MINUTES OF THE
SENATE Committee on Judiciary
Seventy-First Session
March 7, 2001
The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:46 a.m., on Wednesday, March 7, 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
STAFF MEMBERS PRESENT:
Bradley A. Wilkinson, Committee Counsel
Allison Combs, Committee Policy Analyst
Barbara Moss, Committee Secretary
OTHERS PRESENT:
May S. Shelton, Lobbyist, Washoe County
Madelyn Shipman, Lobbyist, Assistant District Attorney, Washoe County
Sean G. Nebeker, Lobbyist, Marriage and Family Therapists
Susan J. Meuschke, Lobbyist, Nevada Network Against Domestic Violence
David S. Gibson, Lobbyist, Legislative Team, Clark County
Ben Graham, Lobbyist, Nevada District Attorneys’ Association
Gene T. Porter, District Judge, Eighth Judicial District Court
A. William Maupin, Chief Justice, Nevada Supreme Court
Janet Berry, District Judge, Second Judicial District Court, and President, Nevada District Judges Association
James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice
Kimberly Maxson-Rushton, Legislative Liaison, Chief Deputy Attorney General, Office of the Attorney General
Matthew Dushoff, Deputy Attorney General, Office of the Attorney General
Senator James:
I will open the hearing on Senate Bill (S.B.) 87.
SENATE BILL 87: Provides that court may order that psychological evaluation and necessary counseling be provided to child affected by battery which constitutes domestic violence. (BDR 15-854)
Senator Wiener:
I will read from my prepared statement (Exhibit C) in regard to S.B. 87, which provides for the court to order assessment, evaluation, and/or counseling for a minor who is impacted adversely by the commission of domestic violence. I am submitting the “Proposed Amendment to S.B. 87 from Senator Weiner” (Exhibit D).
Senator James:
Thank you. We will now take testimony from others who are here to testify on the bill.
May S. Shelton, Lobbyist, Washoe County:
We have worked with Senator Wiener on S.B. 87 and she has incorporated some of our concerns. We understand the intent of the bill and support the idea that early intervention can prevent future problems and escalation of problems. Currently we serve a number of children from violent homes. The children are referred to us by law enforcement, courts, and other professionals. In order for us to intervene, the referrals must meet the definitions in chapter 432B of Nevada Revised Statutes (NRS) regarding a child being abused, neglected, subject to maltreatment, and other definitions in the statute. If the referrals do not meet the definitions in chapter 432B of NRS, we have no jurisdiction. However, we can refer to agencies that provide services, but that is voluntary. I understand that S.B. 87 has a lot of permissive language. We can offer services if they are voluntary, but there is no way to force people to avail themselves of them.
I would like to address the unknown fiscal impact. If the courts paid more attention to this important area they might refer more people. We can track referrals and inform the committee how many are received, how many people come into the system, and the fiscal impact of such.
Madelyn Shipman, Lobbyist, Assistant District Attorney, Washoe County District Attorney:
I was told by the chief deputy of the Reno court that there were over 1,900 charges of domestic violence in year 2000 that had been referred. It is an active court and a protocol has been established between the Child Protective Services (CPS) agency and the court to receive domestic violence calls. There were approximately 200 referrals last year. I cannot say whether or not all the referrals received services or if there was any significant (or insignificant) follow up because they were judged case by case. We will keep track of the separate calls if S.B. 87 is passed.
Sean G. Nebeker, Lobbyist, Marriage and Family Therapists:
We are in support of Senator Wiener’s S.B. 87. We believe children need early intervention when they have been subjected to such violence. The bill does not do everything we want, but it is a good start.
Susan J. Meuschke, Lobbyist, Executive Director, Nevada Network Against Domestic Violence:
I am submitting my prepared statement (Exhibit E) in support of S.B. 87.
Senator James:
Testimony demonstrates there is little debate regarding the impact of witnessing domestic violence. There must be a tremendous impact. I think this is a good piece of legislation. Although the court has the power at the present time, codifying the issue would inform the court that it is appropriate to provide counseling for a child who has witnessed domestic violence. There are children who experience difficulty handling much less traumatic things in their lives. I agree with your testimony.
David S. Gibson, Lobbyist, Legislative Team, Clark County:
We support Senator Wiener in this endeavor and I appreciate her allowing us to participate in the discussions that helped form the legislation. I have not been able to get the amendment to my bosses in Clark County; therefore, we do not know the fiscal impact. Certainly there is a known, and to a large extent unknown, impact on people who live in families where there is domestic violence. I commend Senator Wiener in her efforts. She is one of the heroes of people affected by this horrible situation and we support her. Thank you.
Senator James:
I will now close the hearing on S.B. 87 and open the hearing on S.B. 180.
SENATE BILL 180: Prohibits suspension of sentence or granting of probation to persons convicted of certain sexual offenses involving victims who are minors. (BDR 14-467)
Ben Graham, Lobbyist, Nevada District Attorneys’ Association:
I am present to discuss S.B. 180. I wish to put on record that ever since the readjustment of some of the sentencing structures in 1985, there have been issues dealing with crimes against children. This bill came from the Clark County District Attorney’s office specialty unit. As we progressed toward the hearing it was determined that not everyone “in the family” has the same problems and difficulties that may have been facing Clark County. I ask the committee to not have a full hearing today and possibly indefinitely postpone S.B. 180. I suspect it will not proceed.
I will urge all 17 county prosecutors to gather their crimes against children committee prosecutors together to ascertain what is working in different areas to determine whether or not the issue can be worked out without a legislative change. Gemma Greene Waldron, Lobbyist, Nevada District Attorneys’ Association, and Teresa Lowry, Chief Deputy District Attorney, Special Victims Unit, spent many hours working on proposed amendments but we are still not together “as a family.” Therefore, I ask the committee not to process this bill today.
Senator Washington:
How do you prosecute an attempt to commit an offense perpetrated on a child?
Mr. Graham:
Generally the perpetrator is guilty of the primary offense and it is a negotiated plea. An attempt is defined as when a person intends to commit a particular crime, takes substantial steps toward completing the crime, and comes within dangerous proximity of succeeding.
Senator James:
They have specific intent.
Mr. Graham:
The concept is: I intended to kill the person but he did not die, or the gun misfired.
Senator James:
I am closing the hearing on S.B. 180 and opening the hearing on the work session, utilizing a document entitled, “Work Session, Senate Committee on Judiciary, March 7, 2001” (Exhibit F). I will open the work session on S.B. 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)
Mr. Graham provided a document entitled, “Video-Conferencing/Closed-Conferencing Proposed Amendments – Nevada Attorneys for Criminal Justice” (Exhibit G).
Mr. Graham:
I made these notes (Exhibit G) with JoNell Thomas, Nevada Attorneys for Criminal Justice, and James J. Jackson, Nevada Attorneys for Criminal Justice, last week. Their opposition is addressed by six points, with a couple of additions to which we all agreed.
Number 1: They do not want the first identification to be over the video machine. However, it would not preclude them testifying that they had seen a photo lineup, or an actual lineup, and identified the person previously. This does not preclude testimony of pre-trial identification.
Number 2: This is something the defense bar desires. Under NRS 171.198, subsection 6, there are a whole series of challenges that the state or the defense must use in order to use pre-trial testimony. We have discussed that in a couple of other bills. I, personally, would like to leave it in and let the courts develop the case law and whether or not it would be a viable tool. However, if it is not the will of the committee it could be omitted.
Number 3: This deals with a notice that I felt was appropriate. They have asked for a 14-day notice, and I see no reason it cannot be achieved, and then objections within 7 days.
Number 4: This deals with the process with the certified videographer regarding testimony being provided the parties and a transcript prepared.
Number 5: All testimony shall be made in a courtroom. However, in the event a courtroom is not practical in an appropriate location designated by the judge, the testimony could be taken in another location designated by the court.
Senator James:
In the presence of a magistrate or judge? How would you get a judge from another state to come over and sit around while you testify?
Mr. Graham:
It appears possible and case law indicates it would be permissible.
Senator James:
What jurisdiction does the judge have to do anything? This would be a judge in Ohio, for example, where the person lives and is testifying at a Nevada criminal proceeding preliminary hearing.
Mr. Graham:
I would anticipate arrangements would be made in the other jurisdiction for a courtroom with a judge to be available. In other cases we have sent our judge to another jurisdiction to preside.
Senator James:
It points out things the judge shall do; therefore, we are in Nevada telling a judge in another jurisdiction what he/she will do. I think the most you will get is a court reporter to attend and place the person under oath.
Mr. Graham:
That would certainly be less cumbersome and the safeguards would be protected.
Senator James:
You cannot put that in there. Either you are going to do this or not. This will gut the whole thing, Mr. Graham.
Mr. Graham:
I guess I was weak.
Senator Care:
Is there anything in the law that designates whether a witness has submitted to the jurisdiction of the state when he agrees to testify before a grand jury or preliminary hearing in that state?
Mr. Graham:
It would be a logical argument that the testifier subjected himself to the Nevada courts.
Senator Care:
So, you would not necessarily need an out-of-state magistrate.
Mr. Graham:
I think that is right. By the way, we are talking about two processes. The only area with which we had difficulty was the preliminary hearing, not the grand jury.
Senator Care:
Do the opponents have any difficulty with the bill as originally written as it applies to grand jury proceedings only?
Mr. Graham:
I think the defense counselor said “we don’t like it,” but there is no constitutional basis on which to challenge that portion.
Number 6: The defense desired they be at least 500 miles from the judicial jurisdiction, which would basically preclude anything within the State of Nevada. I have asked, and they agreed, that we could add a provision: “or is physically unable due to medical condition to attend the on-site preliminary hearing or grand jury proceeding.” I could anticipate an elderly person or someone unable to travel. Of course, you are going to go in, give notice to the court, the defense will be there, we will have to satisfy a lot of questions before the court would authorize this process.
Senator James:
Leave number 2 in and take the judge thing out. Is that acceptable?
Mr. Graham:
That is fine.
Senator James:
The revision on number 1, the asterisk and double asterisk, would be part of this, too.
Any questions from the committee?
Senator Porter:
Regarding the magistrate or judge, do you need to add a court reporter or is it a given?
Senator James:
It is in number 4. I changed the language to say, “The witness shall not have in his possession any notes or other materials,” and so forth, and it just becomes a matter of inquiry for the attorney.
Mr. Graham:
This adds to, but does not take anything away from the preliminary hearing requirements.
Senator Care:
In number 2 where it says, “cannot be used in lieu of live testimony in any subsequent trial but may be used for other lawful evidentiary purposes,” what first comes to mind is impeachment. Does this also contemplate the death or disappearance of the witness?
Mr. Graham:
That is what NRS 171.198, subsection 6 does. We talked about preserving the testimony and decided against it. The bill would allow it if the witness testified at the preliminary hearing even though it was through the video. Our thought is that generally, with older people or gang-killing type things, we would be able to use a good video presentation.
Senator James:
You mean if number 2 was not in there?
Mr. Graham:
If number 2 was left out, then all the provisions of NRS 171.198, subsection 6, would still apply and we might be able to use it under the right circumstances in the event the witness was unavailable.
Senator James:
You still have NRS 171.198, subsection 6.
Mr. Graham:
If we leave number 2 in, it says we cannot do it.
Senator James:
Is NRS 171.198, subsection 6, talking about a preliminary hearing?
Mr. Graham:
Yes.
Senator James:
That is the ultimate issue, Mr. Graham. The argument is whether or not this would be utilized as normal procedure to take the testimony there. It means they would never be brought to trial because you would have already gotten it in the preliminary stage.
Leave number 2 in.
Mr. Graham:
Leave it in and it will give us something to do another year.
Senator James:
I am with you, Mr. Graham. Does anybody have a problem with it?
Senator Care:
That is fine.
Mr. Graham:
Thank you, Mr. Chairman.
Senator James:
Let us accept the amendment and action on S.B. 32.
SENATOR PORTER MOVED TO AMEND AND DO PASS S.B. 32.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
*****
Senator James:
We will close the work session on S.B. 32 and open the work session on S.B. 34.
SENATE BILL 34: Revises provisions relating to appointment of temporary guardians. (BDR 13-1070)
Senator James:
In tab A of the work session document (Exhibit F) there is an amendment with a cover letter to me from the Guardianship Commissioner. Ms. Combs, will you take us through it?
Allison Combs, Committee Policy Analyst, Research Division, Legislative Counsel Bureau:
The amendment to S.B. 34 deletes the current language under the bill. The bottom of page 1 of the amendment indicates that it limits it to cases involving adults. If the court finds the petition is accompanied by an affidavit or certificate, discussed in the original language of the bill, from a physician that the ward is unable to respond to substantial immediate risk of harm, then the court may appoint a temporary guardian and limit the powers to those in an emergency.
The new subsection 3 provides that if the petition is not accompanied by the described affidavit, then an affidavit must be submitted explaining why it was not provided. If the court still finds reasonable cause that a temporary guardian is warranted, the court may appoint the guardian but still limit the powers to those necessary to assist in an emergency.
Senator James:
If you recall, there were two main objections to this bill. The first objection was it would somehow prevent the court from appointing guardians over children in exigent circumstances. The amendment addresses that by limiting it just to adults.
The second objection was that even if you have an adult, you might have difficulty getting certification from a doctor because the doctor does not have access to the adult who is in medical, or other kind of risk. It sets up something like a temporary restraining order (TRO), which is only good for 10 days. It appoints the guardianship to obtain custody in order to take the person to a doctor. If they can get the certification at that point they can then extend the guardianship indefinitely. If they cannot, it dissolves.
I talked to Bradley Wilkinson (Committee Counsel) about this. The language is going to be a lot different in terms of how it is drafted. This is not the Legislative Counsel Bureau’s (LCB) drafting language.
That is the gist of it. Any questions?
Senator Washington:
If you get a temporary certificate for 10 days, is the guardian liable for any consequence or damages?
Senator James:
I am sure the guardian would have some fiduciary responsibilities, but this bill does not change whatever liability or fiduciary duties would be taken on by the guardian. Under current law there is no temporary guardianship, they just appoint the guardian. If they engage in some sort of misconduct, or whatever, then the applicable law would apply. The same thing would apply to this temporary guardianship. We are not affecting whatever duties and responsibilities a court-appointed guardian would have.
Ms. Combs:
When you go back and request an extension of the temporary guardianship, if the certificate is there the guardianship may be extended. If the certificate is not present, in certain circumstances the court makes a finding that circumstances prevented the petitioner from getting the certificate and then the court may extend it, but not more than 30 days. Again, it would be limited to the powers necessary to assist in an emergency.
Senator James:
Any questions on that? That is the amendment and the motion would be to amend and do pass.
SENATOR PORTER MOVED TO AMEND AND DO PASS S.B. 34.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James:
I will postpone the work session on S.B. 34, and open the hearing on S.B. 184.
SENATE BILL 184: Adjusts prospective salary of supreme court justices and district court judges. (BDR 1-517)
Gene T. Porter, District Judge, Eighth Judicial District Court:
I am submitting my prepared statement (Exhibit H) in support of S.B. 184, accompanied by a presentation on the “Judicial Salary Survey and Survey of Other Related Positions” (Exhibit I).
Senator James:
Thank you, Judge Porter. Are there questions from the committee?
Senator Care:
Either the state or county bar produces an annual survey that demonstrates if a lawyer has practiced law for 10 years in Clark County he/she is probably making approximately $100,000, which is the salary of district court judges at the present time. Attorneys often wonder why anyone, under those circumstances, would want to sit on the bench. From my personal perspective the key is productivity numbers. I have no problem with the way the bill is written and I endorse it. What is not seen is the survey that shows the income that judges would make if they were to step down from the bench and return to private practice. I am convinced that number is exceedingly high. The Sunday Las Vegas Review-Journal help-wanted ads reflect the market for anybody who wants to be an attorney. It is difficult to hire an attorney. I do not know the starting salary in Clark County; however, a few years ago when I was a hiring partner for summer law clerks, there were firms that were hiring them for $4500 a month.
Senator James:
The survey covers lawyers in all stages of their career. Over 90 percent of judges are seasoned senior litigators, or lawyers and law-firm partners. Obviously a person makes sacrifices to become a judge, but we have to encourage and retain the best people in order to develop a great judiciary in Nevada. I agree with Senator Care’s comments.
Senator Porter:
Is there a movement to add judges?
Judge Porter:
There is a bill currently before the Assembly Committee on Judiciary, Assembly Bill 109.
ASSEMBLY BILL 109: Increases number of district judges in eighth judicial district. (BDR 1-520)
The request is to grow from 30 to 35 judges. A regional justice center is being built and, in discussions with the county, it has been pointed out that it would be cheaper to build the courtrooms now. All of that is on the table, but we understand the budgetary constraints of the state.
Senator Porter:
Based upon the number of filings it seems there is a need for additional help in the courts.
Judge Porter:
Senator, we are constantly behind the curve. Attempting to keep government’s infrastructure up with the growth rate has been a constant battle.
Senator Porter:
Are you working on expansion?
Judge Porter:
Yes, I am working on it.
Senator Washington:
Will judges be added to the chancellery court? Would their salaries be amalgamated into this, and where would they fall?
Senator James:
The business court has been established by court rule. There are business court judges in Clark County and Washoe County who have not been given any additional salary and are taking on new responsibilities within the context of what was done before. There is a rotation system that is based upon the constitution. Are there three business court judges?
Judge Porter:
There are two in Clark County.
Senator James:
You and District Judge James C. Mahan?
Judge Porter:
District Judge Michael L. Douglas is handling that portion for me until this session is over.
Senator James:
Splitting the court into civil and criminal seemed to work very well. I know you have returned to a rotational system and many things dealing with the docket have been very successful. The innovations coming out of the Nevada Supreme Court and the Eighth Judicial District prove that Nevada has a cutting-edge judiciary. The advent of drug courts, family courts, business courts, and the rotation system, demonstrate that we have done everything we can do to deal with huge caseloads.
Senator McGinness:
Would you explain the increase of one-half of one percent?
Judge Porter:
In 1995 we went from $79,000 to $100,000, which is 27 percent or 41/2 percent a year. The raise from $100,000 to $130,000 is 30 percent, which is 5 percent a year.
Senator James:
Thank you for your well-prepared and thought-out presentation.
A. William Maupin, Chief Justice, Nevada Supreme Court:
I wish to assure everyone on the committee that the judicial system across the board, including judges across the state, have discussed the issues addressed this morning in terms of the productivity of the judiciary. Everyone I talked with remains committed to taking any court management measure to improve productivity and maximize the utilization of existing resources. I think we are doing everything we can to accomplish that.
Janet Berry, District Judge, Second Judicial District Court, and President, Nevada District Judges Association:
I want to thank you for taking the time to hear Judge Porter’s excellent presentation. I also want to make three points regarding Nevada’s judiciary. Due to the fact that Nevada is a rather unusual state with a very large urban center, a majority of judges have inhuman caseloads. That is, of course, Las Vegas. Then there is Washoe County and the rurals. The caseload in the north is over national average, but manageable, and we continue to work with innovations.
The first issue you might consider is the entire change of the face of the judiciary. You will see it throughout the session. Last year, when I became president of the Nevada District Judges Association, we voted to speak with one voice with District Judge Porter as our representative. He has done a wonderful job providing you with precise, appropriate information.
Second, one of the things that has changed dramatically is court administration. If we are going to manage our limited resources we have to continue with the brilliant type of court administration that you have seen from Karen Kavanau [Director of the Administrative Office of the Courts]. She has brought the state judiciary together in an extraordinary way. My compliments to you and the Nevada Supreme Court justices for seeing that vision.
Third, last year for the first time in the history of our state the entire judiciary met at South Lake Tahoe for a joint meeting, and next year we will meet with the federal judiciary. As we continue to cross-communicate, pool our resources, and look for every conceivable way to use our dollars to the highest invested level, you will continue to see an innovative judiciary. In my view, one of the most important things we have seen is partnering with court administration and big district courts in managing resources, cross-communicating, and effectively deploying judges. My compliments to the state for supporting those efforts and understanding that vision.
I would be glad to answer any questions regarding the Nevada District Judges Association or the Second Judicial District.
Senator James:
Thank you, Judge. Are there any questions from the committee?
Senator Porter:
Judge, I appreciate your comments on Karen Kavanau. I concur that the only reason we are interested in this bill is because of her and her treatment of the Senate. She is really doing a great job. From a layman’s perspective it is a point well taken. Thank you.
Senator James:
We will close the hearing on S.B. 184 and the bill will be considered again at the end of the work session. We will return open the work session on S.B. 36.
SENATE BILL 36: Changes standard of proof in proceeding for forfeiture of property. (BDR 14-14)
Senator James:
There are no proposed amendments to S.B. 36. I will listen to any amendments entertained by the committee. I know you have all received input on the bill from different sectors.
I wish to share with the committee some of the research provided us in a memorandum to me from Allison Combs, Committee Policy Analyst, regarding other states. California requires proof beyond a reasonable doubt and a conviction before property can be forfeited; Connecticut, Washington, D.C., and Michigan require conviction before property can be forfeited; and Minnesota requires clear and convincing evidence, which is proposed by our bill. Tennessee requires beyond a reasonable doubt and a conviction, and Washington requires a conviction before property can be forfeited. Oregon passed a voter initiative in November that requires conviction of a crime in Oregon or another jurisdiction before property, found by clear and convincing evidence to be instrumental or facilitating the proceeds of that crime, can be forfeited.
Senator Porter:
I recall that Ben Graham’s testimony was about the accusations, not the bill. Is that correct?
Mr. Graham:
We had a couple of reservations about the bill and felt there were some inaccuracies in the allegations that were made. If the committee should decide to raise the bar a little, we would have no difficulty with it.
Senator Porter:
Mr. Gibson, in prior testimony I asked Mr. Graham whether or not there was a problem with the language itself, or if it was the unfounded allegations that flew around the room at the point of discussion. Because no amendments are proposed, what are your thoughts on S.B. 36?
Mr. Gibson:
I have not been involved with S.B. 36; however, from the defense and our client’s perspective, we would like to see it more difficult. I received no specific instructions from anyone on this bill. I guess this is a nonresponse.
Senator Porter:
Regarding the Oregon initiative petition, why was it an initiative petition? Was it initiated through the Legislature?
Senator James:
I do not know where it was initiated, it was a ballot initiative.
Senator Porter:
My point is that it is interesting it would be a ballot question. I guess we do not know the history of it.
Senator James:
Oregon has an active group of people who get things on the ballot. There is a man up there who is a political icon who puts all kinds of things on the ballot. I think he was behind this one.
Senator Titus:
Often when legislators will not take action the initiative process works. Maybe the Oregon Legislature was hesitant to do anything so that is how it got on the ballot.
Senator James:
Richard A. Wright [Attorney] provided me information on the background of the cases to which Bruce M. Judd [Attorney] testified. If any member of the committee wishes to review this information they are welcome to do so. I am not sure whether or not Mr. Wright actually proposed we have it as a conviction, although he provided information that many states do so. He would like to see it happen.
Senator Care:
When Mr. Walters [William T. Walters, Chairman and Chief Executive Officer, Walters Group] testified he said he did not believe S.B. 36 would affect the action currently pending that involved him. I am not sure whether or not it would affect him, but it will not make any difference in how I vote on this bill.
Senator Porter:
It does have some impact on my position. It is my understanding from the testimony that it is not retroactive. Is that correct?
Bradley A. Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau:
The bill does not specifically state the applicability to pending proceedings. I have not researched the issue extensively but the general rule as to retroactivity of statutes is that unless it explicitly states so, it is not retroactive. However, as it pertains to rules of procedure, those generally do apply to any proceeding that has not yet reached the point in the proceeding at which the new rule comes into place. Based upon that, although I cannot say for sure, it would seem to me the new standard of proof would apply to any proceeding that has not yet reached that point. I have no idea specifically as to the facts of Mr. Walter’s case or whether an action was already commenced. I know the property was seized but I do not know the specific facts of his case.
Senator James:
Any further questions?
Senator Porter:
Based on Mr. Wilkinson’s comments, I would prefer not to act on this until we have more “retroactive” information. I would like to confer with staff before acting on this bill.
Senator James:
If anybody has any questions on this, get them answered quickly because we need to move on these bills.
We will close the work session on S.B. 36 and open the work session on S.B. 51 and S.B. 217.
SENATE BILL 51: Makes various changes concerning requirements for formation, maintenance and management of business associations. (BDR 7-255)
SENATE BILL 217: Revises various provisions governing the filing of organizational and related documents. (BDR 7-628)
Senator James:
If you recall, S.B. 51 is the bill that came out of the Senate Concurrent Resolution (S.C.R.) 19 of the Seventieth Session committee and is the omnibus corporate changes bill, and S.B. 217 is the Secretary of State’s omnibus corporate changes bill. Although S.B. 51 came out of the S.C.R. 19 of the Seventieth Session committee, it was worked on by the State Bar Business Law committee. The members of this committee were aware that every session there is a bill updating corporate statutes which tries to keep the statutes in line with what is happening in Delaware, other issues raised by Internal Revenue Service (IRS) revenue rulings, and other such things. We decided to combine the two bills into S.B. 51 because S.B. 217 was much smaller in scope.
SENATE CONCURRENT RESOLUTION 19 OF THE SEVENTIETH SESSION: Directs Legislative Commission to conduct interim study of methods to encourage corporations and other business entities to organize and conduct business in this state. (BDR R-534)
We appointed a subcommittee of Senator Care, Senator Wiener, and me, which met yesterday for 2 hours to go over all the changes in the bill. The proposed changes are attached to a March 5, 2001, letter to me from the Secretary of State explaining each change on a section-by-section basis. Following that is an “interlineated” copy of the bill with the changes.
To go through each and every change would go beyond our work session. Suffice it to say, the subcommittee’s report recommends amend and do pass. We worked through each change in some detail with John Fowler, Renee Lacey, and Scott Anderson, from the secretary of state’s office.
Senator Wiener:
Based on the document under tab B in Exhibit F that refers more generally to documents, will our vote reflect upon that?
Senator James:
We are not changing the language but Mr. Wilkinson, in redrafting, will have the language codified in a separate section, rather than under that section, to clarify it applies to everything.
The issue is the Secretary of State is not liable for an error in a certificate of correction. The language was drafted to apply to any document; therefore, it clarifies that the Secretary of State’s function in accepting and filing corporate documents is to ensure the documents are proper in form, but the substance is an issue for the parties or a court to decide. The Secretary of State does not review the substance of filed documents.
To answer your question, yes, it will be reflected in the vote.
Are there any further questions?
The motion would be to accept the subcommittee’s report and recommend to the full Senate, amend and do pass on S.B. 51.
SENATOR PORTER MOVED TO AMEND AND DO PASS S.B. 51.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
SENATOR PORTER MOVED TO INDEFINITELY POSTPONE S.B. 217.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James:
I will close the work session on S.B. 51 and S.B. 217 and open the work session on S.B. 76.
SENATE BILL 76: Requires correctional officers employed by department of prisons to complete program for facility training. (BDR 16-796)
Senator James:
Senate Bill 76 pertains to the training requirements for correctional officers and mandates the Department of Prisons to require correctional officers hired by the department to complete a program for facility training within 1 year from the start of employment.
With respect to what the majority leader indicated to the chairman of the committee, we are not able to process the bill under receipt of a fiscal note. We cannot process it and send it to the Senate Committee on Finance unless it is in the budget, or a fiscal note has been considered.
We will close the work session on S.B. 76 and open the work session on Senate Bill 83.
SENATE BILL 83: Increases amount of homestead exemption. (BDR 10-4)
Senator James:
Senate Bill 83 would increase the amount of the homestead exemption from $125,000 to $160,000 in equity. Some states do not do a periodic adjustment of the equity; instead they have an amount of land: 160 acres in a rural area for a farm, and one acre within the limits of an incorporated town or city. We researched and found the states that have this are Texas, Florida, Iowa, Kansas, Oklahoma, and South Dakota; therefore, a number of states are similar to Nevada in an urban/rural dichotomy, which has both types of homesteads to protect.
We took this to the sponsor, Senator O’Connell, and asked her whether she would be agreeable to amending the bill to create that kind of law for Nevada. The Nevada Constitution says the Legislature shall provide by law for homestead, but it does not give an amount, nor does it say it has to be equity. We can do whatever we wish. Senator O’Connell likes the idea; therefore, I propose to the committee that we adopt a new homestead limit in Nevada. Does the committee have an appetite for it? It would mean not having to revisit the issue all the time and would also provide some protection in the rural areas.
Senator McGinness:
I think it is an outstanding idea and I would move to amend and do pass.
Senator James:
Therefore, the amendment would be 160 acres outside a municipality, incorporated town or city, or one acre within a city or town. We will work on assuring that the 160 acres would not apply to an unincorporated metropolitan area. If you were in that area you would be under the one-acre definition. We will draft the amendment in that manner. It will come back to the committee for review.
Senator Care:
I wonder whether it might be possible to have an either/or provision.
Senator James:
There would be no need for an equity amount if it applies to land because the equity would be protected by the homestead declaration; therefore, there would be no occasion to opt for the equity.
Senator Care:
If you have, for example, a house on a one-acre lot and you are 3 months into a 30-year loan, you are obviously covered. However, if you are 29 years and 9 months into a 30-year loan, you are also covered.
SENATOR MCGINNESS MOVED TO AMEND AND DO PASS S.B. 83.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James:
I will close the work session on S.B. 83 and open the work session on S.B. 93.
SENATE BILL 93: Provides that notice of mechanic’s lien must include reference to previous liens involving same labor or materials for same property. (BDR 9-74)
Senator James:
We had testimony before the committee including two proposed amendments supported by the sponsor. The amendments include the amount of unpaid balance and require any general contractor or subcontractor to file a mechanical lien to state the unpaid balance due to all lower-tiered subcontractors or suppliers. It is a notice issue. Additionally, the amendments would require a lien claimant to file and release the lien within 7 days once the claimant was paid. Are there any questions about that?
Senator Porter:
This morning I attended a meeting with Assemblyman David F. Brown, who mentioned an addition to page 2, line 24, subsection 5, paragraph (c), of S.B. 93, that the liens may be duplicative. Although I was not exactly sure to what he was referring, I told him I would bring it up during the work session. What impact would there be should the words “not duplicative” be added?
I think we should move with the current amendments and I will obtain clarification from Assemblyman Brown.
Senator James:
He can try to deal with it in the other house. I would rather not bring floor amendments if we can avoid it.
Are there any other questions or comments on the amendments? If not, I will entertain a motion.
SENATOR MCGINNESS MOVED TO AMEND AND DO PASS S.B. 93.
SENATOR PORTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James:
I will close the work session on S.B. 93 and open the work session on S.B. 100.
SENATE BILL 100: Requires gaming licensees to pay person who operates gaming device to make wager if device indicates person won wager regardless of malfunction of gaming device unless person making wager intentionally caused malfunction. (BDR 41-201)
Senator James:
Senate Bill 100 is Senator Neal’s bill concerning the malfunction of a gaming device. It would require the gaming licensee to pay a person who operates a gaming device to make a wager if the device indicates the person won regardless of whether or not it malfunctioned.
We heard testimony at a big hearing from the Gaming Control Board and others that it would not be a prudent thing to do and would not square with the technology inside the machine. Instead, there was a proposal that we amend the bill and adopt some specific statutory authority to recall a malfunctioning game in the control board, which does not currently exist. We discussed it with Senator Neal and he understood there was no appetite in the committee to move the bill as proposed. He supports an amendment to that effect.
The amendment would put into law Dennis Neilander’s [Chairman, State Gaming Control Board] request [in his testimony before the committee] that they be granted statutory power to issue an order recalling a gaming device that malfunctioned.
Senator Porter:
My notes from Mr. Bible [William Bible, Lobbyist, Nevada Resort Association] indicate it would give the Gaming Control Board ability to actually remove the device from the floor.
Senator James:
That is part of the motion.
SENATOR TITUS MOVED TO AMEND AND DO PASS S.B. 100.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James:
I will close the work session on S.B. 100 and open the work session on S.B. 129.
SENATE BILL 129: Provides that ownership of aircraft forfeited for commission of crime may be transferred to Nevada Wing of Civil Air Patrol. (BDR 14-1150)
Senator James:
Senate Bill 129, proceeds of forfeited aircraft. Senator Jacobsen, sponsor of the bill, sought to withdraw it. Subsequently, Douglas Byington, Lobbyist, Nevada Civil Air Patrol, came in as a friend of the bill and said aircraft could be disposed of and the proceeds taken. Also, Senator McGinness indicated a mandate that the agency sell the aircraft and receive and provide the proceeds.
Senator McGinness, do you wish to move the bill with those amendments?
Senator McGinness:
I prefer to let it sit right now.
Senator James:
I will close the work session on S.B. 129 and open the work session on S.B. 134.
SENATE BILL 134: Makes various changes pertaining to sales of real property. (BDR 9-454)
Senator James:
Senate Bill 134 was withdrawn and I entertain a motion to indefinitely postpone it.
SENATOR PORTER MOVED TO INDEFINITELY POSTPONE S.B. 134.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James:
I will close the work session on S.B. 134 and open the work session on S.B. 179.
SENATE BILL 179: Provides that statement of child regarding physical abuse is admissible in criminal proceeding under certain circumstances. (BDR 4‑472)
Senator James:
This bill would expand the law that allows an out-of-court statement, which is essentially a hearsay statement of a child under 10 years of age regarding sexual abuse. It would extend that admissibility to physical abuse. A concern was raised before the committee by the defense bar; first, that it was a confrontation-clause issue, but there have been numerous Nevada Supreme Court cases saying it is not a confrontation-clause issue. In addition, there was concern about the procedure and whether the court really conducts a hearing to find whether the various criteria are in place to determine the statement reliable. That is the inquiry the court must go through to determine the reliability and credibility of out-of-court statements since it is not cross-examined in court.
Felix v. State, 109 Nev. 151, 849 P.2d 220 (1993), a Nevada Supreme Court case that was decided within the past few years, sets up the procedure and says the court must affirmatively determine the liability of each hearsay statement, hold a hearing, make findings regarding the fact that the child’s statements are reliable, there are circumstances under which the child cannot testify, and the out-of-court statement should be admitted.
My proposed amendment was to codify Felix v. State in the law so it is clarified that there must be a hearing and affirmative findings. Ben Graham and the Deputy District Attorney agreed to it.
James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice:
As I understand the proposed amendment, it would require a hearing and affirmative findings of fact. If that is what we can get, that is what we want.
Senator James:
The law has been in place for a long time and there has been a lot of case law decided under it regarding its constitutionality, efficacy, and appropriateness. We will make it clear by decodifying the case.
Is there a motion to amend and do pass S.B. 179?
SENATOR TITUS MOVED TO AMEND AND DO PASS S.B. 179.
SENATOR PORTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James:
I will close the work session on S.B. 179 and open the work session on S.B. 182.
SENATE BILL 182: Removes authority for private person to take arrested person before nearest magistrate following arrest. (BDR 14-527)
Senator James:
Senate Bill 182 is in regard to arrest by private persons. The bill would require a private person who makes a citizen’s arrest to take the person before a peace officer instead of the nearest magistrate. The amendment clarifies that the person must be taken before a peace officer without unnecessary delay as required elsewhere in the statute.
SENATOR MCGINNESS MOVED TO AMEND AND DO PASS S.B. 182.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James:
We will close the work session on S.B. 182 and open the work session on S.B. 183.
SENATE BILL 183: Revises provisions governing sexual conduct between pupils and persons in position of authority at schools. (BDR 15-483)
Senator James:
Senate Bill 183 is in regard to conduct between pupils and persons in positions of authority. The amendment is proposed by Senator Care.
Senator Care:
If we make it a Class B felony for a current teacher to have sexual conduct with a current pupil of 14 or 15 years of age, it makes little sense to me that it should not also be a Class B felony where this sort of conduct occurs for the first time with a student who has dropped out of school, for example, a week earlier. The offense is just as horrible which is the reason for the amendment.
Senator James:
The question is how would it be known they were prior students? It may be a proof problem for the prosecutor.
Senator Titus:
It is a terrible offense but I would think people of 14 or 15 years of age would be covered under statutory language in another chapter. The issue is the special relationship of authority and trust between teacher and pupil. This issue could flourish into a similar issue of a former client with a psychiatrist, and I think it starts to get a little confusing. Is that accurate?
Kimberly Maxson-Rushton, Legislative Liaison, Chief Deputy Attorney General, Office of the Attorney General:
Yes, Senator Titus, that is correct. I do not object to it, but I see there could be problems. I think it is adequately covered under the statutory sexual seduction statute currently in place.
Senator James:
Does that address your concern, Senator Care?
Senator Care:
Is it a Class B felony under current statute?
Ms. Maxson-Rushton:
No, Senator Care, it is not. It is covered under statutory sexual seduction, but is a Class C felony. The distinction we were trying to draw was exactly as Senator Titus spoke to, that there is a special relationship and undue pressure put on a student as a result of being in that relationship with a teacher in the actual school setting.
Senator Care:
I will withdraw the amendment. I was thinking about the special relationship where the sexual conduct does not happen until, for whatever reason, the child drops out of the institution.
Ms. Maxson-Rushton:
I do not believe that the prosecutor’s opportunity would be foreclosed if the relationship started, even if the relationship did not culminate into a sexual relationship or was the force or effect of the relationship, that the child eventually dropped out of school. I think they could make an argument. Of course, it would be a judicial decision as to whether or not you would be able to proceed under this. At the very least you would be able to proceed under the statutory sexual seduction with a Class C felony. You could make the argument if the relationship was what prompted the child to drop out of school. The intent was there, therefore, that it would rise to the level of a Class B felony.
Senator James:
I note that a bill was introduced yesterday, from the Office of the Attorney General, increasing the penalties for statutory sexual seduction under certain circumstances regarding children of a certain age. Part of the concern will be addressed with that bill.
Senator Washington:
I was reading that lewdness with a child under the age of 14 is a Class A felony. Would there be some inconsistency now that the age has been dropped to 14?
Ms. Maxson-Rushton:
I would defer to Mr. Graham, or one of his deputies, in regard to that question.
Matthew Dushoff, Deputy Attorney General, Office of the Attorney General:
Lewdness with a minor under the age of 14 is another bill, whereas S.B. 183 has to do with 14- and 15-year-olds.
Senator James:
The only amendment is Senator Wiener’s amendment regarding without limitation and the list of persons deemed to be in positions of authority. Also, would the word “deemed” be changed?
Mr. Wilkinson:
I think the issue raised by Senator Wiener is the interpretation of subsection 3 in S.B. 183, which specifically deems that certain persons are considered to be in positions of authority. Other people, in addition to those people, can be in positions of authority as well. Ms. Maxson-Rushton pointed out that particular provision of the bill simply makes it an easier matter of proof in the prosecution. The fact that the list is included does not preclude other people from being found to be in positions of authority and, therefore, in violation of the statute. It could be reworded a different way; however, the change being sought is not entirely necessary.
Senator Wiener:
I understand the impact of the word “deemed” sets the parameters. Mr. Wilkinson said it would preclude others from being prosecuted. Would it make the case harder if we do not specify, even though they may be in a position of authority, de facto, versus with the word “deemed?”
Mr. Wilkinson:
With the way it is worded now, we are simply deeming certain persons to fall into that category; therefore, we could not deem people, plus anyone else not mentioned, to fall into that category because it would need to be proved. That subsection could be rephrased in some other manner to say “persons and positions of authority may include these people and other people,” but essentially the subsection accomplishes what is being sought to have it accomplish the way it is currently drafted.
Senator James:
Does that satisfy your concern? In that event we do not need the amendment.
SENATOR MCGINNESS MOVED TO DO PASS S.B. 183.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James:
I appoint Senator McGinness to handle S.B. 183 on the Senate Floor. I will close the work session on S.B. 183 and open the work session on S.B. 192.
SENATE BILL 192: Authorizes magistrate to permit examination of witness if defendant waives preliminary examination. (BDR 14-466)
Senator James:
Senate Bill 192 concerns examination of witnesses at preliminary hearings which opened the pre-trial discovery issue. I do not think we are ripe for this at the present time.
SENATOR TITUS MOVED TO INDEFINITELY POSTPONE S.B. 192.
SENATOR PORTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James:
I will close the work session on S.B. 192 and open the work session on S.C.R. 11.
SENATE CONCURRENT RESOLUTION 11: Endorses creation of business courts in Second and Eighth Judicial Districts through adoption of court rules developed by Business Court Task Force. (BDR R-253)
Senator James:
Senate Concurrent Resolution 11 would endorse the creation of the business court on which the committee heard testimony and it has been accomplished.
SENATOR TITUS MOVED TO DO PASS S.C.R. 11.
SENATOR PORTER SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
*****
Senator James:
I will close the work session on S.C.R 11 and reopen the hearing on S.B. 87.
SENATE BILL 87: Provides that court may order that psychological evaluation and necessary counseling be provided to child affected by battery which constitutes domestic violence. (BDR 15-854)
Senator James:
There have been two hearings on S.B. 87 and an extensive amendment from Senator Wiener. Are there any questions or comments on S.B. 87?
SENATOR WIENER MOVED TO AMEND AND DO PASS S.B. 87.
SENATOR WASHINGTON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James:
I appoint Senator Wiener to handle S.B. 87 on the Senate Floor. I will close the hearing on S.B. 87 and reopen the hearing on S.B. 184.
SENATE BILL 184: Adjusts prospective salary of supreme court justices and district court judges. (BDR 1-517)
Senator James:
Senate Bill 184 is the judges’ salary bill and I will accept a motion to do pass and re-refer to the Senate Committee on Finance to be processed with the budget.
SENATOR CARE MOVED TO DO PASS AND RE-REFER S.B. 184 TO THE SENATE COMMITTEE ON FINANCE.
SENATOR PORTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator James:
I will close the hearing on S.B. 184, and appoint the following Senators to handle the following bills on the Senate Floor: Senator Care, S.B. 51; Senator James, S.B. 83; Senator Porter, S.B. 93; Senator Titus, S.B. 100; Senator James, S.B. 179; Senator Washington, S.B. 182; Senator McGinness, S.B. 183; Senator Care, S.C.R. 11; Senator Wiener, S.B. 87; and Senator James, S.B. 184.
There being no further business to come before the committee, I adjourn the hearing at 10:34 a.m.
RESPECTFULLY SUBMITTED:
Barbara Moss,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE: