MINUTES OF THE
SENATE Committee on Judiciary
Seventy-First Session
February 15, 2001
The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:35 a.m., on Thursday, February 15, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, 555 East Washington Avenue, 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 Margaret (Maggie) A. Carlton, Clark County Senatorial District No. 2
STAFF MEMBERS PRESENT:
Bradley A. Wilkinson, Committee Counsel
Allison Combs, Committee Policy Analyst
Barbara Moss, Committee Secretary
OTHERS PRESENT:
Helen A. Foley, Lobbyist, Clark County Health District
Kirby Burgess, Director, Family and Youth Services, Clark County
Leonard Pugh, Director, Juvenile Services, Washoe County
Ben Graham, Lobbyist, Clark County District Attorney, Nevada District Attorneys’ Association
Gemma Greene Waldron, Lobbyist, Washoe County District Attorney’s Office
Stan Olsen, Lobbyist, Las Vegas Metropolitan Police, Nevada Sheriffs and Chiefs Association
James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice
David S. Gibson, Lobbyist, Clark County
JoNell Thomas, Lobbyist, Nevada Attorneys for Criminal Justice
Ken Leon, Parole Officer, Division of Parole and Probation, Department of Motor Vehicles and Public Safety
Al Konopka, Manager, Intensive Supervision Unit, Division of Parole and Probation, Department of Motor Vehicles and Public Safety
R. Thomas Ely, Lobbyist, State Peace Officers Council
Susan Pacult, Social Services, Clark County
Mark J. Nichols, Lobbyist, National Association of Social Workers
Richard W. Wilkie, Lobbyist, City of Henderson
R. Warren Lutzow, Chief, Parole and Probation, Division of Parole and Probation, Department of Motor Vehicles and Public Safety
Steve Barr, Lobbyist, Nevada Corrections Association
Gary H. Wolff, Lobbyist, Nevada Highway Patrol Association, and Teamsters Local 14
Bobbie Gang, Lobbyist, Nevada Women’s Lobby
Janet L. Gilbert, Lobbyist, Progressive Leadership Alliance of Nevada
Deborah K. Cahill, Lobbyist, Nevada State Education Association (NSEA)
Jim Williams, Concerned Citizen, Pahrump
Senator James opened the hearing with a request for motions to introduce a number of bill draft requests (BDRs).
BILL DRAFT REQUEST 1-518: Makes various changes to retirement benefits of justices of supreme court and judges of district court. (Later introduced as Senate Bill 181.)
SENATOR PORTER MOVED TO INTRODUCE BDR 1-518.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR MCGINNESS, SENATOR TITUS, AND SENATOR WASHINGTON WERE ABSENT FOR THE VOTE.)
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BILL DRAFT REQUEST 14-527: Removes authority for private person to take arrested person before nearest magistrate following arrest. (Later introduced as Senate Bill 182.)
SENATOR PORTER MOVED TO INTRODUCE BDR 14-527.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR MCGINNESS, SENATOR TITUS, AND SENATOR WASHINGTON WERE ABSENT FOR THE VOTE.)
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BILL DRAFT REQUEST 15-483: Revises provisions governing sexual conduct between pupils and persons in positions of authority at schools. (Later introduced as Senate Bill 183.)
SENATOR PORTER MOVED TO INTRODUCE BDR 15-483.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR MCGINNESS AND SENATOR TITUS WERE ABSENT FOR THE VOTE.)
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BILL DRAFT REQUEST 4-472: Provides that statement of child regarding physical abuse is admissible in criminal proceeding under certain circumstances. (Later introduced as Senate Bill 179.)
SENATOR PORTER MOVED TO INTRODUCE BDR 4-472.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR MCGINNESS AND SENATOR TITUS WERE ABSENT FOR THE VOTE.)
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BILL DRAFT REQUEST 14-467: Prohibits suspension of sentence or granting of probation to persons convicted of certain sexual offenses involving victims who are minors. (Later introduced as Senate Bill 180.)
SENATOR PORTER MOVED TO INTRODUCE BDR 14-467.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR MCGINNESS AND SENATOR TITUS WERE ABSENT FOR THE VOTE.)
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BILL DRAFT REQUEST 1-517: Adjusts prospective salary of supreme court justices and district court judges. (Later introduced as Senate Bill 184.)
SENATOR PORTER MOVED TO INTRODUCE BDR 1-517.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR MCGINNESS AND SENATOR TITUS WERE ABSENT FOR THE VOTE.)
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BILL DRAFT REQUEST R-261: Urges various persons and entities to coordinate efforts to promote economic development and diversification in this state. (Later introduced as Senate Concurrent Resolution 10.)
SENATOR PORTER MOVED TO INTRODUCE BDR R-261.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR MCGINNESS AND SENATOR TITUS WERE ABSENT FOR THE VOTE.)
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BILL DRAFT REQUEST R-253: Endorses creation of business courts in the Second and Eighth Judicial Districts through adoption of rules developed by the Business Court Task Force. (Later introduced as Senate Concurrent Resolution 11.)
SENATOR PORTER MOVED TO INTRODUCE BDR R-253.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR MCGINNESS AND SENATOR TITUS WERE ABSENT FOR THE VOTE.)
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BILL DRAFT REQUEST 3-94: Makes various changes concerning construction, constructional defects, and common-interest communities. (Later introduced as Senate Bill 185.)
SENATOR WIENER MOVED TO INTRODUCE BDR 3-94.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR MCGINNESS AND SENATOR TITUS WERE ABSENT FOR THE VOTE.)
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Although he voted to introduce BDR 3-94, Senator Porter informed the committee that, due to conflicting interests, he would not act upon any issue concerning construction defects during this Legislative Session.
Helen A. Foley, Lobbyist, Clark County Health District, indicated that the Lung Association, the Heart Association and members of “a coalition” are working to authorize state government to adopt more stringent restrictions governing tobacco products. She indicated this measure had been introduced twice in the Assembly only to receive a “quick death.” Ms. Foley submitted a copy of Assembly Bill (A.B.) 331 of the Seventieth Session (Exhibit C), and explained the only change was removal of the words “shall not” and the addition of the word “may” to the phrase: “impose more stringent restrictions on smoking, use, sale, distribution, marketing, display or promotion of tobacco or products made from tobacco . . .”
ASSEMBLY BILL 331 OF THE SEVENTIETH SESSION: Authorizes state agencies and local governments to adopt more stringent restrictions governing tobacco and products made from tobacco than restrictions imposed pursuant to state law. (BDR 15-1363)
Ms. Foley provided a document entitled “Smoke-free Option” (Exhibit D) which listed three options: give local governments in Nevada the option to enact more stringent restrictions on smoking in public places; exempt casinos, bars, taverns, and cocktail lounges within restaurants from the stricter laws, as these are locations where children are not allowed; and change language from “shall not” to “may” impose more stringent restrictions. Although the options are not ideal they are a good start, Ms. Foley asserted.
Ms. Foley pointed out the law would not ban smoking in any particular location, but would allow local government the option of holding hearings and making their own decisions to determine whether smoking was appropriate. She said she would appreciate a BDR introduction from the committee. (BDR 15-1299, later introduced as S.B. 258.)
Senator Wiener inquired whether local governments were allowed to make smoking determinations at the present time. Ms. Foley responded, “No, local governments need to be enabled.” She indicated the law specifically stated that a local government shall not impose more stringent laws than state laws.
Senator Washington asked whether the statute would only affect public buildings or places outside the exemption of bars, taverns, cocktail lounges and restaurants with bars contained within them. Ms. Foley noted that the bill, if passed as introduced, would not allow local governments control over smoking arrangements within casinos, bars and taverns, or cocktail lounges within restaurants. However, should it be desired, local governments could impose standards on all other public places, including restaurants, but not bars within restaurants. None of it would occur should local governments choose not to do so, Ms. Foley remarked.
Asked whether local governments could set noncompliance penalties, fines or fees, Ms. Foley said, “I believe so.” She reflected that nobody died from lack of smoking on airplanes, nor had it reduced the number of people flying. She noted that nonsmokers must suffer the bad effects of exposure to smoke.
Although he said he would abide with the committee on the issue, Senator Washington expressed concern that local governments could require business owners to restrict smoking in their restaurants. Ms. Foley said she understood the Senator’s point of view and predicated a lively debate during discussion of the issue.
Senator Porter inquired whether the “Smoke-free Options” (Exhibit D), were in addition to those introduced in A.B. 331 of the Seventieth Session. Ms. Foley said that was correct, and reiterated that A.B. 331 of the Seventieth Session changed the language “shall not impose stricter standards” to “may not impose stricter standards.” Senator Porter clarified that “Smoke-free Options” would be added to the new BDR, and Ms. Foley agreed.
Further, Senator Porter postulated that larger businesses would have an exemption but smaller businesses would not. Ms. Foley explained the issue had nothing to do with the size of the business and would only affect adult-only establishment exemptions.
Senator Care indicated that although he would vote affirmatively on introducing the BDR, he agreed with Senator Washington’s remarks and would reserve debate until a later time. He said, “The public has a right to follow the discussion on this highly complex public issue, but it is no indication as to how I will ultimately vote on the legislation.”
Senator James commented that it was a pleasure to dine in California restaurants where smoking was prohibited, and Ms. Foley agreed. She pointed out that many restaurateurs had indicated they would prefer to be smoke-free, but are concerned about losing business. Ms. Foley said they would prefer a smoke-free mandate, which would eliminate the competitive advantage to restaurants that allow smoking. In addition, Ms. Foley said, many employees had difficulty working in smoke-filled establishments.
Senator James entertained a motion to draft a bill on behalf of the committee.
SENATOR WIENER MOVED TO REQUEST A BILL BE DRAFTED TO ENABLE LOCAL GOVERNMENTS IN NEVADA THE OPTION TO ENACT MORE STRINGENT RESTRICTIONS ON SMOKING IN PUBLIC PLACES, EXEMPTING CASINOS, BARS, TAVERNS AND COCKTAIL LOUNGES WITHIN RESTAURANTS FROM STRICTER LAWS IN LOCATIONS WHERE CHILDREN ARE NOT ALLOWED, AND CHANGING THE LANGUAGE AS IN A.B. 331 OF THE SEVENTIETH SESSION FROM “SHALL NOT” TO “MAY” IMPOSE MORE STRINGENT RESTRICTIONS.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR MCGINNESS AND SENATOR TITUS WERE ABSENT FOR THE VOTE.)
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Senator James opened the hearing on Senate Bill (S.B.) 7.
SENATE BILL 7: Revises provisions concerning certain programs for children. (BDR 5-84)
Senator Valerie Wiener, Clark County Senatorial District No. 3, read from a prepared statement (Exhibit E) with regard to S.B. 7, which revises certain restitution programs for children.
Senator Porter requested an explanation of the “kick-off” of the program entitled “Restitution Earned, Accountability Learned” (REAL). Senator Wiener indicated a news conference would be held to explain the program. The news conference would include a discussion of the partnership between the public and private sectors, the Chamber of Commerce, the county, and the contributions of each to the program, she said, adding that the news conference would make the community aware of a new restitution opportunity for juveniles. Senator Wiener explained that restorative justice was somewhat new and an education process was needed to help communities understand its benefits. She said restorative justice would help restore some loss to a victim, in an attempt to make him/her whole in ways not attempted before, which would create an accountability factor. A mandated component of the program would teach young people responsibility, work ethics, and employability skills they may never learn otherwise, she said. Finally, Senator Wiener indicated, the program would make the community whole and be a benefit to all affected by the crime.
Senator James asked for information on the results of the program in place since the last legislative session. Senator Wiener said the program had been a week from launch but was delayed by an unfortunate incident in southern Nevada. Consequently, the collaborative group decided the community needed time to heal and February 24, 2001 was chosen as the kick-off date.
Testifying from Las Vegas, Kirby Burgess, Director, Family and Youth Services, Clark County, indicated he concurred with Senator Wiener. He maintained that the collaborative effort between Senator Wiener, the Chamber of Commerce, and the department of Family and Youth Services, would create alternative means by which children could learn the value of working and, at the same time, be provided an opportunity to pay restitution while retaining some of the earnings. He said the program is a safe alternative and an opportunity for youth to learn the value of work, acquire a skill and the methods used to maintain and retain a job. Mr. Burgess expressed enthusiasm for the news conference kick-off and support for the program.
Leonard Pugh, Director, Juvenile Services, Washoe County, read from a prepared statement (Exhibit F) in support of S.B. 7. He noted that the effort to fund programs that hold youths accountable and provide them skills that aid their rehabilitation is an effective approach to dealing with youthful offenders.
There being no further testimony, Senator James closed the hearing on S.B. 7 and opened the hearing on Senate Bill 32.
SENATE BILL 32: Allows witness to testify at preliminary examination or before grand jury through use of audiovisual technology under certain circumstances. (BDR 14-637)
Senator Terry Care, Clark County Senatorial District No. 7, reported that Lieutenant Stan Olsen of the Las Vegas Metropolitan Police Department (METRO) had contacted him with a problem. Senator Care said Lieutenant Olsen had explained that millions of tourists come to Nevada each year and some of them become witnesses to and/or victims of crime. These individuals may be required to testify at either grand jury proceedings or preliminary hearings. Lieutenant Olsen had pointed out that it can be expensive to obtain this testimony. Senator Care went on to request legislation that would allow METRO to conduct this type of testimony by teleconferencing, that is to say, the witness would appear live on a television screen in his/her home jurisdiction, but nothing else would change. The intent was to save tax dollars.
After considering Lieutenant Olsen’s suggestion, Senator Care said he had expressed concern about the confrontation clause contained in the Sixth Amendment to the United States Constitution. He pointed out that the confrontation clause states that a person has the right to confront his/her accuser and/or witnesses at trial. He said subsequent research proved that a grand jury proceeding is not a trial, and neither is a preliminary hearing. Senator Care indicated the videoconferencing method was being done in Hawaii and Florida, two other tourist destinations; consequently, there was precedence for this type of legislation. On that basis, Senator Care indicated he decided to submit the BDR and, subsequently, the bill to the committee.
Continuing, Senator Care asked the committee to keep two things in mind when considering the competent testimony of proponents for S.B. 32. First, he said, the discussion was not about witnesses testifying at a trial, rather it was a grand jury proceeding in which a panel of citizens would be impaneled to hear testimony presented to them by the District Attorney behind closed doors. The citizens would then determine whether or not there is sufficient evidence or probable cause to return an indictment. A preliminary hearing is an open matter. Senator Care stressed that a prosecution or trial is not under consideration.
Second, Senator Care said, the manner in which S.B. 32 was drafted gave the court discretion to decide whether this type of testimony would be permitted either before the grand jury or at a preliminary hearing.
Finally, Senator Care expressed respect for opponents of S.B. 32, but asserted the bill was sound and the committee would be convinced after listening to testimony from proponents.
Senator Porter queried whether or not a tourist who witnessed a crime and subsequently was asked to testify would be reimbursed by the county for all expenses, including lost wages. Senator Care answered that the District Attorney’s office would pay for transportation, housing, and meals for witnesses until their testimony is completed. He expressed uncertainty as to whether or not lost wages would be reimbursed.
Ben Graham, Lobbyist, Nevada District Attorneys’ Association, affirmed that out-of-pocket expenses of transportation, lodging, and meals are covered for victim witnesses. However, he said, frequently a spouse is reluctant to travel alone; therefore, expenses are reimbursed for the partner as well. Mr. Graham reported that lost wages would not be covered.
Mr. Graham introduced Gemma Greene Waldron and Lieutenant Stan Olsen, explaining that all three of them attended a conference wherein they learned about the videoconferencing of crime witnesses in Florida and Hawaii. He said currently there is no case law dealing with preliminary hearings or grand juries. The process would probably not be used for a while because of the difficulty in setting up courtrooms for videoconferencing. Mr. Graham pointed out that the new courthouse and justice center in Las Vegas would eventually make videoconferencing available. He noted it would not be an easy process, but one that could be utilized, if not currently, in the future.
Senator James questioned whether or not a current law exists that would prevent videoconferencing of crime-witness testimony. Mr. Graham said there was no prohibition against it; however, he noted, there was no statute that would provide for it either. He pointed out if something could be interpreted in more than one way, it would be interpreted in favor of the defendant. Therefore, authorization would be required to permit this type of testimony.
Mr. Graham indicated he had discussed this matter with members of the State Bar of Nevada and with staff members in the Office of the Attorney General and it was determined that, upon request of a party, notification would be provided the attorney-of-record. Therefore, the issue could be argued in court.
Gemma Greene Waldron, Lobbyist, Nevada District Attorneys Association, Washoe County District Attorney’s Office, submitted a three-part document entitled “1996 Report on House Resolution No. 244, H.D. 1: Requesting a Study on Video Conferencing Out-of-State Witnesses to Facilitate the Prosecution of Criminals Who Target Hawaii Visitors” (Exhibits G, H and I. Originals are on file in the Research Library). Ms. Waldron indicated she had reviewed the material regarding Hawaii’s promulgating the statute allowing videoconferencing. She said Hawaii canvassed the United States to ascertain which states allowed videoconferencing and which did not. Ultimately, in 1996, a law allowing videoconferencing was passed.
Confirming Senator Care’s comments, Ms. Greene Waldron pointed out that a preliminary hearing is a probable cause determination. She explained that although the defendant and defense attorney would be present and allowed to cross-examine during a preliminary hearing, the proceedings would not be a trial at that point. The state would be required to present slight or marginal evidence in order to bind a person over for district court.
Further, Ms. Greene Waldron said, in a grand jury proceeding, the “Marcum Notice” (a Nevada Supreme Court Case, Sheriff v.Marcum 105 Nev. 824 (1989), regarding the adequacy of the notice that must be given to targets of a grand jury indictment. This requirement has been codified and subsequently amended under Nevada Revised Statutes (NRS) 172.241, which is used to notify a defendant that a case is going to the grand jury. The defendant may attend if desired; however, no cross-examination would be allowed during the process. Should videoconferencing be used in that context, she said, it would not adversely affect the defendant’s rights at that stage. Ms. Waldron pointed out that S.B. 32 did not request the use of videoconferencing at trial; however, she noted a provision in current Nevada law that would allow a child victim to testify by way of closed-circuit television or video under certain circumstances. She said proof must be given that a child would be adversely affected by testifying, in person, in the presence of the defendant.
Continuing, Ms. Greene Waldron reported that a new justice court in Washoe County is currently videoconferencing arraignments. Inmates are not brought to the courthouse but are arraigned over video at the jail. She commented that the cost for installing videoconferencing equipment in Washoe County would not be extensive because it is presently in existence.
In conclusion, Ms. Greene Waldron stated that the United States Supreme Court, in Maryland v. Craig, 497 U.S. 836 (1990) (Exhibit H), stated that videoconferencing, in and of itself, did not offend the confrontation clause under certain circumstances. Therefore, she expressed the belief that she was on firm footing in support of S.B. 32.
Senator James asked the circumstances under which the United States Supreme Court allowed videoconferencing in Maryland v. Craig. Ms. Greene Waldron said Maryland v. Craig was a 1990 case in which the court addressed the issue of testimony from an alleged victim of child abuse via one-way, closed-circuit television. The Supreme Court held that the right to face-to-face confrontation was not an absolute constitutional requirement. However, the Supreme Court held that the confrontation clause requirement of one-way, closed-circuit testimony for a child abuse victim would be constitutional only if the trial court found the testimony would cause the child to suffer emotional distress so severe that he/she could not reasonably communicate in the presence of the defendant.
Ms. Greene Waldron indicated that Maryland v. Craig had been reviewed by the Hawaii Supreme Court and that body had not excluded the possibility of using closed-circuit television or videoconferencing for witnesses who were not physically present in the courtroom. However, the court determined it would be allowed only after certain findings were made by the judge. Ms. Greene Waldron added, “It was actually videoconferencing at the criminal trial stage, not the preliminary hearing or grand jury stage.”
Senator James pointed out that there was a compelling interest to protect the physical and/or psychological health of the child in a child abuse case, and asked how that compared to the expediency of returning an individual to testify as a crime witness. Mr. Graham interjected that the discussion referred to the trial level, where there are full constitutional protections. He remarked that S.B. 32 only referred to grand jury and preliminary hearing proceedings, which are far less protected constitutionally, and impose less of a burden.
Upon being asked whether or not there was a sliding scale, Mr. Graham answered, “Absolutely.” Senator James inquired, “To what does the confrontation clause apply?” Mr. Graham answered that the confrontation clause only applied to trials. Continuing, Senator James queried whether the rights in the confrontation clause would apply at the preliminary hearing stage, the sentencing stage, or any other stage of the proceedings. Mr. Graham responded that the confrontation clause only applied at the trial. Senator James declared, in that event, there is no confrontation clause issue. Mr. Graham replied, “That’s certainly a good argument. You’ll hear contrary, but I think you have grasped the substance.” Senator James noted that at least one Circuit Court of Appeals had indicated that the confrontation clause would be applicable at the sentencing phase and violated by testimony regarding sentencing issues by videoconference.
Senator James drew attention to the experience of a Clark County commissioner, a personal friend and former law partner, who was carjacked at gunpoint in a casino garage in Las Vegas. Senator James pondered aloud that should a tourist suffer such a crime, it would be disconcerting should the case fail because the victim could not be present to testify. However, the Senator stressed that he needed to be convinced that the Legislature would not pass a law that could be struck down as unconstitutional.
Stan Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department (METRO), Nevada Sheriffs and Chiefs Association, indicated the intent of S.B. 32 was an attempt to work smarter in relation to tourist crime. Lieutenant Olsen pointed out that 2 years ago a tourist crime unit, consisting of a sergeant and several detectives, was created; the goal of the unit being to save tax dollars and take advantage of current technology in order to work smarter.
Although recognizing there would be a “hue and cry” in opposition of S.B. 32, Mr. Graham requested an opportunity to demonstrate that the constitutional issues had been addressed, and in addition, to create language that would provide proper notification to the defense counsels, (State Bar of Nevada) that it would not be ambushed. Senator James expressed appreciation for Mr. Graham’s comments.
Senator James indicated he would entertain opposition to S.B. 32.
James J. Jackson, Lobbyist, Attorney, Nevada Attorneys for Criminal Justice, indicated he would present the “hue and cry” referred to by Mr. Graham. He said he disagreed with the concept of a sliding constitutional scale. Mr. Jackson declared the Constitution was constant across-the-board and did not apply separately in different kinds of cases or different types of proceedings. He pointed out that in the Maryland v. Craig decision (Exhibit H), the United States Supreme Court said that a district court or trial judge must make very specific findings and show that in a particular proceeding it (videoconferencing witness testimony) is necessary to protect the life, health, or safety of an individual. That standard was applied in Maryland v. Craig, Mr. Jackson emphasized.
Setting debates aside, Mr. Jackson indicated his willingness to meet with the proponents of S.B. 32 in an attempt to create a workable measure that would protect the rights of the accused at each stage of every proceeding, not just in a particular situation. He said he recognized the standard was different insofar as the right of confrontation at a grand jury proceeding, given a defendant could either be present or not, and should they be in attendance, they would not have a right to cross-examination.
David S. Gibson, Lobbyist, Clark County, read from a prepared statement in opposition to S.B. 32 (Exhibit J). He pointed out that S.B. 32 proposed a major change that would have a huge impact on the ability to gauge the effectiveness of the search for truth. Saying there is neither mention of notice to parties nor a requirement of exigent circumstances, Mr. Gibson noted that the confrontation clause of the Nevada Constitution is silent regarding what is to be done at every critical stage of a criminal proceeding. Thus, videoconferenced testimony would presumably be admissible at trial. Mr. Gibson suggested it would be difficult for the defendant’s counsel to look the witness in the eye, observe his/her reactions to questions, see his/her skin and facial changes, and smell his/her breath. Cross-examination is a time-tested tool, which changes when done from a distance through a monitor. Many questions must be answered before S.B. 32 is passed, Mr. Gibson asserted.
Senator James inquired whether some of the opposing issues could be alleviated by being able to use the (videoconferenced) witness only at the preliminary hearing or the grand jury phase, while recognizing, however, the testimony would not be admissible at trial in the event the witness was unavailable. Mr. Gibson said it would make a big difference.
Senator James asked whether or not Mr. Gibson agreed with Mr. Graham that the confrontation clause did not apply at the hearing stage. Mr. Gibson responded that he did not agree with Mr. Graham, and expressed the belief that the right to confront witnesses applied at any critical stage, including administrative hearings in a parole revocation. He said it was more important, at that point, to be able to confront witnesses, particularly in serious cases. He asserted that “little people” would be affected by this legislation, and maintained that he dealt with people every day in his practice who were suspicious of the system.
In response, Senator James pointed out it was not a case of “little people” or “big people,” with respect to crime. He said crimes would never be prosecuted if out-of-state victims did not return to testify. The Senator emphasized the seriousness of the issue, not only for the victim, but also the state of Nevada.
In reply, Mr. Gibson expressed understanding and explained that was the reason the District Attorney had the grand jury available. He pointed out that should a time set for a preliminary hearing not suit a witness, the District Attorney could have him/her testify before a grand jury. In addition, should a case be dismissed because a witness was absent at the preliminary hearing stage, the District Attorney could take the case to the grand jury. Mr. Gibson added that out-of-state witnesses may be deposed for trial purposes in Nevada. He explained that the procedure entailed receiving permission from the judicial district court, setting up the deposition, traveling to the witness’ location, deposing, and cross-examining the witness. This procedure would give the attorney ample time to prepare the case, ask questions, and observe the witness’ reaction.
Senator James asked whether the issue regarding the use of testimony in later proceedings would be considered by the proponents and opponents. He suggested language be added to the bill that would require live testimony. The Senator expressed uncertainty regarding what the language “without limitation” covered, or whether it would be necessary in any event. He postulated that it could create an argument over what kind of technology would be allowable, and what would not. Therefore, it could create a broader argument should the language remain as is.
At this point, Senator James absented himself from the meeting and Senator Porter took over as chairman.
Mr. Gibson continued his oral testimony (Exhibit J) regarding opposition to S.B. 32. He recalled a case in which one of his clients was on trial and needed the testimony of two witnesses from Chicago. The witnesses were good friends of the Nevada judge and an attempt was made to compel their attendance from out of state. The judge had indicated he would send the witnesses to testify if they were paid $10,000, lodged in an expensive hotel suite, and only required to be in court for a limited number of hours each day in order to allow them an opportunity to recuperate from their travels in Las Vegas. Mr. Gibson noted that the Office of the State Public Defender could not afford such expense. He explained that a judicial district court judge ordered the out-of-state depositions and the case was resolved. Mr. Gibson asked the question, “How do you feel about the process?”
Senator Porter affirmed that the points made by Mr. Gibson were directly proportionate to testimony being brought to the committee from Las Vegas via videoconferencing. He agreed that he would be unable to denote whether or not a testifier in Las Vegas had been drinking or had received proper counsel. In response, Mr. Gibson proclaimed videoconferencing a good thing; however, he said it was a different process. He maintained that a trial affected the immediate life and liberty of an individual in an attempt to prove his/her actions beyond a reasonable doubt. Mr. Gibson emphasized that the process dealt with confrontation in all its different aspects, colors, and smells. Confrontation is not just being face to face with a person, it is being able to gather all the benefits of the confrontation or experience, he declared.
Mr. Gibson said a suggestion had been made that videoconferencing be done in certain situations. He suggested the committee ask themselves why videoconferencing would be done in some situations and not others, and why it would not be done in every situation. Mr. Gibson pointed out that he had nothing to do with a grand jury hearing and was unable to help clients within that purview. He recommended the process be left alone because it was functioning well.
Asked whether he was suggesting that audiovisual technology not be used in any case, Mr. Gibson answered that audiovisual technology had its place, but S.B. 32 contained unanswered questions beyond what was acceptable.
Mr. Jackson expressed admiration for Mr. Gibson’s points, which he said explained the reason additional discussion would be required between the proponents and opponents of S.B. 32. He said that NRS 171.198 would also be impacted by S.B. 32. The statute currently allows testimony obtained at a preliminary hearing and reduced to a transcript to be presented at a trial if a witness fails to appear. Mr. Jackson remarked that, once again, another way to remove confrontation was being added. He said he had no doubt that the intentions of the proponents were pure in their concern for justice and resolving cases.
JoNell Thomas, Lobbyist, Nevada Attorneys for Criminal Justice, testifying from Las Vegas, indicated that NRS 171.197 contained a procedure permitting the use of affidavits at preliminary hearings in uncontested matters for out-of-state witnesses or witnesses located more than 100 miles away. She said it was an important procedure that could eliminate many unnecessary costs. Ms. Thomas expressed concern about S.B. 32 in the context of carjacking that would require in-court identification, and was uncertain how identification would be accomplished by videoconferencing. She remarked that this was an area in which both due process and the Sixth Amendment had been applied in regard to the right to have counsel present in certain “identification-type” issues. She pointed out the difficulty in identifying people on a television monitor. Ms. Thomas maintained that identification would be an issue that would be explored and would arise in many “tourist-type” cases.
Finally, Ms. Thomas expressed willingness to discuss compromises with the proponents of the bill. She said it seemed feasible to have a bill such as S.B. 32 for situations that were not a matter of inconvenience or money, but rather an issue of a witness who was ill, hospitalized, unable to travel, or incapacitated in some way. She suggested that particular scenario would be closer to the Maryland v. Craig decision.
Senator Care reiterated his willingness to work out a palatable solution that would pass constitutional muster.
Mr. Gibson indicated that he and Senator Care had conferred with John Morrow of the Washoe County Public Defender’s Office. He expressed appreciation for their participation and understanding of the intent of S.B. 32. He said he would work with all players to arrive at an acceptable measure.
Senator Porter encouraged cooperation from all parties.
There being no further testimony, Senator Porter closed the hearing on S.B. 32 and opened the hearing on Senate Bill 31.
SENATE BILL 31: Revises provisions pertaining to assault and battery. (BDR 15-284)
Senator Margaret (Maggie) A. Carlton, Clark County Senatorial District No. 2, presented a brief overview of S.B. 31 and offered to address any concerns.
Ken Leon, Probation Officer, Division of Parole and Probation (P&P), Department of Motor Vehicles and Public Safety, testifying from Las Vegas, indicated his support for S.B. 31. He reported that on November 8, 1999, he was the victim of an assault by a probationer. He explained that during a home contact he was hit by the individual and sustained two cuts to the left side of his face. He said the situation would have been more serious but he was accompanied by his partner. Most officers work alone, which can be a dangerous situation, Officer Leon remarked.
Al Konopka, Manager, Intensive Supervision Unit, Division of Parole and Probation, Department of Motor Vehicles and Public Safety, testifying from Las Vegas, indicated he was Officer Leon’s supervisor at the time of the assault. He reported that Officer Leon had been rendered semiconscious and was on his knees. The residence housed five or six hostile residents. Officer Leon’s partner dragged the injured officer out of the house and requested backup from METRO. Mr. Konopka said, subsequent to charges filed as a result of the assault, Officer Leon, his partner Officer Rubart and he met with representatives of the Clark County District Attorney’s office. He said the statutes were perused and because there was no substantial bodily harm to Office Leon, the charge was a gross misdemeanor and would more than likely be pled in a preliminary hearing. Mr. Konopka acknowledged that the 1-year imposed sentence would be served concurrent with probation revocation, which would also be faced by the probationer. Therefore, the probationer would not receive a felony conviction and not be penalized with additional jail time as a result of the assault on Officer Leon. Mr. Konopka pointed out that Officer Leon had been reimbursed for his contact lenses and had lost 1 or 2 days of work as a result of the assault.
Continuing, Mr. Konopka indicated he had contacted Senator Carlton to ascertain whether the law could be enhanced. He stated there were over 100 officers making home contacts, 7 days a week, and asserted that they deserve protection by the state in these types of situations.
R. Thomas Ely, Lobbyist, State Peace Officers Council, testifying from Las Vegas, stated that the State Peace Officers Council supported S.B. 31 and would like to see it passed.
Senator Porter requested further explanation regarding the penalty for substantial bodily harm. Mr. Konopka said the District Attorney’s office had informed him if there was not enough substantial bodily harm, such as maiming or broken bones, the statute only dictated a gross misdemeanor penalty, which was 1 year in the Clark County Detention Center, or a $2,000 fine. In Officer Leon’s case, he surmised the charge would be pled down in the preliminary hearing and the sentence would run concurrent with the revocation faced by the probationer in judicial district court. Officer Konopka indicated the probationer faced a 12- to 48-month sentence; therefore, rather than taking the matter to trial, a deal would be made with the probationer to plead a gross misdemeanor. Consequently, the probationer would receive 1 year, which would run concurrent with the penalty given in probation revocation.
Senator Porter asked Senator Carlton whether she was confident the language in S.B. 31 covered the issue of substantial bodily harm. Senator Carlton deferred to a legal opinion from a qualified individual. She stated her intent was to protect all state and municipal employees against home contact assault.
Senator Porter expressed concern that should penalties be increased but substantial bodily harm not clarified, S.B. 31 would not help the situation.
Ms. Combs pointed out page 4, lines 3-7, of S.B. 31:
If the battery is committed by a probationer, a prisoner who is in lawful custody or confinement, or a parolee, without the use of a deadly weapon, whether or not substantial bodily harm results, for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years.
That portion of the bill covered his concern regarding substantial bodily harm, Senator Porter remarked.
Susan Pacult, Social Services, Clark County, testifying from Las Vegas, expressed support for adding to S.B. 31 employees of the county required to make home visits. She pointed out that social services serve various segments of the at-risk population. Social workers are required to make home visits and in many circumstances they encounter adversarial conditions, particularly in respect to senior citizen protective service employees. In those situations, social workers are present because of reported alleged exploitation, abuse, or neglect. Ms. Pacult said social workers are unaware of what they might encounter on their visits and could face significant risk. She noted there had been no incidents to report, but said they had been lucky.
In addition, Ms. Pacult said social workers assist with homemaking services to homebound elderly and frail members of the community. She pointed out that a social worker’s car was burned while assisting a resident. She reported approximately six reports a month in which security guards were requested to stand by in the event of a problem which could escalate to violence. Ms. Pacult declared at-risk populations bring with them certain other risks that affect employees attempting to help recipients of the services. She reiterated her support of S.B. 31.
Mark Nichols, Lobbyist, National Association of Social Workers (NASW), testifying from Las Vegas, expressed support for S.B. 31. He said home visits are an important component of many social workers’ responsibilities. To effectively assess a person’s situation or determine the best form of action frequently requires a social work professional to visit the individual or family in their home environment. Mr. Nichols indicated the visits were, unfortunately, accomplished at personal risk to the social worker. He emphasized that efforts must be made to adequately protect, safeguard, and ensure the safety of state, county, and other governmental social workers and professionals making home visits. Mr. Nichols concluded by stating that NASW extended its appreciation to Senator Carlton for sponsoring the legislation and the committee for encouraging it. He urged passage of S.B. 31 into law.
Kirby Burgess, Director, Family and Youth Services, Clark County, testifying from Las Vegas, said that the department of Family and Youth Services also makes field and home visits. He remarked that probation officers routinely visit children in various neighborhoods where they encounter young adults, 18 years or older, including parents as well as siblings. There is potential for violence in these situations. Mr. Burgess pointed out his staff is not armed and relies upon good officer safety measures. However, from time to time they encounter issues and circumstances beyond their control. He said child protective services officers who investigate allegations of child abuse and neglect often make unannounced home visits, which heightens the security issue in terms of officer safety. Mr. Burgess indicated that officers had been attacked in juvenile detention facilities in which young people under 18 years of age are incarcerated. He expressed willingness to work with Senator Carlton and Mr. Graham to address the issues in S.B. 31.
Richard W. Wilkie, Lobbyist, City of Henderson, expressed support for S.B. 31. He said a number of employees for the City of Henderson made home visits, including meter readers, human resource personnel, and building inspectors.
Mr. Graham indicated that S.B. 31 encompassed a continuation of special classes of people for whom the Legislature may seek to give added protection. He stated there is a justified need and a policy decision should be made based upon sound argument.
R. Warren Lutzow, Deputy Chief, Parole and Probation, Division of Parole and Probation, Department of Motor Vehicles and Public Safety, pointed out there are 11,000 offenders, convicted either on gross misdemeanors or felonies, residing in the state of Nevada, that require home visits as part of their supervision. There are approximately 200 officers that perform these functions. Mr. Lutzow explained that home visitation is considered a basic element of working with offenders, and on a day-to-day basis it is probably the most dangerous area. Therefore, P&P supported the inclusion of people who make home contacts, be they parole and probation officers, juvenile officers, or welfare employees. The deputy chief said the group of people, at-risk people, dealt with by these employees are often the same individuals.
Steve Barr, Lobbyist, Nevada Corrections Association, noted support for S.B. 31 and commended Senator Carlton for her sponsorship.
Gary H. Wolff, Lobbyist, Nevada Highway Patrol Association, and Teamsters Local 14, related an incident whereby an employee from Washoe County went on a home visit to investigate allegations of child abuse. The employee was subsequently attacked by the mother and suffered broken ribs and cheekbones, which culminated in a weeklong hospital stay. The mother only received a gross misdemeanor charge. Mr. Wolff expressed support for S.B. 31 and commended Senator Carlton for her efforts on its behalf.
Bobbie Gang, Lobbyist, Nevada Women’s Lobby, expressed support for S.B. 31. She stressed the importance of assuring that the penalty given would equitably cover the assault. Ms. Gang suggested the bill cover legislators in regard to verbal abuse.
Janet L. Gilbert, Lobbyist, Progressive Leadership Alliance of Nevada (PLAN), mentioned that for many years the Welfare Division, (Department of Human Resources) with whom she closely worked, did not do home visitations. There were concerns about eligibility workers going into homes; however, recently social workers were incorporated back into the system and currently perform home visits. Ms. Gilbert said it is important to protect state workers under these circumstances.
Deborah K. Cahill, Lobbyist, Nevada State Education Association (NSEA), expressed support for S.B. 31. She indicated that homebound school employees benefit from the protection provided in the bill and supported extending it to other employees of political subdivisions. In regard to the enhancement of the penalty in section 2, subsection (d) of S.B. 31, Ms. Cahill pointed out it would offer extra protection to teachers who teach in prison education programs working directly with prisoners.
Mr. Pugh expressed support for S.B. 31 and echoed Mr. Burgess’ comments to clarify and ensure that the definition of “probation” and “parolee” applied to juvenile offenders as well. He explained that in the future, should an incident occur and an opinion be sought, the intent of the bill would be clear.
Senator Carlton indicated a number of individuals had contacted her expressing support for S.B. 31 and the committee heard testimony from others. She suggested the committee allow the opponents of the bill to be heard. Senator Porter read the names of other supporters of S.B. 31 who had not testified but were in attendance at the meeting: Michael L. Gillens, Lobbyist, Nevada Conference of Police & Sheriffs (NCOPS); Richard Tiran, Lobbyist, NCOPS; and Joseph H. Edson, Lobbyist, Progressive Leadership Alliance of Nevada.
Senator Carlton indicated her willingness to work with Kirby Burgess on the issue. The Senator offered a disclaimer that her husband is a parole and probation officer for the State of Nevada, but S.B. 31 would not affect him any differently than any other state employee.
Jim Williams, Concerned Citizen, Pahrump, expressed concern regarding the remedy for abuse of power and failure of due process. He related an issue in Pahrump where an animal-control officer came onto a property allegedly checking leash laws. Mr. Williams cited a United States Supreme Court federal crop insurance case that stated “we” take the risk if “we” assume the agent is operating within this jurisdiction. He said if any officers, agents, or officials were acting outside the jurisdiction “we” might not know it. Mr. Williams said he was concerned about Fourth and Fifth Amendment issues, where “they” may gather evidence that could be used against “us” when “we” are voluntarily cooperating with this law; as well as giving up and waiving “our” rights involuntarily to cooperate with this law when “they” are not acting within “their” jurisdictions. Mr. Williams reiterated his concern about abuse of power when considering remedies.
Senator Porter said it was his understanding that the issue in S.B. 31 pertained to members of law enforcement and social services who experienced problems in the line of duty. Mr. Williams clarified he was referring to an animal-control officer who was “part of a peace-officer function.” He repeated the issue of the case in Pahrump in which there was alleged abuse of power when an individual defended his property from unlawful entry. Mr. Williams stated, “The animal-control officer considered entry onto the property as performance of his duty; however, we consider it violation of jurisdiction.”
Questioned whether or not the officer was hurt in some fashion, Mr. Williams said the officer was “duck-walked” off the property and subsequently filed a claim, citations were issued, four squad cars “pulled up,” culminating in a “he said-she said” situation, which is now in litigation.
Although he said he appreciated Mr. Williams’ comments, Senator McGinness surmised that two different issues were being discussed. He indicated that S.B. 31 referred to an employee of the state whose official duties required him or her to make home visits. He pointed out that a person on probation has usually acquiesced to home visitation, as well as a person who has applied for social services. The Senator suggested that a visit from an animal-control officer would more likely be an enforcement issue. Senator McGinness said Mr. Williams brought up some good points and expressed appreciation for them.
Senator Porter closed the hearing on S.B. 31 and opened the hearing on Senate Bill 37.
SENATE BILL 37: Revises provision requiring filing of annual report regarding children placed under informal supervision. (BDR 5-112)
Senator Valerie Wiener, Clark County Senatorial District No. 3, read from a prepared statement (Exhibit K) requesting support for S.B. 37. The Senator indicated she chaired an interim study that focused on a wide range of juvenile justice issues. A request had emanated from recommendations of the study to repeal the requirement for annual reporting on children placed under informal court supervision because judges do not routinely ask for the report. Senator Wiener stressed the importance of avoiding sending a wrong message to judges. Therefore, the addition of the language, “upon the request of the court,” would allow the court discretion to request the report. This simple change would satisfy the concerns of administrators, while allowing the court to continue to request the report, Senator Wiener stated.
Senator Porter expressed thanks and appreciation to Senator Wiener regarding her efforts on behalf of children.
Leonard Pugh, Director, Juvenile Services, Washoe County, read his testimony (Exhibit L) in support of S.B. 37, in regard to the flexibility and local control it would provide.
Senator James returned to the committee and resumed chairing the meeting.
Kirby Burgess, Director, Family and Youth Services, Clark County, noted he was president of the Nevada Juvenile Justice Administrative Association, and expressed support for S.B. 37. He indicated the department of Family and Youth Services routinely included the information alluded to in S.B. 37 as part of its comprehensive annual report.
Senator James closed the hearing on S.B. 37.
There being no further testimony or business to come before the committee, Senator James adjourned the meeting at 10:22 a.m.
RESPECTFULLY SUBMITTED:
Barbara Moss,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE: