MINUTES OF THE

SENATE Committee on Judiciary

 

Seventy-First Session

February 13, 2001

 

The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:30 a.m., on Tuesday, February 13, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada.  The meeting was videoconferenced to the Grant Sawyer Office Building, Room 4401, Las Vegas, Nevada.  Exhibit A is the Agenda.  Exhibit B is the Attendance Roster.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

COMMITTEE MEMBERS PRESENT:

 

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

 

GUEST LEGISLATORS PRESENT:

 

Senator Dean A. Rhoads, Northern Nevada Senatorial District

Senator Ann O’Connell, Clark County Senatorial District No. 5

Assemblywoman Merle A. Berman, Clark County Assembly District No. 2

 

STAFF MEMBERS PRESENT:

 

Bradley A. Wilkinson, Committee Counsel

Allison Combs, Committee Policy Analyst

Carolyn Allfree, Committee Secretary

 

OTHERS PRESENT:

 

Pete Bachstadt, Lobbyist, Carson/Eagle Valley Humane Society

Doug Busselman, Lobbyist, Nevada Farm Bureau

Pat Coward, Lobbyist, Nevada Association of Realtors

Andrew A. List, Lobbyist, Nevada Association of Counties (NACO)

Paul J. Iverson, Director, State Department of Agriculture

C. Joseph Guild III, Lobbyist, President, Nevada Cattlemen’s Association

Donnell Mick Richards, Concerned Citizen

Jerry Tomasetti, Concerned Citizen, Las Vegas

Fran Tomasetti, Concerned Citizen, Las Vegas

Eddie Escobedo, Concerned Citizen, Las Vegas

Ann P. McCarthy, Lobbyist, Nevada Trial Lawyers Association

Valerie J. Cooney, Lobbyist, Past President, Nevada Trial Lawyers Association

Lucille Lusk, Lobbyist, Nevada Concerned Citizens

John C. Morrow, Lobbyist, Washoe County Public Defender

 

Chairman James opened the hearing on Senate Bill (S.B.) 16.

 

SENATE BILL 16:  Requires seller of property adjacent to open range to disclose information to purchaser regarding grazing on open range. (BDR 10-56)

 

Senator Dean Rhoads, Northern Nevada Senatorial District, explained that in the last few years much building has occurred outside city limits in grazing land in rural Nevada.  He said he has received numerous calls from people whose landscaping is destroyed by livestock entering from adjacent grazing land.  Because Nevada is an open range state, ranchers are not required to fence in their livestock.  If homeowners wish to protect their property, they must fence the livestock out.  It has been suggested that realtors who sell houses in open range country ought to be required to provide warnings to prospective buyers.  He added that realtors would be offering an amendment to clarify the language in S.B. 16.

 

Senator Wiener asked Senator Rhoads what realtors intended to place in the amendment.  Senator Rhoads stated realtors are concerned about subsection 2 of section 1 of S.B. 16.

 

Senator Care inquired about consequences for noncompliance, asking what would happen if the statute were enacted and somebody sold a parcel but did not provide the warning.  He noted the bill is silent on the matter of consequences.

 

Senator Rhoads asked Senator James for his legal opinion on whether there would be a penalty without its being specifically outlined in the bill.  Senator James said he does not believe there is a penalty the way the bill is written.  Senator Rhoads agreed it would be important to include a penalty in the bill.

Senator Care inquired whether the statute would apply to property in escrow at the time it became effective. Additionally, he suggested a change in the language relating to damages.  He suggested changing the words in subsection 1 of section 1 of the bill, “not be entitled to collect damages,” to “not be entitled to an award of damages.”   He pointed out that to “collect” damages implies you can sue, and that a person might get an award and not be able to collect on it.

 

Pete Bachstadt, Lobbyist, Carson/Eagle Valley Humane Society, spoke from a prepared statement (Exhibit C) saying he supports S.B. 16 and requesting that it be extended to the livestock as well as the livestock owner, and include wildlife. 

 

Doug Busselman, Lobbyist, Nevada Farm Bureau, spoke from a prepared statement (Exhibit D) in support of S.B. 16.  He said the bill provides an effective means for preventing future problems and misunderstandings between farmers and new homeowners on adjacent land.  He said Nevada Farm Bureau policy directs that the notification process be put in place for all agricultural practices, not just for livestock grazing in open range.

 

Pat Coward, Lobbyist, Nevada Association of Realtors, read from a prepared copy of the proposed amendment to S.B. 16 to which Senator Rhoads referred earlier (Exhibit E).  Mr. Coward said the amendment would replace subsection 2 of section 1 with the following language:  “Once a seller has delivered to a purchaser and had the purchaser sign this disclosure, the seller is relieved of all liability to the purchaser for any damage the purchaser may suffer from open range livestock.”

 

Responding to Senator Care’s question regarding a remedy for noncompliance, Mr. Coward referred to a 1995 bill that had a disclosure provision with penalties attached, which he said provided that the non-disclosing individual be responsible for actual damages.

 

Andrew A. List, Lobbyist, Nevada Association of Counties (NACO), appeared next and stated that rural counties, as well as some of the urban counties, definitely support S.B. 16 and urge its passage.  Recently, he said, many people have moved out of urban areas and built homes surrounded by open range.  Disputes arise because the parties do not know who is responsible for damage done by livestock.  He said he believes this bill will clarify who is responsible.

 

Paul J. Iverson, Director, State Department of Agriculture, expressed the department’s support of S.B. 16 and emphasized that the law has been needed for some time.  He said he deals every single day with people’s concerns about horses, cattle, and sheep wandering onto their property and tearing out landscaping.

 

C. Joseph Guild III, Lobbyist, Nevada Cattlemen’s Association, said he did not have anything to add to what had already been said.  He said misunderstanding of Nevada’s open range law creates tensions, and this is a long-needed measure to prevent the escalation of hostilities.  The ranching community supports anything that would reduce tensions and, accordingly, supports S.B. 16.

 

Donnell Mick Richards, Concerned Citizen, requested permission to testify.  Mr. Richards stated he is a rancher, licensed real estate broker, and chairman of a citizens’ committee in Grass Valley, Pershing County, south of Winnemucca.  He said he has shown S.B. 16 to the district attorney in Humboldt County, and the district attorney responded favorably to it.  Mr. Richards said he believes the bill will help alleviate many of the problems that exist between ranchers and other property owners in both Humboldt and Pershing counties.  He provided the committee with a letter he wrote on the historical perspective of the open range (Exhibit F).

 

Chairman James closed the hearing on S.B. 16 and opened the hearing on Senate Bill (S.B.) 25.

 

SENATE BILL 25:  Revises provisions governing granting of rights to visitation with child to persons other than parents of child. (BDR 11-45)

 

Senator Ann O’Connell, Clark County Senatorial District No. 5, explained S.B. 25.  She said the substance of the bill is to expand the circumstances by which a grandparent may seek visitation rights, including situations where parents are still together.  She said the issue affects hundreds of families.  A recent United States Supreme Court case out of the state of Washington, Troxel v. Granville, 120 S.Ct. 2054, ruled in favor of the parents.  Senator O’Connell stated it is her understanding the ruling was narrowly applied to the state of Washington, but that language might need to be added to S.B. 25 to meet the constitutional challenge of Troxel.

 

Senator O’Connell introduced Jerry Tomasetti, at whose request S.B. 25 was introduced.  She said Mr. Tomasetti is a grandparent whose case cannot be heard under the present legal system.

 

Jerry Tomasetti, Concerned Citizen, speaking from Las Vegas, from a prepared statement (Exhibit G), explained that he and his wife are grandparents of children who live less than a mile away, whom they have not been allowed to visit for 782 days.  Mr. Tomasetti said he and Mrs. Tomasetti are very hurt by this and believe the grandchildren are harmed, too, by the denial of a relationship with them. He said grandparents give love and understanding that no other careperson can give.  He asked who else could tell the grandchildren stories about their parent.  He said he does not want to take away the parents’ rights.  He just wants grandparents to be able to see their grandchildren.  “How can you tell someone who raised a kid for 5 years you can’t see them anymore?” Mr. Tomasetti asked.  He said he needs a reason, and nobody gives him a reason.  He said it is wrong to teach children they have a right to throw away their grandparents, or their parents, when they so desire.

 

Fran Tomasetti, Concerned Citizen, Las Vegas, said she and Mr. Tomasetti have been trying to change the law for the past 2 years.  They have met many grandparents in similar situations and are making this effort in their behalf, as well as their own.  Mrs. Tomasetti contended that by giving grandparents rights we are also giving their grandchildren rights.

 

Eddie Escobedo, Concerned Citizen, Las Vegas, owner of Elmundo, a Spanish newspaper, testified in favor of S.B. 25 on behalf of the Tomasetti family.  He said the Tomasetti family is a close-knit family.  He explained that Italian and Hispanic culture and tradition dictate that people take care of one another and pass their traditions along.  He said many young Hispanics have babies outside of marriage, and the grandparents want to be involved in the lives of the children. 

 

Assemblywoman Merle A. Berman, Clark County Assembly District No. 2, explained Assembly Bill (A.B.) 34 to the committee.  Assembly Bill 34 evolved from a bill she had cosponsored last session, Assembly Bill (A.B.) 436 of the Seventieth Session.  She said A.B. 34 was revised just yesterday to conform to Troxel.  She said it addresses some of the concerns expressed by Mr. and Mrs. Tomasetti and Mr. Escobedo, but she did not think it addressed issues concerning an intact family.  Ms. Berman stated she would discuss that issue with legal counsel.

 

ASSEMBLY BILL 34:  Revises provisions governing granting of rights to visitation with child to persons other than parent of child.  (BDR 11-193)

 

ASSEMBLY BILL 436 OF THE SEVENTIETH SESSION:  Makes various changes concerning granting rights to visitation with child to persons other than parents of child.  (BDR 11-1219)

 

Senator Wiener asked Assemblywoman Berman for some of the highlights of the newly revised version of A.B. 34.  Assemblywoman Berman responded, saying the Supreme Court established certain requirements in Troxel, and A.B. 34 had been revised to meet those requirements.  According to Troxel, a court must give great weight to a parent’s decision whether to allow grandparents to visit their grandchildren.  Troxel mentions other factors the courts must consider when making visitation decisions.  Ms. Berman stated Legal Division attorneys and private attorneys had reviewed the original bill and agreed that Troxel did not provide a clear statement of the required standard.  Therefore, they have crafted A.B. 34 to go beyond arguable compliance and avoid anything that might provide a basis for appeal.  The goal is to prevent the continuing cycle of legal challenges and appeals over visitation rights.

 

Senator Wiener inquired whether the language of Troxel provides more weight to a parent’s decision than to other considerations.  Assemblywoman Berman responded that the specific considerations listed in her previous bill remain in the current bill, and said she would provide copies of A.B. 34 to the committee.

 

Senator O’Connell explained that the major weight seemed to be given to the standard of clear and convincing evidence, and she offered written suggestions for strengthening S.B. 25 to meet constitutional challenges (Exhibit H).

 

Senator McGinness asked what has to be proven under the preponderance of evidence standard.  Senator O’Connell answered that preponderance of evidence is a lower standard than clear and convincing evidence.

 

Ann P. McCarthy, Lobbyist, Nevada Trial Lawyers Association, said she had reviewed both A.B. 34 and S.B. 25.  She said courts are going to need a standard for making decisions on evidence presented to them.  Private attorneys feel preponderance of evidence would be the more appropriate standard, because clear and convincing evidence requires documentation, solid, tangible evidence.  She said relationships and considerations that go into deciding the right of visitation are intangible pieces of evidence that can be presented in court by way of witnesses, both nonprofessional and professional.  But, such testimony does not rise to the level of clear and convincing evidence.

 

Senator Care prefaced his next remarks by explaining that his questions are presented for the purpose of laying a record for deciphering legislative intent.  He said before the issue of weight of the evidence is considered, the threshold question of “unreasonable restriction” must be addressed.  He said he is bothered by that phrase; he does not know what it means.  If the parent tells the grandparent he does not want him to see the child, the grandparent will assume that is an unreasonable restriction; if the grandparent is given a reason, he may not agree with it.  “What constitutes an unreasonable restriction when it comes to visitation?” he asked.

 

Ms. McCarthy said district court judges in Nevada consider many things.  They look at the way the family is currently functioning.  That is, she said, how many parents are at home, what is their employment, how much quality time do they spend with the child, what kind of relationship did the person seeking visitation have with the child?  The court looks at the whole picture and tries to determine the best interests of the child, she continued, and it is a discretionary issue for district court judges.

 

Valerie J. Cooney, Lobbyist, Past President, Nevada Trial Lawyers Association, said both bills are long past due and are very important.  She said she is not concerned with the standard or burden of proof that is adopted.  Her concern, she said, is in having legislation put in place to secure the ability of grandparents to come into court.  The courts themselves will determine whether the facts support the case; restriction, she said, comes in many forms.  Grandparents currently have the ability to go to court to establish visitation.  Absent an existing court order, grandparents or stepparents would probably have to first go to court to ascertain a definitive right of visitation, she said.  Then, if the right is interfered with, they can have the court order enforced.

 

Ms. Cooney said that it is important to address the rights of individuals who develop relationships with important people in their lives.  She said she thinks interfering with those relationships is far more harmful for the children than anyone recognizes.

 

Senator Washington expressed concern about the interest of a parent who is trying to reestablish a relationship with a child and is restricted by a grandparent, who may have been the caretaker of the child, hampering the restoration of the parent-child relationship.

 

Ms. Cooney said she does not think this statute would overcome the current presumption that parents have regarding First Amendment rights to raise their children.

 

Senator Washington responded that he thought the parents should have the right to decide whether to grant grandparents visitation.  He said it is important to define what is actually the right of the parent and what is the right of the grandparent.  “Is there a blending of the lines, and how do we make sure the continuity of the family is intact?” he asked.

 

Ms. Cooney said the First Amendment right to make decisions regarding family issues remains with the parent.  It is only by court intervention that those rights are affected.  This bill is related to the ability to raise your children, she continued; it references only the issue of visitation.  If a grandparent has custody of a child or the child is living with the grandparent, there has usually been some formal proceeding.  In that instance, other familial relationships are recognized, she said.  This particular bill does not address custody issues; it simply recognizes the importance of grandparents and certain other individuals to maintain a relationship.

 

Senator Washington said he understands the issues concerning custody, but custody issues and visitation rights have a tendency to blend together, and it is sometimes hard to separate them.

 

Senator Care, responding to Senator Washington’s concerns, said Troxel addresses not only the rights of the grandparent, but also the rights of the grandchild.  One of the problems with the Washington State case (Troxel) was that it did not discuss the issue of whether harm results to the grandchild in the event visitation by the grandparent was unreasonably withheld.  He said now we are talking about the rights of the grandchild as opposed to visitation rights of the grandparent.

Chairman James made the following comments on the testimony and discussion thus far:

 

There has been something large missing from the discussion.  The thing I have not heard anybody say is the word “fundamental” right, and that is what is at issue here.  And, that is what makes it very difficult to come up with a law.  Because . . . the right of the parent to decide to make all the decisions about their child is not based upon the First Amendment; it is not based upon anything like that.  It is based upon the Fourteenth Amendment due process clause and its parallel in the Fifth Amendment.  We are dealing with the Fourteenth Amendment because these are state actions and the Fourteenth Amendment applies to the states.  What the [Supreme] Court recognized is that the liberty interest at issue in the case . . . is the parents’ care, custody, and control of the child in every respect.  It is perhaps, in the court’s words, “. . . the oldest of the fundamental liberty interests recognized by this Court.”  What happens when you have a fundamental right that is set forth in the Constitution is that the state, the legislature, can do nothing to impinge upon that fundamental right in the absence of some compelling interest.

 

The reason you get to discussions of clear and convincing evidence versus preponderance of evidence, [is] those are just the conduit by which we address this issue of a fundamental right and the state having to show a compelling interest.  We can affect people’s rights to do things that are not fundamental rights, such as their right to engage in certain economic activity; all we need is some reasonable, rational basis to do it.  But, for us to impinge upon or to affect a fundamental right, we have to show a really compelling interest.  And that requires not only that we show that we have actual evidence of our reason, but that the reason is applicable in the specific case.  That is where the standard of clear and convincing evidence becomes helpful.  Because clear and convincing evidence versus preponderance of evidence does not go to the type of evidence.  Evidence is evidence.  But, if you are in a preponderance of evidence, it just means that the judge can look at the two sides of the evidence.  And, if it tips slightly in the favor, just a teeny bit, that is a preponderance of the evidence.  If you have a criminal case where it is beyond a reasonable doubt, then it has to tip way; there has to be no doubt that it goes one direction.  Clear and convincing evidence is right in-between.  It is pretty heavily weighted; it is pretty clear to the judge.  And so, it doesn’t have to be paper or anything specific.  It can be testimony or whatever to show that there is this compelling interest.

 

So, then you get to how we write this thing.  And the reason I am telling you all this is because I am leading up to the problem we have to address, whether it is in this committee or in your committee.  And that is that the court appears to say that there has to be some demonstrable harm to the child that is resulting from the denial.  And that is the really tragic part of this, and I do not know how to solve it, because my heart goes out to Mr. Tomasetti in every respect and the people like him, and to Fran, who have had to go through this.  And that is, it seems to be what the case is saying is that if you have a fit parent and there is no demonstrable harm to the child, they have the ability with their fundamental right to deny visitation to other important people, including siblings, grandparents, and others.

 

And so, what I am asking the legal staff to tell me is whether it is possible to draft a statute that gives a judge the ability to intervene and to say that there are circumstances where they are just going to override a parent’s decision in the absence of demonstrable harm . . . There was not any harm.  They said, in this case, it was a mere disagreement between . . . what the parent wanted to do and what the judge thought was right.  So, I need to know, is there a circumstance where we can write a statute that would give a judge the ability to tell a fit parent, an otherwise fit parent, that they must grant visitation, to override their decision in the absence of a showing that there is harm.

 

Now, maybe that is where this gets solved.  Maybe you can come up with compelling evidence, clear and convincing evidence, and it can be by testimony or whatever, that a child is being harmed by being denied a relationship with a fit, a good grandparent . . . That may very well be.  Maybe that is what the court did not adequately address, because it was not presented on the facts of that case, that may be that is where the harm is.

 

In that case, neither one of the bills that we have before us today does that.  You will never get there by using the word “unreasonable,” because that is going to give the judge the ability to simply second-guess the parent.  And, the [Supreme] Court has already said that cannot be done.  There is no reason to draft a statute that is unconstitutional, because it does not help Mr. Tomasetti or anyone.

 

Mr. Tomasetti asked what was meant by harm.  He said harm should not be restricted to physical harm but should include mental harm.

 

Chairman James agreed, saying there is no reason to so restrictively define the term harm to physical harm, nor does the law do that.  We recognize mental harm, and that is what is at issue in this case, he said.

 

Lucille Lusk, Lobbyist, Nevada Concerned Citizens, spoke in favor of the effort to strike a careful balance to preserve the parents’ right to the control and upbringing of their children, while recognizing the important part grandparents play in the lives of children.

 

John C. Morrow, Lobbyist, Washoe County Public Defender, said the public defender’s office in Washoe County has had huge involvement in Family Court (Family Court Division of the Second Judicial District Court).  And, he said he expects the office to be quite involved under the Safe Families Act (Adoption and Safe Families Act of 1997, Public Law 105-89).  He said that, although grandparent visitation is not specifically addressed, it will be brought along as collateral baggage.  He stated he thinks the Troxel decision is a bad decision that was brought on bad facts and it might have gone the other way if a more reasonable set of grandparents had brought the lawsuit.

 

Senator Wiener, referring to the words, “If the child has resided with a person with whom he has established a meaningful relationship . . .” on page 2, line 1, of S.B. 25, asked for a dialogue regarding the question of whether the court could discern a meaningful relationship with someone with whom the child had not resided.

 

Chairman James closed the hearing on S.B. 25.  There being no further business, the meeting was adjourned at 10:00 a.m.

 

RESPECTFULLY SUBMITTED:

 

 

 

Carolyn Allfree,

Committee Secretary

 

 

APPROVED BY:

 

 

                       

Senator Mark A. James, Chairman

 

 

 

DATE: