MINUTES OF THE
SENATE Committee on Judiciary
Seventy-First Session
May 3, 2001
The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:51 a.m. on Thursday, May 3, 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
GUEST LEGISLATORS PRESENT:
Senator Mark E. Amodei, Capital Senatorial District
Assemblywoman Bonnie Parnell, Assembly District No. 40
STAFF MEMBERS PRESENT:
Bradley A. Wilkinson, Committee Counsel
Allison Combs, Committee Policy Analyst
Ann Bednarski, Committee Secretary
OTHERS PRESENT:
Robert E. Rose, Associate Justice, Supreme Court
A. William Maupin, Chief Justice, Supreme Court
Gayle Farley, Concerned Citizen
James F. Nadeau, Lobbyist, Nevada Sheriffs and Chiefs Association, and Captain, Washoe County Sheriff’s Office
David W. Clifton, Chief Deputy District Attorney, Criminal Division, District Attorney, Washoe County
Ben Graham, Lobbyist, Nevada District Attorneys’ Association
Nancy Hart, Deputy Attorney General, Civil Division, Office of the Attorney General
Cathy Atchian, Concerned Citizen
Rick Correlli, Concerned Citizen
Robert L. Crowell, Lobbyist, Nevada Judges Association
Robey B. Willis, Lobbyist, Nevada Judges Association, and Justice of the Peace, Justice Court I, Carson City
Lynda Dill, Management Analyst, Administrative Office of the Courts, Office of Court Administrator, Supreme Court
Marshall Tuinier, Student, Piñon Hills Elementary School
Chairman James introduced Assembly Joint Resolution (A.J.R.) 12, inviting Justice Rose to speak first on this amendment to the Nevada Constitution that revises the terms of appointments of judges to fill vacancies.
ASSEMBLY JOINT RESOLUTION 12: Proposes to amend Nevada Constitution to establish intermediate appellate court and revise term of person appointed to fill vacancy in office for supreme court justice, court of appeals judge or district judge. (BDR C-523)
Robert E. Rose, Associate Justice, Supreme Court, said the process to amend the Nevada Constitution to establish an intermediate appellate court began two years ago. He indicated this issue has been around for many years, and has been on the ballot several times. However, he said, in the meantime two judges have been added to the Nevada Supreme Court, and now the court does most of its work in panels, probably 90-94 percent of it, with only major cases being decided by the full seven-member court. Assembly Joint Resolution 12 asks to start the constitutional amendment process anew, he said. This request was made, Justice Rose explained, because the court wants more time to assess the operation of a seven-justice court and what it could do over a period of time, and, after gathering data, design an intermediate appellate court. He said in two years, when the Legislature meets again, the justices want to be able to have firm data to validate the need for an intermediate appellate court. Currently, he said, without an intermediate court, all the appeals from the 56 district courts are decided by the Nevada Supreme Court. To handle this “rather tremendous caseload,” he said the court has established rather comprehensive case-management measures, including the “fast track” program, a civil settlement program, the creation of specialized teams, and an upgraded computer system. “These changes have allowed us to quantify the nature of the cases before us in order to address the more important cases more quickly,” Justice Rose said.
In addition, Justice Rose said, the Supreme Court works with the district courts to establish more efficient case-management programs at that level. He said special courts, such as the business court and the drug court, have been created, and a mediation program has been implemented as well. Through these adjustments, he said, the productivity over the last two to three years has been very good. Justice Rose reported a drop in number of cases waiting to be heard from 2500, 3 years ago, to 1600 currently. He said this number continues to be reduced and estimated the court has handled about 1000 cases of the existing backlog. New appellate cases come to the court at a rate of 1700 to 2000 per year, one of the highest levels for any supreme court in the United States, Justice Rose said. This is because the supreme court serves as an appellate court for major cases, and, in addition, as an intermediate appellate court for lesser cases heard by panels of justices. He said the numbers alone justify the need for an intermediate appellate court, and added, every case-management expert consulted supports the need for an intermediate appellate court.
Chairman James said he felt the need for such an intermediate court was justified in 1993 when the request was first processed. Justice Rose agreed, stating, in 1993, the backlog of cases was about 1300, and now it is 1600, even though two new justices have joined the Nevada Supreme Court. He added the workload is at maximum now, and reiterated the request to begin the process again and gather data to present at the next legislative session. The goal, Justice Rose explained, is to have this intermediate appellate court issue on the ballot in 2004.
A. William Maupin, Chief Justice, Supreme Court, who had just arrived, said “A.J.R. 12 is probably the most important agenda item on the plate for the Nevada Supreme Court.” He said he has been a lawyer since 1971 and a Supreme Court justice for four years and has watched the evolution of the court, the expansion of the caseload, and the development of the jurisprudence over time. Justice Maupin said well over 50 percent of the court’s precedent, now applied in this state has been made since 1971. He continued, saying the quantitative and qualitative growth of the caseload of the Supreme Court reflects Nevada as the fastest growing state in the United States. Justice Maupin stressed now, more than ever, it is vital the Nevada Supreme Court undertake the important role of approaching the most important cases with careful debate and careful consideration within the court itself. He concluded, after realistic evaluative projections, this is not possible unless Nevada institutes an intermediate appellate court.
Chairman James stated the judiciary committee is very familiar with what the justices have as an issue. He said the original bill proposing an intermediate appellate court started in 1993. The Senate passed it in 1995, but the bill died in the Assembly, he added. Then, he continued, in 1997, the Legislature proposed the new court, but the measure died in 1999, and now, here today, the Supreme Court is requesting an intermediate appellate court again. He reasoned, with the addition of the business court, it seems an appellate court would be a good companion towards achieving an up-to-date court system. Chairman James said he frequently gets calls from attorneys to discuss Nevada’s court system as a part of their decision to relocate their business interests in Nevada. He said they want to know whether, if there is a dispute, the court system will be equipped to handle it. He stated business representatives are specifically interested in proper jurisprudence, experienced judges, and business court issues knowledge. The court system, he stated, often constitutes whether a business does or does not choose to relocate in Nevada.
Justice Maupin responded, “It’s just a function of numbers. We have precious little time per case; take 2000 cases, and each of us has to touch them, with the exception of the panel cases, and it doesn’t give much time for each case.” He added, if a major case takes up to a week or 2 or more, there is that much less time for other cases. Justice Maupin said, “Everyone says we should be the ‘Delaware of the West’ and I’d like to see us achieve that. But, there [Delaware], their business courts, their courts of chancery, have dockets for their judges of 200 to 400 cases. Our judges have dockets of 2000 cases.” If Nevada wants to be a match for Delaware courts, and as responsive, and eventually as respected, the judiciary must have the “fire power,” he said. Most power comes from having more judges.
Chairman James agreed and said not only more judges but also more jurisprudence is desirable and explained the proposed appellate court would be a source of precedent. Senator Care recalled data from last session regarding other western states with intermediate appellate courts, including Arizona and New Mexico, and asked what percentage of cases advance from the appellate court to the Supreme Court. Justice Rose responded he did not have specifics, but generally, he said, very few cases move from the appellate court to the Supreme Court, with the exception of major civil cases. He said the vast majority of cases is decided by the intermediate appellate court and only come to the Supreme Court by request. And, Justice Rose continued, the vast majority of those cases are denied, with perhaps only 5 percent considered. With this system, he explained, there is no duplication of effort, stating, “The vast majority of appeals are heard by the intermediate appellate court, and they end there. The Supreme Court is free to do better work on major cases.”
Justice Maupin added there are currently two years of experience with the existing court system with the panel system now operating as the intermediate appellate court. Considering the history, he explained, we are now able to assess how many cases come out of the panel system and are formally reconsidered by the full court. He said the number is, “easily less than 10 percent.”
Senator McGinness asked, “Is there a plan to sell this?” He recalled just placing it on the ballot did not seem very promising of success, stating voters would predictably interpret asking for approval to add another court as asking for approval of “more government.” He said unless there is a public case made to promote this need, he did not feel it would pass.
Justice Maupin said Senator McGinness’s question was the most important one in the whole process of securing an intermediate appellate court. He said the issue, assuming the resolution passes, would be treated as a “candidate.” Justice Maupin said, with passage of the resolution, members of the bar association would be asked to form a committee to raise funds to promote the intermediate appellate court. He said this approach worked very well several years ago when the regional justice center’s bond issue appeared on the ballot. Justice Maupin continued, stating he believed the support for this issue exists within the majority of the bar. The plan, he said, is to use a professional consultant to help fund-raising and to promote this issue and to travel the state to promote it personally. The justice announced his personal commitment to publicly address the need for an intermediate appellate court.
Chairman James said he had promoted this idea previously, and was prepared to do it again, as he felt promotion of the intermediate appellate court was what was required to make it a reality. He said this kind of court system elevates Nevada from being “just the gambling state.” Chairman James said we are starting in a new century and, therefore, looking towards a “new Nevada.” He explained a business court and appellate court sophisticates the judiciary system of our state, and attracts other businesses to it. He added, “The Microsofts of the world do not want to come somewhere where they cannot look to a judiciary that is prepared to deal with the issues confronting those companies.”
Senator Washington asked the justices, with an increase of judges, should the resolution pass on the ballot, whether an increase in cases would be expected in the foreseeable future. He asked whether there is a contingency plan for adding judges in the future, reasoning that, if Nevada becomes the “Delaware of the West,” it is very likely the caseloads will increase.
Justice Rose responded, “Currently, we have little flexibility in the court because we are working at maximum caseloads.” He said having an intermediate appellate court and more district court judges would give us flexibility. Justice Rose said cases being filed reached a plateau in the last three years of about 2000 cases. He explained another increase is anticipated, based on the jump in one year from 1300 to 2000 cases filed per year. He said Nevada should be proactive and get the appellate court in place within the next three to four years. He concluded, explaining the ability to meet additional contingencies or problems is dependant upon securing more help, because currently, district courts and the Supreme Court are working over maximum capacity.
Justice Maupin addressed a related issue stating the reason filings have remained about the same level in the last few years is because comprehensive case management measures are now part of the lower courts. For example, he said, the family court system relieved a lot of pressure resulting in resolution of more cases. The civil suit damage cases are managed better with up to 60 percent of them diverted by the alternate suit measure. He said the system ran out of alternate measures to handle the all the criminal and civil litigation. Justice Maupin added:
We know now just from watching the dynamic tension with all these filings, both in the district court and in our court, that it is inevitable that we will see an increase in the amount of traffic that’s coming into this court. What we are trying to do is to address in advance this problem so by the time this occurs, hopefully, we will have this on the ballot promoted properly and then get the help when we need it.
Chairman James said he knew the structure of this legislation is identical to the previous measures processed in this committee. He closed the hearing on A.J.R. 12.
Chairman James opened discussion on Assembly Bill (A.B.) 344 inviting Senator Mark E. Amodei and Assemblywoman Bonnie Parnell to testify.
ASSEMBLY BILL 344: Revises definition of criminal assault. (BDR 15-977)
Assemblywoman Bonnie Parnell, Assembly District No. 40, opened her testimony with statements about the importance of the two bills she is presenting today because, she said, they are very personal and special. Ms. Parnell explained these bills were introduced on behalf of constituents who are friends, adding immediately, each bill has the potential of saving lives and protecting people. Ms. Parnell said she is sponsoring A.B. 344 on behalf of Gayle Farley, a constituent, whose daughter was murdered in a criminal assault.
Ms. Parnell stated Ms. Farley began studying the laws of other states after her daughter’s death, when she became aware of a loophole in Nevada law addressing the definition of criminal assault. Ms. Parnell said the current law does not take into account the intent to cause fear; Assembly Bill 344 attempts to close this loophole by including new, additional language, “reasonable apprehension” to the assault definition, she said. She reported this bill passed in the Assembly judiciary committee and on the Floor of the Assembly with a unanimous vote and without amendment. She informed the committee Ms. Farley was present to testify, and introduced the bill’s cosponsor, Senator Mark E. Amodei.
Senator Mark E. Amodei, Capital Senatorial District, said the thrust of A.B. 344 is to add fear of harm as an element to the assault definition. He said, when a tragedy struck close to home and someone took the initiative to study the law, it was realized the definition was outdated and an upgrade was necessary. He stated the measure uses a textbook definition of assault and has been coordinated during the interim with the Nevada District Attorneys’ Association and law enforcement. Senator Amodei announced representatives from these entities would testify today. He said the product of the coordinated effort produced a rather “consensus-looking” piece of legislation and urged favorable consideration of it.
Chairman James asked for verification the textbook definition of assault is, in fact, the language of A.B. 344. Ms. Parnell said Ms. Farley found the problem with the existing statutes and began her study of assault laws. She indicated Ms. Farley’s research led to the introduction of the additional language reflected in A.B. 344.
Gayle Farley, Concerned Citizen, gave testimony regarding amending the definition of assault to include “fear of harm.” She described the murder of her daughter on October 22, 1999, by a gunshot in the back from a .50 caliber gun. She said, the murderer, Brandon Allan, shot her daughter at point blank range, sat down with the bullet casing in his mouth, and drank a Pepsi. His absence of remorse for the act remained absent at his trial, she said. Mr. Allan had a history of arrests for threatening people with a gun. However, she said, he never served any jail time because of this deficiency in the law, specifically in the definition of assault.
Ms. Farley explained, because of the nature of the crime, she was not permitted to go to the crime scene, nor was she allowed to see her slain daughter’s remains until 5 days after the murder was committed because her daughter’s body was held as evidence. She shared the pain she experiences daily from this trauma, which, coupled with the brutal demise of her daughter, also includes the tragedy of her daughter’s son, currently 5 years old, left without a mother.
Ms. Farley stated the criminal system needs some changes and requires additional laws to protect innocent people because society is becoming more violent. Instead, she said, taxpayers house, feed, exercise, and counsel criminals. She said she does not think everyone who breaks a law should be imprisoned; but, if there is a pattern or history of violence, our society and loved ones are not protected without legal actions. She continued, stating ambiguous laws, or laws open to a lot of interpretation by clever attorneys, protect no one. Ms. Farley referred to some defenses as a game, but cautioned it is a deadly one, and it hurts innocent people. She said laws needed to be stated clearly, and added, law enforcement officers protect us, but, when it is time to convict and sentence offenders, the protection is not there.
Ms. Farley used Brandon Allan as an example of laws failing ultimately. She said Mr. Allan was someone who had been arrested for weapons charges, specifically, pointing a gun at people numerous times, and yet, never was incarcerated. Once, she said, he put a gun in his former wife’s back and then shot the gun into the floor. The victim, his former wife, Ms. Farley said, feared repercussions if she filed charges against him, and, therefore, wrote a letter to the judge begging him to release this man. She said another judge granted Mr. Allan an early release from probation. Then, she added, unable to purchase a gun because of his record, Mr. Allan’s mother purchased one for him.
She described her daughter Kellie as a good mother to her son, and as a full-time student who also worked full time. Brandon Allan, her assailant, was Kellie’s first boyfriend in high school, and though estranged for years, their relationship rekindled three weeks before he murdered her, Ms. Farley reported. Ms. Farley urged the committee to vote in favor of Assembly Bill 344 to help make Kellie’s death result in protection of others and their families.
James F. Nadeau, Lobbyist, Nevada Sheriffs and Chiefs Association, and Captain, Washoe County Sheriff’s Department, came forward to provide an overview of the circumstances surrounding Mr. Allan’s escape from being incarcerated well before Kellie Parry was murdered. He said, in the case of the former wife, Mr. Allan placed the gun in her back, threatened her, and then pointed the gun away and pulled the trigger. The incident, he explained, resulted in no charges filed because, although Mr. Allan was arrested for assault with a deadly weapon and shooting a firearm at a residence, the assault charge did not apply because he did not shoot at a person and because the firearm was discharged inside the residence. Both charges were dropped on technicalities, Captain Nadeau said, illustrating the weakness in the law. He informed the committee Ms. Farley had worked with Washoe County law enforcement agencies on the wording of A.B. 344 to correct this weakness in the law. He yielded the floor to David Clifton, Washoe County Deputy District Attorney, to explain further.
David W. Clifton, Chief Deputy District Attorney, Criminal Division, District Attorney, Washoe County, said he has served as a district attorney for 16 years. He said any experienced prosecutor who has worked with the assault law knows this criminal statute has always been “woefully deficient.” Mr. Clifton said the statute was based on an 1800s statute adopted by California, pointing out California amended its law long ago by redefining the meaning of the word “attempt.” Nevada, he said, has never amended the law and, therefore, it has been lacking for a long time. The law, he continued, is totally useless for enforceability purposes. Chairman James asked whether the words “attempt,” or “present ability” caused the charges to be dropped in the case just described. Mr. Clifton responded it was the word “attempt,” which by Nevada statute means, “The perpetrator not only has to have the ability to commit the act, such as a loaded gun, but also has to do every act in furtherance of the crime, which would be battery in this case, but failed to do so.” He continued, stating in the Allan case, unless the gun was shot at his former wife, intending to shoot her, there was no crime committed. He shot the gun at the floor, he added. He explained when a person holds a knife to someone’s throat and threatens to cut that person’s head off, he has not committed a crime until the act is actually committed. “That,” he said, “is what is wrong with Nevada’s assault law.” He continued, explaining assault in Nevada is a misdemeanor, and becomes a felony if a deadly weapon is used. His example was driving a car directly towards someone and swerving away at the last second, stating there is no assault committed and this act is not considered an assault with a deadly weapon.
Mr. Clifton explained an act using a gun is treated differently; there are laws against brandishing, discharging, aiming, and other uses of a firearm. None of them, however, is a felony unless a person actually attempts to commit murder or shoot the victim. He said the assault law in Nevada has a “big, gap” between someone who puts someone in fear, and someone who actually pulls the trigger or slashes with a knife and commits the battery, the murder, or the attempted murder. Mr. Clifton said Ms. Farley came to him during Brandon Allan’s preliminary hearing for a murder charge; she questioned the “big, gaping loophole” in the law. She asked how he could be out on the street considering his history, and specifically questioned the incident of the gun in his former wife’s back. Mr. Clifton said he reviewed the case and realized the history of the case in the murder of Ms. Farley’s daughter was similar in circumstance and committed by the same person. The former wife’s experience fell within the loophole of the law causing the prosecutor to be forced to negotiate the case. Mr. Clifton said the original charge of assault with a deadly weapon was reduced to a gross misdemeanor crime of unlawfully pointing a firearm. Chairman James requested a copy of the record of the case involving the former wife. Mr. Clifton agreed to the request, stating in his review of this case, it was clear as a matter of law Mr. Allan could not have been charged with battery.
Senator Care said he understood the rationale for wanting to change the law to eliminate the loophole, but asked if a mere threat without a gun or a knife is regarded as an assault. Mr. Clifton said it is only a threat if it is a true threat, explaining the wording of A.B. 344 defines an “objective” fear, adding the word “reasonable” to the conditions constituting a threat. He said it is a misdemeanor if there is no use of a deadly weapon, but is based on reasonable apprehension. This, he explained, includes not only the opinion of the person threatened, but also the way a reasonable person, for example, the jury, would interpret the threat. And, the threat must “go to immediate bodily harm,” which, he clarified, might include the word “imminent” bodily harm.
Senator Care asked if the definition includes a conditional threat, such as, “If you don’t do whatever I want you to do, tomorrow I’m going to beat you to a pulp.” Mr. Clifton said the statement Senator Care used is harassment, because the definition includes a threat of future bodily harm. He explained the word “immediate” was included in the definition to separate the crime of assault from harassment. He said, “imminency” means the likelihood of harm happening, and “immediate” means the harm is going to happen right now; although, he explained, “imminency” is covered in the “reasonable apprehension” language of A.B. 344. Both imminency and immediacy are covered in the wording of the bill and do not overlap with harassment, he added.
Senator Care asked if a person could use the phrases, “But I didn’t mean it. I just wanted to scare him,” using “I just wanted to scare him” as a defense. Mr. Clifton answered affirmatively, stating those phrases target the exact loophole A.B. 344 attempts to close. Assault, he said, is a crime of fear, not a specific crime of actually attempting to do the harm. He added assault is often harder to prove than the actual battery.
Chairman James asked Ben Graham, Lobbyist, Nevada District Attorneys’ Association, to explain the “deadly weapons enhancer” portion of A.B. 344. He asked if language is being removed because it is no longer part of the definition of assault, adding, if it remained, the definition of assault would potentially be a broader application of the enhancer. Mr. Clifton said, “I don’t think we are taking it out in the way you may be suggesting.” He explained, the “deadly weapon enhancement” phrase would remain, but the language would be changed to say, “If the assault is made with a deadly weapon,” and the words, “present ability to use a deadly weapon,” would be removed. If, he continued, the crime of assault is one of fear, an objective fear, it does not matter whether the gun is loaded. Chairman James responded it is an “either/or” situation because there is an enhancer if a deadly weapon is used or there is the present ability to use a deadly weapon. He used an example of a gun sitting on a table, and not in hand, and said, a threat to kill is made; the gun is not used; however, the ability to use it is present.
Mr. Graham stated the district attorneys support A.B. 344, because “it removes the necessity of getting inside a defendant’s head.” Chairman James agreed, but asked again about narrowing the enhancer. Mr. Graham said he did not have a rational answer, and concurred it seems to be narrowed down. He added he could not see a reason to omit “present ability.” Using Chairman James’ example of a gun on the table or robbing a store with a gun obviously in your waistband or pocket, Mr. Graham said, “Probably a good police report would yield a charge of robbery with use of a deadly weapon.” Chairman James asked Mr. Graham to further investigate the point.
Nancy Hart, Deputy Attorney General, Civil Division, Office of the Attorney General, submitted a statement of support for Assembly Bill 344 on behalf of M. Veronica Frenkel, Domestic Violence Ombudsman, Office of Ombudsman for Victims of Domestic Violence, Office of the Attorney General (Exhibit C).
Captain Nadeau said if A.B. 344 is amended, he requests the committee consider making the effective date July 1, instead of October 1.
Chairman James thanked Mr. Clifton, Ms. Parnell, and Senator Amodei for the time they spent on Assembly Bill 344 and described it as a good bill. He closed the hearing and opened the hearing on Assembly Bill 377.
ASSEMBLY BILL 377: Makes various changes regarding orders for protection against domestic violence. (BDR 3-978)
Assemblywoman Bonnie Parnell introduced A.B. 377 on behalf of the family of Rick Albrecht. As does Ms. Farley, Mr. Albrecht’s family lives with the memory and heartbreak of his murder, another tragedy to the area, she said. Ms. Parnell said the testimony of Mr. Albrecht’s family will justify the reasons to enact A.B. 377 which mandates a 12-hour minimum time in custody for violating a protective order, and decreases the minimum populations requirement for a 24-hour, 7-day ability to obtain protective orders. She reported A.B. 377 passed unanimously in the Assembly Committee on Judiciary, and on the Assembly Floor. Ms. Parnell introduced Senator Mark Amodei, the cosponsor of this legislation.
Senator Amodei opened with an acknowledgement of the great number of legislative accomplishments in the area of domestic violence during the tenure of Chairman James and the Senate Committee on Judiciary. He said A.B. 377 represents opportunity to continue this trend, while responding to a tragic event in Carson City. Senator Amodei said the proposed 12-hour, cooling-off period was reasonable and appropriate. He continued, saying he is aware of constraints in smaller communities that may not have the staff or facilities to accommodate a 12-hour cooling-off period, but said he felt it was something to be studied. For now, he said, in larger counties, population centers, and urban/rural interfaces, something has been done to protect the vast majority of the population. He urged consideration and support of A.B. 377.
Cathy Atchian, Concerned Citizen, and Mr. Albrecht’s sister, testified in favor of A.B. 377. She said this bill is important because, on August 5, 2000, a man was arrested for a repeat offense of violating a restraining order. Within hours of his arrest, she said, he bailed himself out of jail with a credit card, walked home, got his gun, and entered her brother, Rick’s, house. Once inside, she continued, this man sat her brother down on the couch, pointed a gun at him, and shot him twice in the head, killing him. Ms. Atchian said he left her brother bleeding on the couch, locked the door on his way out, and, after arriving at his own residence, called his mother and confessed his actions.
Ms. Atchian said her brother had been threatened by this man before and knew him to be dangerous. She said she believed if her brother had known of his assailant’s whereabouts, and had this man been detained for 12 hours, perhaps her brother would still be alive. And, she concluded, we could be spared the plague this nightmare causes our entire family.
Senator Amodei testified next in favor of A.B. 377 stating there was consensus in the Assembly on this bill, the focus of which is the 12-hour cooling-off period. However, he said, there was some discussion on the bail schedule and the procedure set forth. After discussion, he said, Assemblywoman Parnell and he found no objections to amending the terms of bail included in this bill. He said Municipal Judge Robey B. Willis was present and expected to comment on the bail portion of A.B. 377.
Senator Washington asked whether a person becomes a greater threat after being arrested for a violation of a protection order, and subsequently released. He said the answer is most likely “Yes.” He asked whether bail amounts can be amended upwardly. Senator Amodei responded, claiming no objection with the committee using its expertise on the bail issue, reiterating the primary purpose of the bill is the cooling-off period for violators of protection orders. He said the bail issue is in the hands of the judiciary committee for worthy consideration. Senator Washington said he would submit a recommendation to increase bail amounts as an amendment to A.B. 377.
Senator Wiener asked for clarification on the notice clause in a temporary extended order and on whether the notice is provided to the person being protected by the order. Senator Amodei responded affirmatively, stating it is one of the intentions of the bill.
Rick Correlli, Concerned Citizen, came forward stating he was Mr. Albrecht’s best friend and brother-in-law for 30 years. He said, he wanted to reinforce Ms. Parnell’s position: “If we can save just one human being and family the tragedy we have been through by this bill [A.B. 377], then all this time and energy spent by Bonnie [Assemblywoman Parnell] and Mark [Senator Amodei] and the family and you folks, it will be worth every minute, every second.” He commended the committee on the work it does daily. Chairman James commended Mr. Correlli, stating it is a difficult task to deal with criminal justice issues, and the committee appreciates the courage he had to come forward with his input.
Senator Washington said he applauded the sponsors and authors of A.B. 377, stating he worked on a bill last session addressing the falsification of temporary protection orders, and the effect of their revocations. He introduced his concern by saying, while A.B. 377 codifies a minimum cooling-off period and increases bail for violations of a protective order, the reverse of it needs to be considered too. Senator Washington explained, when an affidavit is falsified to restrict an individual who has not perpetrated or committed any crime, and this individual is served a protective order without cause, the potentiality of a crime being committed increases because of the order. Senator Washington said he introduced a similar falsification bill this session because he thinks it is an issue of great importance. He explained women’s organizations “thrashed him,” interpreting his effort as against all temporary restraining orders. However, he said, his objective was to strengthen the importance of them. He said his bill did not get a hearing, but he wanted his concerns on the record: “An order issued on falsified information and served on an innocent person is dangerous and often incites adverse action.” He gave an example of a man employed as Ronald McDonald, the clown at McDonald’s Restaurant, who was maliciously served a restraining order and was subsequently terminated by McDonald’s because of the order. The man was both infuriated and unemployed. Senator Washington said we cannot encourage people to perpetrate lies in what could be construed as one gender against the other. He asked consideration be given to making restraining orders fair and ensuring they work for both parties involved.
Senator Amodei responded, stating, as an officer of the court, he would work with Senator Washington on anything punishing people for abusing the process. He added he believes Senator Washington’s comments have important merit. Chairman James interjected to echo Senator Amodei’s sentiment, stating the committee is willing to entertain any issue regarding reform of temporary restraining orders with one condition: no potential victim is deterred from using legal protection provided by such orders. He said perpetrating fraud on the court should be punishable, but added the prevention of domestic violence is the primary purpose of protective orders. Chairman James stated a person who is victim to a faulty restraining order should “go to court” instead of violating the order, get the order turned around, and bring the fraudulent person to justice. Chairman James said he would hear a bill giving sanctions, attorney’s fees, and revocation of falsely filed retraining orders, or whatever is necessary to get the issue rectified. He asked Senator Amodei whether he was in agreement with him. Senator Amodei said he was in agreement.
Ms. Hart came forward in support of Assembly Bill 377. She said it makes important amendments to existing Nevada statutes regarding domestic violence protection orders. Ms. Hart testified the chance of violence increases once the criminal justice system has become involved in domestic issues, particularly with a call to law enforcement or an arrest. She explained a batterer might feel his or her power and control are challenged. She stated a victim’s need for a protective order is often critical to holding the offender accountable for subsequent abuse. With the exceptions of Clark County and Washoe County, Ms. Hart said a woman who is battered at night, during a weekend, or on a holiday, must wait until a regular weekday to apply for and receive a protection order.
Ms. Hart explained the availability of personnel to issue the protection orders is determined by the population of counties. One of the precepts of A.B. 377 is to lower the population threshold to 47,000. This, she explained, would allow courts in mid-sized jurisdictions, such as Carson City and Elko County, to be available 24 hours per day. Ms. Hart said this change would greatly support victim safety. She submitted a statement of support of A.B. 377 with the proposed amendments (Exhibit D).
Chairman James explained the process of the extended protection order. He said it means once an order is violated, it is extended, and should the person seeking protection be victim of a violation of the order, the offender is arrested and, with the 12-hour, cooling-off provision, is prevented from posting bail for a minimum of 12 hours. He asked whether the protected person is notified about the time involved in holding the violator or of the time the violator is eligible to be released from jail. Ms. Hart answered there is no provision to notify the potential victim. She said the protected person should be educated or informed of the 12-hour hold by an advocate during application for the protective order. Ms. Hart said the information about the 12-hour hold is also printed on the face of the order.
Ms. Hart said there are two drafting questions. Ms. Hart stated there would be two separate kinds of restraining orders, one for workplace harassment and the other for protection against domestic violence. She said the Legislative Counsel Bureau (LCB) had agreed to remedy the differentiation between the two kinds of orders by reinserting the phrase “for protection against domestic violence.” Therefore, Ms. Hart said, A.B. 377 would contain language specific to the intent of the bill.
In addition, the wording in section 2 of A.B. 377 makes reference to direct or indirect threats, Ms. Hart continued. She said, “All orders are issued because of at least an indirect threat.” Therefore, she said, the wording is confusing. To remedy this confusion, Ms. Hart said, LCB was willing to reconstruct the wording of the bill for clarity, possibly by simply deleting confusing words or amending the bill to state clearly it is the arresting officer, and not the booking officer, who determines the threat involved in the arrest.
Senator Porter, the temporary chairman of the committee meeting, asked for other testimony on A.B. 377. Robert L. Crowell, Lobbyist, Nevada Judges Association, came forward accompanied by Justice of the Peace Robey B. Willis, Justice Court I, Carson City. He said the Nevada Judges Association wholeheartedly supports this bill and the 24 hours a day, 7 days a week availability of law enforcement to issue protective orders. However, he continued, there are some questions about the bail schedule portion of the bill Senator Amodei mentioned earlier. In its current form, A.B. 377 requires a 12‑hour hold before a violator is eligible for release, and, if a person appears before a magistrate after the 12-hour detention, the magistrate has the right to determine what bail is set, he said. If the violator does not appear in person, Mr. Crowell added the bail is set according to the scale on page 12 of A.B. 377.
Mr. Crowell said the Nevada Judges Association has a standing concern about the concept of judicial discretion in setting bail. He said there is a technical way to settle the issue of bail to accommodate both the proponents of the bill and the Nevada Judges Association. Changing lines 43, 44 and 45 on page 12 of A.B. 377, the bail sections of the bill, to read, “The provisions of this subsection do not affect the authority of a magistrate or a court to set the amount of bail when the court is contacted.” He explained this would allow a telephone conversation with the judge to apprise him of the facts and circumstances of the arrest and give him opportunity to set the bail accordingly. “We ask,” Mr. Crowell said, “for your consideration in amending the language in this area.”
Robey E. Willis, Lobbyist, Nevada Judges Association, and Justice of the Peace, Justice Court I, Carson City, stated he is also Cochairman of the Nevada Judges Association’s Legislative Committee; and Chairman of the Supreme Court’s Mandatory Minimum Sentencing Review Commission. He said the judiciary committee is “his favorite” and announced the judges are totally in favor of A.B. 377. Judge Willis said the 12-hour cooling-off period has been the biggest lifesaver in terms of domestic violence, indicating it has been in effect in Carson City for a number of years and has worked well to protect people. He said the circumstances initiating this bill came as a result of a divorce proceeding, and the language reflects it was conceived from a real-life situation rather than from a court record.
Regarding bail, Judge Willis said, there has to be some discretion given to the judiciary, explaining often people are in jail up to 72 hours before going before a magistrate. He said there is often only a deputy available who is responsible for contacting a judge at times when court is not open or a judge is not there. Sometimes, he said, it is a safeguard to raise bail, but currently to do so is not permitted by law; A.B. 377 would provide for such a determination to be made by a judge or magistrate. Likewise, Judge Willis said, this bill allows the opportunity for the judge to lower bail if, by enforcing the amount on the scale, it prevents the offender from paying child support payments. The bail can be adjusted either up or down with the provisions outlined. Judge Willis said the Judges Association supports this adjustment option wholeheartedly. Judge Willis submitted a form entitled “Conditions of Bail” used for admission to bail (Exhibit E).
Senator Wiener asked for an explanation of the wording in section 8, subsection 6, paragraph (c) of A.B. 377, “prohibits the same or similar conduct.” She asked for an example of what similar conduct means in another jurisdiction. Judge Willis said the phrase refers to the “full faith and credit act,” which, he explained, means protective orders from other places are honored even if the wording of them differs slightly from those of the jurisdiction where the violation occurs. He deferred to Ms. Hart of the Office of the Attorney General. Ms. Hart said the language of A.B. 377 is designed to encompass other state laws pertaining to domestic violence and other protective orders.
Assemblywoman Parnell returned to the table to make some closing statements about A.B. 377. She reiterated this legislation was created for two purposes. One is the mandatory 12-hour cool-down time, which, she said, already exists for certain other violations; she said this bill adds violation of a protective order to the existing list. She stated the second major purpose this legislation is intended to change is the 24-hour-a-day service to issue protective court orders in less populous areas of the state. She referred to this portion of A.B. 377 as an “equal protection under the law” issue. Ms. Parnell again stated it is the pleasure of the committee to decide the bail portion of the bill, and she and Senator Amodei would respect the recommendations of the committee. She said there is no objection to the Attorney General’s amendment to A.B. 377. Chairman James announced it is the policy of the committee to only accept amendments in written form, and asked Mr. Crowell to please submit the bail-issue amendment in writing.
A letter of support for A.B. 377 was submitted by Scott L. Burau, Chief Deputy of Operations, Carson City Sheriff’s Office (Exhibit F). He did not speak during the hearing.
Chairman James closed the hearing on A.B. 377 and opened the hearing on Assembly Joint Resolution 13 of the Seventieth Session, which revises the terms of office for judges.
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)
Lynda Dill, Management Analyst, Administrative Office of the Courts, Office of the Court Administrator, Supreme Court, explained part of her duties include staff coordination for the Commission on Judicial Selection. She said she was present to speak for the commission in support of A.J.R. 13 of the Seventieth Session proposing an amendment to the Nevada Constitution to revise judicial appointments due to vacancies. She submitted her written statement (Exhibit G).
Chairman James asked Ms. Dill what happens if a judge is appointed who is not elected and the term ends. Ms. Dill said currently, if an appointment is made in September, the appointed judge may have to run for the position in an election only a few months later, and then again 2 years later. This legislation allows a judge to serve an uninterrupted 12 months before he has to run in an election.
Senator Titus asked how this resolution differs from the bill heard by the judiciary committee 2 years ago, stating she recalled it as being very convoluted. Ms. Dill said it is the very same bill. Senator Titus said she voted against it 2 years ago in the Senate government affairs committee.
No further discussion or action was heard on A.J.R. 13 of the Seventieth Session.
Chairman James announced the commencement of a work session for which a document was distributed (Exhibit H). He began with Assembly Bill 24, which deals with the use of laser pointers.
ASSEMBLY BILL 24: Prohibits person from directing light emitted from laser pointer into or through certain places and at certain persons under certain circumstances. (BDR 15-16)
Chairman James said the judiciary committee had already heard this bill during his absence. Senator Wiener explained Senator McGinness and she served on a conference committee regarding A.B. 24; she described it as an “experience.” She said the original version was proposed regarding uniformed people. In committee the concern shifted to everybody. In conference, the committee decided the bill would affect everybody, but the penalty would increase for offenders in uniform. Chairman James asked if this kind of offense would be considered an assault. He announced the action prohibited in A.B. 24 is included in Assemblywoman Parnell’s bill heard earlier today, A.B. 344. He asked the committee to consider whether to indefinitely postpone further action on A.B. 24.
SENATOR CARE MOVED TO INDEFINITELY POSTPONE A.B. 24.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
ASSEMBLY BILL 33: Expressly validates trust for care of animals. (BDR 13-17)
Chairman James said this bill was discussed prior to this work session. Senator Care said a procedure for challenging the will, if money is left for the care of an animal, is included in the language of the bill.
SENATOR CARE MOVED TO DO PASS A.B. 33.
SENATOR TITUS SECONDED THE MOTION.
Chairman James said there is a motion to do pass on the floor with a second and yielded the floor to Senator McGinness.
Senator McGinness said the judge is given a lot of latitude. He said, as the bill is written, a person can appear in court and contest the chosen caregiver of an animal, and submit a claim to be the trustee.
Senator Care said his partner in his law firm has set up arrangements for the care of animals and said he knows it is possible, but the bill needs some work.
Senator Wiener said her estate attorney advised her to consider planning for the care of her cats. She added the care of animals is a “hot issue” estate planners often do consider.
Chairman James announced Senator Titus withdrew her second. Senator Care agreed to confer with his law partner. Chairman James suggested work on the bill. There was no action taken.
THE MOTION FAILED FOR LACK OF A SECOND.
*****
Chairman James opened discussion on Assembly Bill 38 and conferred briefly with Senator Porter, who originally heard it.
ASSEMBLY BILL 38: Authorizes notice of meetings of units’ owners and executive boards of associations of common-interest communities to be sent by electronic mail upon request. (BDR 10-279)
Senator Porter said this authorization is straightforward and simply provides for the use of electronic mail for notification of meetings.
SENATOR PORTER MOVED TO DO PASS A.B. 38.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman James asked Senator Porter to present A.B. 38 on the Senate Floor.
Chairman James introduced Assembly Bill 54; genetic marker testing and statute limitations for kidnapping, attempted murder, and felony aggravated stalking crimes.
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)
Chairman James said the broad extension of the statute of limitations to these crimes is not warranted because the crimes are different in type and character. Kidnapping and murder are in one category, and felony aggravated stalking is in another category. The proposal asks to reduce the extension on the period of limitations to 5 years and apply it only to murder and kidnapping, which is the first amendment to this bill. The second amendment is technical, addressing the reimbursement to authorities for the provision of biological specimens. He said this would be codified in a separate section of A.B. 54 (Exhibit H, page 2).
Senator Titus asked about other crimes, specifically conspiracy kidnapping in section 4, subsection 6, paragraph (l). Captain Nadeau said in the Assembly, conspiracy was added because law enforcement agencies wanted deoxyribonucleic acid (DNA) samples included when a kidnapping charge is reduced to a conspiracy kidnapping charge.
SENATOR MCGINNESS MOVED TO AMEND AND DO PASS A.B. 54.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman James asked Senator Care to present A.B. 54 on the Senate Floor.
The next item in the work session was Assembly Bill 55, addressing the issue of location of county jails.
ASSEMBLY BILL 55: Eliminates requirement that county jail be located at county seat. (BDR 16-795)
Senator Porter described this bill as “very reasonable” and suggested passage of it.
SENATOR PORTER MOVED TO DO PASS A.B. 55.
SENATOR WASHINGTON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman James asked Senator McGinness to present A.B. 55 on the Senate Floor.
Senator James said Assembly Bill 62, regarding garnishment, was proposed by the banking industry and changes the time for answers to interrogatories and the amount of lien created. He described the bill as reasonable.
ASSEMBLY BILL 62: Makes various changes concerning garnishment. (BDR 3‑777)
Senator Titus asked what the original time was for these changes. Senator James explained the time is 20 days, but reporting is currently proposed to change from reporting to the court to reporting to the Sheriff.
SENATOR TITUS MOVED TO DO PASS A.B. 62.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman James announced he would present A.B. 62 on the Senate Floor.
Next on the agenda, Senator James discussed Assembly Bill 105, which prohibits possession of explosive and incendiary devices.
ASSEMBLY BILL 105: Revises provisions pertaining to explosive and incendiary devices. (BDR 15-425)
Chairman James said he was not present when A.B. 105 was first discussed but was aware there were some problems with the bill.
Senator Titus asked about explosive material in possession in relation to a mining operation. Chairman James said the bill, as written, seems impossible to enforce. He asked Captain Nadeau to address the committee.
Captain Nadeau said A.B. 105 was a Nevada Sheriffs and Chiefs Association bill. He explained the mere possession of an explosive is not illegal. Therefore, the possession of dynamite does not create a device. It is the possession of all items necessary and readily available to construct an incendiary device A.B. 105 addresses. He said, for example, in transporting dynamite and the blasting caps to set it off, they must be placed in different places, such as in the trunk for one, and in the glove compartment for the other, of the transport vehicle.
Senator Porter asked Captain Nadeau to share examples to justify this legislation. Captain Nadeau said it is not uncommon for people to have pipe bombs in the back of their cars, which poses a great danger to other people. He said there are cases in which these cars are found on school property, or bombs are constructed in school. He continued, A.B. 105 makes such practices a “specific intent crime” and it attempts to show persons in possession of these devices intend to cause injury or damage to something. Captain Nadeau said the safety of the community is protected if the mere possession of these devices is regarded as a safety hazard, and, therefore, should be prohibited.
Senator Titus asked if it currently is against the law to carry pipe bombs. Captain Nadeau said it is not illegal; the only way charges can be brought forward is if law enforcement can prove intent to harm.
Senator McGinness questioned the language of section 2 of A.B. 105, noting transporting dynamite for mining purposes could be interpreted as a criminal offense. Captain Nadeau explained again, the “readily available” wording of the bill (Exhibit H, page 4).
SENATOR PORTER MOVED TO AMEND AND DO PASS A. B. 105.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman James asked Senator Porter to present A.B. 105 on the Senate Floor.
Chairman James began discussion on A.B. 126 relating to real property.
ASSEMBLY BILL 126: Revises provision regarding recording of certain documents relating to real property. (BDR 10-842)
SENATOR PORTER MOVED TO DO PASS A.B. 126.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman James asked Senator Porter to present A.B. 126 on the Senate Floor.
Chairman James introduced A.B. 148, addressing stays on court proceedings during the legislative session.
ASSEMBLY BILL 148: Revises provisions regarding certain stays of court proceedings during legislative session. (BDR 1-844)
Chairman James announced he was not part of the original discussion regarding A.B. 148, but it sounds reasonable. Senator Porter said it is reasonable, but asked if this bill applies to proceedings in criminal matters. Mr. Graham and Mr. Wilkinson agreed A.B. 148 applies only to civil cases.
SENATOR PORTER MOVED TO DO PASS A.B. 148.
SENATOR WEINER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman James asked Senator Wiener to present A.B. 148 on the Senate Floor.
Chairman James opened discussion of Assembly Bill 239, addressing filing fees for legal services.
ASSEMBLY BILL 239: Authorizes board of county commissioners to impose additional fee for filing certain actions and responses thereto in district courts and justices’ courts to offset costs of providing pro bono programs and of providing legal services without charge to abused or neglected children, victims of domestic violence, and other needy persons. (BDR 2‑298)
Chairman James said the proposed amendments to A.B. 239 added an increase of fees for certain business licensing fees, and civil actions. Senator Porter said he suggested these amendments. The scope of the bill was designed to be limited to abused or neglected children and domestic violence victims; therefore, the words, “or other needy persons” were eliminated as an additional amendment to A.B. 239, the chairman said.
Senator Porter said the Legal Division appreciated the suggested amendments, but preferred the bill stay as it is. The reason given was widespread support for A.B. 239 from family court and family practitioners, and their fear objections from district courts could put the measure in jeopardy.
Chairman James suggested increasing filing fees for certain actions. Senator Care said he thought the bill should not be amended, explaining the people who use family court are the people who should pay fees for this purpose. He said the program should pay for itself.
Senator Porter said A.B. 239 is the only vehicle available to allow local governments to increase fees on certain “areas of ill repute.” Senator Titus said “houses of ill repute” are recognized, established businesses, but suggested there is an argument connecting escort services with abused women and women who have children and also are employed by such escort services. Chairman James commended Senator Titus on her point, and added there had to be a relation between these businesses, and the problems prevalent in them.
Bradley A. Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, said there could be constitutional problems with such a distinction and the purpose of the proposed fee. Senator Porter said there are, at the local levels, scales for the cost of securing a license, depending on the business, and explained the fee could be set by local authority with a portion allotted to the problem addressed in A.B. 239.
Chairman James agreed with Senator Porter, and suggested working further on the bill. Senator Care said if the Legislature acknowledges abuse connected with these legal businesses, the question then becomes, “Why not make these businesses illegal?” He recalled Chairman James had already attempted such an action, and failed. Chairman James said the business fee amendment would be discussed at a later time.
SENATOR PORTER MOVED TO AMEND AND DO PASS A.B. 239.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman James asked Senator Titus to present A.B. 239 on the Senate Floor.
Chairman James announced the bills remaining in today’s work session document would be discussed at the next meeting scheduled on May 4, 2001, in addition to discussions on legislation already scheduled.
Chairman James welcomed the fifth grade class from Piñon Hills Elementary School, Minden. Class President Marshall Tuinier, Student, Piñon Hills Elementary School, said the class was on a field trip learning about the legislative process.
Chairman James adjourned the meeting at 10:57 a.m.
RESPECTFULLY SUBMITTED:
Ann Bednarski,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE: