the laboratory. He called attention to the fact that crime has changed. For example, in the past, murders were cleared at approximately a 95 percent clearance rate because a person who killed someone was usually a husband, wife, boyfriend, girlfriend, and so forth. However, with the explosion of gangs came many stranger abductions, which was the case with Lisa Bonham. Captain Means added people just vanish with no physical evidence. He noted he was on the scene of Tony Franco and Jennifer Martin case and there were no witnesses. The last time Jennifer Martin was seen was within 30 yards of her house, there was no evidence, and no witnesses. The captain speculated if there was a coffee cup containing biological evidence at the scene, it could eventually lead to the suspect.

Answering an inquiry about Jennifer Martin, Captain Means said she disappeared from Lemon Valley in 1983 and was never seen again. Citing a recent occurrence at Washoe Medical Center in which a newborn infant was kidnapped, the captain said, obviously, it was not for sexual assault or homicide. He indicated biological evidence was obtained from the area where the suspect sat with the mother for a period of time. Captain Means stated the biological evidence would last forever. He pointed out the kidnapper would not have been in the DNA database, nor is there any legislation, or proposed legislation, that would have put her there.

In regard to Senator James’ question about DNA evidence speeding up the process, Captain Means indicated it should speed up the process for convicted offenders. However, he hypothesized there are probably 18,000 people that are not entered into the database. Secondly, if a person does not commit a serious crime that requires DNA marking, or if they come from another state and are just passing through, they would not be in the database. The captain noted Nevada is a tourist and transient state, and the majority of people in prison are from California and other states.

Addressing the concerns, Captain Means indicated he was speaking from a real-life, street-type situation, which is the reason the legislation is proposed.

Richard A. Berger, Washoe County Sheriff’s Office, pointed out he is a criminalist in the Forensic Science Division. He said he would expand upon the proposed change in terminology in regard to the specimen to be taken. Instead of blood, a biological specimen, preferably saliva, is taken. The reasons are twofold. First, in regard to ease of sample collection, Mr. Berger indicated it is a great deal easier to obtain samples if the activities of a nurse or phlebotomist are not required. The samples can be taken by prison officials, Parole and Probation (P&P) officers, or police agency investigating officers. Secondly, the types of samples are much less prone to sample degradation, do not require refrigeration as would a blood sample, and are easier for the analyst to deal with once they reach the crime laboratory. Mr. Berger said, in addition, it is a much less invasive technique for the person being sampled, involving a cotton swabbing of the mouth rather than a needle injection and blood withdrawal.

Senator James pointed out section 9 of A.B. 54 states the statute of limitations extension applies to completed crimes, and asked whether it is an ex post facto law (a law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed).

Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorney’s Association, explained an ex post facto law would make a crime today, which was not a crime yesterday, for yesterday’s acts. He pointed out this was more of a procedural matter. It is not a fact that the crime did not occur, or was not illegal when it happened, and rather than substantive change in ex post facto, he argued that the statute of limitations would not be an ex post facto application.

Senator James pointed out, A.B. 54 is drafted in such a way that if the applicable statute of limitations has commenced, but not yet expired, then it applies. Mr. Graham answered the argument could be made if it is procedural and not substantive; however, the matter would have to be researched.

Bradley A. Wilkinson, Committee Counsel, pointed out the issue came up last session when the statute of limitations for the sexual assault bill, which is also included here, arose. He said the issue was researched and found to be constitutional as long as the statute of limitations had not yet expired. If it had expired, the conclusion was it could not be applied retroactively.

Mr. Graham commented it is fun watching the evolution of law, and when you get older you look for all the benefits you can find, one of which is the intellectual part of seeing law develop. He reflected years ago no scientific evidence was available, not even fingerprints. In regard to the statute of limitations, Mr. Graham agreed with Senator James, and asked, “Who would remember where they were 10 or 12 years ago?” He noted evidence was “he said, I said” and no other evidence was involved. Now evidence is more scientific and basically irrefutable. Mr. Graham recalled a similar debate took place when the statute of limitations was removed from the sexual-assault statute. Safeguards were added that would rule against anyone filing a false claim, requiring people to report cases, and if the cases were valid the police and authorities would investigate and perform testing. He stated, “The only thing we did not have was who did it. We knew it happened, but we did not know who it was.” Mr. Graham commented in some sexual-assault cases the woman is unable to physically identify the offender; however, the man leaves a biological specimen. He emphasized remember the safeguards, if at any time the speed trial is raised, and the defendant can show it is a deliberate delay on the part of the state, the case gets “kicked” because the defendant cannot be prejudiced by any act of the state.

Further, Mr. Graham indicated A.B. 54 is attempting to say, “There is no doubt the kidnapping, the attempted murder, or the felony-aggravated stalking occurred.” The crime has been investigated, the perpetrator is unknown, but he left a biological specimen. Should the perpetrator re-offend and leave a biological specimen, he then can be apprehended. Mr. Graham pointed out, “The only thing the person could say would be he did not know where he was 12 years ago, but if my spit was on that coffee cup, I do not know how it got there, but I probably had coffee 12 years ago.” He asserted technology is moving with the times and nobody is being unduly prejudiced.

Senator James noted all the witnesses would be gone by then. Mr. Graham responded if the witnesses are gone it is not a prosecutable case. If evidence is lost, the defense can claim the delay has caused undue prejudice and the case is not prosecuted.

Senator James queried whether felony aggravated stalking is stalking coupled with a threat.

Gemma Greene Waldron, Lobbyist, Washoe County District Attorney’s Office, answered felony aggravated stalking is a threat to kill or commit substantial bodily harm. Senator James asked why felony aggravated stalking is mentioned in A.B. 54. Mr. Graham indicated he participated with Captain Nadeau and others in writing A.B. 54, and they considered felony aggravated stalking a serious offense in which, from time to time, biological substances are left. Senator James questioned where biological substances would be left. Mr. Graham answered he was uncertain. Senator James noted attempted murder and kidnapping indicates some proximity or contact with the victim; however, stalking does not. Mr. Graham pointed out he was present at the hearing to participate in the mechanical process and explain why it is acceptable, not unconstitutional, and not prejudicial in violating a person’s rights. Insofar as the crimes, he agreed with the concept of attempted murder and kidnapping, and said he was open to improving the case on felony aggravated stalking.

Senator Care pointed out, on the one hand, the argument is the crimes are so heinous that the perpetrator should never get away with it. On the other hand, the argument is, heinous or not, the person will most likely offend again within 12 years or less, and if they can be attached to “crime B,” they can also be attached to “crime A” from the past. The senator pondered whether the desire to extend the statute of limitations is due to horrific crimes which stimulate an inclination to “beef up” the law and inform the public there is a longer period in which to prosecute; or is it because the kind of evidence has changed to the extent that prosecution can take place many years after the crime.

Mr. Graham explained the concept of the 12-year thought process: If the perpetrator has not re-offended, or been apprehended, he/she will be too old to do too much damage, or be dead. Senator Care said, on the other hand, word gets out that “so-and-so” is under investigation. When reporters follow up, the official statement is, it cannot be confirmed. Nonetheless, the name is out there. The senator indicated it troubled him to think a person could be publicly under investigation for 12 years, as opposed to 3 years.

Ms. Waldron pointed out there are no names in these cases until DNA is matched. If a case is 12 years old, there is a police report, and every witness is dead, a criminal complaint or indictment cannot be filed and there is no longer a case. Therefore, A.B. 54 would not subject a person to a 12-year investigation. She noted when the perpetrator is identified the case goes forward, or it does not. The legislation would allow law enforcement to search for the offender and check DNA samples for up to 12 years in order to reach the “threshold question” of whether or not the case can be proven.

Senator James pointed out there is no nexus here. He said A.B. 54 is about genetic marker testing, but there is no nexus between the extension of the statute of limitations and genetic marking. He noted extending the statute of limitations would apply whether or not genetic evidence exists. Senator James maintained the bill has not been well thought out. He said it seems as though three crimes were chosen and placed in the bill with the genetic marker. He said if we are going to have a philosophical discussion of whether we should extend the statute of limitations on serious crimes because forensic law enforcement is changing, then all kinds of other crimes should be considered, such as crimes against children, child pornography, and so forth. The senator said A.B. 54 only addresses three crimes, which are not necessarily unique to other kinds of violent crimes, and the statute of limitations would be extended on them.

Continuing, Senator James indicated he had no problem with genetic marking; however, he expressed concern with the statute of limitations. He suggested it might be a matter to be studied by the S.B. 286 committee to consider all the different crimes to ascertain whether or not there are statutes of limitations that are too short and should be removed. The senator commented the approach in A.B. 54 is haphazard.

SENATE BILL 286: Revises provisions relating to certain committees that review issues pertaining to criminal justice. (BDR 14-774)

Responding, Mr. Graham said he did not participate in the initial creation of A.B. 54 and hypothesized that Captain Nadeau chose the crimes because of his experience and background in cases that were resolved. He pointed out stalking is a relatively new crime compared with the others. Mr. Graham expressed the opinion that genetic marking should be moved through this committee. He said attempted murder and kidnapping are closely related to crimes of violence, and should genetic marking be found within a 12‑year period, the perpetrators could be prosecuted.

Senator James remarked there must be 50 violent crimes but he was unaware of the statute of limitations on all of them. He said this same type of discussion took place in regard to sentencing in 1981, 1983, 1985, 1987, and by 1995 the laws were all over the place. Then the truth-in-sentencing bill was passed and the entire aspect was brought back into something that made sense, Category A through Category E. The senator maintained A.B. 54 is similar. He exclaimed, “Of course I want to catch the bad guys, but I want to do it in the right way.”

Mr. Graham said, “Unless you have misgivings regarding what was done with sexual assault, you should not have misgivings about kidnapping or attempted murder.” Senator James answered, “I probably do not.” He expressed concern about aggravated stalking and the whole philosophy behind “blowing out” the statute’s limitations on things.

Senator Care also expressed concern in regard to aggravated stalking and genetic marking.

Captain Nadeau explained the Washoe County forensic laboratory does the work for 14 northern counties in Nevada, and it deemed the three crimes—kidnapping, attempted murder, and felony aggravated stalking—most appropriate for A.B. 54. Senator James expressed appreciation to Captain Nadeau and his cohorts for basing the legislation on their experience.

Senator James questioned the statutes of limitations on manslaughter, unlawful killing, mayhem, administering poison, battery with intent to commit crime, battery resulting in substantial bodily harm, abuse or neglect of an older person, burglary, invasion of the home, and conspiracy to commit any offense. He said, apparently, those crimes require a biological saliva or blood sample. The senator maintained there are also many more vile crimes, such as crimes against children and child pornography, in which biological evidence may be available, and suggested they be studied as well.

John C. Morrow, Lobbyist, Washoe County Public Defender, indicated he was neutral on A.B. 54 because practically everything he had to say was addressed in the Assembly, but he pointed out there were things of which the committee should be aware. First, the intention of A.B. 54 is to allow for a 12‑year extension of the statute of limitations beyond the existing 3 years; consequently, there is a 15-year period of time in which a person can be charged.

Second, Mr. Morrow said, in his experience with cases involving attempted murder, aggravated stalking, and kidnapping, there is rarely a case in which a defendant or perpetrator is not accused, or known. It seems to be a non sequitur (it does not follow) to not file a criminal complaint when someone is known. Therefore, it appears unnecessary to have this, particularly for these types of offenses.

Third, Mr. Morrow indicated, everybody leaves DNA all over the place, every day. He pointed out there are samples in the building traceable to everyone. He said 15 years from today, who would know where a person put a cup that could be used as evidence against him. Therefore, as a practical matter, it makes it nearly impossible to defend a person who is accused many years after a crime, in a place where perhaps they had been and could have left genetic markers. Mr. Morrow emphasized that is the reason for the statutes of limitations that have been in existence for centuries.

Senator James queried whether other states are getting rid of, or extending, the statutes of limitations for certain crimes. Mr. Morrow expressed uncertainty, saying he was not versed in those areas. He said the statute of limitations has been eliminated for sexual assault, and because Nevada is not unique, he presumed other jurisdictions had done so as well. Mr. Morrow said, certainly, sexual assault is a crime in which there is a high probability that genetic evidence would be left. He pointed out many sexual assault perpetrators are never known or there is a great deal of difficulty locating them. In regard to aggravated stalking, Mr. Morrow declared, a cigarette butt picked up from the pavement where a stalking allegedly occurred, could many years later be tied to a person who was walking by. He noted it compounds the possibility of having an imperfect, or wrong, prosecution of a person many years from a time when they could successfully have had a defense.

Mike Ebright, District Administrator, Division of Parole and Probation (P&P), Department of Motor Vehicles and Public Safety, indicated he previously testified before the committee regarding S.B. 548, a bill he rough drafted in regard to DNA testing.

SENATE BILL 548: Makes various changes concerning sex offenders and other persons convicted of crimes. (BDR 14-512)

Mr. Ebright said at that time A.B. 54 existed in the Assembly and, because it was similar in nature to S.B. 548, he suggested merging some of the wording. He said P&P is in favor of A.B. 54, and his concern about the wording had been addressed. However, he expressed concern about one point that would have to be addressed by the legal staff. Referring to page 3, line 23 of A.B. 54, Mr. Ebright indicated there was some old wording regarding the cost being paid pursuant to Nevada Revised Statutes (NRS) 176.0195. He pointed out the new wording above line 23 will have an effect on how payments will be made from people who are supervised by P&P via the interstate compact.

Further, on page 3, line 45 of A.B. 54, Mr. Ebright said NRS 176.0195 states that a court will order the defendant to pay the money, and in the case of an interstate compact offender, there is no court to order the payment. He suggested wording be added that at the time the probationer or parolee is accepted for supervision by P&P, they agree to pay the $150, which would clear up the matter.

Captain Nadeau offered to provide the committee with information regarding statutes of limitation in other states. Senator James affirmed he would, indeed, be interested in receiving the information. The captain indicated he had done some research in surrounding states, and one state has an 8 year statute of limitations, and some have 7 years; however, the states are extending the statute of limitations further out than that which Nevada has currently. Senator James reflected 3 years seems a little short, generally, even without genetic markers; and 15 seems long for all the crimes, but seems excessively long for aggravated stalking, not quite as long for kidnapping, and not very long at all for attempted murder. The same statute of limitations is “glommed” on to all three crimes, and they are different crimes. He expressed discomfort with it. Senator James suggested perhaps working with the other committee to change it. Captain Nadeau confirmed he would be available.

Senator James closed the hearing on A.B. 54 and opened the hearing on Assembly Bill 33.

ASSEMBLY BILL 33: Expressly validates trust for care of animals. (BDR 13-17)

Pete Bachstadt, Lobbyist, Carson/Eagle Valley Human Society, read from a prepared statement entitled, “Pet Trusts” (Exhibit C), which was his testimony in support of A.B. 33. He said he would like to change the title of his document from “Pet Trusts” to “Animal Trusts,” because people, other than pet owners, utilize trusts for animals, such as agriculture, entertainment, racing, and so forth.

Senator James indicated A.B. 33 considers offspring and does not violate the rule against perpetuities.

Senator Wiener disclosed, although she is not a lonely, rich eccentric, she has provided for her pets in her estate planning.

Mr. Bachstadt pointed out A.B. 33 allows the court to overturn excessive, ridiculous bequests, returning the proceeds to the estate. Referring to section 1, subsection 2 of A.B. 33, “ . . . in a manner inconsistent with its intended use,” Mr. Bachstadt said, in other words, if $1 million is left to one singular house cat, it does not require that much money to maintain a house cat.

Senator James disagreed, and pointed out that is not what A.B. 33 says. He indicated A.B. 33 says the trust will be interpreted liberally in favor of the creation of the trust and the settlor’s expression of intent must be adhered to, which means the property of the trust cannot be used in a manner inconsistent with the intent of the settlor. The senator postulated a trust could provide a cat $1 million. In response, Mr. Bachstadt said he would leave it up to the litigants. He noted A.B. 33 was originally requested by Senator Adler, who said it amended the probate process in that regard.

Senator McGinness, referring to section 1, subsection 3 of A.B. 33, “A person having a demonstrated interest in the welfare of the animal beneficiary may petition the court for an order to appoint himself as trustee or to remove the trustee. The court shall give preference for appointment to a person who demonstrates such an interest,” asked, “If my Grandmother left $1 million to my sister to take care of her cat, and I demonstrated an interest, could I receive preference?” Senator James answered, section 1, subsection 3 of A.B. 33 says, “if a trustee was not designated, by a person appointed by the court to act as the trustee,” and said, the language deals with a situation where a trustee who is not designated in the court appoints a trustee.

Further, Senator McGinness stated, NRS 164.040 is power of jurisdiction of the court; and NRS 164.010 and 164.015 do not limit or abridge the power of jurisdiction of the district court over trust and trustees. Court may enter any order or take any other action necessary or proper to dispose of the matters presented by a petition, including appointment of temporary trustee to administer trust in whole or part. The senator questioned whether that would give the court enough latitude over something like this. Senator James said, “I think so.”

Referring to section 1, subsection 2 of A.B. 33, “if a court determines that the value of a trust described in subsection 1 exceeds the amount required to care for the animal beneficiary, the excess amount must be distributed to the person who would have taken the trust property is the trust had terminated on the date of the distribution,” Senator Care indicated his interpretation of the language was: “The cat was left $1 million, and only $5,000 was needed to maintain the cat, I am going to contest the will over the other $995,000.” In reference to section 1, subsection 3 of A.B. 33, “demonstrated interest in the welfare of the animal,” and noting lines 18, 19, and 20 of A.B. 33, in regard to removal of a trustee, the senator said, “Aunt Clara could say that Aunt Jane is not taking care of the cat properly; therefore, I will go to court and have the judge put the cat in my care.” Senator James stated the matter should be considered.

Senator James closed the hearing on A.B. 33 and opened the hearing on Assembly Bill 580.

ASSEMBLY BILL 580: Eliminates provisions pertaining to contracts concerning sale or donation of blood or blood plasma by offenders. (BDR 16-622)

Fritz Schlottman, Research Analyst, Department of Prisons, said currently the Department of Prisons has no plans to use inmate blood, or set up blood centers. He explained the prison population is a troublesome group from which to draw blood because inmates have histories of drug use, outside, and sometimes inside, the prison. In their propensity for tattoos, they do not divulge information as to whether or not the tattoo was done with a needle; nor would they bother to clean the needle. Mr. Schlottman said where there are needles there are most likely drugs being used with a dirty needle. The inmates’ propensity for unsafe sex is not reported, and, in general, they strike out at the population. He pointed out all these propensities are severe risk factors when considering drawing blood from this population. He emphasized the Department of Prisons is not interested in pursuing it.

Senator Wiener indicated her understanding of the concern regarding human immunodeficiency virus (HIV) and other disorders and diseases contracted by the inmate population. She proposed the scenario of a clean inmate whose relative has need for blood and would benefit by a donation from the inmate, and asked whether or not that situation would be precluded. Mr. Schlottman answered the decision would be considered by the medical staff of the prison. Senator Wiener expressed concern that the possibility might be excluded in A.B. 580. Mr. Schlottman said it would not necessarily be excluded. The bill refers to contracts for sale or donation of blood by offenders, and allows the director some latitude to determine the terms.

Senator Care said he was under the impression that when blood is taken from a donor, there is a way to screen the blood. He pointed out on Las Vegas Boulevard, downtown near the onramps to the expressway, there is a blood center where many homeless individuals “hang out.” The senator indicated he had heard stories in which people sell a point of blood for $25 or $35, and he expressed the concern that they probably have health histories much as the inmates. Senator Care asked whether or not the blood could be screened to ascertain whether or not it is contaminated.

Mr. Schlottman said there are ways to screen blood; however, he was unsure how thorough the screening is, and at what expense. It would largely be taken by the vendor collecting the blood rather than the Department of Prisons. Not to say all inmates are dishonest, Mr. Schlottman said non-prisoners who know they have a disease tend to be more forthcoming about it, rather than an inmate who has a pattern of concealing behavior. He noted that must be viewed as a risk in the willingness to expose the general population to the possibility of contamination.

Senator Care queried whether Mr. Schlottman was aware of any current lawsuits where an individual had received blood and, perhaps, sued the state or the Department of Prisons for having received contaminated blood. Mr. Schlottman answered he was not aware of any.

Senator James closed the hearing on A.B. 580 and said he would accept a motion.

SENATOR WIENER MOVED TO DO PASS A.B. 580.

SENATOR MCGINNESS SECONDED THE MOTION.

THE MOTION CARRIED. (SENATOR TITUS AND SENATOR WASHINGTON WERE ABSENT FOR THE VOTE.)

*****

There being no further business to come before the committee, the hearing was adjourned at 9:51 a.m.

RESPECTFULLY SUBMITTED:

Barbara Moss,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

DATE: