MINUTES OF THE
SENATE Committee on Judiciary
Seventy-First Session
May 16, 2001
The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:30 a.m., on Wednesday, May 16, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator Jon C. Porter, Vice Chairman
Senator Mike McGinness
Senator Maurice Washington
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Assemblyman Wendell P. Williams, Clark County Assembly District No. 6
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:
George Wm. Treat Flint, Lobbyist, Chapel of the Bells
Margaret G. Flint, Lobbyist
Allen Lichtenstein, Lobbyist, American Civil Liberties Union of Nevada
Amy Harvey, Clerk, Washoe County
Brigitte Kroul, Washoe County Clerk’s Office
Marietta Draeger, Washoe County Clerk’s Office
Lucille Lusk, Lobbyist, Nevada Concerned Citizens
Barbara Reed, Clerk/Treasurer, Douglas County
Reverend Dr. Jane Foraker-Thompson, Concerned Citizen
Gemma Greene Waldron, Lobbyist, Washoe County District Attorney’s Office
Nancy E. Hart, Deputy Attorney General, Civil Division, Office of the Attorney General
John C. Morrow, Lobbyist, Chief Deputy, Washoe County Public Defender
Noel Fischer, Legislative Intern to Assemblyman Wendell P. Williams, Clark County Assembly District No. 6
Kimberly Maxon Rushton, Legislative Liaison, Office of the Attorney General
Stan Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department, and Nevada Sheriffs and Chiefs Association
William Bowen, Area Commander, Reno Police Department
Michael E. Cleveland, Lobbyist, Reno Police Protective Association
Chairman James opened the hearing on Assembly Bill (A.B.) 254.
ASSEMBLY BILL 254: Makes various changes to provisions governing marriage. (BDR 11-95)
George Wm. Treat Flint, Lobbyist, Chapel of the Bells, indicated Assemblyman Mark A. Manendo, Clark County Assembly District No. 18, asked him to thank Senator James for allowing him to come forward with A.B. 254, as well as his willingness to hear it in committee. He said, personally, the bill is a milestone, and explained this was his twentieth session to represent, at one level or another, the marriage industry in Nevada. Mr. Flint pointed out the year the now retired United States Senator Paul Laxalt was freshman governor in Nevada, he made a statement that, perhaps, Nevada needed a blood test as a prerequisite for being married. He said that motivated him to put together the first comprehensive study that had ever been done on what the marriage industry represents to the Nevada economy. At that time, with help from the Legislative Counsel Bureau (LCB) and his staff, Mr. Flint said they put together what, probably, was less than a perfect study. He explained they took all available figures spanning from the chambers of commerce to the Nevada Department of Transportation, and came up with the conclusion that close to 15 percent of Nevada’s tourist economy is tied to couples who come to the state, and the mass numbers of visitors they bring with them. Mr. Flint indicated, during the late 1960s, 1970s, and into the 1980s, representatives from the marriage industry worked on legislation before both the Senate Committee on Judiciary and the Assembly Committee on Judiciary; however, he noted, there has been no reason to come before the Legislature for a period of 10 to 12 years. He said that is probably the reason current Legislators have never been confronted with any direct dialogue with the wedding industry.
Continuing, Mr. Flint submitted a handout entitled “Betcha Didn’t Know” (Exhibit C), which points out that more 115,000 marriage licenses are issued in Clark County each year, and he surmised, the number rose to 126,000 last year. Mr. Flint said northern Nevada has taken quite a “hit” in the last 20 years, but this year approximately 160,000 couples will come to Nevada to be married, in fact, 30 percent of all California weddings take place in Nevada. He pointed out the 300,000 people who come to Nevada this year will bring approximately 3 million guests with them. Mr. Flint maintained those people and their guests probably spend more than 3.7 nights while in Nevada (as stated in Exhibit C), and spend more than the average gaming amount of $500 each trip. He pointed out, in a quiet kind of way, the marriage industry in Nevada is a big foundation to the entire tourist economy.
Further, Mr. Flint submitted a packet of information (Exhibit D) which explains and supports A.B. 254. He said the amended version of A.B. 254 addresses two basic things. Referring to page 2 of Exhibit D, Mr. Flint indicated A.B. 254, as amended: (1) Allows couples already married the privilege of purchasing a Nevada marriage license, if so desired, when renewing their wedding vows; and (2) Allows long-married couples, who lack sufficient documentation, to prove their marital status. It also allows them the opportunity to purchase a marriage license and be married with the documentation needed for such purposes as Social Security, pension applications, and so forth. Mr. Flint said the remainder of the bill would simplify the procedures for clergy in their application process for permission for marriages.
Mr. Flint indicated the genesis of A.B. 254 was to address a problem that began to exist a few years ago in Washoe County, and spread to Clark County about 2 years ago. He said district attorneys in the two counties suggested, because of existing language in section 4 of A.B. 254, that already married couples were prohibited from buying another marriage license. Mr. Flint said it is ironic that the other 15 counties in the state allow it. He noted people who run wedding chapels in Clark County and Washoe County must send couples to Douglas County or Carson City to purchase another marriage license. He said many couples wish to have the documentation, not just a certificate, demonstrating they went through a secondary, or vow renewal, ceremony.
Additionally, after the bill draft request (BDR) was accomplished with Assemblyman Manendo, Mr. Flint said Allen Lichtenstein, Lobbyist, American Civil Liberties Union, contacted Assemblyman Manendo and inquired whether the BDR could be expanded to the area covered in “paragraph 2.”
In addition to the two items that were put into A.B. 254, Mr. Flint suggested adding a third, which created quite a controversy. His suggestion would allow wedding chapels to become a licensing arm of the county clerk’s office in issuing marriage licenses. Mr. Flint said, “I touched a lot of nerves with that. It was something that has been on my mind for a long time but I never really thought the time was right to do it.” However, the suggested item was omitted from the bill. Mr. Flint indicated he made that point in the event the committee members had received negative correspondence and calls relating to it.
Referring to pages 4 and 5 of Exhibit D, Mr. Flint said:
In exchange for removing the item from A.B. 254, Alan Glover, Carson City Clerk/Recorder, Barbara Reed, Douglas County Clerk/Treasurer, as well as Shirley Parraguirre, Clark County Clerk, agreed with one amendment that was added to the bill, that they would support an informal interim study between the industry and wedding chapels, without any promises to work toward legislation to be brought before the Legislature in 2003 that might accomplish the goal.
Although the suggestion has been removed from the bill and is not part of the committee’s consideration, Mr. Flint said he wanted to briefly allude to it in order to expunge any negativity received by the bill.
Referring to page 7 and 8 of Exhibit D, Mr. Flint declared, the Church of Jesus Christ of Latter-Day Saints (LDS) was in favor of A.B. 254. He noted William H. Stoddard, Chairman of the Las Vegas Multistake Public Affairs Council, endorsed the bill with a change or two, which was accomplished in the Assembly. Mr. Flint pointed out he had several conversations with V. Robert Payant, Lobbyist, Catholic Legislative Liaison, and could safely say the Catholic church is comfortable with A.B. 254 as well. From that perspective, Mr. Flint said two of the largest religious groups in Nevada are comfortable with the bill in its amended form.
Senator McGinness inquired whether or not there have been any other instances in state government where private entities were allowed to issue licenses or permits, and whether there was an existing precedent. In response, Mr. Flint said the most obvious one would be the fact that a person can purchase a hunting license in a sporting-goods store, the “7-Eleven,” and a service station. He pointed out California allows the sale of marriage licenses in wedding chapels at the Lake Tahoe area and throughout the state. While working on the concept, Mr. Flint discovered one county in Nevada where this already occurs. He pointed out Humboldt County has an establishment called the “Winnemucca Florist and Wedding Chapel,” and for some period of time the county clerk allowed it to issue licenses on weekends. The chapel effectively became the county clerk’s licensing agent and, Mr. Flint said, he had been told it had been successful. Therefore, he declared, there are some established precedents, both in and out of state, where the concept has some viability. Mr. Flint stated he believes the industry could do a good job with the process and could save as much as $1 million a year for Clark County. He noted, however, the concept did not have widespread support at this point, and some of the wedding chapels are not completely comfortable with the responsibility factor.
Senator Porter pointed out in past legislative sessions there had been legislation regarding chapels in Lake Tahoe, and asked whether it was for Washoe County. Mr. Flint answered a few legislative sessions ago the Legislature allowed a second marriage license bureau in every county in the state. The legislative proposal was brought forward in 1967 by, then-Assemblyman Jacobson, but the bill languished and was passed a few years ago. He pointed out the legislation passed principally to provide Barbara Reed, representing Douglas County, a better opportunity to compete with California chapels by having a license bureau at Lake Tahoe. Mr. Flint declared, in addition, several legislative sessions ago, Senator Porter and he worked together on legislation for a third marriage license bureau for the rural town of Mesquite. Senator Porter pointed out the legislation included Laughlin, Mesquite, and the Las Vegas Valley.
Margaret Flint, Lobbyist, indicated her family has owned and operated the Chapel of the Bells in Reno for 48 years. She noted there has been an increasing number of clients who, for various reasons, such as having been married in a foreign country, or in the Ozarks at a little family church, have no legal documentation of their marriage. These couples need legal documentation of their marriage for many reasons, including adoptions, home loans, retirement, Social Security, pension status, and immigration. Ms. Flint pointed out she is faced with a dilemma when couples request this documentation, and can only suggest three options. One, send them to Carson City where they can obtain a marriage license. Two, send them to Lake Tahoe in Douglas County. Three, suggest when they go to the marriage license bureau, they do not offer the information to the clerk, which would not be good business for her.
Continuing, Ms. Flint said, should she send couples to Carson City or Lake Tahoe, her chances of seeing them again as a business person are slim or none. They will not be back. Therefore, she pointed out, it not only costs revenue to her business, but by not issuing marriage licenses, it also costs the county revenue, as well as the Committee to Aid Abused Women, who receive $15 from every marriage license that is issued. Ms. Flint said, reality is, A.B. 254 is a matter of good business.
Allen Lichtenstein, Lobbyist, American Civil Liberties Union (ACLU), indicated A.B. 254 has two parts, one dealing with wedding chapels and renewal of vows, which is not the part he would address. He pointed out the ACLU is concerned with the other part which deals with the authorization of clergy to perform marriages. He said currently the law allows it, which is consistent with other states. Mr. Lichtenstein noted A.B. 254 would change the law insofar as the criteria used and the manner in which the process would be undertaken to authorize members of the clergy to perform marriages. He said the present system more reflects nineteenth century thinking than twenty-first century thinking, and is at odds with the rest of the states. Mr. Lichtenstein explained the government, through county clerks, is authorized to check into how many meetings a religious organization has, what its real purpose is, and performs background checks which include sending members of the clergy to the police for fingerprinting, before they are authorized to perform marriages. He said the ACLU is involved because of church/state involvement that seems to go beyond what is permissible.
Continuing, Mr. Lichtenstein said he worked with Assemblyman Manendo in an attempt to streamline the process and put Nevada into the mainstream of 49 other states in terms of the process. He pointed out ministers and/or representatives of religious societies would still have to be authorized and obtain official sanction before any marriage they perform would be valid, however, background checks and fingerprinting would not be required. He said the government would essentially accept the Affidavit of Authority to Solemnize Marriages (Affidavit) on page 5 of A.B. 254, which states the organization, the meeting place, and the person has been authorized by the organization to perform marriages. Mr. Lichtenstein indicated the Affidavit would be required to be renewed periodically to update the records. If an individual is no longer authorized by the organization, the Affidavit would state it, and authorization would be revoked. He noted the procedure is not particularly complicated and seems to work well, in one form or another, everywhere else in the country.
Further, Mr. Lichtenstein indicated certain objections had been raised periodically, most of them anecdotal, regarding the notion that a minister might be a child molester. He maintained neither the current system nor what is proposed in A.B. 254 would prevent that, and said if someone is going to commit a crime they are going to commit a crime. Mr. Lichtenstein pointed out even a background check for performing marriages will not take into consideration Sunday-school teachers, or anything like that. He reflected whether or not a background check has been done on the person who performs a marriage ceremony has nothing to do with the success or failure of a marriage. He said, clearly, there are areas in which the government must become involved in order to protect the public. However, the current legislation does not protect the public, on the contrary, it is a control issue where, in nineteenth century thinking, the government is in the business of determining who is a real minister, and who is not, and which is a “real religion,” and which is not. Mr. Lichtenstein declared, clearly, “we” have come a long way from that point. He said it is ironic that the followers of the LDS church, of which there is a heavy concentration in Nevada, moved west to avoid government involvement. He noted this is a remnant of that particular kind of thinking. He said, clearly, without a particular problem in terms of the limited area of performance of marriages, sending ministers to the police to be fingerprinted is an absurd idea and one the state would be well rid of. Mr. Lichtenstein pointed out A.B. 254 would streamline the process to eliminate those abuses, while still having a record of who is able to perform, and not perform, marriages.
Senator James commented couples have their own reasons for choosing who they wish to marry them. Although he agreed with Mr. Lichtenstein’s reasoning, Senator James wondered about counseling and advice that is usually given by a minister prior to marriage. He pointed out some religions offer a formal class that can be taken before marriage. In response, Mr. Lichtenstein agreed many religions do offer counseling; however, he pointed out, it is a matter to be considered by the religious group itself. He emphasized it is not a government requirement. Senator James commented the government does not become involved unless there is fraud, in which case, it would be covered by a different statute. Mr. Lichtenstein noted even if there should be fraud relating to the Affidavit, under state law, if an authorized person marries a couple, they are legally married.
Senator McGinness indicated he just received a response over the Internet that said: “Senator McGinness, the difference between licensing of hunting, fishing, and driver’s licenses, is that those licenses are not made a permanent and public record.” Therefore, the senator said people are listening and ideas are “floating around” out there. He commented, “We probably will not look at it this session, but for next session.”
Senator Care observed Mr. Lichtenstein raised a profound legal issue, which is, at what point does state or federal government have any business inquiring into whether a church is, in fact, a church. He pointed out the Internal Revenue Service (IRS) will do it for tax purposes. The senator asked what the parameters are that determine what is church business and what is government business, as opposed to a legitimate interest by the state. He queried, “Where would you draw that line?”
Responding, Mr. Lichtenstein gave two examples. He pointed out it is not the function of the IRS to regulate religious activity; it is there to collect taxes and determine where an organization fits under the rules. Mr. Lichtenstein maintained zoning is another example. He said all land is zoned; it is a land-use issue, and an issue that deals with things other than the religious act itself. Therefore, what constitutes a church for zoning purposes may be different than what constitutes the church for IRS purposes. The issue is what is the government’s interest and what is the government trying to do in making that particular determination. He remarked again, for IRS purposes, every organization has to be evaluated in terms of where it fits in with the IRS because the IRS applies to everybody. For zoning purposes, it is the same thing. In regard to A.B. 254, Mr. Lichtenstein said, without any discernable major problem in terms of who is performing a marriage, and who is not performing a marriage, the threshold of government involvement is going to be much higher. Therefore, it depends upon the governmental purpose in terms of how it tries to make an evaluation. He said under circumstances in which an evaluation has to be made, under a generally applicable law, it must be done. In the absence of that, and in the absence of a clear governmental interest, if there is an organization that is meeting in a particular place, how often they meet, and what they do when they meet, is in no way relevant to the issue of performing marriages.
Senator Care broached the extreme scenario of five people forming the “Church of the Heavenly Cactus” on Saturday, and, on Sunday, going into the hills, exchanging vows, and being married. However, he said ultimately the couple must still obtain a legal document, a marriage certificate, which will provide them a legal union. Answering, Mr. Lichtenstein said it is a little more complicated than that. He pointed out if five people decide to form a religious organization, before the minister from that organization can perform a legally binding marriage, the organization would have to register using the Affidavit. In the absence of fraud, if five people decide to form that church, it would be considered a church. However, only after the person is authorized could he/she perform a legal marriage.
Senator Wiener expressed concern about the language regarding issuing a marriage license to a legally married couple who intend to renew their vows of marriage. She pondered whether issuing a marriage license to people who are already married would somehow establish a presumption that the marriage, up to that point, was lacking validity. The senator questioned the merit of having a marriage license for renewal of vows.
Interjecting, Mr. Flint said he discussed the issue at length with Brenda J. Erdoes, Legislative Counsel, Legal Division, Legislative Counsel Bureau, and she was comfortable with A.B. 254. He said he and his wife renewed their marriage vows after 15 years and their attorney informed them it had no effect on the first marriage. The renewal did not change property rights, and so forth. It was a matter of record that they went through a second wedding; however, it did not circumvent or change anything associated with what was created with the original marriage license. Mr. Flint indicated there are people who come to the Chapel of the Bells on their fifth, tenth, silver, and thirty-fifth wedding anniversaries. He pointed out there are people who like to renew their vows and have it on the record.
In addition, Mr. Flint said there are people who need legal documentation of marriage because of courthouses burning down or religious ceremonies in foreign countries that never had civil documentation. He said this has been done in 15 states for many years. Mr. Flint said the language of A.B. 254 came from the LCB.
Senator Wiener suggested perhaps the document be entitled a “renewal certificate,” rather than a “marriage certificate.” Mr. Flint indicated, although that suggestion had been discussed, nobody felt it was necessary. He explained many people are not just renewing their vows. He said there have been cases in which couples have married and then the bride found out she used her stepfather’s name because she did not know he was the stepfather; therefore, there was a flaw on the legality. When she discovered her real maiden name, she wished to be married under the proper name in order that 25 or 50 years later, when she applies for Social Security, there would be no question whether or not she was married under an inappropriate name. Mr. Flint said a myriad of different circumstances are juggled. He pointed out the original legislative intent of the existing language in the bill was to discourage bigamy, because the state did not want people who were already married to get remarried. He said, “We are trying to clarify what was the legislative intent that certain assistant district attorneys have ruled along the way is a prohibition from being able to take proper care of our customers.”
Senator Care expressed understanding for the intent of A.B. 254, but was bothered by the notion of the state issuing a certificate that somehow corrects an error, or ratifies a marriage of 15 years ago for which there is no record. He said it raises some interesting issues. The senator pointed out drafting a second will usually revokes the first. He said, obviously, a couple would not have to divorce twice should they decide to dissolve their union after renewing their vows. Senator Care said he understood the reasons a couple would want to have a renewal certificate to hang on the wall, however, he had a problem with a marriage license. He gave an example of a couple who were married in Yugoslavia before it was torn apart by civil war, and they had a child, but there was no record of the marriage. Consequently, the child is either legitimate or illegitimate. Senator Care commented renewing their vows and obtaining a state-approved certificate would not make the child legitimate if he/she was not legitimate in the first place.
Responding, Mr. Lichtenstein explained this procedure would not require a second divorce; but, in cases where the marital status might be unclear, or become unclear in the future, A.B. 254 would clarify it. He said it may not work retroactively, but would certainly work prospectively. For example, for Social Security purposes, if there was a question regarding the first marriage, there would be protection of the record from the second event and the coverage would go back at least to that point. Mr. Lichtenstein said it is not a panacea for all problems concerning questionable legality of initial marriages, but prospectively it works quite well.
Mr. Flint said many couples are sent by their attorney to be married again because one or the other’s divorce was not final when the first ceremony was performed. He emphasized he dealt with those types of things regularly.
Amy Harvey, Clerk, Washoe County, submitted a packet of information (Exhibit E) in regard to A.B. 254. She indicated she supports portions of A.B. 254, but opposes others. In regard to Senator McGinness’ comments, she pointed out hunting and fishing licenses are not a permanent part of the record and are renewed every year. Ms. Harvey stated she is opposed to a renewal‑of‑vows license because it conveys an attempt to somehow validate something that was wrong. She added a license to renew vows is an attempt to validate a marriage, and A.B. 254 further substantiates it. She noted it also causes problems with record keeping in the future. Ms. Harvey said some people use the clerk’s facilities to research their ancestry and determine a sequence of events. A person is born, marries, divorces, sometimes remarries the same person, and the records would become convoluted should a renewal of vows be added, making it difficult to follow a trail. She said she preferred to call it a renewal-of-vows “certificate,” rather than a “license.” Ms. Harvey pointed out her main concern, should a renewal-of-vows certificate be recorded, that a further problem would be caused by making it some sort of legal document which has legal ramifications. Based on discussions with the Washoe County assistant district attorney, she affirmed there are serious concerns regarding this issue.
On the other hand, Ms. Harvey said she supports the renewal of ministers. It was her understanding that the proposed language said every 5 years, but she suggested every 3 years would be more appropriate. She said she discussed it with the Clark County clerk, who also felt 3 years would be better. She noted, due to the high transient population in Nevada, 3 years would keep the database more current. Ms. Harvey said she further supports the change suggested by Mr. Stoddard of the LDS Church, to provide 30 days, rather than 15, to fulfill any reporting requirements on changes of status with the clerk’s office. She declared it totally appropriate.
Concluding, Ms. Harvey introduced two colleagues from the Washoe County Clerk’s staff office: Brigitte Kroul, with 16 years’ experience in licensing ministers; and Marietta Draeger, from the marriage division, who has over 16 years’ experience dealing with couples and issuing licenses. She indicated they would give a brief outline of their positions and provide the committee with suggestions.
Brigitte Kroul, Washoe County Clerk’s Office, expressed concern in regard to proposed changes in the licensing of ministers. She said the present statute requires a person to be a licensed or ordained minister, to submit an application that must include their Social Security number, and there may be (not shall be) an investigation by the district attorney’s office or the sheriff’s department. Ms. Kroul pointed out previous testimony mentioned meetings and how many meetings, and said that has never been the case in Washoe County. When Washoe County has a new minister with a new church, the names of the congregation are requested, and the Washoe County district attorney’s investigative division sends a form letter which asks, “Are you a member of this congregation, yes or no?” No further personal questions are asked and they are requested to return their response to the district attorney’s office. The district attorney’s office then makes a final determination whether or not a congregation is deemed of sufficient size to warrant licensing the minister. Ms. Kroul noted the minister is sent to the sheriff’s department for the fingerprint investigation, and emphasized, it is not “you must,” it is “you may.” She said the Washoe County Clerk’s Office has chosen to follow that procedure.
Continuing, Ms. Kroul said the other requirement in A.B. 254 says the county clerk must be satisfied that the applicant has not been released from prison or confinement within 10 years before the date of the application, and has not had a previous license revoked or cancelled. In her experience, Ms. Kroul said there had been incidences in which a person had a prior criminal history and the 10 years had elapsed. In some cases, it was a foolish thing they had done when they were younger, at age 18 or 19, and the time frame had not yet elapsed. In that event, she said they just waited until the 10 years had expired since their release or parole, and the license was then issued.
Further, Ms. Kroul indicated there have been minor changes to the statute through the years concerning ex-felons or chaplains. The big item was in 1997 when the federal welfare reform act was added which then required Social Security numbers to be added to anyone requiring a professional license. She said the license to perform marriages was included in that act. The Social Security number acted as the main reason the background investigation could be done. Ms. Kroul noted the present proposal indicates the Social Security number should still be included, but it obviously serves no purpose should there be no background investigation. She stated 26 of the other 49 states specify that a person solemnizing marriages must be a licensed or ordained minister. Ms. Kroul pointed out the bill mentions religious societies and organizations and said it is not a problem in Washoe County. She mentioned Jehovah’s Witnesses, Quakers, and others, are not a problem. For instance, when Jehovah’s Witnesses have their meeting to decide who will be their leader for that particular congregation, they record it in a book, it is brought to the clerk’s office, and there is no further investigation. Ms. Kroul maintained the clerk’s office does not attempt to pry into any organization’s personal affairs, it just issues a license for them to perform marriages.
Continuing, Ms. Kroul said, unfortunately, there have been experiences in the past even with all the safeguards in place. She said ministers have been accused, convicted, and sentenced for lewdness with minors and sexual assault. She noted one man was under investigation by the attorney general’s office security fraud division. Ms. Kroul said it does happen and expressed hope that liberalizing this section of A.B. 254 would not incur any more. However, she said her main concern is, should all the safeguards presently in place be eliminated, then anyone who wishes to have authorization to perform marriages can come to the county clerk’s office, request it, and it must be issued. Ms. Kroul opined that it is a problem. She asked whether or not the committee and the state have an obligation to protect, not only its own citizens, but the tourists and visitors who come to the state of Nevada to be married by unscrupulous and unprincipled individuals who will use the liberalization of this law strictly for the purpose of making money, having wedding chapels, and so forth. Ms. Kroul said, it must be remembered, marriage records contain the public record of the personal information of the bride and groom, and their home address are on the marriage license.
Marietta Draeger, Washoe County Clerk’s Office, pointed out the portion regarding renewal of vows is contained in section 4 of A.B. 254 and proposes to modify Nevada Revised Statutes (NRS) 122.020. After discussions with staff and the assistant district attorney assigned to the clerk’s office, Ms. Draeger indicated there are concerns with a marriage license being issued to a legally married couple intending to renew their marriage vows. She said the renewal of marriage vows does not change the rights, duties, or obligations of a married couple to each other, nor does it change their legal status and, consequently, it should not be licensed and regulated. The ramifications of providing forms instituting additional record keeping measures to track renewal statistics and fiscal accounting for fees to satisfy internal and external audits, as well as additional staffing, which could possibly be required to provide this service, would far outweigh any potential revenue generated. Ms. Draeger said the clerk’s staff has researched the laws of other states and found that only New Jersey and Texas issue a license for the purpose of renewing marriage vows. She directed attention to charts, included in Exhibit E, which demonstrate the results of the research.
Further, Ms. Draeger said there are serious concerns regarding the verbiage used for issuing a marriage license for the renewal of vows. She said it would cause much confusion as to whether or not the couple was divorced and remarried and/or as to how many times they had been married. It could cause potential problems for a couple when they apply for Social Security benefits because the sequence of all marriages and divorces are checked before benefits are granted. Ms. Draeger said issuing a marriage license for the renewal-of-vows ceremony could make this more confusing. Statutory questions required for a marriage license would pose problems for a couple as to whether or not they had been married before, and how the marriage ended, since they are still currently married to one another.
Continuing, Ms. Draeger said another concern is a case in which a couple has no record of their marriage and now needs proof to substantiate it. She pointed out NRS 120.020 states that a marriage license may be issued to anyone not having a husband or wife living, and current law will not allow a marriage license to be issued to this couple. She broached another scenario of a couple whose family believes they were married, when, in fact, they were not, and the couple does not want their children to know. Should they purchase a license to renew their vows and have a renewal-of-vows ceremony, they will have saved face, so to speak, with their family, but allegedly accomplish the marriage by virtue of a renewal ceremony. Ms. Draeger said the above scenario is an attempt to show how some people would be able to manipulate or abuse the system, and it was her position that legislation to facilitate manipulation is inappropriate.
Ms. Draeger maintained the issuance of a license to a legally married couple should state a legally married male and female to provide consistency with NRS 122.020, which only permits marriage between a male and female. There are other jurisdictions or countries recognizing same-sex marriages and people are legally married in that jurisdiction or country. She asked, “Will the renewal-of-vows license open a can of worms by allowing a renewal-of-vows ceremony for a same-sex couple by providing an opportunity for the appearance of a legal marriage in the state of Nevada?” Ms. Draeger indicated the clerk’s office deems there would be no benefit to the citizens of Nevada by enacting legislation which merely imposes a regulation, a fee, and a process enabling manipulation and misrepresentation of the legality of marriage for no legitimate reason.
In conclusion, Ms. Draeger opined this portion of A.B. 254 should be deleted in its entirely by omitting section 4, lines 11 through 19.
Ms. Harvey pointed out Exhibit E provides research done by her staff which gives a comparison of what occurs throughout the country pertaining to renewal-of-vows licenses and the process used to license ministers.
Lucille Lusk, Lobbyist, Nevada Concerned Citizens, expressed support for A.B. 254, especially for cleaning up who can perform marriages for a church. She said she agreed with Mr. Lichtenstein that the background check and the requirement for a congregation serve no valid purpose as it relates to marriages, and it should be up to the religious organization. She pointed out part of the genesis of the bill is what happened in Clark County when the clerk, reading the law, felt a responsibility to go into the background checks. As she began the process of enforcing the invasive procedure, it generated a tremendous amount of concern among ministers and representatives of religious societies across the spectrum in the community. Ms. Lusk, referring to an earlier statement wherein religious societies are required to provide a list of members, stated it is a clearly invasive, problematic, constitutional question, and A.B. 254 would help clear it up. She expressed hope the committee would consider it.
Continuing, Ms. Lusk said the revisions in the timelines and the Affidavit of Authority to Solemnize Marriages would smooth out the process of authorization and termination of authorization concerning who can perform marriages. She said she had no problem with the renewal of wedding vows, and noted the vast majority of those who renew their wedding vows are simply affirming a good marriage. It is a memory maker and a romantic moment. Ms. Lusk indicated there is value in renewing marriage vows after many years of marriage, and she encouraged the committee to consider the issue and pass A.B. 254.
Barbara Reed, Clerk/Treasurer, Douglas County, expressed support for A.B. 254. She indicated Shirley Parraguirre originally asked for the 5-year renewal and the other clerks supported it. She said the bill was amended to include the 5-year renewal and it is located in section 8, subsection 2, of A.B. 254. However, after listening to testimony, Ms. Reed said she had a great deal of concern about the renewal of vows. She pointed out Douglas County, as well as 15 other counties, have always issued a renewal of vows for couples. Ms. Reed said if Washoe County passes the legislation and begins issuing marriage-renewal licenses, she was certain it would decrease Douglas County’s revenue because it gets many couples out of Washoe County and Carson City. She pointed out there is a section on the license that says “number of this marriage,” and, in that category, her office just types “renewal of vows,” to clarify the purpose of the license. Ms. Reed said couples come from all over the United States and the world, some couples travel to a different state each year on their anniversary because they want to have a marriage certificate from every state, and some couples come because of their concern about Social Security and want to be certain their marriage will be legally recorded in the United States. She pointed out she is concerned about being prohibited from performing renewal of vows. Ms. Reed indicated she has served the citizens of Douglas County for 28 years and never had a district attorney tell her she could not issue a renewal of vows. She expressed the belief that renewal of vows is a service that has been provided to couples and has helped rectify and clarify some possible problems that could arise in the future. Ms. Reed urged the committee to adopt the amendment submitted by the clerks.
Senator Wiener inquired whether or not some kind of evidence is provided which proves there is a valid marriage in place before issuing a renewal. Ms. Reed answered, “No.” She said the couple provides driver’s licenses with the same name, the same address, and sometimes they bring their children, or grandchildren, with them. Ms. Reed, in checking with counterparts across the United States, said she had not encountered anybody who was opposed to performing renewal of vows.
Reverend Dr. Jane Foraker-Thompson indicated she was speaking for herself and not for the Religious Alliance in Nevada (RAIN), of which she is a board member, or the Episcopal Dioceses, which she usually represents, because there has not been time for them to meet and discuss the bill. She said she spoke with her bishop, but there is no consensus at this point.
Continuing, Reverend Foraker-Thompson expressed opposition to A.B. 254. She declared it fatally flawed and asked the committee not to pass it. She said, although it is an area that needs work, there is wording in the bill that is good and addresses some problems in the old law, which is also flawed. The reverend pointed out the old law needs to be amended in certain areas that have already been mentioned. She noted the wording throws things wide open, confusing issues, and would open a ”Pandora’s box.” Reverend Foraker‑Thompson said she had performed marriages in several states, and Nevada is the first state in which she has lived and worked where a person must register by county in order to perform marriages if one is a legitimate minister of a legitimate religious organization. She opined it needs to be changed and commented, the fact it must be renewed yearly is strange. She said it is also the first state she had known where there is any official licensing of renewal of vows, and said she had never heard of such a thing. The reverend urged it be thrown out. She said people can renew their vows whenever they wish, and it is usually done in a church or with a minister whom people know and with whom they have a good relationship. It is usually done for sentimental reasons and the state should have nothing to do with it.
Continuing, Reverend Foraker-Thompson said a number of her colleagues who are mainline church members and ministers of mainline churches, would like to see a separation of the state and church in marriages, as is done in most countries around the world. They would like to see marriages performed by officials of the state or counties as designated, and churches see to the religious ceremonies. She said, as it is, ministers and priests of the churches are acting as agents of the state to certify a marriage. It has been going on for several hundreds of years, but that is not the way it began, and is not the way it should be done.
Senator James commented none of that is at issue in A.B. 254. In response, Reverend Foraker-Thompson said it is an issue because many people do not know how to think on this bill due to the fact it mixes apples with oranges. She said, for the long run, it is something that should be looked at because the whole area needs to be cleaned up and rethought. The reverend pointed out current wording throws it wide open. She noted the issue is what is a legitimate church or religious organization, and asked whether or not a county clerk has the right to make that decision. She expressed the opinion county clerks are not trained or adequately informed to decide whether or not a person who comes to them is legitimate. Reverend Foraker-Thompson gave an example of a priestess of the Wiccan religion, or somebody from the Satanists, as opposed to the more accepted mainline churches, as well as Christian, Jewish, Muslim, and so forth. She said licensing should be statewide rather than county by county, and should be for several years rather than one, and the state should not be involved with renewals. She pointed out there is a difference between secular marriage and religious marriage, and said most of the mainline churches require counseling before marriage to ensure people know what they are doing and they are not entering marriage lightly. The reverend said if they go before a judge or county “whatever,” that person can just simply marry them. They are two different animals. She reiterated A.B. 254 is flawed and needs to be sent back and reworked.
Senator James closed the hearing on A.B. 254 and opened the hearing on A.B. 417.
ASSEMBLY BILL 417: Revises provisions concerning admissibility of evidence in certain cases involving domestic violence. (BDR 4-1175)
Gemma Greene Waldron, Lobbyist, Washoe County District Attorney’s Office, and Nevada District Attorneys’ Association, indicated A.B. 417 was requested by the Nevada District Attorneys’ Association and Assemblywoman Sheila Leslie, Washoe County Assembly District No. 27, offered to bring the bill forward. She explained A.B. 417 is designed to fix a problem that was encountered in court. Under current law, battered-women syndrome has been allowed in court for some time and is available for a defendant to claim self-defense. Basically, a defendant charged with killing her husband can bring in the fact that she was the victim of domestic violence for several years, and it can be raised to see whether or not she is, in fact, culpable of the killing of her husband at some later date. However, Ms. Waldron said prosecutors now have available to them the crime of domestic battery as a felony, which requires them to go into court and face a jury. She said prosecutors have noticed that courts, because there is no express statement in the law, are reluctant and have disallowed prosecutors to bring in battered-women syndrome as an explanation for why victims recant their testimony on the stand. She indicated, more than likely, when they go into court, the victim minimizes and may even recant her statement that nothing happened. In that event, prosecutors are faced with a situation of having to impeach their own witness in order to get the case on in a domestic battery in a felony situation. Ms. Waldron said they have filed motions which have been denied thus far.
Further, Ms. Waldron pointed out it would be helpful to the state to be able to bring in an expert to explain the cycle of violence as if this were a defendant who was raising it as a defense. The expert would explain the cycle of violence to the jury to inform them why she is practically testifying like a defense witness when, in fact, she has been called by the state. Ms. Waldron indicated it is allowed in California, and the law has been patterned after California’s law. She said they (Nevada District Attorneys’ Association) would like to bring in an expert to explain the cycle of violence, and like the sexual assault arena, they are not asking that the expert make a statement as to the ultimate issue which is, did this woman get beaten in the case that is being tried. Ms. Waldron indicated they are not asking the expert to make the ultimate statement that they believe the victim when she says she got beat up in this case. Similarly, they do not allow for a sexual assault expert to say they believe the sexual assault victim is telling the truth. However, she said it certainly would be helpful for the expert to be able to explain the dynamics of domestic battery, what happens over time, and the reasons a victim would recant her statement before the jury, including financial reasons, or whatever the situation may be. Ms. Waldron said that is the purpose of A.B. 417.
Continuing, Ms. Waldron said she saw the bill in its original form on the Assembly side. She indicated she submitted amendments (Exhibit F) to A.B. 417 which are similar to the amendments that were presented on the Assembly side. She said somehow the first reprint still does not capture the intent, but simply restates the existing law. She noted currently the defendant can raise battered-women syndrome as a defense for a self-defense claim, or to say it was justified in killing the victim. However, the first reprint does not address the issue that was attempted to be addressed, which is to allow the state to call in an expert to explain why the victim is testifying the way she is in a domestic-battery situation.
Senator James asked whether or not there was an immediacy requirement. Ms. Waldron answered, “I believe so.” Senator James stated the bill does not say that. Ms. Waldron noted an attempt is not being made to change current law, just add something to it. Answering a question, Ms. Waldron said they want to bring in expert testimony to explain the cycle of violence. She stressed the expert would not be asked to give an opinion on the ultimate issue of the case. She said that is why the language is in the bill. Senator James inquired, “What other purpose would it be used for?” Ms. Waldron answered, “To explain why she is testifying the way she is.” The senator asked, “How is she testifying?” Ms. Waldron indicated the victim is put on the stand and the case proceeds based on her statement on the date of the crime, in which she said, “This defendant battered me.” Then she comes into court, and for whatever reason, be it financial, intimidation, or she is in love again and in the honeymoon phase, when she is put on the stand, she cannot recall whether or not she was hit, or she was hit but it really was not that bad, she deserved it, and if she only put dinner on the table at 5 o’clock, then she would not have been hit by him. Ms. Waldron pointed out this is not the kind of testimony a jury expects to hear from the victim of a crime. She noted you do not hear a storekeeper come to court and say, “If I had not unlocked my door the robber would not have come in and stolen from me.” However, Ms. Waldron said this is exactly the kind of testimony you get from a domestic-violence victim. Therefore, she said, “Those of us who are trained understand what is going on in the field. Those on the jury, who are brought in for the case with little or no experience or training in the dynamics of domestic violence, will not understand why the victim is minimizing the crime.”
Senator James pointed out it has nothing to do with A.B. 417. He explained the bill has to do with justification for having committed a crime because the person was under domestic violence. Ms. Waldron responded that is in paragraph one. Senator James said there is only one paragraph in the bill. Ms. Waldron said that is correct, but that is not the way the bill should have come out and it is totally against the testimony. Senator James indicated it came out of the Senate Committee on Judiciary in 1993. He said the question of whether or not a person can admit domestic violence, and the expert testimony to impeach your own witness, is a different issue. Ms. Waldron clarified it is not to impeach, it is to explain what is going on. Senator James said whether it is to impeach or explain, it is still admissible, and he did not think the language was needed to let it in. He asked whether or not a judge had said expert testimony could not be brought into court. In response, Ms. Waldron said more than one judge has ruled against it. She explained they have attempted to bring it in on felony domestic-battery cases, and because the law reads only like paragraph 1 of A.B. 417, they feel it is restricted to only a self-defense claim. She said that is not the reason the state is bringing it in, and would never be the reason the state would bring it in. Therefore, they are not allowing the state to bring in that evidence, Ms. Waldron remarked. Senator James said, “You know that is wrong, don’t you?” He said he had tried a lot of cases and should a witness say something contrary to what was said before, there is the ability to tell the judge the witness is hostile and anything can be brought in to show they are not testifying truthfully. Ms. Waldron said they do impeach the witness, but it still leaves the jury with quizzical looks on their faces wondering why the case is proceeding when the victim is not helping the situation. Senator James said the statute would not change that. He pointed out there still would be a quizzical look because the 56person would get up there and say it was not really that bad, he did not do it, or it was her fault. In that event, it would have to be brought in, which is totally admissible currently, and the fact it is in the statute would not change the jury’s mind, and a lot of finesse would have to be used in order to get them to understand. Ms. Waldron said, in that case, there is no appropriate person to explain that to the jury, except through expert testimony. She asked who would be there to explain that to the jury if the judge will not allow expert testimony. It has been demonstrated in California that it works, Ms. Waldron commented.
Assemblywoman Sheila Leslie, Washoe County Assembly District No. 27, indicated she supports A.B. 417 and apologized for it getting out of the Assembly the way it did. She said it should not have happened, but thought Ms. Waldron covered the points well.
Nancy E. Hart, Deputy Attorney General, Civil Division, Office of the Attorney General, submitted a letter to Senator James and members of the committee from herself (Exhibit G) explaining A.B. 417. She expressed support for A.B. 417, with the amendments provided by the Washoe County District Attorney’s Office. She explained the amendments (Exhibit F) came out of the Assembly in the reprinted form without section 2, but there was a section 2 in the original bill, which is the whole purpose of the bill. She said it was her understanding that the LCB placed it in this section because it was the only other section that pertained to domestic-violence evidence. Ms. Hart pointed out Senator James was correct, there are very different provisions between sections 1 and 2. She emphasized the dynamics of domestic violence are not well understood by juries and by judges, the information is not getting to juries, and they do not understand why victims are recanting. Ms. Hart reiterated she supports A.B. 417 and urged the committee to pass it.
John C. Morrow, Lobbyist, Chief Deputy, Washoe County Public Defender, pointed out the proposed amendment to A.B. 417 does nothing more than make a presumption that all recantations of testimony are false. Additionally, he said it allows the prosecution to throw the burden back on the defendant to disprove the expert testimony brought in to prove the recantation was false. Mr. Morrow indicated there are situations in domestic-violence cases where false reports are made and recanted under oath. He said this simply provides another tool to upset the balance that has long been in the system where the public defender can expect to rely on a valid recanting.
Senator Porter closed the hearing on A.B. 417 and opened the hearing on A.B. 500.
ASSEMBLY BILL 500: Directs Attorney General to conduct study of traffic stops by Nevada Highway Patrol and by law enforcement officers in certain counties. (BDR 23-386)
Noel Fischer, Legislative Intern for Assemblyman Wendell Williams, read from a prepared statement (Exhibit H) in support of A.B. 500.
Assemblyman Wendell P. Williams, Clark County Assembly District No. 6, expressed support for A.B. 500. He said the bill was chosen by his intern, Mr. Fischer, as his project for the 2001 Legislative Session, and he pointed out a great deal of research had been done on it. Assemblyman Williams said all entities, including the attorney general’s office and law enforcement, have been cooperative and worked collectively in putting the bill together. He indicated the legislation is designed to assist Nevada and would parallel what is done in other states on this issue. It is not intended to be punitive to law enforcement and will bring about a greater sense of trust among both the community and law enforcement. The assemblyman said the job performed by law-enforcement officers around the state must be respected and trusted, but, unfortunately, that is not the case in many communities. He said residents of many communities throughout the state tell their children what to do “when” they are stopped by the police, not “if” they are stopped by the police. Assemblyman Williams remarked people are not happy to have to tell their children that sort of thing, and it breeds distrust among many young people. He stated he would like to turn it around in Nevada. He said Nevada is “above the curve” in dealing with the issue. Assemblyman Williams pointed out he had found through his research that states are in an undesirable position when working with the issue, combined with the fact that there is a bill pending in Congress that would influence federal-highway funds should certain laws not be passed in reference to this issue.
Senator Wiener inquired whether or not Assemblyman Williams had seen the amendments to A.B. 500 proposed by the Reno Police Department. In answer, Assemblyman Williams said he had seen the amendments and spoken to the Las Vegas Metropolitan Police Department (METRO) as well, and was informed the amendments would help METRO. He noted the only suggestion he would make would be to change the words “similar or comparable” to “comparable.” The assemblyman said it was his intent to let the attorney general’s office carry out the bill and he did not wish to provide too many specifics. Assemblyman Williams affirmed, should the attorney general’s office be comfortable with A.B. 500, he would be comfortable as well.
Kimberly Maxon Rushton, Legislative Liaison, Office of the Attorney General, in response to Senator Wiener’s query, said she had not seen the amendments and was not prepared to address them. Ms. Rushton indicated she was present on behalf of Attorney General Del Papa to express support for A.B. 500. She said, with passage of the bill, it is hoped the public perception that racial profiling exists in the state of Nevada will be dispelled. Ms. Rushton indicated, in cooperation with law enforcement, the attorney general’s office anticipates gathering solid, comprehensive information in order that Nevada can move beyond the question of whether or not racial profiling exists, and move on to a solution should a problem exist in the state. She pointed out widespread racial-profiling practices severely undermine the legitimacy and effectiveness of the criminal-justice system, making police work more difficult and, at times, more dangerous. Ms. Rushton stated, by passing the proposed legislation, the community’s confidence in law enforcement, and the very valuable function it serves, would only be strengthened. Furthermore, it would provide protection against allegations of wrongful, racially based, discriminatory, and unprofessional conduct by local law enforcement.
Further, Ms. Rushton said it is imperative that Nevada acts now. She pointed out, as indicated by Assemblyman Williams on March 8, 2001, the federal House Resolution 965 was introduced whereby, if passed, it would require states to adopt and enforce standards that prohibit the use of racial profiling in the enforcement of state laws. She said failure to do so would result in the withholding of substantial federal apportionment for highway funds.
In conclusion, on behalf of the attorney general’s office, Ms. Rushton strongly urged the Senate Committee on Judiciary, as well as its Assembly colleagues, to pass this key piece of legislation, A.B. 500.
Senator Titus pointed out the bill says “peace officer,” and asked what other law-enforcement entities or individuals are included in the language. Ms. Rushton deferred to legislative counsel to answer the question because the wording could change, according to the post certification.
Bradley A. Wilkinson, Committee Counsel, Legislative Counsel Bureau, pointed out the bill would include anyone who has the powers of a police officer pursuant to Chapter 289 of NRS. Therefore, it would include campus police and others of that ilk. Senator Titus asked for a list of who is included in the bill. Answering, Mr. Wilkinson said, METRO, highway patrol, campus police, legislative police, capitol police, and the Department of Parole and Probation. He pointed out the list is lengthy and includes about 30 different types of peace officers.
Senator James lauded Assemblyman Williams on his efforts in regard to A.B. 500, which is a very important issue to the committee and the Legislature. The senator said if racial profiling occurs as described in the bill, it is reprehensible and something the Legislature should act upon. However, the senator said he found it somewhat incongruous that the bill came “flying out” of the Assembly to address an issue of racial profiling involving stopping people on a racial basis, which is wrong, and perhaps charging them with a crime or giving them a traffic citation on the basis of racial/ethnic profiling, which is also wrong. Yet, Senator James continued we have presented evidence to the Assembly and the Assembly Committee on Judiciary that there is racial profiling of the first order in the Nevada death penalty. He stated a black person is far more likely that a white person to receive the death penalty in Nevada. The senator said when A.B. 500 came “sailing over,” he thought it remarkable, when there is clear evidence there may be racial profiling, and the stakes involved are whether or not a person receives the death penalty, the Assembly could not come forth with a bill that would study that kind of racial profiling and, in the meantime, put a stop to killing anybody until there is a chance to peruse the subject. Senator James stated it is his intention to consider whatever testimony and amendments are offered to the fine piece of legislation brought forward by Assemblyman Williams, and offer his support; but, he noted, the result will be interesting should the Legislature sine die this session and a bill is passed that seriously studies racial profiling in regard to traffic stops, and yet turns a blind eye to the potential that exists for racial profiling in the death sentence. He said the people who dominate death row, even compared to the general prison population, are a far greater percentage of African-Americans than white or other ethnicity. Senator James entertained Assemblyman Williams’ comments.
Assemblyman Williams indicated Senator James broached an interesting comparison; however, he pointed out, the two degrees of the spectrum are not comparable. Assemblyman Williams said:
The result of what we have seen transpire throughout the nation when it comes to persons on death row, when we see what happens to persons in the criminal-justice system, period, when it comes to the breakdown of ethnicity, particularly when you look at the more recent use of deoxyribonucleic acid (DNA) evidence on death row, when it comes to the death penalty. Just based on those particular cases alone, where we have seen persons who were determined innocent based on DNA evidence, I, personally, think there should be a study of the situation, even to the point of a moratorium. I have always said that.
I think it is a “no brainer” to look at the population of persons of color, African-American, Hispanic, you name it, population wise, and those who end up in the criminal-justice system. No matter how many crimes a person commits, when you are less than 10 percent of the population and end up being 70 to 80 percent of those who are sitting in prison or on death row, it should be looked at. I was pleased to see that type of legislation coming over to us [the Assembly]. I still feel and hold that position. I think, as well, that A.B. 500 only leads to strengthening the belief that the most serious end of the spectrum, the one you mentioned, Mr. Chairman, should be looked at three-fold, just based upon A.B. 500. I think A.B. 500, as small a step as it is toward looking at the position you have expressed, is one that will, hopefully, some day get all our colleagues to that point.
Assemblyman Williams continued:
Unfortunately, in both houses, all of our colleagues are not to that point and I think we should be, and many of them are. But, as you know, I am not on that committee and have no control over it. I do welcome the opportunity, at this point, to go on record to state my personal feelings on that. I think many times many people have dilemmas based on a lot of different reasons, on their beliefs, whether they be personal beliefs, philosophical, or religious. I think, in this particular case, at least from what I hear from you, we share the same one. I think this particular bill allows us to look at the whole spectrum of this. I think the reason some people are sitting on death row, who should not be there, but there are many people who are sitting there who should be there. I think the fact that it is more justifiable in many people’s minds is because these kinds of daily incidences happen on the street that allows us to move to that point. I think the officers, in many cases, have too much leverage on determining, based on the way a person looks, the way he dresses, the way he lives, how he lives, or the type of car he drives, allows them to . . . many times conger up a number of charges that would allow people to get into the system that ends up on that long list of death-row inmates. I agree with you 100 percent.
In response, Senator James said justice in this country should not be a product of whether a person is poor, or black, or white, or any of those kinds of things. He stated the statue of justice is blind and is, perhaps, peaking in Nevada.
Assemblyman Williams indicated the amendment proposed by the Reno Police Department includes whether or not a person is a juvenile or an adult. He pointed out even in that case racial profiling takes place. He commented young people are judged by law-enforcement officers on how they dress, which is also wrong.
Senator James stated he is always interested in hearing the thoughts of the attorney general in terms of these kinds of things. He said, if he was attorney general, he would make certain people are punished for crimes, but he would also ensure they do not get into a situation of being punished by virtue of some criteria that should not be there, such as ethnicity, poverty, and so forth.
Ms. Rushton indicated she would be happy to provide the committee a copy of House Resolution 965. She said it is critical to the committee’s determinations and imperative that should the resolution pass, the state act in order to not jeopardize highway funding. Ms. Rushton noted the state should act, first and foremost, for policy reasons, but also take into consideration . . .
Senator James interjected he would say the same thing to the attorney general, which is, he is glad she supports A.B. 500 regarding racial profiling at the traffic-stop level, or other police stops. The senator expressed the wish that she would support the inquiry into the death penalty as to why so many more people on death row appear to be, as a group, far out of balance with the general prison population, or with those people who receive life sentences. He said if a person is wealthy and white, he/she will not get the death penalty. Period. End of story. Senator James pointed out, whereas, if a person is poor and black, there is a good chance of receiving the death penalty. He said the only reason he brought it up so forcefully is because A.B. 500 is a racial-profiling issue. The senator noted law enforcement is not being accused of racial profiling deliberately, rather, what is being said is all entities wish to work with them to determine what sort of criteria is being used. He suggested applying it to the entire justice system to find out why there are those effects on the death-row side.
Senator Washington pointed out a greater travesty has been overlooked. He said racial profiling begins during the formative years of a child’s life when they enter elementary education. He noted the blacker a person is, the sooner they become racially profiled, labeled, set aside, put in special education, looked upon and/or picked upon as a person who may cause disruption in class and is not allowed to participate in class functions, and so forth. Senator Washington declared he had seen it time and time again. The senator said if preventative measures had been taken, many death-row situations would not occur. He emphasized the educational system deems a black child destructive, incorrigible, disruptive, and places them in special education and sets them aside. Senator Washington suggested dealing with the entire spectrum of racial profiling from the standpoint of a single parent, living in an impoverished situation, whose 14‑year-old son slays a teacher. He said, “Something else happened prior to him getting to that point. Why is he at this point now? What profiling took place then?” The senator stated the answer to those questions might shed some light on the disproportionate number of black males, versus white males, on death row. He proclaimed racial profiling starts as soon as that young man, or young woman, enters school and is judged by the tone of their skin color, economic background, and ethnicity, and they must deal with it for the remainder of their educational career. Senator Washington pointed out he is currently dealing with a young man in sixth grade who cannot read at second-grade level. He said, “I guarantee that within the next 2 to 3 years, he will either drop out of school, perpetrate a crime, join a gang, be arrested, sell drugs, and be in a penal institution for the rest of his life. The markings are there. The day he entered school he was put in special education. Something is wrong, and that is where racial profiling begins. We are dealing with the back end, not the front end.”
Assemblyman Williams indicated he shares the dilemma described by Senator James in regard to the Assembly and the death-penalty study issue. He expressed confidence that, before the 2001 Legislative Session ends, the Assembly will act upon the issue and he would help any way he could. Assemblyman Williams said it is a huge picture and there is no panacea on one particular issue. He said he was as baffled as Senator James when a bill that eliminates tracking in public schools was passed out of his committee. The assemblyman explained that is where it starts. When a student is placed in one particular track, he never gets out of it. He said if they are in the special-education track, there are no means for them to get out. If the child is deemed to be in special education in second or third grade, they are there until high school. Assemblyman Williams said the Assembly passed a bill to eliminate the use of tracking in public schools in Nevada, and he was perplexed it died in the Senate. He said, “If you send one back to us in my committee, Senator, I will gladly pass it. It would be a start to eliminate that whole line of structure where those kids are placed in those tracks.” In many cases, Assemblyman Williams said, inexperienced teachers are placing children in special-education classes. If those teachers do not understand the background and culture of a student, they will place them in a corner, rather than provide them the tough discipline needed. Consequently, if the children miss their lessons and get behind on learning to read, they never catch up because they are placed in the special-education track and locked in forever. He pointed out many times they end up in the juvenile-justice system where $45,000 per pupil is spent, compared to $5,000 spent in the public-education system. Assemblyman Williams agreed with Senator Washington, and said, “It starts there.” He asserted, “If the tracking system is to be eliminated, you can believe the Assembly Committee on Education will vote to pass it out and eliminate the tracking system.”
Mr. Fischer interjected, in response to Senator Washington’s comments, a nationwide study of public schools came out in the “Washington Post” about 2 months ago that found African-Americans are actually three times more likely than white children to be placed in special-education programs. In response, Senator James said, “We can reverse that.”
Senator Washington pointed out he is a strong proponent of school choice, charter schools, and school vouchers, because it provides parents an opportunity to look over the vast array of opportunities to move their children into one situation, as opposed to another. He said:
I would challenge you. If you [Assemblyman Williams] want me to support tracking, then support me in my efforts with charter schools, school vouchers, and school choice, and then let us get it on and change the lives of these children. So, when we are dealing with A.B. 500, we are not just dealing with profiling children, but with the whole spectrum of making sure these children can be successful. It will lower the cost of penal institutions, building jails, and so forth. Like you, I want to put more money in education, but let us open up the box, let us open up the gamut, let us move outside the walls, let us really deal with it.
In response, Assemblyman Williams said, “Senator James, your judiciary hearing just turned into an education hearing.” In conclusion, he stated, the problem with vouchers is that only a small number of children can go to private schools. He said, should Nevada have school vouchers at this time, there would not be enough schools to take the children. Assemblyman Williams opined there should be an option to have home schooling, private school, and charter schools; however, regardless of how many choices, the majority of children will remain in public school. He said, should that small group of parents take vouchers out and go to other schools, what will happen to the other children left behind in public schools.
Stan Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department, and Nevada Sheriffs and Chiefs Association, expressed opposition to A.B. 500 as written. He indicated there is no problem with the concept of the bill, but said it is based primarily on emotion and not fact, and perhaps the study would bear that out. Lieutenant Olsen said he found it ironic that A.B. 500 is being heard on the day of the memorial for slain police officers. He said people who were slain, and had families, were profiled for the simple reason they wore a badge and were attempting to protect everyone in the room.
William Bowen, Area Commander, Reno Police Department (RPD), read from a prepared statement (Exhibit I) in regard to suggested amendments to A.B. 500. He said the RPD, although not in opposition to A.B. 500, is opposed to some of the things contained in it which is the reason for the proposed amendments. Referring to item 11, section 2, subsection 1, on page 1 of Exhibit I, Mr. Bowen said the amendment would add the language, “ . . . and shall be allowed to use any similar or comparable reporting program to collect and furnish this data . . . ” He explained the reason for the additional language is because several million dollars has been spent on a computer-aided dispatch (CAD) system, and any design changes would cost approximately $100,000.
In regard to page 2 of Exhibit I, Mr. Bowen said Tiburon is the vendor for the police department under the new CAD system, and performs demographic tracking. He noted the items being tracked are identical in A.B. 500.
Referring to page 1 of Exhibit I, item 5(a), “The traffic violation or infraction that caused the driver to be stopped,” Mr. Bowen indicated the word “reason” would be added. He explained the RPD does not stop people just for traffic violations and infractions, they are stopped because of on-site activity as well. He said if the RPD receives a call reporting a suspicious vehicle in the neighborhood loading something in the trunk, although it does not have anything to do with a traffic violation, it is checked out and the driver is stopped. Mr. Bowen pointed out:
If we get a radio dispatch or some kind of information from another police agency anywhere in the country, or with a contact with a neighbor and they are telling us they just observed this person, so we request that be changed as far as the reason for the stop, along with the traffic violation and infraction.
In reference to page 1 of Exhibit I, item 7(b), Mr. Bowen indicated the language “whether adult or juvenile” will be added. He said, although the age of an individual is not a concern, the RPD wants to know whether the person is a juvenile or adult. He said the majority of departments across the country are tracking that particular statistic. Mr. Bowen indicated page 2 of Exhibit I is a compilation of information received from other law-enforcement agencies across the country.
Further, referring to page 1 of Exhibit I, item 15(d), Mr. Bowen indicated that section of A.B. 500 would be removed. He explained that section is in regard to the number of vehicles. He said if a law enforcement officer is racially profiling, the number of people in the car does not matter. They would only be identifying the driver and his/her activity, and the number of people in the car is of no consequence to the study.
In conclusion, Mr. Bowen introduced Michael E. Cleveland, who was involved in putting the program together, along with people from the National Association for the Advancement of Colored People (NAACP), Hispanic services, and other groups. He said there would be another community meeting before going on line to finalize everything. Mr. Bowen pointed out the biggest concern is the fiscal impact to the City of Reno and major changes to a computer program that is anticipated to go on line July 1, 2001.
Michael E. Cleveland, Lobbyist, Reno Police Protective Association, indicated the program was put together to ascertain whether or not there was a problem with racial profiling. He said the RPD wanted to address the issue before it came to the attention of the Legislature, and the department has been working on it. Mr. Cleveland pointed out Clark County has a similar program. He said the RPD would like to collect the data and supply it to the state without additional hardship or fiscal concerns. He noted individual departments in the communities are trying to be “up front” and get things done in an appropriate manner. Mr. Cleveland said the RPD has begun collecting more data than what is suggested in A.B. 500, and be able to do so with no additional fiscal impact.
In addition, Mr. Bowen said the RPD is not the only entity that would be impacted by A.B. 500. He explained the RPD has shared users, including Washoe County Sheriff’s Department, Sparks Police Department, University of Nevada Police, Truckee Meadows Policy Department, Washoe County School District, Nevada Division of Investigation, and other outside agencies. Mr. Bowen pointed out when RPD was developing the data-collection program, it was put aside in order to allow other agencies to do so; therefore, any changes could affect those entities as well.
Lieutenant Olson indicated he would provide the committee with some statistical information.
Senator James expressed concern about Lieutenant Olson’s statement regarding the irony of scheduling the hearing on A.B. 500 on the day of the memorial to slain law-enforcement officers. He stated every legislator on the committee has the highest regard for law-enforcement officers in Nevada, the work they do, and the sacrifices they make. The senator noted:
I have spent 9 years working on this committee and working with law enforcement to provide them the tools needed to fight crime in Nevada, and support them in every way possible with longer sentences for people who commit crimes, investigative tools, criminal procedures designed to convict people who rightly should be convicted, and keep them in prison once they are convicted. It is my feeling that our law-enforcement agencies are not . . . as you have accepted this . . . welcomed it as a means of showing this is not something that is a predominant activity of something that is sanctioned by law-enforcement agencies to engage in racial profiling, but a matter of being able to do some self-examination and being able to tell people that you act fairly, and ensure everyone has that.
Nobody has suggested, I do not think, that there is institutionalized discrimination and racial attitudes, such as was apparently evident in some of the law-enforcement agencies in these high-profile cases around the county, and back east, and in Los Angeles, and other places like that. So, I would like to see you welcome this and certainly not consider it to be, in any sense, an attack on the police or that it should be considered to be ironic that you consider this today at a time when you all are honoring the fallen officers. I do not think anybody in Nevada, more than this committee, appreciates what you do and the sacrifices that they make, and we have been there to look at an issue and take a scientific approach to . . . and a studied, judicious type of approach to reviewing why we give the death penalty, why certain people complain there has been racial profiling, anything . . . in terms of how we handle forfeitures, or anything.
Senator James continued:
I think these are the kind of things that are not an attack on our law-enforcement officers or agencies, these are an endeavor to ensure our institutions are above reproach. I think that is where we are heading and the confidence we get in this committee. We ask the hard questions, but I think the result is a fair, better, and more effective law-enforcement community in the state. So, I just offer you those comments and know you have, certainly, my and this committee’s whole-hearted support for the tremendous work you do and the sacrifices and risks you take with your lives every day.
Senator James closed the hearing on A.B. 500.
There being no further business to come before the committee, Chairman James adjourned the hearing at 11:09 a.m.
RESPECTFULLY SUBMITTED:
Barbara Moss,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE: