MINUTES OF THE
SENATE Committee on Judiciary
Seventy-First Session
April 27, 2001
The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:00 a.m., on Friday, April 27, 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:
Elizabeth Neighbors, Director, Lake’s Crossing Center for the Mentally Disordered Offender, Division of Mental Health and Developmental Services
Carlos Brandenburg, Administrator, Division of Mental Health and Developmental Services
Paula Winne, Executive Assistant, Assembly Speaker Richard D. Perkins
Nancy Angres, Chief Deputy Attorney General, Human Resources Division, Office of the Attorney General
Wanda Scott, Adoption Program Specialist, Division of Child and Family Services, Department of Human Resources
Edrie LaVoie, Concerned Citizen
Peggy Pauly, Concerned Citizen
Elizabeth Breshears, Family Program Officer, Division of Child and Family Services, Department of Human Resources
Dorothy S. Pomin, Lobbyist, Sierra Association of Foster Families
May S. Shelton, Lobbyist, Washoe County
Ben Graham, Lobbyist, Clark County District Attorney
Kristy Skupa, Deputy District Attorney, District Attorney, Clark County
Myra Sheenan, Lobbyist, Nevada Trial Lawyers Association
Kimberly Maxson Rushton, Legislative Liaison, Office of the Attorney General
James F. Nadeau, Lobbyist, Captain, Washoe County Sheriff’s Office
Nile D. Carson Jr., Lobbyist, Reno Police Department
James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice
Nancy E. Hart, Chief Deputy, Civil Division, Office of the Attorney General
Senator James:
We will open the hearing on Assembly Bill (A.B.) 582.
ASSEMBLY BILL 582: Revises provisions pertaining to competency of defendants. (BDR 14-345)
Elizabeth Neighbors, Director, Lake’s Crossing Center for the Mentally Disordered Offender, Division of Mental Health and Developmental Services:
I am here in support of A.B. 582, and I would like to make a few comments. This bill is a request to change the current statute which designates how competency evaluations are completed at our facility. Just briefly, a historical comment, the sanity commission was formed prior to the establishment of our facility in the early 1970s (late 1960s). The commission was empowered with the task of reviewing if defendants who had been declared incompetent were in fact competent and able to go forward with the adjudication. Dr. Brandenburg has some history he would like to present to you, and I would comment on the reasons we feel this is a good bill.
Carlos Brandenburg, Administrator, Division of Mental Health and Developmental Services:
We are here in support of A.B. 582. Just for your information, A.B. 582 came as a result of the Governor’s fundamental review. As you know, the Governor asked each of the agencies to look for ways to make government more efficient and effective. We looked at the process of the sanity commission, which is a misnomer because under your leadership (Senator James) we actually abolished the sanity process itself, two sessions ago. This is an archaic term that continues to be in the statute.
As part of the Governor’s fundamental review, we began exploring the competency evaluation process. What currently exists is a two-fold competency criterion for the State of Nevada. One is a defendant able to aid assistant counsel in his defense. Two is a defendant able to understand the nature of the charges against him. Those are the two basic criteria used in Nevada. Lake’s Crossing Center is Nevada’s maximum security forensics facility charged with providing the individual’s competence, once they have been adjudicated as competent to stand trial. The issue of competency can be raised by any of the offices of the court including the judge, the public defender, or the district attorney.
Dr. Brandenburg:
Once the issue of competency is raised, it is usually raised at the local level in Clark County, Washoe County, or any of the rural district courts. At that time, in both Washoe and Clark Counties a judge empanels a mental health commission usually consisting of a psychologist or psychiatrist who goes to the jail and evaluates the defendant. If the defendant is ruled competent then they precede to trial, but if the defendant is ruled incompetent then they are sent to Lake’s Crossing Center for restoration of competence. This is done in both Washoe County and Clark County; however, in rural Nevada once the issue of competence is raised, the district judge automatically sends them to Lake’s Crossing Center for evaluation and restoration of competence.
We have a bifurcated system because in rural Nevada there are not a lot of resources available to the district judge for the evaluation. If the individual is charged with a felony and has been adjudicated incompetent to stand trial, then the judge writes a court order sending the individual to Lake’s Crossing Center for a period of 6 months. If the individual is charged with a misdemeanor, then the period of time is 3 months.
Dr. Neighbors, under the statute, has a responsibility of restoring the individual’s competence. During that period of time, once it is felt the individual is competent (as a result of treatment, evaluation, and/or medication), a letter is written to the district judge saying the person is now competent to stand trial. The judge then empanels three independent members consisting of either psychologists or psychiatrists from the Washoe County area. This bill proposes to eliminate that process. The bill would allow Dr. Neighbors and her staff to actually send the evaluation and recommendation to the court.
Dr. Neighbors:
Some of the points we feel are really important in supporting the passage of this bill include the fact that 70 days could be cut off the amount of time a defendant spends in our facility after they have already had an evaluation to assess their competency. At the point we complete our evaluation, they have already had a complete psychological evaluation, with reference to their competency. We feel we have already accomplished what the commission then reviews. Additionally, they use our information in the process of coming to their conclusions. We feel this is a duplication of services which keeps the defendant in a mental health facility for a longer period of time when they could be continuing with their court case.
Obviously, it would allow more time to deal with many more clients quickly. We feel this is better regarding the due process of the client, and better for ourselves in terms of providing a more efficient process for the courts. In fiscal year 1999, and similarly in the last year, clients spent about 4000 client days waiting in our facility to complete this process. You can see this is an expensive process, and one that confines the client in an institutional setting. If we could reduce client days, we feel we could spend this money on other needs such as medication or treatment.
In addition, there is a savings in regard to the fluctuating cost of the evaluations which we project could be up to $88,000 per year. We are already providing a very detailed evaluation through our staff with special training in forensic evaluation. We are proposing there would not be any additional costs; we would not need any additional staff to accomplish this since it is already being done. We have also looked at eighteen other states, and there is not one other state that does what the state of Nevada does in terms of the model for completing the evaluation for competency for the court. The standard model is what Dr. Brandenburg described to you. The staff at the facility makes the recommendation to the administrator who then notifies the court.
Dr. Neighbors:
What we are proposing is pretty much consistent with the national standard. As Dr. Brandenburg noted, we have been doing these evaluations for many years for the rural areas, they seem to be happy with our product. We also provide evaluations for other agencies, such as the public defenders office, and we have generally not had any complaints about the detail and the adequacy of the evaluations. I would like to submit my testimony into the record (Exhibit C), and also, the information regarding the other states with similar processes (Exhibit D). There are three letters (Exhibit E) from Jerry Sullivan (Sixth Judicial District Court, District Judge), Jack B. Ames (Fourth Judicial District Court, District Judge), Archie E. Blake (Third Judicial District Court, Chief District Judge), which support the passage of A.B. 582.
Senator James:
We will close the hearing on A.B. 582, and open the hearing on A.B. 336.
ASSEMBLY BILL 336: Requires provision of certain information and assistance to certain adoptive parents, prospective adoptive parents and other persons involved in adoption of child. (BDR 11-1186)
Paula Winn, Executive Assistant, Assembly Speaker Richard D. Perkins:
I am here representing Assemblyman Dini (Joseph [Joe] E. Dini, Jr.). Last legislative session there was a bill, A.B. 158 [of the Seventieth Session], which was passed to help people who are foster parents or those looking to adopt children in the state.
ASSEMBLY BILL 158 OF THE SEVENTIETH SESSION: Makes various changes in statutory procedures for protection and placement of children. (BDR 11-475)
It was a reform measure that was very successful at the grassroots level. This bill, A.B. 336, is a follow up to that, which tries to refine and improve the past bill. There are three points with this bill. First, they would like to have notification in writing to prospective adoptive parents that they are suitable by the DCFS (Division of Child and Family Services) standards to adopt the child. Secondly, in cooperation with the foster parents wishing to adopt, a booklet of information be created that includes information on subsidies and necessary requirements to adopt a child. Third, the division or child placing agency shall determine if a child has special needs, exercise due diligence in scheduling any evaluations necessary to identify those needs, and notify the prospective adoptive parents. There are several people here to testify on this matter, and there is a proposed amendment.
Nancy Angres, Chief Deputy Attorney General, Human Resources Division, Office of the Attorney General:
I am here on behalf of the Division of Child and Family Services. As you have heard, this bill is designed to improve information given to adoptive parents, especially in regards to children who have special needs. We have proposed an amendment (Exhibit F) which does not change the intent of the original bill, but does clarify some problems. When the bill was originally introduced it had a fiscal impact. We worked with Assemblyman Dini’s constituents and proposed an amendment on the Assembly side, which everyone concurred with; however, they further amended it in the Assembly. We did not have an opportunity to review that amendment before it was passed, and it, unknowingly, had a fiscal impact we are trying to avoid.
Under the proposed amendment, section 1 of the bill would be deleted entirely and replaced with a new section 1. The reason is because when people apply to be adoptive parents, they do not apply for a child and that is what section 1 of the first amended bill says. People do not apply for children; they apply to be adoptive parents. So we took the intent of section 1, in the first amended bill, and put it into Nevada Revised Statute(NRS) 127.152, which is the information we are supposed to give adoptive parents.
Senator Porter:
On your proposed amendment, is the language new in section 1 or just the italicized?
Ms. Angres:
Section 1 in the first reprint of the bill is all new language, and we are proposing to delete section one in the first reprint and substitute what I have written as section 1.
Senator Porter:
All of section 1, not just the italicized?
Ms. Angres:
The italicized verbiage is the new language to the existing statute. What it does is add to the requirement of a report being given to adoptive parents regarding medical and social needs, add information regarding subsidies, and other assistance which might be available to an adoptive parent, and also confirmation that they received the information. It seems to be more appropriate in that section because we have all the information for the adoptive parent in one section instead of splitting it into several sections in the statute.
Section 2 of the first reprint of the bill is not changed, and what it does is provide for the publication of a booklet by the DCFS which will include information regarding subsidies, assistance, and other services. We left that the same in the first reprint.
Ms. Angres:
Section 3 of the first reprint added a fiscal impact, which we are trying to remedy. Currently, section 3 deals with the adoption subsidy process which has to be in place at or before the time of finalization of the adoption. In order to access federal funding for an adoption subsidy, there is a requirement the subsidy must be in place at or before the date of finalization. What the first reprint did is allow post-adoptive parents to come back and apply for a subsidy. There is no program for this particular issue at this time. It may be a wonderful idea and we would like to explore the possibility but there are no federal funds for a post-adoption subsidy, so we want to delete it from the bill at this point, perhaps exploring the option for another session.
Additionally, I would like to point out it is very difficult to predict when a child is going to have a special need, especially if fetal alcohol or fetal drugs effects are possible. If the parent of the child to be placed for adoption was consuming alcohol or drugs and the infant has not developed any symptoms, the division will enter into an open agreement. If the adoptive parents are not getting a cash subsidy initially and symptoms develop later, the adoptive parents can return and request a subsidy.
The proposal is to delete the post-adoption piece so there is no fiscal impact on this bill. I know you are all aware of the budget crisis and we do not want to add something to it. The last section, section 4, the change to that in subsection 1 referencing the existing statute applies to the division, where the division has to adopt regulations. And subsection 2 also referencing that particular statute (Chapter 127 of NRS), applies to both the division and licensed child placing agencies. Licensed child placing agencies also do home studies for adoptive placements, and they will be required to notify adoptive parents of the results of the home studies. Instead of having the division “shall” in front of both subsections (subsection 2 applies to more than just the division) we propose to move the division “shall” adopt regulations to subsection 1, which only applies to the division.
Senator Porter:
The reason you had the initial funding in there for post-adoption was because there were no federal funds available? Is that why you put in state funds initially, and you removed it now because of the lack of funds?
Ms. Angres:
We currently do not have a post-adoption subsidy program and, we do not have funds available for people who come in and apply after the adoption. There are two situations when people can come in and apply, when they were never notified about a subsidy they can come back and say their child had a special need originally. We do know every one of the options of subsidies now, and we have cases where we failed to notify adoptive parents.
Senator Porter:
Do you mean they did not have an open agreement?
Ms. Angres:
Yes, they did not have an open agreement, where they can come back and ask for a hearing to request a subsidy. When I talk about post-adoption subsidy, I am talking about situations where a child develops a problem. We may have post-adoption services to assist a family but it is not a subsidy given at the time of placement, it is a post-adoption service which is different. We currently do not have a post-adoption subsidy.
Senator Porter:
And that is what you have removed is the subsidy program?
Ms. Angres:
Correct, because we do not have any state funding for the subsidy program right now.
Wanda Scott, Adoption Program Specialist, Division of Child and Family Services, Department of Human Resources:
I want to clarify when Ms. Angres talks about post-adoption services, we were fortunate enough to get a number of small appropriations in past legislative sessions, permitting families with children who develop special needs after the adoption is finalized to receive some level of assistance. It is generally set up to pay for things like assessments, evaluations, counseling, and basic maintenance. In this particular case we appear to be attempting to provide post-adoption services in cases where the federal program would be negatively impacted. In the federal program, in order to access a post-adoption subsidy, there is a fair-hearing process that is required by the federal regulation. So families are able to access services through the federal program post-legally only by the fair-hearing process. In the state funded program where there is very limited funding, there is no such process, families simply present the information about the child’s needs and how the needs relate to a pre-existing condition, and we use the small pot of state funding to help support the adoptive family.
Ms. Angres:
Mr. Chairman, that is why I wanted to make the distinction between adoption subsidy versus post-adoption services because this particular statute deals with the adoption subsidy process.
Edrie LaVoie, Concerned Citizen:
I am a resident of Lyon County. During my internship with the human service program at University of Phoenix, I chose to research the adoption issues identified in our county. I believe some of the issues might be the same for other rural communities. I am a State of Nevada adoptive parent (son and daughter) and also work in the human service field. I have some insight into the adoption process and I have learned a lot more from this bill draft experience.
With the passage of A.B. 158 [of the Seventieth Session] in the 1999 Legislative Session, the DCFS has made great strides toward improving the adoption process. However, the goal of my internship was to research the issues and present the findings and recommendations to DCFS. The final outcome was a recommendation to the division to establish an adoptive parents’ bill of rights, a document that would be reasonable to the division and beneficial to prospective adoptive parents. Through this bill draft process, I have learned many of the points in the proposed bill of rights are already mandated in current law. Additionally, because the adoptive and foster care worlds are sometimes interrelated, the original proposal included some foster care issues, which complicated the intent and made the proposed amendments to A.B. 336 necessary.
As a result of discussion with DCFS, there were three amendments presented to the Assembly Committee on Health and Human Services. The committee voted to amend and do pass, with the intent of strengthening the proposed amendments. Some of that language jeopardized federal funding sources and posed a potential financial impact. A final revision to A.B. 336 is being presented for your consideration today.
The first proposed amendment would require DCFS to develop a resource book available to all adoptive parents. This would be a detailed and accurate listing of all subsidies, assistance, and services offered to adoptive families, including services to children with special needs. More specifically, the resource book will clearly define the confusing subsidy program. I understand the division will consider a revision to the proposed adoptive parents’ bill of rights as a page within the resource book.
Ms. LaVoie:
The second amendment is requesting the DCFS to expedite their process in determining whether a child has special needs. It is critical to the adoptive parents to get correct and timely information on the evaluation of their child. If they are unaware their child has special needs, they may not be aware of their eligibility for a grant of financial assistance to help them with the medical cost incurred for treatment of those special needs.
The final amendment is requested to help ease the minds of the adoptive parents by letting them know the process is still progressing. The adoption process is lengthy and there are seemingly endless lapses of time when there is no progress. Sometimes it seems the process will never end and we wonder what is happening. It is easy to become anxious and concerned that the adoption might be jeopardized. The DCFS is being asked to notify, in writing, when prospective parents are found suitable by DCFS standards. This does not mean the adoption has been approved and the notice will clearly state there may be other circumstances, such as court proceedings, that still exist.
In conclusion, I would like to thank Assemblyman Dini for his continued support of children and families in Nevada. I would also like to thank Steven Shaw (Administrator, Division of Child and Family Services, Department of Human Resources) and his staff for being open to recommendations from the public, and for being concerned about our feelings and desired outcomes during this process. I would like to thank this passionate children’s advocate, Mrs. Peggy Pauly, for her efforts on behalf of adoptive children, parents, and families. I urge you to continue her efforts with your positive consideration of Assemblyman Dini’s proposed amendments to A.B. 336. Thank you. I would like to submit this testimony as a part of the record (Exhibit G).
Senator Porter:
I would like a copy of your report.
Peggy Pauly, Concerned Citizen:
I’m from Yerington, and I am a birth mom, a foster mom, an adoptive mom, and a CASA (court appointed special advocate). These are my girls you met about 2 years ago, and we have adopted. It is through their adoption that I know the weaknesses in the system.
In the interest of time, I will not read from my statement, but submit it (Exhibit H). I will say we fully support the requested amendments, and the rewrite.
Sometimes I think people read these and think this is unimportant, but it is not. When you are adopting a child, it is an extraordinary, emotional experience. When you are adopting children with special needs, you need to have the information regarding the subsidies. The subsidy process is intimidating, it is confusing, and there is not a lot of information that is provided. So, adding the information about the subsidies, and especially the services is needed.
Ms. Pauly:
A lot of assistance is needed when taking on the financial burden of adopting special needs children. You need to have the information the DCFS is talking about putting into the packet on the subject. Evaluations are very important, such as those already mentioned. Many of the symptoms when your children have drug and alcohol effects are not going to show up until they are 6 or 7 years old. So, you could adopt a child who right at that time seems normal, seems right on target developmentally, and down the road you are suddenly faced with a child that has a lot of problems; learning delays, behavioral problems, and even medical problems, such as scoliosis, problems with their jaws and teeth, eye problems, et cetera, are real common and are not initially apparent. That is why the evaluations are really important for these children.
Also, the evaluations are important for the foster care system, because they are interventions these children can get that can give them considerable help.
Again, the evaluation process is very important, and all I can do is tell you that I really hope you will pass these amendments, because they really will be helpful to the whole process. Thank you.
Senator Washington:
Between foster parents and actual adoption, there is a middle ground for guardianship or relative placement of those children with fetal alcohol syndrome or drug related problems. The relatives take the child in (they are not the foster parents) and they become legal guardians. Will this process apply to them? Or, is it a new caveat?
Ms. Angres:
A guardianship is a totally different situation. Adoption subsidies are only available to adoptive parents. There are some bills pending to address some of the issues you are concerned with such as guardianship for relatives aged 62 years or older.
Senator Washington:
I understand what you are saying. There are some grandparents who are taking in their grandchildren and they have a difficult time accessing services for the children. They are not the foster parent and not the adoptive parent, but they are the legal guardians so there is a gray area.
Ms. Angres:
I know there are certain services that would be available when the child is eligible for Medicaid because . . . with this bill they will actually get a grant for grandparents and older relatives.
Elizabeth Breshears, Family Program Officer, Division of Child and Family Services, Department of Human Resources:
The subsidy we are talking about is called the “Non-Needy Caretaker,“ specifically for the child. And as Ms. Angres said, any relative who is caring for their children, who has not gone through the child protective system, does qualify for the base amount. The subsidy suggested in A.B. 15 would actually increase the amount so it mirrors the amount of the foster care payment rate.
ASSEMBLY BILL 15: Requires establishment of program to provide supportive assistance to certain persons who obtain legal guardianship of certain children. (BDR 38-368)
Dorothy S. Pomin, Lobbyist, Sierra Association of Foster Families:
I am here representing the Sierra Association of Foster Families, and the statewide association, Foster Care and Adoption Association of Nevada. I very much support this bill, and this is needed. These are some really good first steps to make sure the needs of children and adoptive families are met. I just want to go on the record in support of this.
May S. Shelton, Lobbyist, Washoe County:
I just wanted to go on record saying that Washoe County supports A.B. 336 with the proposed amendments by the state.
Senator James:
We will close the hearing on A.B. 336, and open the hearing on A.B. 400.
ASSEMBLY BILL 400: Revises provisions concerning crimes of harassment, stalking and aggravated stalking. (BDR 15-474)
Ben Graham, Lobbyist, Clark County District Attorney:
I have the honor of having Ms. Kristy Skupa, one of our criminal trial deputies here with me this morning. It is very rare that I ask to bring a bill in that has been around since the chairman has been here. What we are seeing is some evolution and development. This bill would bring forward material and evidence that we were not totally aware of when we worked on the cases. What we are asking to do is eliminate the middle ground between misdemeanor stalking and felony aggravated stalking because confusion exists. Our sentiment is it should either be misdemeanors or felonies.
Kristy Skupa, Deputy District Attorney, District Attorney, Clark County:
I have two points to make. First, what does the amendment do? Secondly, why is it necessary? What it does is eliminate the gross misdemeanor component of the aggravated stalking section of the legislation. It does not entirely eliminate a gross misdemeanor stalking charge because if you look at the way the legislation is written, what I call plain or regular stalking (those without divorce preceding, custody preceding), once a person is convicted of that then the second offense becomes a gross misdemeanor. The confusion comes in what we term aggravated stalking, and the problem is one name is used for two different types of crimes.
What A.B. 400 does is not change the intent of the legislation, but clarify and remedy one of the problems with it. I have given all of you a handout (Exhibit I), and I think the best way to describe why this is important is to review the handout.
Senator James:
Tell me what aggravated stalking is. Stalking coupled with a threat, and stalking by your spouse or significant other during the pendency of dissolution proceedings?
Ms. Skupa:
Yes, and there is also a third way that it can get into the aggravated stalking category. You can share a child in common, and be in the middle of a custody proceeding so you do not necessarily have to be married. Either threat of substantial bodily harm or death, a divorce proceeding, or a child custody proceeding is pursuant. The State of Nevada v. Roger Douglas Reeter (District Court, Clark County, Case No. C163708), was one of the most serious aggravated stalking cases in the State of Nevada, and was prosecuted out of my office.
What happened is, having the gross misdemeanor component of aggravated stalking has allowed for the defense to find a loophole and make an argument for the defendant to be punished in a lesser sense than what was originally the Legislature’s intent. The point of the legislation was to protect victims, while balancing defendant’s rights.
The background in this case is this woman left her husband of 3 years. They had a child in common, and she had gotten a TRO (temporary restraining order). He called her at work up to 120 times per day; he called her parents at their work; he followed her to her home, to the market, to her work. She was a licensed nurse for a doctors’ group and almost lost her job over his actions. Fortunately her employers were sympathetic. The aggravated stalking culminated in him abducting her while taking her child to day care. His actions resulted in an 8-hour manhunt for her resulting in the largest manhunt for an individual in the history of the Las Vegas Metropolitan Police Department. S.W.A.T. (special weapons and tactics) was called, there were numerous detectives and patrols, there were 130 officers looking for this woman. The manhunt covered a period from August to November 1999.
Basically the jury, in this case, was at an impasse for 2 days on this particular piece of legislation because of the instructions given by the judge. I have submitted copies of the jury instructions containing two descriptions of aggravated stalking, and the two verdict forms (Exhibit I). The first instruction is the argument for the prosecution; the second instruction is the instruction argument of the defense. These exhibits clarify for the jury the difference between the two descriptions of aggravated stalking. If you look at the crimes, a course of conduct is needed to cause a reasonable person to feel terrorized, frightened, intimated, or harassed; and the victim actually has to feel terrorized, frightened, intimated, or harassed. The only difference is felony aggravated stalking, carries a sentence of 2 to 15 years and requires the perpetrator threatens the person with the intent to cause them to be placed in reasonable fear of death or substantial bodily harm. The other example shows the gross misdemeanor provision of the statute, which talks about being in the middle of a dissolution proceeding or divorce. It also applies if you are in the middle of a child custody proceeding, if not married.
The problem is the jury does not know one of them is a gross misdemeanor and one is a felony because they are not allowed to consider punishment. So what has happened is the defense argues if you have a reasonable doubt a threat of substantial injury or death occurred, then you can find for aggravated stalking, but you need to find aggravated stalking during a divorce proceeding. Most of the escalated cases actually occur during divorce proceedings. The statistics indicate when a woman (I’m going to use a woman here, even though there are times it is a man) leaves her perpetrator, her chances of being murdered during that time period increase by 50 percent, and one-third of homicides are domestically related. This was a clever way the defense developed using our legislation to actually hurt the intent of this legislation. It actually gives a person involved in a divorce or child custody proceedings more protection than someone who is not.
Senator James:
The court agreed to this but it is not how it was intended.
Ms. Skupa:
Exactly.
Senator James:
If you do the threat, it is aggravated to a felony anyway, whether it is on your spouse.
Mr. Graham:
Mr. Chairman, what happened, and it was not an isolated incident, is it led to confusion, and to the jury being out for a considerable period of time. In talking with the jurors afterwards, they expressed frustration over the two descriptions of aggravated stalking. They did not realize one was a lesser offense than the other. I think what we are asking is to lessen the confusion from a prosecution standpoint, and from the law enforcement standpoint. Under the circumstances, we should have either a misdemeanor, or we will take our shot with a felony.
Senator Care:
The jury instructions indicated the aggravated stalking was done, to a degree, through the telephone. Senator Wiener and I were talking and she suggested maybe the stalking could also be done on the Internet. If it can be wherever the threat originated, or if it can be the location of the receiver of the threat, then, what if it is in two different jurisdictions?
Ms. Skupa:
The law provides it is a Nevada crime. It is where the conduct is received, where the victim is located, that allows Nevada to have jurisdiction.
Senator Care:
Could seek extradition then of the defendant is in another state, even though he never set foot in Nevada?
Mr. Graham:
Yes, we could seek extradition under those circumstances.
Senator James:
I have indicated to Senator Care I want him to deal with this bill, and he is looking at it carefully. I see what you are doing; you are trying to repeal the bill from a previous session.
I am not processing this bill unless you get me a copy of the old bill so I can compare one to the other. I would like to show the committee what we are doing. I think the court erred by giving the instructions that way.
We will close the hearing on A.B. 400, and open the hearing on A.B. 535.
ASSEMBLY BILL 535: Reduces filing fees and requires court to waive court costs when petition is filed for adoption of child with special needs. (BDR 2-988)
Myra Sheenan, Lobbyist, Nevada Trial Lawyers Association:
This is a feel-good bill and will take only a short time. Assembly Bill 535 was brought to you because we have special needs for the adoptions we do in this state. There are not a lot of them, but the child protective services waive the adoption fee on special-needs adoptions. There was a problem with the court waiving the filing fee on special-needs adoptions. I found it necessary to bring this bill before the legislature because not all of the judges will waive the filing fee. Therefore, what this bill does in special-needs adoptions, when identified by the Division of Child and Family Services, is allow us to request the filing fee will also be waived. That is basically what this bill does, and it does not have a great financial impact.
May Shelton, Lobbyist, Washoe County:
The Division of Child and Family Services reported there were about 204 adoptions last fiscal year and almost all were special-needs children. This number does not count private adoptions. Most of the judges in Washoe County waive the fee, but as Ms. Sheenan said, there was one judge who said she does not have the authority to waive the fee. Filing fees are around a $100, so it is not a big fiscal impact.
Senator James:
We will close the hearing on A.B. 535, and open the hearing on A.B. 581.
ASSEMBLY BILL 581: Makes various changes concerning orders for protection against domestic violence. (BDR 3-480)
Kimberly Maximum Rushton, Legislative Liaison, Office of the Attorney General:
This bill provides full faith and credit to foreign and protective orders pertaining to domestic violence. In essence what it does is, with the cooperation of law enforcement, it mandates foreign protective orders that are not registered or have not been domiciled in the state, be enforced based on the fact that they are valid on their face. Furthermore, it goes on to provide the officers not only will enforce the protective order, but will also make the arrest unless it is apparent to the officer the order is not authentic. Ms. Hart (Nancy E. Hart, Chief Deputy, Civil Division, Office of the Attorney General) provided a proposed amendment to subsection 3 of A.B. 582 (Exhibit J) defining what constitutes authentic on its face. The amendment is imperative based on the fact it gives the officers some assurance to determine what is authentic. The way the bill was originally written, we stated if a copy of the order is accompanied by person’s statement, it would be acceptable. Further clarification was needed and the proposed amendment in subsection 3 would say, “An officer shall determine if an order is authentic if the order contains the names of the party, the information indicating the order has not expired, and an indication of the issuing court’s authority as evidenced either by a certified copy of the order, a file stamp copy, an authorizing signature or stamp, or any other indication of the issuing court’s authority.”
This is being done throughout the country and considered the model code for domestic violence. It assures victims of domestic violence, fleeing from one state to another, often without time to get their order domesticated in another state, but instead carry their order. In the instance of the aggressor following them to another state, this provides them the protection they need, and the officers the assurance of a valid order, and the officers are required to arrest the person for the protection of victims.
Senator James:
Do we have to do this under section 1, Article IV of the Constitution? Do we have to pass a law to give full faith and credit?
(The Constitution of the United States of America, Article IV. Relations of the States, Section 1, Full faith and credit to public acts, records, judicial proceedings of states; proof and effect. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may be general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.)
Ms. Rushton:
Pursuant to Chapter 17 of the Nevada Revised Statutes (NRS), what it does is provide for domesticating foreign orders; this specifically exempts that. Under the Constitution, you would not have to do it, but under Nevada law, specifically Chapter 17 of NRS, which codifies domesticating foreign orders from other jurisdictions, and the requirements, have been exempted in this bill. With respect to the U.S. Constitution, no, you would not have to, but with respect to Nevada law, yes, you would, and we have set forth what is required.
Senator James:
So you could require someone to force the order?
Ms. Rushton:
Normally what happens, is in order to domesticate foreign orders you must take them into a court and they must be domiciled within the state. What the court does is assure it is an authentic document, from an authentic state, and the parties were given reasonable and fair notice of hearing, so they were aware the order was being done. We have moved beyond this stating, if requirements and requisites were met by the court issuing the order, then we will recognize orders from other states.
James F. Nadeau, Lobbyist, Captain, Washoe County Sheriff’s Office:
When this bill was first heard on the Assembly side, we had some serious concerns but agreed to move forward, with an agreement the Office of the Attorney General would work with us. They have worked very hard with us. We have requested an amendment, and Ms. Rushton will mention they agreed to this amendment dated April 25, 2001 (Exhibit K). In discussing this with our district attorney and with the district attorney’s association, our concern is the courts have a hard enough time trying to make sure orders are valid and accurate; and to ask a law enforcement officer, at the scene, to make a determination is asking a lot. I think we wanted to make sure it gave direction to law enforcement as to what “authentic on its face” meant. Also, it needed to address the foreign order issues under Chapter 17 of NRS, and the amendment gives law enforcement immunity for their act, and for any omission. This mandates that we serve this order, this is a “shall.” Therefore, we did not feel the general immunity under Chapter 41 of NRS covered it. We asked for immunity if an officer looks at an order and is unable to make a determination whether or not it is authentic, he would not be sued for failing to act.
Senator James:
Do you agree with the amendment?
Ms. Rushton:
When they brought this to my attention, my first response was, pursuant to NRS 41.030, which is qualified immunity, an officer, exercising what he reasonably believes to be a discretionary act, would be provided the immunity needed in the event he acts on the order, and the order is not valid, or in the event he does not act, believing the order is invalid when it actually is valid. In further discussions with Captain Nadeau, I understand what their concerns are, and again I believe that NRS 41.030 does provide the qualified immunity needed.
Senator James:
It needs to be drafted so it is an objective standard.
Captain Nadeau:
I do not know what the definition of an objective standard is.
Senator James:
It is as opposed to a good faith belief. It has to be a reasonable inquiry by you.
Captain Nadeau:
If somebody just says I do not believe in full faith and credit, and do not believe this state can do this, then they are not acting in good faith. We want to act in good faith.
Nile D. Carson Jr., Lobbyist, Reno Police Department:
I have been working with Captain Nadeau in full support of the bill as proposed by him to be amended.
James J. Jackson, Lobbyist, Nevada attorneys for Criminal Justice:
There are two areas of concern to point out for the committee. The first one is on page 2, line 2, stating a mutual order for protection of domestic violence is not to be afforded full faith and credit. You either give full faith and credit, or you do not. The second area of concern is on line 20, a mutual order.
Senator James:
What is a mutual order?
Mr. Jackson:
A mutual order for domestic violence prohibits both parties from contacting the other. It seems to me it should be given the same validity as the other. Our concern is if you are going to give full faith and credit, you have to give it all the way. The next one is on lines 24 and 25, which seems to indicate only an oral statement from the declarant saying “I have a valid order,” in the absence of anything else, would trigger the requirement of an officer to enforce this order. We have grave concerns about this because we do not want to expose anyone to the threat of domestic violence, but a bare statement is not sufficient for an officer to be afforded the protections of immunity.
Ms. Sheenan:
We also have a concern with the language being changed from “and” to “or.” We are in support of this bill, and think it is a very good bill.
Senator Care:
Addressing your concerns Senator James, I am thinking of the woman who comes into the state. She is not an attorney and does not know about registration, and then, has an urgent situation and tells the cop she has an order against a man. I do not know how you address this problem because anybody who has a judgment in California, and wants to enforce it in Nevada, is going to know to call an attorney in Nevada to take care of it. I am not so sure what happens to the victim who comes into this state and does not know. Secondly, I would agree with you except the existing statute does allow the court to examine the order and, in a sense, second-guess. That does not happen with a foreign judgment, the judgment is a judgment. I do not know why the language is in the original statute; either you are going to enforce an order, or not.
Nancy E. Hart, Chief Deputy, Civil Division, Office of the Attorney General:
I can address the mutual order. The federal law, Violence Against Women Act of 1994, does not cover mutual orders unless they meet certain criteria. The criteria are copied in this statute, which means that you have findings made by the court and a separate application made, and that is the only way to get full faith and credit. You can have a mutual order, although Nevada law does not endorse it and will not grant it full faith and credit. The issue with relying on an oral statement alone is if you may have a situation where law enforcement is called and the victim does not have a copy of the order, both she and the batterer acknowledge an order is in place. There are scenarios when relying on the statement of the person protected would be valid, and they may rely on the statement if circumstances make it possible for them to rely on it. Eight other states have this language.
Senator James:
We are out of time, and we will close the hearing on A.B. 581. We will reschedule A.J.R. 13 of the Seventieth Session next week.
ASSEMBLY JOINT RESOLUTION 13 OF THE SEVENTIETH SESSION: Proposes to amend Nevada Constitution to revise term of office of justice of the supreme court or judge of district court who is appointed to fill vacancy. (BDR C-916)
Chairman James:
We will adjourn the meeting at 9:12 a.m.
Heather Dion,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE: