MINUTES OF THE

SENATE Committee on Judiciary

 

Seventy-First Session

May 9, 2001

 

 

The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:30 a.m., on Wednesday, May 9, 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 Dina Titus

Senator Valerie Wiener

Senator Terry Care

 

COMMITTEE MEMBERS ABSENT:

 

Senator Maurice Washington (Excused)

 

GUEST LEGISLATORS PRESENT:

 

Assemblywoman Christina R. Giunchigliani, Clark County Assembly District No. 9

Assemblywoman Sheila Leslie, Washoe County Assembly District No. 27

 

STAFF MEMBERS PRESENT:

 

Bradley A. Wilkinson, Committee Counsel

Allison Combs, Committee Policy Analyst

Barbara Moss, Committee Secretary

 

OTHERS PRESENT:

 

David S. Gibson, Lobbyist, Public Defender’s Office, Clark County

Glen Whorton, Chief, Classification/Planning, Department of Prisons

Dorla M. Salling, Chairman, State Board of Parole Commissioners, Department of Motor Vehicles and Public Safety

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

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

Lucille Lusk, Lobbyist, Nevada Concerned Citizens

Janet L. Gilbert, Lobbyist, Progressive Leadership Alliance of Nevada

Elizabeth M. Pederson, Lobbyist, League of Women Voters of Nevada

V. Robert Payant, Lobbyist, Catholic Legislative Liaison, Religious Alliance in Nevada

Mark S. Sertic, Attorney

John P. Sande III, Lobbyist, Airport Authority of Washoe County

Debra S. Jacobson, Lobbyist, Southwest Gas Corporation

Susan L. Reeder, Lobbyist, Sierra Pacific Power Company

Kami L. Dempsey, Lobbyist, Las Vegas Chamber of Commerce

Mary Lau, Lobbyist, Retail Association of Nevada

Nancy E. Hart, Deputy Attorney General, Civil Division, Office of the Attorney General

John C. Morrow, Lobbyist, Washoe County Public Defender

 

 

Senator James opened the hearing on Assembly Bill (A.B.) 574.

 

ASSEMBLY BILL 574:  Makes changes to provisions concerning programs of treatment for abuse of alcohol or drugs for certain offenders and provisions concerning sentencing of certain persons sentenced to imprisonment for life without parole. (BDR 16-1327)

 

David S. Gibson, Lobbyist, Public Defender’s Office, Clark County, speaking on behalf of Clark County and Washoe County drug courts, expressed support for A.B. 574.  He indicated the bill is a follow up to Senate Bill 184 of the Seventieth Session which was passed and provided the opportunity to bring prisoners charged with drug offenses into the prison drug court program before being released on parole. 

 

SENATE BILL 184 OF THE SEVENTIETH SESSION:  Provides that certain prisoners may be assigned to custody             of division of parole and probation of department of motor vehicles and public safety to participate in program of treatment for abuse of alcohol or drugs and makes appropriation to Second Judicial District Court and Eighth Judicial District Court. (BDR 16-262)

 

Continuing, Mr. Gibson said A.B. 574 contains two parts and he expressed his intention to address the drug court portion first.  He submitted a document entitled “Eighth Judicial District Court Drug Court Presentation” (Exhibit C).  Mr. Gibson noted Assemblywoman Barbara K. Cegavske, Clark County Assembly District No. 5, requested an amendment regarding the manner in which people are notified of parole eligibility. 

 

Mr. Gibson explained, due to the way S.B. 184 of the Seventieth Session was written regarding funding, it was impossible for the public defender’s office to obtain funds to conduct the program; therefore, an appeal was made to the Interim Finance Committee and that body provided a fund of $138,000 to match a $416,000 grant from the U.S. Department of Justice.  He noted the U.S. Department of Justice was interested in the concept of the program.  Mr. Gibson elucidated prisoners within 2 years of release of parole are brought into the drug court program and provided job training, housing, and drug counseling, to help them prepare to live in the community upon their release.  He pointed out the prisoners are still in prison while in the program, even though they are outside.  Mr. Gibson indicated there are 18 individuals in the program, and 140 had been screened.  He said many prisoners cannot be accepted into the drug court program because of the limit of one or two prior felony convictions.  Mr. Gibson indicated there are people in prison, with more than one or two drug convictions, who are not violent offenders and would be released within the next 2 years in any event.  He said it was deemed that should the criteria for entering the program be expanded, more people would be better prepared to perform well on parole when released from prison.

 

Further, Mr. Gibson emphasized prisoners are screened very carefully by a committee comprised of individuals from law enforcement, including representatives from the Las Vegas Metropolitan Police Department (METRO), the Division of Parole and Probation (DPP), the judge, the district attorney’s office, the public defender’s office, the clerk’s office, and treatment people.  He explained prisoner’s names are obtained from the prison, along with a packet of information including their behavior record and picture.  Mr. Gibson said the committee meets and peruses the packets to select candidates who are deemed would benefit from the program.  He noted three or four individuals are chosen to be personally interviewed. 

 

Mr. Gibson maintained prisoners must possess an accepted program upon release, which is to say, they must have a residence, a job, and family or support in the community.  He pointed out, while in the meeting, committee members will actually telephone the prisoner’s support group to ensure legitimacy of residences and telephone numbers.  Mr. Gibson said candidates may not be violent in any way and prior convictions must be drug related, although some convictions are property offenses that are nonviolent in nature.  In addition, there must be assurance the individual did not have problems in prison, and served at least 6 months before being considered for release into the drug court program, Mr. Gibson remarked. 

 

Commenting further, Mr. Gibson indicated candidates are then personally interviewed and, thereafter, the committee votes and decides whether or not to accept the individual.  He said 42 people have been denied acceptance into the program because they had more than two felonies, or had been revoked from probation due to a new offense.  Mr. Gibson explained when a person is on probation or parole an arrest for shoplifting or minor possession of controlled substance can result in revocation.  He said there have been people who the committee considered acceptable, however, they could not be accepted because their probation was revoked.  He pointed out the reality is just about every person in prison for a nonviolent offense has been revoked off probation.  Due to the nature of the original offense, individuals are granted probation, do not do well, are revoked, and sent to prison.  Mr. Gibson indicated, after experiencing prison for 6 months, the prisoner may have a change of heart and motivation and be willing to work with the drug court program. 

 

Mr. Gibson said individuals brought into the program have been very successful.  He pointed out if a person violates probation and the judge determines he/she will not conform to the expectations of the drug court program, they are returned to prison.  He said the committee is aware of the risks and public opinion on the matter; therefore, the program is monitored very carefully. 

 

In conclusion, Mr. Gibson said the requested change to A.B. 574 to eliminate whether a person has been revoked while on probation will help the drug court program obtain access to more people in order to help them prepare for life on the street.  He indicated the number of prior convictions is proposed to be increased to four; however, should the committee be uncomfortable with that number, it could be increased to three.  It would still provide a larger pool of people to be considered for the drug court program.  However, in regard to four prior convictions, Mr. Gibson said, generally, individuals have offenses that occurred contemporaneously with one another and were close in time.  He noted, in that event, there is not a huge difference. 

 

Moving on to the other part of A.B. 574, Mr. Gibson indicated people are being sentenced to different varieties of sentences.  For instance, a person will commit a crime, plead guilty, or be found guilty at trial, and the sentence will be 4 or 5 years for a minor offense in a whole group of offenses.  In addition, the person might also have committed a crime that requires a life sentence.  Mr. Gibson elucidated, if the judge does not run the small sentence at the end of the life sentence, when the person becomes eligible for parole they will be notified they are eligible for parole; however, in reality, they are not eligible for parole.  They may be paroled on the earlier case to begin the sentence on the longer sentence, but there is no chance they will be released from custody because they still have a life sentence hanging over their head.  He said, consequently, this is cruel to two groups of people.  Number one, it is cruel to the families of victims because they receive notice the offender may be eligible for parole.  Number two, a cruel hoax is played on defendants because they may think the judge did not mean what he/she said and they are going before the parole board, and, in fact, there will be no parole at the end of the procedure. 

 

Mr. Gibson noted a good way to address the issue is to say the person is sentenced to life imprisonment without possibility of parole.  He said the sentence must be executed without reference to the unexpired term of imprisonment, nor his/her eligibility for parole.  Therefore, notices on small terms would not be done as long as the large terms are still being served.  Subsequently, when a notice of parole eligibility is given, it would be because, in fact, the person can be eligible for parole, Mr. Gibson remarked.  He expressed appreciation for Assemblywoman Cegavske’s amendment because it is in the same part of the Nevada Revised Statutes (NRS). 

 

Referring to section 1, subsection 3, paragraph (d) of S.B. 574, Senator Care inquired whether or not it could have an ultimate consequence of increasing the number of halfway homes for alcohol and drug abusers. 

 

Answering, Mr. Gibson said conceivably it could; however, the drug court program is limited to 100 people in Clark County, and 50 in Washoe County, over the life of the program.  He noted another important part of the legislation is to move the sunset provision to June 30, 2003. 

 

In reference to section 2, subsection 2 of A.B. 574, “without reference to the unexpired term,” Senator Care asked whether it meant the unexpired term is forgiven.  Mr. Gibson said it is not forgiven and the offender must serve his/her term.  He explained notice of parole is not given for a parole that is not going to happen.  For instance, if a person kills another person, but involved in the killing is burglary, robbery, and possession of stolen property, the person is sentenced and the judge runs the sentences concurrently; therefore, the sentence would be 15 years, 15 years, 10 years, and 4 years, plus “life without,” and “life without.”  Mr. Gibson explained the offender would become eligible for parole on the 4 years after serving a certain amount of time.  Even though the person is not released from prison, the time is “flattened out,” and theoretically, the person is eligible for parole.  The person will not be given parole, but because of the way the sentence is entered into the computer, notices will be sent informing interested parties of a parole hearing.  However, Mr. Gibson stressed there will be no parole hearing.  He explained the sentence will expire but the person will continue to serve the remainder of the time. 

 

Continuing, Mr. Gibson said, on the other hand, should the judge give the 4-year sentence first, and then give 4 years, 10 years, 15 years, 15 years, “life without”, and “life without,” run consecutively, he pointed out, as soon as a certain amount of time is served on the 4-year sentence, the person is eligible for parole, however, he/she is not going anywhere.  Mr. Gibson reiterated it is a cruel hoax for everybody to think maybe the parole board would somehow release the offender.  He emphasized neither victims or defendants understand how the system works.  Mr. Gibson indicated A.B. 574 would clear up the confusion.

 

Senator Wiener inquired whether the drug court program is a pilot program.  Mr. Gibson answered yes, it is.  The senator noted the great success of these types of programs is in the aftercare program.  She wondered whether or not Mr. Gibson had worked with local agencies to ensure an aftercare component which would assure success with the program. 

 

In response, Mr. Gibson indicated “Choices Unlimited” provides aftercare counselors to help the offenders.  The individuals are required to report daily for the first few phases, and longer for counseling, “needling” (auricular acupuncture limited to the ear which suppresses stress and helps addicts with detoxification), and job counseling.  He stated the program is more intensive than the regular drug court program, and is designed with a special protocol.  In addition, Mr. Gibson indicated there is an alumni group in which the offenders can continue to avail themselves of counseling for the rest of their life.  There are also probation officers dedicated to the program with whom the offenders work closely.  He pointed out, the situation involves one officer functioning the way Parole and Probation would prefer.  There are 2 officers regulating 16 people and bringing their problems to the attention of the counselor.  Mr. Gibson said it is a holistic-type program that is working quite well.

 

Glen Whorton, Chief, Classification/Planning, Department of Prisons, expressed support for A.B. 574.  He indicated there had been difficulty finding perfect candidates for the drug court program under the criteria currently described in Senate Bill 184 of the Seventieth Session.  Mr. Whorton said he believed A.B. 574 would improve the opportunity to put appropriate offenders into the program.  He pointed out the Department of Prisons likes the program because of the quality and quantity of supervision provided the individuals, and the treatment they would receive.  Mr. Whorton said it is interesting to note there are twice as many female offenders on the drug court program than men.  He said people who engage in this type of conduct, and do these kinds of offenses, generally do so in a repetitious way.  Expanding the criteria would provide an opportunity to affect the lives of these people and, perhaps, provide them with the treatment they require to compete successfully in the community, Mr. Whorton stated.  

 

In regard to the amendment, Mr. Whorton indicated there is a precedent for this type of sentence management within the Department of Prisons in the context of the death penalty.  When an individual is sentenced to death, that death penalty overrides all other offenses and sentences.  He noted this is a very easy thing for the department to do.  Mr. Whorton said, should the committee enact this measure, regardless of the type of sentence structure the individual would receive with concurrent or consecutive sentences, the Department of Prisons would make the controlling sentence life without possibility of parole and no notifications would go out to victims.  He added the individuals would not appear on parole agendas for the parole board and waste their time, nor frighten people in the community. 

 

Dorla M. Salling, Chairman, State Board of Parole Commissioners, Department of Motor Vehicles and Public Safety, concurred with everything that had been said.  She pointed out the State Board of Parole Commissioners support both aspects of the bill. 

 

Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorney’s Association, indicated he had worked with both the drug court committee and the prisons on both aspects of A.B. 574.  He noted one of the questions he asked was whether or not it would adversely affect the status of defendants and prisoners.  He pointed out it is a correction and there is no other downside to it.  Mr. Graham stated both measures are good and will open up the drug court program and eliminate a cruel hoax, not only to the defendant, but to victims as well.

 

Gemma Greene Waldron, Lobbyist, Washoe County District Attorney’s Office, expressed support for A.B. 574.

 

Senator James inquired whether or not a person with three felonies could enter the drug court program.  In response, Mr. Graham indicated it was a policy decision. 

 

Senator Wiener asked how many prisoners would not fall under the notification provision in A.B. 574.  Mr. Graham pointed out there were two entirely different concepts.  He said the early-release bill was proposed by Assemblywoman Cegavske and, although it is not related in spirit, it is related statutorily. 

 

Senator James closed the hearing on A.B. 574 and opened the hearing on A.B. 328.

 

ASSEMBLY BILL 328:  Makes various changes concerning sealing of criminal records and restoration of civil rights. (BDR 14-122)

 

Assemblywoman Christina R. Giunchigliani, Clark County Assembly District No. 9, said A.B. 328 is a long overdue piece of legislation that recognizes the sealing of criminal records has not changed in 30 years.  She pointed out many ex-felons who are now law-abiding citizens are unable to obtain the type of employment for which they are trained due to factors regarding sealing their criminal record.  The other key provision within A.B. 328 is the automatic restoration of civil rights upon application by the individual.  Assemblywoman Giunchigliani noted the proposal reflects the crime categories and retains the 15-year time limit for sealing criminal records for Category A or B felonies; 12 years for Category C or D felonies; 10 years for Category E felonies; 7 years for gross misdemeanors, which would follow felony driving under the influence (DUI) and domestic violence; and 3 years for a misdemeanor. 

 

Assemblywoman Giunchigliani gave the following testimony:

 

Mr. Graham will speak to just clarifying if we need to because part of it is current language.  The intent is that would be upon discharge, not while serving time in prison.  So, if there is a question . . . then we need to clean that up.  I think it is because it [the bill] was modeled after the current language and it does say “currently if he is in prison,” so maybe that is the language that needs to go away.  I am not sure.  It definitely was not the intent that their clock would start ticking while they are still serving their time.

 

The other key provisions in here are regarding the civil rights restoration.  John Carpenter [Assemblyman John C. Carpenter, Elko County Assembly District No. 33], who supported this bill, made the recommendation that the ex-felon to at least initiate the application for purposes, and so that is why that language is in there, but then the restoration is automatic after that. 

 

We split it up based on talking with the DPP to make it simpler that the application will come into the DPP.  They would then disseminate the record sealing it to the court if they were one who was restored based on a probation violation, and then to the parole board if it was the other type of crime they were being discharged from.

 

Assemblywoman Giunchigliani continued:

 

It also disallows that they can charge them extra dollars.  I think there will be a handout that shows that currently it is almost like an old voting rights poll tax of some sort to get your sealed records in some cases they were charging individuals.  I also handed out a letter from an individual [Eric L. Garner] who actually testified from Las Vegas (Exhibit D).  I think he kind of helped persuade the committee that as a law-abiding citizen now he paid his debt, he is going to the university, and to try to get employment he cannot get past that timeline, and that is part of the genesis of that.

 

The bill did pass unanimously out of the house [Assembly].  I commend my colleagues for working with me on making this a very workable bill and I still want to thank, on the record, Stew Bell [Stewart Bell, District Attorney, Clark County], for supporting it and helping us work through this language.  If I might, Mr. Chairman, if I could just ask Ben [Mr. Graham] to just clarify the concern that was brought to him last night and then we will just see if that is the language, if we need to tweak anything.

 

Assemblywoman Giunchigliani submitted two articles entitled, “Felons and Voting Rights” (Exhibit E, page 1) and “Restore Felons’ Voting Rights (Exhibit E, page 2).

 

Senator James commented the provision whereby the petition is not submitted directly to the court was changed in S.B. 548 which states the petition goes to the division. 

 

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

 

In response, Assemblywoman Giunchigliani said:

 

I will look at that.  I was not even aware of that legislation.  I think we have it going to the division, but then the division just simply either files it with the court, or files it with the parole and probation board. 

 

Senator James said a background check must be done to ascertain whether or not the prisoner has done anything wrong in the intervening years.  He asked who drafted A.B. 328, particularly section 5.  In response, Mr. Graham explained there are a couple of issues that need to be resolved.  Senator James pointed out the word “may” is used seven times in section 5, modified by a “little thing” down on line 42.  Mr. Graham said, “I would rather not go there at this time.”  He indicated there are some questions about section 5, not with regard to the philosophy of Assemblywoman Giunchigliani’s intent.  Senator James remarked, “I cannot understand it.”  Mr. Graham said the assemblywoman’s issue is to shorten the period of time in which a person has to be “good” and then the record will be sealed.  He explained the way the statute reads currently, there is a possibility the record will be sealed the day the person is released from prison, which is not the intent.  Senator James asked, “Where is that?”  Mr. Graham said it was in section 5. 

 

Senator James read portions of section 5 of A.B. 328, “Except as otherwise provided in subsection 5 . . . a person who has been convicted of . . . a category A or B felony may . . . a category C or D felony may . . . petition the court . . . for the sealing of all records relating to the conviction.”  Mr. Graham indicated section 5 is an awkward provision and requires more work.  He said the time period for sealing starts running after the person has completed his/her sentence or been honorably discharged from parole, not from conviction, which is the way it reads currently. 

 

Assemblywoman Giunchigliani said:

 

I think you are quite correct about the maze.  You will notice this is the second reprint because on the floor, luckily, Greg Brower [Assemblyman, part of Carson City and part of Washoe County, Assembly District No. 37] found an error where we had made it automatic but had not changed a whole additional section, and I suspect we did not go back and look for where “shall” should be, or “may” should be, or make it read and flow a little bit easier.  There apparently . . . other statutes that tied into the civil-rights issue and so we tried to fix it, at least we thought we had, and the amendment, but it is somewhat choppy still and Ben [Mr. Graham] and I can work that up and come back with you, or if Allison [Allison Combs, Committee Policy Analyst] has some ideas I would be more than welcome to listen to that. 

 

Exemplifying the problem, Senator James read parts of A.B. 328, “a Category C or D felony may after 12 years from the date of his conviction, or is imprisoned or on parole and probation from the date of his release from actual custody or discharge from parole or probation, whichever occurs later,” and asked if that means he gets his rights restored on that day or gets the petition.  The senator surmised the person could petition on the later of the three.  It is either the date of conviction, release from imprisonment, discharge of a sentence of parole or probation, whichever occurs later, he can petition the court.  Senator James asked, “Isn’t there a better way to draft that?”  Mr. Graham answered, “Yes, there will be.” 

 

Bradley A. Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, admitted section 5 is awkwardly constructed because the “flush line” is on line 42.  He said “whichever occurs later” is intended to modify all the other clauses, but there is probably a better way to construct it.  Senator James remarked, “I think that is the most remote flush line I have ever seen.”  Mr. Graham said, “We do not want to flush the bill, we want to fix it.”  He indicated all of the remedial and beneficial occurrences need to start once the person has served his/her time, and are either released from prison without any “tail,” or after they have been honorably discharged from parole and probation.  Senator James said, “I understand.” 

 

Assemblywoman Giunchigliani said:

 

Thank you very much.  We will come back to you and if we may rely on some of your staff, we will try to work something up so it that it is cleaner and flows a lot better.  I hope the intent is recognized and supported. 

 

Senator James said there must be a decision on how A.B. 328 will be submitted, although, he surmised, there would be a conflict amendment.  He expressed a desire to ensure the policy is the same between A.B. 328 and S.B. 548.  Assemblywoman Giunchigliani said she would obtain a copy of S.B. 548.

 

Lucille Lusk, Lobbyist, Nevada Concerned Citizens, said she had been following A.B. 328 since its inception.  She had not previously commented on it but had been attempting to understand it.  Ms. Lusk pointed out the bill continues to be confusing and, consequently, she wished to present some questions to consider as the committee carried out the deliberations.  While admitting the questions may be naïve or foolish, Ms. Lusk emphasized in some cases she was unable to comprehend the bill. 

 

Continuing, Ms. Lusk expressed support for A.B. 328 in the concepts relating to sealing of records, particularly ensuring individuals are notified of the opportunity, and also when and how they can apply for restoration of their civil rights.  She expressed even stronger support for the concept of when a person is acquitted, or judgment is in their favor, being able to expunge the convictions from their record. 

 

Ms. Lusk noted the confusing part is in regard to what civil rights are being restored under what specific conditions.  Referring to page 3, line 2, of A.B. 328, in regard to restoration of civil rights for a person honorably discharged from probation, Ms. Lusk said it seems quite clear the civil rights being restored are the rights to vote, hold office, and serve on a jury.  A.B. 328 says, in all cases, the petition goes to a court, but the court shall approve it.  She questioned the importance of taking the court’s time if it has no choice but to take an approving action in any of the cases.  In reference to page 5, line 40, of A.B. 328, “The court shall order the civil rights of the person to whom the order pertains to be restored if the person has not been restored to his civil rights,” Ms. Lusk said it is not clear whether it pertains to the same three civil rights, or the entire spectrum of civil rights across the board, including the right to bear arms, and such. 

 

Returning to page 3, line 2, of A.B. 328, Senator James explained the factual inquiry is the predicate to whether or not the person has been honorably discharged and has not committed an offense in the intervening period.  Ms. Lusk said it was her understanding the committing of an offense in the intervening period is removed from the bill and is no longer a factor to be considered.  In response, Senator James pointed out, page 4, section 5, subsection 4 of A.B. 328, “If . . . the court finds . . . the petitioner has not been charged with any offense for which the charges are pending or convicted of any offense.”  Ms. Lusk agreed it was correct in that case; however, on page 7, section 11, subsection 1 of A.B. 328, “When a pardon is granted for any offense committed, the pardon may or may not include restoration of civil rights,” it sounds like it may or may not.  Then on page 7, lines 41 and 42 of A.B. 328, “If the board determines that the applicant has received a pardon, the board shall, as soon as reasonably practicable, restore him to his civil rights,” Ms. Lusk said it appears there is an internal conflict.  In one place it says it may or may not, and in another place it says it shall.  Finally, on page 9, section 13, subsection 2 of A.B. 328, “If the division determines that the applicant has served his sentence and been released from prison,” Ms. Lusk said if that is the case then the court shall restore the civil rights.  The stricken-out portion deals with having not committed offenses in the meantime.  She reiterated she was simply raising issues of confusion and asking the committee to clarify.  It is not clear in the case where the applicant has served his sentence and been released from prison if the civil rights being restored are the three (voting, serving on juries, and holding office) or include the full range and spectrum of civil rights. 

 

Senator James indicated A.B. 328 had not been adequately explained. 

 

Senator Care, in regard to restoration of civil rights, said the existing statute does not limit civil rights to serve on a jury, to hold office, and to vote.  He said it was his understanding if a person is convicted of domestic violence the federal prohibition would apply for the rest of his/her life unless he/she petitions the secretary of the treasury.  If the person is a convicted felon, that remains, and is not a civil right.  Senator Care pointed out a person must register as a felon when coming to Nevada, whether or not records have been sealed or civil rights restored.  He asked whether or not it would remain on the books.

 

Mr. Graham stated if the records have been sealed the registration would no longer apply.  However, the civil rights would essentially be restored, with the exception of the right to have a firearm, which needs a specific restoration order.  Asked about registration for a sex offender, Mr. Graham indicated it was exempted as well. 

 

Senator Care asked if a person’s records are sealed what would be his/her response should a potential employer ask whether or not he/she had ever been convicted of a felony.  Mr. Graham answered the person could say no.  He explained the current statute provides if a person has had his/her records sealed, for all intents and purposes it is as if the conviction never existed.  Gaming control and law enforcement can get into the records; but for run-of-the-mill jobs question 18A on an employment application, “Have you ever been convicted,” can be answered, no.  Senator Care clarified a person would no longer be required to register as a felon if his/her records are sealed.  Mr. Graham said if the records are sealed properly the person would not be required to register as a felon.  It is a state-by-state issue and (for example) Nevada cannot affect California and California cannot affect Nevada. 

 

In the case of a sex offender who moves from Arizona to Nevada whose records have been sealed, Senator Care asked whether or not the person would be under any obligation to reveal the fact to Nevada.  Mr. Graham answered, it was his understanding, sex-offender statutes do not provide for sealing of records under any circumstances.  Senator Care queried, if the offense and conviction occurred in a neighboring state, after the record is sealed, is the ex-felon under a duty to register when moving to Nevada.  In response, Mr. Graham reiterated if the record has been properly sealed in a sister state, the person is not under any obligation to register.  He pointed out the type of offense he described is not sealable under any jurisdiction.

 

In reference to the “infamous” section 5 of A.B. 328, Senator Care pointed out page 4, lines 3, 4, and 5, “Include a list of any other public or private agency, company, official or other custodian of records that is reasonably known to the petitioner to have possession of records of the conviction and to whom the order to seal records,” and inquired whether “company” refers to an employer.  Answering, Mr. Graham said he was unaware of what “private agency” would be, but explained, there is a bill that will allow DPP to contract with private groups to do reports; consequently, a private agency might have access to the person’s criminal record.  He indicated, technically, when an order is issued, a seal is put on the record.  Senator Care clarified “company” does not mean an employer.  Mr. Graham said he did not believe so.  He added, when you know a person has been convicted of a crime, whether or not the record is sealed, you still know it and it does not remove your ability to utilize that information.  Senator Care indicated, his understanding was, an employer would be required to divulge whatever is in the personnel file, which almost implies an employer could not terminate an at-will employee just because his/her criminal record is in the personnel file.  Mr. Graham said to his knowledge that would not be affected by this legislation.

 

Senator James asked the reason a statement is being removed that says a person cannot have been convicted within 5 years after completion of parole of an offense greater than a traffic violation for restoration of civil rights.  Asked in what section that statement appears, Senator James said it is in section 11, section 12, and section 13, governing restoration of civil rights.  As an aside, the senator remarked, he wished to pass a law that required bill drafters to put bullet headlines in the sections of the bills in order to ascertain which sections are being amended. 

 

Continuing, Senator James said NRS 213.090 is pardons, NRS 213.155 is paroled prisoners, and NRS 213.157 is sentence served.  He indicated the statute previously said if a person had not been convicted of any offense greater than a traffic violation within 5 years after the pardon, than the person could petition, and now that is being removed. 

 

Janet L. Gilbert, Lobbyist, Progressive Leadership Alliance of Nevada, stated that was not the intent of A.B. 328 or Assemblywoman Giunchigliani.  She said the intent of the bill was to make sure, upon parole or probation, if their record was clean, the person had the ability to get their rights restored.  In addition, Ms. Gilbert said she would like to address the issue of rights restored, and not restored.  She submitted a letter to Senator James from the Division of Parole and Probation (Exhibit F), and indicated page 2 lists which civil rights are restored and which civil rights are not restored.  Ms. Gilbert said she would share the letter with Ms. Lusk for her information. 

 

Ms. Gilbert said the reason it is in three different sections is because one is for probation, one is for parole, and one is for expired prisoners.  The reason the Progressive Leadership Alliance of Nevada is supporting A.B. 328 so strongly is because the system does not work.  It is convoluted and confusing, and people who want to get their voting rights restored do not do so because they do not know to whom they should apply.  Ms. Gilbert pointed out the intent of Assemblywoman Giunchigliani’s bill is to have everything go to the Division of Parole and Probation so they know where to forward the request.  She spoke with Warren Lutzow, Chief, Parole and Probation (P&P), Department of Motor Vehicles and Public Safety, who did not realize how convoluted the system is.  She said the Progressive Leadership Alliance of Nevada does voter registration and she has met many ex-felons who have been out of prison for over 20 years who do not realize their voting rights can be reinstated.  The intent is to get a system that works.  Ex-felons should not be charged a fee, and commented, fingerprinting is not in the law, is unnecessary, and came out of a bureaucratic decision.  She maintained Mr. Lutzow did not know fingerprints were required and there was a $15 fee for the criminal history.  Ms. Gilbert acknowledged Mr. Lutzow told her all that is needed is the person’s name, birth date, Social Security number, when they served, when they were dismissed, and if they had any subsequent crimes.  She stated the whole point of A.B. 328 is to clarify that, and she did not think Assemblywoman Giunchigliani’s intent was to remove the traffic violation.  Senator James pointed out it is anything more serious than a traffic violation and could be a felony.  Ms. Gilbert agreed and remarked it was more reasonable. 

 

Referring to the letter (Exhibit F), Ms. Gilbert requested the committee peruse it to understand the confusion.  She said she had a difficult time figuring out whether a probationer would send a letter to P&P, or if a person has been pardoned, whether they would send a letter to the board of pardons.  She reiterated it is very confusing.  Ms. Gilbert urged the committee to pass A.B. 328.  She said once the bill gets passed the legalities of how it should be written, it will be a very good, and long overdue, bill.  She pointed out Nevada, in many publications nationwide, is listed as one of the few states that does not restore voting rights.  The reason is because state law has made it so difficult, Ms. Gilbert remarked. 

 

Senator Porter said, although he understood the attempt of the bill, it is so convoluted it is difficult to get to that end.  Ms. Gilbert indicated the reason it is convoluted is due to the way the statute was set up years ago.  She said it is unfortunate it did not go through P&P because that should be the body that changes restoration of civil rights.  She noted Assemblywoman Giunchigliani said Stewart Bell thought the language of the bill could be changed to clarify it, and possibly that should be the final decision. 

 

Senator James commented S.B. 548 tells ex-felons where to go to have their civil rights restored.  He said it will require some work for the committee to peruse all the data in order to make a decision on the legislation.

 

Mr. Graham indicated Gemma Greene Waldron is good at helping with drafting and they would come up with suggestions before contacting the staff.  Senator James declared, “You need to make it painless for us because I am getting weary of processing huge amendments on Assembly bills.”  He said it is difficult for the committee during this pressing time frame.

 

Senator Care asked Mr. Graham to ponder the sealing of records if charges have been dismissed.  He indicated he had only seen it happen one time where charges were dismissed without prejudice, and asked what happens at that point.  He inquired whether the records could be sealed because the case may not yet be over.  Secondly, Senator Care said he had done a few record sealings and recalled, in the Eighth Judicial District, it is a matter of obtaining a kit and typing in names.  He said, in his experience, unless the district attorney’s office opposes the petition, it will be granted.  The senator asked what grounds would there be for opposing someone who is seeking to seal records. 

 

Mr. Graham indicated the Clark County District Attorney’s Office seals over 1400 records a year, and prepared a booklet explaining how to get the records sealed.  He reported a pro per can do it, as well as an attorney.  He said the turnaround is about 3 to 4 weeks maximum, and noted, when he took charge of the unit a few years ago, there was a 6- to 8-month backlog.  Mr. Graham indicated when a case is dismissed, the nature of the charge is perused, and if it is a serious charge that warrants further investigation, the person is informed the district attorney’s office will not stipulate.  With that, the person must file a petition, which takes time.  Mr. Graham said, in probably 98 percent of cases, the district attorney’s office will stipulate and the records can be sealed within a matter of weeks.

 

Ms. Salling indicated she was available to answer questions regarding restoration of rights and pardons, pointing out she had been a district administrator for P&P.  Referring to page 8 of A.B. 328, regarding restoration of civil rights, she said if the language is going to stay the same, the parole board and the court automatically have to restore the rights if P&P grants the person an honorable discharge.  Senator James interjected:

 

It does not make any sense at all.  I’ll tell you . . . there just isn’t time . . . and so . . . I’ll bet the . . . you know . . . it’s a little exasperating.  The only thing I am probably going to be willing to do with it is take sections 11, 12, and 13 out completely, and the only thing we will process is section 5 after Brad [Bradley A. Wilkinson, Committee Counsel] tells us how to rewrite it so we can understand what it is trying to say. 

 

I have no idea how this is supposed to work.  We are removing all the predicates for each one of these things that was the court’s inquiry as to whether or not there was an offense committed, and the transmission of the record of whether the sentence was honorably discharged, and we are just taking all that out and saying that you make the application, and then it is voted on, and then the next subsection says the minutes given to the judge, and the judge, in this situation, just becomes sort of a ministerial act.  It is given to him and the division [DPP] has already said, yes, the sentence is over, and there is no inquiry into what happened in the intervening period, which is why you have taken out the 5-year thing in each place, and it is also why you have removed the language on page 8, lines 17 through 20.   

 

I don’t know how to make that work, Jan [Ms. Gilbert].

 

Ms. Gilbert suggested an agreement be reached between interested parties to provide an opportunity for the committee to look at the bill again.  She surmised Nevada is one of the few states that has disenfranchised voters.  She said other states have restored rights quite easily, and pointed out, in Utah a felon can vote in jail.  It was Ms. Gilbert’s opinion that voting rights should have nothing to do with a person being a felon.  She stressed the right to vote is a basic right, and it is unfortunate that so many people in Nevada have been disenfranchised. 

 

Senator James said:

 

It is the same thing on pages 2 and 3 [of A.B. 328] where you have taken the language out regarding what has to be accompanied with the application and given to the court, and then it is just now given to the court, and the court shall restore the civil rights of the applicant. 

 

Senator James asked for comments from the committee regarding “fixing” A.B. 328. 

 

Mr. Graham expressed a desire to work with well-intended interested parties, and said he would rely upon Gemma Greene Waldron to create understandable language that would do what needs to be done and not frustrate the committee further. 

 

Senator Care indicated he did not have a problem with shortening the periods for sealing the records or restoring civil rights as enumerated in the bill.  However, he would be more comfortable leaving some of the decisions to the discretion of the court, rather than just saying “the Legislature hereby mandates.”  The court must examine these things on a case-by-case basis because there may be reasons (the Legislature cannot contemplate) the court may have for refusing, at that time, and inviting the petition to be refiled a year later.  Senator Care reiterated, fundamentally, he had no problem with the intention of A.B. 328.

 

Mr. Graham indicated he understood.  He said he does so many petitions, uses discretion, and stipulates most of the time.  However, should there be a question, the petition is passed on to the court, which sometimes rules against it, and sometimes does not.  Mr. Graham expressed hope that A.B. 328 could be made to work.

 

Senator James inquired whether any particular individual is being targeted by A.B. 328.  Mr. Graham answered no, it is a very general piece of legislation.  The senator said, “I cannot figure out why this is drafted this way.  It just seems odd to me.”

 

Elizabeth M. Pederson, Lobbyist, League of Women Voters of Nevada, voiced her strong support for A.B. 328.  She said the “Human Rights Watch” and the “Sentencing Project,” in a 1998 report, found an estimated 3.9 million Americans (one out of every 50 adults) either currently, or permanently, lost their voting rights because of a felony conviction.  She pointed out when looking at the success of democracy in our nation it must be recognized it is based primarily on citizen participation.  When voting turnout slides every year, it must be ascertained why people are not voting, and what is preventing them from doing so.  Ms. Pederson said, when Nevada has such a convoluted system, if A.B. 328 is confusing the way it reads now, there is a need to salvage something out of it in order that Nevadans can vote more easily.  She stated it is key to the success of the state.  She expressed hope the committee would reconsider scrapping the bill entirely, and reported the League of Women Voters of Nevada strongly support A.B. 328.

 

V. Robert Payant, Lobbyist, Catholic Legislative Liaison, Religious Alliance in Nevada, indicated he was representing the Nevada Catholic Conference, as well as Religious Alliance in Nevada (RAIN), which is composed of Methodists, Episcopalians, Lutherans, Presbyterians, and Catholics.  He said, with regard to A.B. 328, he could offer no technical assistance.  However, he said he hoped the intent of the bill could be preserved.  The idea that people have an opportunity for redemption is part of the Judeo-Christian heritage, which means, everybody should be given an opportunity, after protecting society, to see that people have the opportunity to rehabilitate themselves.  Mr. Payant said the things contained in the bill are part of that effort.  He said he hoped the bill could be redrafted to satisfy the concerns that have been made.  Mr. Payant agreed with Senator Care in that the judgment of judges should be limited, rather than discretionary, which is one of the things that can be done.  He offered his organization’s strong support for the intention of A.B. 328.

 

Senator James indicated section 9 of A.B. 328 is acceptable, but sections 5, 11, 12, and 13 are unworkable.  He said, with that, the committee will await the return of interested parties who will work on the rewrite.

 

Senator James closed the hearing on A.B. 328 and opened the hearing on A.B. 370.

 

ASSEMBLY BILL 370:  Authorizes employers to obtain orders for protection against harassment in workplace and establishes procedures for obtaining such orders. (BDR 3-720)

 

Assemblywoman Sheila Leslie, Washoe County Assembly District No. 27, submitted a letter from Attorney General, Frankie Sue Del Papa (Exhibit G), and a letter from Patricia A. Lynch, Co-Chair of the Legislative Committee of the Nevada Domestic Violence Prevention Council (Exhibit H), both in support of A.B. 370.  She indicated she was presenting A.B. 370 on behalf of the Northern Nevada Human Resources Association, and accompanying her was their attorney, Mark S. Sertic.  She said A.B. 370 was developed in response to a growing problem in the nation, the issue of workplace violence.  An average of 20 workers are murdered each week in the United States, which is more than 1000 workers each year.  Assemblywoman Leslie said there have been murders and violent attacks in Nevada, most recently in the northern region where three workers were shot to death in Nevada City, California.  She indicated several women were brutally murdered while at work on the casino floor, and there have been attempted bombings of United States Forest Service ranger’s offices and homes in Carson City. 

 

Continuing, Assemblywoman Leslie pointed out the Nevada cases are representative of the four categories of perpetrators of workplace violence, which are:  violence by strangers, violence by clients and customers, violence by coworkers, and violence through personal relationships.  She said homicide is the leading cause of death on the job, second only to motor-vehicle crashes.  Should a person be an African-American, Asian-Pacific Islander, Hispanic, a woman, or a worker under 18 years of age, homicide is the leading cause of occupational death.  Assemblywoman Leslie noted, while robbery is a primary motive, other murders are caused by disgruntled workers, customers, or domestic violence.  There are also 18,000 nonfatal assaults that occur in the workplace each week, which adds up to an estimated 1 million assaults each year. 

 

Further, Assemblywoman Leslie declared the cost of workplace violence is enormous in terms of lost wages, drug and alcohol abuse, and other coping kinds of behaviors.  In addition, many employers find their insurance and security expenses rise and they suffer a negative public image.  While there are, obviously, many environmental, administrative, and behavioral prevention strategies available to reduce the risk of workplace violence, A.B. 370 is a tool that employers are requesting to help them address this issue.  She said, basically, the bill allows an employer to apply for judicial protection by obtaining an injunction against workplace harassment.  The bill allows employers to go before a judge and request an injunction if they can show a person has threatened to cause, or commits an act in the workplace, that causes bodily injury to himself/herself or another person, damage to property, or substantial harm to the physical or mental health or safety of another person. 

 

In conclusion, Assemblywoman Leslie indicated A.B. 370 is modeled after Arizona legislation that has been implemented.  The only other state with a similar law is California; therefore, Nevada would be the third state to have such legislation.  She pointed out, on the Assembly side, she worked with the attorney general’s office and law-enforcement agencies to amend the bill to ensure appropriate differences are noted between the provisions of this bill and temporary protective orders (TPOs) granted to domestic violence victims. 

 

Mark S. Sertic, Attorney, indicated he was present as chairman of the legislative affairs committee of the Northern Nevada Human Resources Association, which is a business association of human-resources professionals in northern Nevada with several-hundred members.  He explained it is the local affiliate of the Society for Human Resource Management (SHRM), which is the national organization.  Mr. Sertic submitted a letter from Susan R. Meisinger, Executive Vice President/COO of SHRM (Exhibit I) in support of A.B. 370.  He pointed out the membership of SHRM perceived the need for this type of legislation because they are on the frontline dealing with violence in the workplace.  He recalled an incident in Massachusetts, a few months ago, in which several employees were killed, one of which was the human resources director of the company.  Mr. Sertic said human-resource individuals frequently face problems from disgruntled former employees who have been terminated, and nonemployees who enter business premises who are involved in domestic-relation disputes with employees and are making threats. 

 

Further, Mr. Sertic said, the difficulty with current law is that the remedy is rather limited.  In order to obtain an injunction in one of these situations, a full-fledged lawsuit must be filed and there must be an underlying claim, which means the action has to rise to a level of an assault or extortion.  Consequently, the employer must file a complaint, a motion for an injunction with points and authorities, and (hopefully) obtain a temporary restraining order (TRO), require a bond, and then the law requires a hearing to be held within 15 days or the order will expire.  Mr. Sertic said it is a rather awkward situation and by the time anything gets accomplished, the circumstances may become more serious.

 

Senator James commented the reason for all that is to protect the due-process rights of the person whose liberty is being restricted by an order of the court.  In answer, Mr. Sertic agreed, due-process rights must be protected, and stated, A.B. 370 does that.  He said anyone who has an injunction entered against them has the right to request a hearing with the court which must be held within 10 days. 

 

Senator James inquired whether the person being restrained must go to court in order to get unrestrained.  Mr. Sertic answered yes, they would.  He pointed out the restriction is not as onerous as several other types of restrictions that exist in the law.  He noted a person being restricted by one of these injunctions is someone who is restricted from coming on the employer’s premise, or bothering the employer’s employees.  These people have no right, in and of themselves, to be on the employer’s premise.  Mr. Sertic said it is a far cry from, for instance, the domestic-relations situation in which an order similar to this means someone cannot go to their house, drive their own car, and are restricted from seeing their children.  He stressed this restriction is very limited, and says the person cannot come to the employer’s premise, nor harass the employer’s employees.  Mr. Sertic said it is a minor restriction, but one that would prevent possible violence in many situations. 

 

Continuing, Mr. Sertic indicated A.B. 370 provides a vehicle to make the system simpler.  He explained a verified application is filed with the justice court.  He said he anticipated that attorneys would not usually be involved in the process, and human resource directors would file them.  Mr. Sertic noted the process is inexpensive and allows employers to take a proactive role to prevent some acts of workplace violence.  He said it will not cure everything, but would provide a tool which might save lives in the process.  Mr. Sertic indicated the public defender’s office has a concern with section 8, subsection 2 of A.B. 370, “The court may require the employer or the person who allegedly committed the harassment, or both, to appear before it before determining whether to issue the order for protection against harassment in the workplace.”  It was Mr. Sertic’s understanding the accused might make admissions in court without having received Miranda warnings.  He said it was not a major problem because the language is modeled exactly after the language that appears in the domestic-relations injunction statute, which is current law.  To his knowledge, the provision has never been challenged.  Also, he said he suspected it is unlikely there would be many hearings because speed is of the essence in these situations.  However, Mr. Sertic pointed out, should there be concern, the section could be removed and the integrity of the bill remain intact.    

 

In conclusion, Mr. Sertic said, on behalf of the Northern Nevada Human Resource Association, he urged the committee to pass A.B. 370 which would provide human resource personnel, who represent businesses, with a tool that would assist them in dealing with potential threatening situations. 

 

Senator Care said section 16 of A.B. 370 encompasses the scenario where the target of harassment is the employee, not the company.  Mr. Sertic said, “Correct.”  The senator said about 6 or 7 years ago he represented an employer whose employee was the target of harassment, both at the workplace and at home.  He indicated the perpetrator would sometimes park in the parking lot, or down the street, and tie up the telephones by incessantly calling the workplace which caused the employer to request a restraining order.  After perusing the law, Senator Care said he advised the employer he could not request a restraining order, and explained that the employee being harassed must do it.  Thereafter, the senator explained the law to the employee who was the subject of harassment, who decided not to request a restraining order for fear her husband would find out she was having an affair.  Senator Care indicated, the way A.B. 370 is written, a good-faith effort must be made to notify the employee.  He noted the easy way out for the employer is to say, “I do not need this, you are fired.”  However, assuming the person is a good employee and wants to work things out, Senator Care asked, “How does one make a determination?  What is to be done when an employee is notified and negates any action?” 

 

In response, Mr. Sertic indicated it is a frequent problem.  One of the reasons for the bill is because individuals who are the target of harassment sometimes, for whatever reason, do not want to obtain an injunction.  He noted the problem for employers is a potentially violent person entering the premises who is endangering, not only one specific employee, but every other employee and customer on the site.  Consequently, the employer is put in a bit of a spot.  Mr. Sertic said the proper avenue for the employer is to attempt to do everything that can be done, and, at the present time, the law is rather limited; however, should A.B. 370 be enacted, an injunction could be obtained.  He said the purpose of section 16 of A.B. 370 is to inform the employee that the employer is obtaining an injunction which will only restrict the perpetrator from harassing him/her at work.  Mr. Sertic said at that point the employee may take whatever action he/she desires with the domestic-relations court to receive protection outside the workplace.  He indicated the employer cannot do that; the employer can only act with regard to the place of employment.  Mr. Sertic noted it is a difficult situation but A.B. 370 is the best solution that he could foresee. 

 

Senator Care maintained the judgment call for the employer is to show concern about all employees in the workplace, not just the employee who is the subject of harassment.  Mr. Sertic agreed.

 

Senator James remarked if an ex parte injunction (an injunction which issues from a court which has heard only one side, the moving side, of the controversy) TRO is obtained against a person, it expires by its own terms after a very short period of time unless it ripens into a preliminary injunction after there has been a full hearing on the merits and the person has been entitled to hear it.  The senator pointed out orders which are issued ex parte are, by their nature, suspect, because the person issuing the order has only heard one side of the story.  He said it seems like a very different situation when there is an order for protection against domestic violence, because there you have violence which has occurred and there is a showing of it.  There is a person who is living with someone else in a relationship, it is a volatile relationship, and often children are involved.  Senator James maintained A.B. 370 is a much broader thing. 

 

Senator James said:

 

They put in this section 18, which sort of cuts both ways.  It says, notwithstanding, everything just said here, nothing here is going to seek to constitutionally protect its speech or labor activity.  Well, what if it is not labor activity?  What if it is the environmental-defense fund, or somebody protesting the North American Free Trade Agreement (NAFTA), or who knows what it might be?  The mere fact that we have put in here that section 18, subsection 2, goes without saying.  Every law we pass is subject to the constitution; so that does not save this in terms of its scope. 

 

This says an employer can go down to court and get an ex parte order, and that ex parte order can enjoin the person from contacting the employer, it can order him to stay away.  I do not know what that means, stay away from the employer’s premise.  It can order them to pay the costs of the employer that they have incurred to go in ex parte and get this order, and any other relief that the court deems just.  Before any hearing has ever been held, before the person who is the subject of this order has ever had a chance to come to court, this goes out to law enforcement agencies and tells all the law enforcement agencies, arrest this person on the spot.  It says include a provision ordering any law enforcement officer to arrest the person who allegedly committed harassment, with or without a warrant, if the officer has probable cause to believe the person has received a copy of the order and has violated a provision of the order. 

 

So, basically, what happens is, someone is there, and somebody gives them an order and says, “You have just been subjected to an order.  There has been a proceeding in court to which you were not invited and you now are subject to this order and you better not violate it.  If you do, we will arrest you and put you in jail.”  Now, you can go hire a lawyer and go to court yourself and try to figure out what has happened to you and see if the true facts can come out; but until that time, you better not violate this order, which you have never even seen before or know anything about. 

 

Senator James continued:

 

You can take these kinds of cases and say there have been women murdered in the workplace, there have been people who have committed terrible crimes where they go into employers and shoot people.  That is fine, and the law would address those situations.  But the law has to be crafted in such a way that it is not so broad that it does not just take in these horrible situations we all agree on, where someone is killed in the workplace, it takes in virtually anything.  We have had disputes, and they happen to be labor disputes, and this would not apply to them, where there is a dispute over who owns the sidewalk, or who controls the sidewalk in front of the thing. 

 

Well, let us say it is not a labor dispute, let us say somebody does not like gambling.  We are the anti-gambling league.  We want to be here and pass out literature to people coming into this gaming establishment.  Here is the order we got from court, which also says you have to pay our costs and attorney’s fees.  It cost us about $30,000 to get this whole process done.  You owe us $30,000, here is the order.  If you do not want to pay it, or if you want to come on this sidewalk and do your protest, you can hire a lawyer and go to court.  Until such time, you will be arrested on the spot.  That is just too much.

 

In response, Mr. Sertic said the problem with the current law is that it acts only after someone has been injured or killed.  With regard to the arrest situation, he pointed out, a person is only subject to arrest after they have received a copy of the order and knowingly commits a violation of it.  He indicated it is a rather limited restriction on a person’s right because the law prohibits someone from entering the premises of an employer, and the employer has the right to keep them out.  Mr. Sertic said this gives greater sanction.  He pointed out the best part of the legislation, which will do the most good, is the fact the person is visited by an officer of the law who serves him/her with the order.  In most situations, this will cool off the person and make him/her think twice before carrying out any threat, Mr. Sertic remarked. 

 

Responding, Senator James said he agreed.  He reflected if there could be a society where, in whatever circumstance, it could be detected when a person was upset, or had a predilection to commit some type of crime, they could be put into prison for 5 days to cool off.  If this were the case, crime could be prevented.  However, that is not a free society.  The senator explained what is being said here is the court is going to act as a sort of secret tribunal where the employer can go and lay out everything against a person, and have an entire order crafted.  Senator James stressed these cannot be taken lightly.  He asked, “Can you imagine getting served with an order from the court that says you will be arrested on the spot if you violate it?  What do you do?  Most people do not even know a lawyer.”

 

Continuing, Senator James said A.B. 370 is not as narrow as Mr. Sertic said.  He pointed out, “It is from contacting the employer, from contacting the employee, to stay away from the workplace.”  He inquired, “Does that mean stay off the street?  Stay out of that area of town?  Just stay off the physical premise themselves?”  The senator said, if it meant that, it would just say, stay off the property of the employer; however, it says to stay away from the workplace.  He pointed out the bill says to pay all costs and fees incurred by the employer and such other relief as the court deems necessary to protect the employer and the employee in the workplace.  Senator James stated he disagreed with Mr. Sertic, and said the law does not just work now to act after the fact.  He pointed out a self-expiring, temporary, restraining order can be achieved without notice (ex parte), and then posting a bond is required.  The senator asked, “Is there a bond in here [A.B. 370]?”  Mr. Sertic answered, “No.”  Senator James emphasized there is no bond.  He said the one thing that must be obtained to get a TRO, and it is invalid in any state in this country or the federal government without it, is a bond to protect the person against damages they may suffer if this order, which was issued ex parte, without due process, or without a notice, turns out to be wrong.  The senator said that is fully appropriate because the person might be damaged and a bond would be in place.  If you cannot post the bond, you cannot obtain the TRO.  Senator James said, “There is no bond here.  Not only that, the order says you have to pay.”  Therefore, he said, “If you go in and show that irreparable harm will occur, it is a well-defined standard in the law.”  The senator explained irreparable harm can be anything from physical harm (as defined in the bill), to mental harm, to economic harm.  He pointed out if the judge is shown that potential, then a TRO can be obtained, and someone can be restrained for 15 days under Rule 65(b) of the Nevada Rules of Civil Procedure, and then it is incumbent upon the person to go in on a fully-noticed hearing and obtain the preliminary injunction needed in order to resolve the dispute.  Senator James stressed this is a departure from existing law. 

 

Further, Senator James noted Mr. Sertic had said there did not have to be an actual case lawsuit underlying claim; but the senator said, if there is harassment, harassment is an underlying claim.  He stated harassment is a crime in Nevada, stalking is a crime, these are things that can be the subject of a civil proceeding to obtain a preliminary injunction.  Senator James said he could understand why employers would be excited about A.B. 370.  It would give them broad power to access the court’s ex parte and fashion things in such a way that they do not have to deal with uncomfortable situations.  He pointed out, “It may also deal with some really bad situations; but, the problem is, if we do this, we will also allow a plethora of other types of cases to be filed and orders to be served that, I think, are beyond the jurisdiction of a court acting ex parte.” 

 

Responding, Mr. Sertic said, with regard to the bond, Senator James is correct, there is no bond mentioned in A.B. 370.  He explained the bill was patterned after the domestic-relation situation in which no bond is required.  He said it comes down to a policy decision, and some people’s rights are going to be restricted.  Mr. Sertic submitted that is a rather small restriction because the person does not have the right to do the things he/she is doing, or going where the order keeps them from going.  He said the employer can civilly tell them to stay away, and should they come back, it is a trespass violation.  Therefore, they have no right to be there, and it is not as though they are being tossed out of their home.  Mr. Sertic reflected, “It must be balanced whether that restriction on an ex parte basis, when they can come in and feel there is a pressing need to be on the premises and contacting these employees, they can ask for a hearing which they will get in 10 days.”  He said the burden of proof never changes; it is always on the employer.  It must be balanced on those restrictions, which are minor, against the potential for a very serious situation, which A.B. 370 would help prevent.

 

Senator Care maintained the problem is that what the employer might perceive as a serious situation or harassment, is, in fact, a nuisance.  He recalled Senator James’ comment regarding the sidewalk demonstration through which employees must drive to get to work.  He said it was easy to understand how that might be perceived as harassment.  Senator Care noted there are individuals who, upon receiving an order, are motivated to be worse than they were before.  Their attitude is, “I’ll show her/him.”  He pointed out the person who is engaged in harassment or worse, and realizes the employer is serious, will back off.  Thus, the ex parte application for a temporary order of 10 or 15 days brings the person to a judge who tells him/her, “I am not sure what is going on here.  I will take your word for it because, if you are correct, this could be very serious and I do not want anybody to get hurt.  I want both parties here in 15 days, then we will discuss an extended order similar to what is now on the books in a domestic-violence situation.”  Senator Care asked whether or not that would work. 

 

Answering, Mr. Sertic said, as A.B. 370 presently exists, it would allow the judge to do that on a case-by-case basis.  Senator Care said it was his understanding the perpetrator had to request the hearing.  Mr. Sertic said the judge could require it.   

 

John P. Sande III, Lobbyist, Airport Authority of Washoe County, indicated the Airport Authority of Washoe County elected to support A.B. 370, although some concerns had been brought up at the hearing which, in his opinion, could be fine tuned.  He said the bill has an expedited process for getting orders where there is harassment, and the definition of harassment must be perused to understand what it is.  Mr. Sande said section 8, subsection 3, paragraph (a) of A.B. 370, basically has some protections for ex parte orders and says before a person can have an ex parte order, the court must determine, “There is reasonable evidence that the person committed harassment in the workplace or that good cause exists to believe that great or irreparable harm would result to the employer, an employee of the employer, while the employee performs the duties of employment or the person who is present at the workplace of the employer; and (b) there are specific facts that attest to the efforts of the employer to provide notice of the application and hearing to the person who allegedly committed the harassment in the workplace or there are reasons supporting the claim of the employer that notice should not be given to that person.”  Mr. Sande said that section is similar to what a court would currently determine when a lawsuit is filed and a person goes before a judge and requests an ex parte order immediately without notifying the party.  He indicated A.B. 370 actually requires a person to show the efforts that were made to notify the person allegedly committed the actions.  Mr. Sande agreed with Senator James in regard to issuing costs when there has been no opportunity for a hearing with the charged party. 

 

Senator James mentioned he had obtained “lots” of TROs.  He explained the papers are prepared with the facts and submitted to the judge.  He said he had done it in state and federal court.  The senator said:

 

You are a lawyer and an officer of the court.  The judge looks at that [the papers] and says, here, there it is.  There is not the ability for the kinds of the inquiry most of the time; but the protection of the system is the self-expiration of that order, that it is going away, and there is no order, it is completely invalid and is just a slip of paper until you post that bond.  That is when you separate the serious cases from the ones that are not so serious. 

 

What I am saying is, you are dealing with employers now.  Domestic violence is a different situation.  It is a person who does not have resources, who is not part of the business community that can go to court, and does not have a surety company that can post a bond, or is living with someone who has committed an act of domestic violence which is defined in the law.  This is a very different situation.  To just wholesale take that and then graft it into the employment situation does not work.  So, that is what I am saying.  John, [Mr. Sande] we know this.  We are both lawyers and know how this works.  If you make these requirements more similar to a commercial situation, which is what it is, then it works.  I am not sure if there is a way to fix this, maybe there is. 

 

Remember, it is a threat which would cause a reasonable person to be seriously annoyed.  A lot of things annoy me, but I cannot get the court to order people to quit annoying me. 

 

In response, Mr. Sande pointed out he had indicated to Assemblywoman Leslie that the word “annoyed” might have to be changed.  He said one of the concerns of the airport authority was to have a tight definition of the word “annoyed.”  Mr. Sande remarked perhaps “annoyed” is not the correct term and suggested using the word, “seriously alarmed.”  In regard to obtaining a bond, he commented, if he was supposed to stay away from a place of employment at which he was not employed because he was allegedly harassing people, he speculated there was no damage to himself.  He added he did not think there was any legal damage as far as how to define it, and whether a person wants to post bond for $100, and so forth.  Mr. Sande hypothesized maybe a bonding requirement could be added to the bill.  He said the airport authority has observed much more abusive behavior toward employers, as well as members of the general public being difficult and threatening to employees working at the airport.  He urged the committee to create an expedited process to go before a court and avoid the entire process of filing a complaint, paying filing fees, and so forth.  Mr. Sande suggested requiring the court to hold a hearing should the alleged perpetrator want one after the order is issued.  He said, “You could issue it and then say, do not come.  Because, as you know, if you are waiting 15 days, it may be too long.”

 

Senator James said, “What if you and I are law partners, we get into a dispute, and I feel it is getting very heated.  So, I go to court and get one of these orders and serve you with it.” 

 

Responding, Mr. Sande said, first of all, “According to A.B. 370, you would have to show the court that you tried to give me notice, and the reason why you could not notify me.  If you did give me notice, I could come in and contest it.” 

 

Senator James said, “But I am seriously concerned that this is going to come to blows.”  Mr. Sande said, “I would have to come in and it would be the same as if we had a lawsuit.  All A.B. 370 does is expedite the process, it does not change the burden.”  Senator James remarked, “It does, though.”  Mr. Sande said, “I do not believe it does.”  Senator James said, “It lets me get an indefinite order, without a bond, to keep you away from your place of employment.”  Mr. Sande countered, “Now you are saying it is my place of employment and I think that is a different circumstance.”  Senator James asked, “This does not apply if you work there?”  Mr. Sande answered:

 

Yes, I suppose it does apply.  Obviously, if it is an employee, or something like that, I suppose they would be terminated through the normal process and would no longer be employed if they were harassing somebody.  I cannot believe somebody would go to court to have an employee enjoined if they had not already made a determination that this person should not be employed anymore.  As I understand this law, the goal is for somebody outside who comes in, either a member of the public who is frequenting a business and starts harassing the employees, or somebody who is not a person with a business reason, but wants to harass an employee who works there. 

 

Again, I am saying, from the standpoint of the airport authority, we would like to have an opportunity to have an expedited process, and if we can craft this legislation and still provide protections, for example, requiring a hearing within so many days after an ex parte order may be a way of doing it.

 

Senator Care remarked he was thinking of a mandatory hearing.  He said the reality is an application for a TRO is walked over and often attached to it is a motion for preliminary injunction, with a notice on it.  The judge signs off on the TRO and a hearing date is immediately scheduled some time within 15 days.  He pointed out it is a concern that a TRO is so easy to obtain.  The senator indicated he walked over, the case was assigned to a particular judge who was absent, but the general rule in the Eighth Judicial District is that the law clerk initials it, then it can be taken to any other judge in the building who probably will not even read it, and will sign off on it.  However, it also means there will be a mandatory hearing within 15 days.  Senator Care remarked, “There is your cooling-off period.” 

 

Mr. Sande said he was in agreement, and said fees and costs should not be assessed against a person on an ex parte basis.  It was Mr. Sande’s opinion that a mandatory hearing is a good idea. 

 

Senator James said, on top of everything else, A.B. 370 does not provide for a bond, and there is no liability either.  The employer is completely immune for seeking an order for protection against harassment and there is no good-faith requirement.  Mr. Sande said it could be added to the bill.  He noted any employer who wanted to take advantage of a law to protect an employee would be willing to assume that obligation if it turned out it was improperly granted and there was no evidence that the employer would be responsible for the attorney fees of the victim. 

 

Senator James said:

 

Please understand the spirit of my comments.  We are not drafting this for most of your clients, probably not any of them, and we are not drafting it for the obvious case where someone is going to come back and commit a murder.  We are drafting it to apply to everything.  It applies to situations in which people could improperly use it, and we are trying to prevent that from happening.

 

Mr. Sertic interjected section 17 of A.B. 370 imposes a good-faith requirement for seeking and obtaining the order.  He said:

 

It does not apply in not seeking one, and what we were trying to avoid there is adding a claim for relief that third parties, or employees, could assert against employers for not seeking the injunction.  We wanted to leave the law where it lies now; but certainly if an employer sought one in bad faith, they would be subject to liability, and properly so.

 

Debra S. Jacobson, Lobbyist, Southwest Gas Corporation, expressed support for A.B. 370.  She pointed out Southwest Gas Corporation operates in three states:  California, Arizona, and Nevada.  Ms. Jacobson said the law is available and Southwest Gas has taken advantage of it in California.  She indicated a situation arose in Arizona where the same remedy is not available; therefore, she worked on the legislation during the last legislative session in Arizona.  Ms. Jacobson mentioned an experience in Nevada last year that rose to the level of harassment, and there was nothing that could be done.  She said, in that situation, the employees requested the employer obtain a protective order to protect them at work.  The employees were only harassed at work.  Ms. Jacobson noted, the employee who was involved in a domestic dispute obtained her own protective order, which is completely different than A.B. 370.  Consequently, the perpetrator began harassing entire departments at work and the company was unable to take any action.  She indicated Southwest Gas Corporation would like to be able to use this tool, should employees request it, to protect them from harassment at work. 

 

Senator James asked, “Why did you not get a TRO?”  Ms. Jacobson answered some employees did not want to do it, and others tried but were denied because they did not have standing.  She explained the employees were only harassed at work because the perpetrator did not have their home addresses.  Senator James inquired why the employer did not obtain the TRO.  Ms. Jacobson said the company tried but was unable to obtain a TRO; however, other things were done to stop the harassment.  She pointed out the company was concerned the harassment would escalate to violence.  It began with telephone calls and escalated as the weeks went on, eventually spreading to other departments, corporate officers, and even the chief executive officer (CEO).  Ms. Jacobson stated, according to the corporate attorneys, nothing else could be done.  

 

Susan L. Reeder, Lobbyist, Sierra Pacific Power Company, expressed support for S.B. 370.  She indicated many steps are taken to ensure Sierra Pacific Power Company’s employees have a safe working environment.  Ms. Reeder said the legislation would provide an additional tool to help protect employees. 

 

Kami L. Dempsey, Lobbyist, Las Vegas Chamber of Commerce, indicated there are many concerns, issues, and problems with the legislation; however, in concept, she supports A.B. 370.  She said the Las Vegas Chamber of Commerce constantly strives to provide a healthy and happy environment for its employees.  She stated one of the keys to retaining good employees is ensuring there are no problems.  Ms. Dempsey pointed out violence is growing more each day in the workplace, and in people’s lives.  Employers becoming involved and helping out is a necessary step to making the work environment positive for employees, she remarked.

 

Mary Lau, Lobbyist, Retail Association of Nevada, expressed full support for A.B. 370.  She indicated she was originally concerned about liability.  She related two personal experiences.  The first experience concerned an employee who was working for a casino and specifically asked Ms. Lau not to intervene when her (the employee’s) husband began appearing at the casino and causing trouble.  Ms. Lau said she ignored the request and had the person “eighty-sixed,” which caused the employee to suffer a broken arm in retribution for the perpetrator being thrown off the property.  The second experience happened in regard to her private-investigation firm.  Ms. Lau thought she had hired a single woman only to discover the woman’s husband had been released from jail and began threatening her immediately.  She said the manager asked the husband to leave the premises, but found the business had no standing and, as an employer, nothing could be done.  The employee called an attorney which precipitated threatening telephone calls targeted at her and her two children.  Ms. Lau said, unfortunately for the harasser, the woman was dating a police officer who encouraged the husband to leave her residence and the employer’s premise alone.  In conclusion, Ms. Lau expressed support for the legislation.

 

Senator James noted, should the employee suffer domestic violence, there is nothing preventing an employer from paying for counsel to address the standing issue.  He said, certainly, the person who is the subject of harassment has standing under existing laws.  If it is a matter of resources, the employer can fund litigation.

 

Nancy E. Hart, Deputy Attorney General, Civil Division, Office of the Attorney General, said the attorney general’s office also supports A.B. 370 because it will enable employers to more easily protect their employees and customers from harassment.  Ms. Hart also conveyed the support of the Domestic Violence Prevention Council.  She agreed, and acknowledged, that A.B. 370 provides a new, easier, and expedited remedy for employers.  She stated it is an inroad that has not been made in Nevada law, especially for small employers.  Ms. Hart indicated there has been much discussion about how easily an employer can obtain an order; however, many small employers do not have the legal resources to hire lawyers, pay bonds, and go through the full process contemplated in obtaining a TRO.  She pointed out she supports the bill, particularly for smaller employers.  Given the attorney general’s office commitment to domestic violence prevention, Ms. Hart provided a few comments on how the orders against harassment could assist employers in addressing domestic violence and providing support to victims. 

 

Senator James remarked if it is domestic violence it would not apply to the workplace.  Ms. Hart agreed the victim could obtain an order on her/his own; however, A.B. 370 would enable an employer to obtain an order that would protect the workplace and the victim on its behalf.  Senator James pointed out domestic violence targets a specific person.  Ms. Hart, recalling Senator Care’s comments, said there are victims of domestic violence or harassment who do not personally seek the protection themselves because of their situation; however, an employer might nonetheless need to protect either the work environment, or choose to take action to protect the person.  Senator James said it seems, in most cases, the domestic-violence order protects everything, wherever the victim goes.  In response, Ms. Hart said harassment and violence occurring in a given relationship can impact other individuals.  She indicated many telephone calls directed against a domestic-violence victim can also impact the entire telephone system at a place of business.  A perpetrator entering the premise and causing trouble can affect the workplace environment, not just the domestic-violence victim, even though the harassment is intended for the victim. 

 

Senator James said he did not understand why domestic violence is considered with A.B. 370 because there is a domestic violence protection order with the specific types of things involved with domestic violence.  He stated A.B. 370 is something else.  He reiterated if a person does not have the resources to obtain a domestic violence protective order, there is nothing preventing the employer from obtaining it.  Ms. Hart agreed except to the extent the employer may have limited resources.  She said, under the provisions of A.B. 370, the employer would have easier ability to get such an order than to obtain a TRO and post a bond.  Senator James said the employer would have the ability to help the person obtain a domestic-violence order.  Ms. Hart agreed, and said the employer could give the employee time off from work and help them obtain an order should the employee be willing to do so.  Senator James added as well as pay for it.  Ms. Hart indicated there usually is no cost involved in obtaining an order for the victim. 

 

Further, Ms. Hart said the attorney general’s office has been involved in a corporate-citizenship initiative, which has been to work with private and public employers to discuss workplace issues, including domestic violence.  She pointed out this is one of the reasons her office is supportive, not just to the extent it impacts domestic-violence victims, but also because it is an important remedy for employers to be able to take expedited action with the current procedural safeguards in the bill through needing to have the order serve those kinds of things.  Ms. Hart said most of the language in the bill is taken from the TPO statute.  One of the provisions not taken was the provision regarding the distinction between a temporary and extended order, which may well address some of the concerns.  She noted, instead of having the order issued for a whole year, it could issue like a TPO for domestic violence for 30 days, at which point there would be a hearing and it could be extended for up to 1 year.  Ms. Hart suggested taking that provision from the existing one which would address the notice, and so forth.

 

Senator Titus inquired whether or not the definition of “annoyed” is standard where the bill says, “It would cause a reasonable person to be seriously alarmed or annoyed.”  She indicated she could understand “alarmed,” but said she became annoyed right here in the Legislative Building.  In answer, Ms. Hart said perhaps Mr. Sertic could answer the question because she was unaware from whence the particular clause, and definition, emanated. 

 

Mr. Sertic explained the definition and clause came from an Arizona statute.  He said, should there be concern about the breadth of “annoyed,” the sentence could be ended with a period after “alarmed.”  

 

John C. Morrow, Lobbyist, Washoe County Public Defender, indicated he had a concern regarding section 8, subsection 2 of A.B. 370, which, after the court has reviewed the verified complaint and decided it was ambiguous or needed questions answered before granting the order, the court may order both the employer and the person to be restrained before the court.  Mr. Morrow said he had a real problem with that because when a person is ordered before the court, he/she is generally not represented and may face many possible criminal charges because of what is alleged.  He noted a “laundry list” of charges, including stalking, the new assault that looks as if it might pass, battery, destruction of property, and any number of things that could be charged criminally because of the conduct.  Mr. Morrow pointed out a person could be placed in a situation where, although they are not under arrest and Miranda warnings are not required, they are likely to do serious injury to their own criminal case when it comes up later.  He said, if that were the only concern, it could be resolved by saying the person may be invited to come, or if they give testimony, they are immune from any further prosecution.  However, Mr. Morrow said there are ways to fix that.  

 

After listening to testimony in regard to the spillover between domestic violence and this particular piece of legislation, Mr. Morrow said we need to ask ourselves, “Where will employers be if A.B. 370 is not processed?  Will the employer lose anything?”  He stated the employer can still take a person who they perceive to be a threat to their business, employees, or anything else, and order them out of the business, give them notice they are trespassing if they return, and if they do not acknowledge that, or return, the employer has the full force of law enforcement behind him/her at that point.  Mr. Morrow indicated all it takes is a “911” call saying, “This person has been “86’d” from my establishment, he/she is back, please come collect him/her with your guns, handcuffs, and police car, and take him/her to jail.” 

 

Senator James commented, if it is a commercial dispute, a boycott, or anything like that, there are 12 decades of law regarding what is constitutionally allowed, what the procedures are, how those situations are dealt with, preliminary injunctions, and TROs to settle the issue.  He said if it is domestic violence and an employee is the subject of it, and they are not aware of their right to obtain a domestic violence protection order, then the employer can assist them with it, provide counsel, pay for it, none of which costs any more for the employer than to obtain an order, which is the exact same order.  Mr. Morrow commented the result is probably the same.

 

Further, Mr. Morrow said, in his experience with domestic-violence orders, if there is an employment situation involved, the person seeking the protective order against domestic violence can have the perpetrator restrained 100 feet from the workplace, or whatever the judge deems appropriate. 

 

Senator Wiener observed, as economies shift, there may be a concern with people who might seek retribution against an employee who replaced them, or fired them.  She indicated she was referring to terminated employees who lose control.

 

In response, Mr. Morrow agreed it was a concern, and said the newspapers regale us everyday of exactly those types of situations.  He was unsure whether or not a restraining order would do anything to protect the workplace from a disgruntled employee who feels compelled to “shoot the place up.” 

 

Senator James reflected the only way to handle that situation would be to obtain an order at the same time a “pink slip” is given.  He said those are tragic situations that somehow must be dealt with; however, he was unsure whether prescriptive measures are the way to accomplish it. 

 

Senator James closed the hearing on A.B. 370.

 

There being no further business to come before the committee, Senator James adjourned the hearing at 10:56 a.m. 

 

RESPECTFULLY SUBMITTED:

 

 

 

Barbara Moss,

Committee Secretary

 

 

APPROVED BY:

 

 

 

                       

Senator Mark A. James, Chairman

 

 

DATE: