MINUTES OF THE

SENATE Committee on Judiciary

 

Seventy-First Session

April 5, 2001

 

 

The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:46 a.m., on Thursday, April 5, 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 Valerie Wiener

Senator Terry Care

 

COMMITTEE MEMBERS ABSENT:

 

Senator Dina Titus

 

STAFF MEMBERS PRESENT:

 

Bradley A. Wilkinson, Committee Counsel

Allison Combs, Committee Policy Analyst

Barbara Moss, Committee Secretary

 

OTHERS PRESENT:

 

Kimberly Maxson Rushton, Legislative Liaison, Office of the Attorney General

Julie A. Slabaugh, Deputy Attorney General, Special Prosecutions Unit, Office of the Attorney General

Doug Herndon, Chief Deputy District Attorney, Clark County District Attorney

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

 

Senator James opened the hearing on Senate Bill (S.B.) 284.

 

SENATE BILL 284:  Increases penalty for statutory sexual seduction of child who is under 14 years of age. (BDR 15-482)

 

Senator James entertained a motion on S.B. 284.

 

SENATOR WIENER MOVED TO INDEFINITELY POSTPONE S.B. 284.

 

SENATOR CARE SECONDED THE MOTION.

 

THE MOTION CARRIED.  (SENATOR TITUS WAS ABSENT FOR THE VOTE.)

 

*****

 

Senator James opened the hearing on Senate Bill 547.

 

SENATE BILL 547:  Makes various changes pertaining to litigation involving prisoners. (BDR 2-478)

 

Kimberly Maxson Rushton, Legislative Liaison, Office of the Attorney General, indicated S.B. 547 sought to codify the Prison Litigation Reform Act, which was already in place by federal law. 

 

Julie A. Slabaugh, Deputy Attorney General, Special Prosecutions Unit, Office of the Attorney General, explained S.B. 547 sought to amend the in forma pauperis statute in Nevada as it applies to inmates, which means inmates incarcerated in the Nevada Department of Prisons, as well as any county facilities.  Ms. Slabaugh said the amendments mirror the procedure used in federal law for filing civil complaints in federal court, as codified in the Prison Litigation Reform Act of 1996.  She indicated, since the legislation mirrors federal law, the Nevada Department of Prisons already has procedures to put the litigation into effect. 

 

Ms. Slabaugh explained the procedure:

 

An inmate submits a financial certificate request form to inmate services.  Inmate services peruses the inmate’s account and records the information on the financial certificate request form, including the amount, current balance, average monthly balance, and average monthly deposits for the past 6 months.  The form is returned to the inmate and he/she submits it to the court with the civil complaint. 

 

The court determines the amount of the initial filing fee the inmate is required to pay, which is 20 percent of the greater of the average monthly deposits, or average monthly balance in the account for the past 6 months.  The court then issues an order to the inmate directing him/her to submit that amount of money to the court, at which point the complaint is served on the defendants.  The federal court also sends a copy of the complaint to Albert Peralta, head of inmate services, to give notice it has been filed. 

 

The initial payment is the responsibility of the inmate, who must within 30 days, or however much time the state court orders him/her to do it, submit a “brass slip” to inmate services.  Inmate services then prepares a check from his/her account for that amount and submits it to the court. 

 

Everything is then entered into the computer and the system takes the subsequent monthly deduction from his/her account, which is 20 percent of the average of the preceding months’ deposits, whenever the account is over $10.  The amount is transferred into the financial-certificate account, and at the end of the month inmate services clears that account, prepares a check, and sends it to the court with the name of the inmate and the amount deducted from his/her account, which is then applied to the filing fee.  The computer automatically stops the deductions at the amount of the filing fee.

 

Asked the amount of the filing fees, Ms. Slabaugh said the filing fees vary in state courts from $116 in the majority of the counties, to $146 in Elko County, and $131 in Humboldt and Washoe counties.  Senator James clarified the prisoner is not required to pay any more of a filing fee than anyone else.  Ms. Slabaugh agreed, and cited an example of a federal court order where the initial filing fee is $2.06.  She said the filing fee is based upon the amount in the inmate’s account.  Should the account be $10 or less, the inmate is not financially responsible for anything. 

Continuing, Ms. Slabaugh indicated part of S.B. 547 mirrors federal law wherein a prisoner may not bring a civil action for mental or emotional injury suffered while in custody without a prior showing of physical harm.  She said this provision addresses allegations where an action by an officer causes severe emotional distress.  Ms. Slabaugh cited a case in which one inmate took after another inmate with a metal baseball bat.  She explained an officer fired a blank round and the inmates refused to cease fighting.  The officer then fired a “bird shot,” which skips a bullet off the ground, and the inmates still continued to fight.  After the third shot, the inmates finally quit fighting.  She said, subsequently, the inmate filed a lawsuit claiming severe emotional distress because the officer fired several rounds of ammunition.  Ms. Slabaugh indicated those types of claims are the most difficult to counter because there is no way to prove the inmate did not suffer emotional distress.  She said federal courts have also found this situation to be true.  Therefore, an attempt is being made to counter these claims by requiring some sort of physical injury, Ms. Slabaugh remarked.

 

Referring to section 3 of S.B. 547, Senator Care said, generally, in civil litigation, an emotional-distress claim must include demonstrative evidence of intentional infliction of emotional distress.  He asked whether a doctor would be consulted, or whether a third party would make a determination regarding physical evidence of emotional distress.  Answering, Ms. Slabaugh said it depends on the judge.  She said federal court judges have been reluctant to dismiss emotional distress claims in the initial screening process, and require some sort of response from the defendant.  In her cited case, Ms. Slabaugh indicated she filed a motion for summary judgment, where the issue was the inmate had not demonstrated any physical injury.  The medical reports showed no bruises, broken skin, or scratches, and the inmate had not claimed an injury; therefore, in that case there was no claim. 

 

Further, Ms. Slabaugh pointed out, some federal courts had cases where emotional distress was filed based on alleged sexual assault.  Alleging sexual assault implies physical injury; therefore, the defendant would be allowed to go forward.  More likely than not, the judge would require some response from the defendant, such as a motion to dismiss, which the defendant could then counter.  The judge could also say the claim did not meet the requirement if the defendant had a physical injury and amend the complaint.  Ms. Slabaugh said the federal court often allowed inmates to amend a complaint to attempt to cure the defects. 

Senator Care noted inmates have time on their hands and nothing to lose by filing numerous lawsuits.  He requested information regarding federal discussion on a comparable statute.  Ms. Slabaugh indicated she would provide the information.

 

Senator Wiener inquired about Ms. Slabaugh’s annual caseload.  Ms. Slabaugh said her caseload is approximately 50, and a deputy Attorney General in Las Vegas has 65 cases.  She indicated her office handles all federal court filings.  She said there is no way to know how many cases are filed each year because federal courts screen the cases and may dismiss them for failure to state a claim without involving the Office of the Attorney General (AG’s office).  Ms. Slabaugh said the number of cases that came into the AG’s office from federal court in 1995 was 225, prior to passage of the Prison Reform Litigation Act, and in 2000, it was 30 cases.  She said the number of cases in state court in 1995 was 26 cases; in 1999, 40 cases; and in 2000, 34 cases.  She pointed out this was significant because 2000 was the first year there were more filings in state court than federal court.  She said so far there had been 10 cases in state court in 2001. 

 

Ms. Slabaugh said the inmates have figured out they must pay $150 to file in federal court, but filing is still free in state court, which does not include small-claims filings.  She noted there were 67 small-claims cases filed in 1995, and in 2000 there were 43 claims, and there were 9 so far in 2001. 

 

Ms. Slabaugh pointed out the average inmate with a valid claim will not be deterred from filing a lawsuit because the legislation is targeted at the most litigious.  She mentioned one inmate, in prison since 1986, who had filed 99 cases; another inmate, in prison since 1992, had filed 43 cases.  She asserted there was no disincentive for inmates not to file.  Inmates do not have the same concern as an indigent person outside prison who can proceed under in forma pauperis, and still have an opportunity cost associated with filing a lawsuit, including time, supplies, copies, postage, and transportation to and from the law library to do research.  On the other hand, Ms. Slabaugh said inmates have nothing but time and are provided paper, pencils, postage, and law libraries.  In addition, inmates in lock-down units are brought supplies and law books. 

 

Further, Ms. Slabaugh indicated small-claims actions have risen.  She pointed out a case she defended in which state-issued Levi’s® had been confiscated because an inmate ripped out the zipper and filed a small claims lawsuit for $1,500 because he alleged he bought them in Japan.  She speculated if the inmate had been required to pay the $33 fee it would cost in Ely to file a small claims lawsuit, she would not have had to waste her time, and court time, to obtain documentation from the prison, bring employees to court, and defend the case.  Ms. Slabaugh indicated small-claims cases are expensive because employees are taken from the prison to testify in court regarding the reasons for confiscation of items. 

 

There being no further testimony, Senator James closed the hearing on Senate Bill 547, and opened the hearing on Senate Bill 546. 

 

SENATE BILL 546:  Revises penalties for second or subsequent offense of abuse or neglect of child. (BDR 15-471)

 

Doug Herndon, Chief Deputy District Attorney, Clark County District Attorney, testifying from Las Vegas, explained the purpose of S.B. 546 is to raise the level of second, or subsequent offenses, for child abuse that does not result in substantial bodily harm.  He said the law currently states if there is substantial bodily harm in a child-abuse case it is, obviously, already a felony.  If there is non-substantial bodily harm, Mr. Herndon indicated, the crime is a gross misdemeanor over and over again, however many times a perpetrator may commit it. 

 

Mr. Herndon pointed out the importance of realizing that children are very resilient.  He stated, in his experience, he had seen many horrible cases of child abuse that did not result in substantial bodily harm as legally defined.  The cases included children being beaten, kicked, hit with clubs, and whipped with belts, cords, and/or any type of object.  Mr. Herndon recalled a heinous case in which a 2-month-old child was thrown, by his father, up into a ceiling fan and allowed to fall and land on a tile floor.  He said the child did not suffer the type of injuries that could be alleged substantial bodily harm. 

 

Interjecting, Senator James requested the legal definition of “substantial bodily harm.”  Mr. Herndon defined “substantial bodily harm” as some type of permanent disfigurement, loss of vision, loss of the use of a limb, or a more vague and innocuous part of it that would be prolonged physical pain.  He said it was at the discretion of a doctor whether or not an injury could cause a lifelong problem, permanent scarring, loss of vision, or loss of a limb. 

Senator James clarified an injury is not considered substantial bodily harm when “something” is broken, as long as it will fully heal.  In answer, Mr. Herndon said it was debatable and the determination depended upon the judge.  In the case of the child who was thrown into the ceiling fan, he explained, the child suffered a simple linear skull fracture that did not involve bleeding in the brain, brain damage, or any permanent problems.  The judge did not proclaim the injury substantial bodily harm.  Mr. Herndon indicated children suffer broken arms and legs in which the cases go forward as substantial bodily harm due to loss of the use of a limb, or prolonged physical pain. 

 

Asked whether the definition of substantial bodily harm was in statute, Bradley A. Wilkinson, Committee Counsel, pointed out substantial bodily harm was defined in Nevada Revised Statutes (NRS) 0.060, a preliminary chapter of NRS:  Unless the context otherwise requires “substantial bodily harm” means:  1. Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ; or 2. Prolonged physical pain.”  Senator James said he wanted the committee to have the definition of “substantial bodily harm” in mind when considering the testimony.

 

Continuing, Mr. Herndon said the examples he gave were provided because an argument could be made that child abuse without substantial bodily harm, as a first offense, should be a felony.  He asserted S.B. 546 does not accomplish that; on the contrary, the bill attempts to make subsequent offenses a felony.  He said there were a variety of very good reasons for that.  To begin with, Mr. Herndon pointed out, in the practical application of gross misdemeanor crimes in the criminal courts, judges do not like taking up county jail space by sentencing gross misdemeanor convicted people to jail time.  Mr. Herndon said judges are more inclined to penalize offenders with fines or probation, and leave jail space for more serious felony offenders who are awaiting trial. 

 

Additionally, Mr. Herndon indicated, a person who repeatedly perpetrates child abuse is charged with a gross misdemeanor over and over again.  The habitual- criminal statutes do not apply to gross misdemeanors; therefore, nothing can be done in that regard.  He pointed out a person who commits a series of thefts or fraud misdemeanors can ultimately be charged with a felony under the habitual-criminal statute; however, with gross misdemeanors the penalty remains the same repeatedly. 

 

Further, Mr. Herndon said, there are a variety of other crimes that are analogous and have established a pattern of good reasons to escalate subsequent offenses, for instance, child pornography.  Referring to NRS 200.730, Mr. Herndon maintained if someone possesses child pornography by downloading pictures off the Internet a first offense is a Category B felony, with 1 to 6 years in prison or probation.  Any subsequent offense is a Category B felony, with 1 to 10 years in prison, plus lifetime supervision.  Should a person commit annoying a minor, the sentence is a misdemeanor for a first offense and any subsequent offense is a Category B felony, which is potentially 1 to 6 years in prison.  Should a person commit a gross misdemeanor crime of open or gross lewdness by exposing himself or herself in public, it is a gross misdemeanor for a first offense and any subsequent offense is a Category D felony, which is potentially 1 to 4 years in prison.  Reiterating, Mr. Herndon said three or more theft and fraud misdemeanors could be charged a felony under the habitual-criminal statute.  He said none of those crimes involve the physical violence in child abuse, yet in child abuse, the penalty is “stuck forever” as a gross misdemeanor if there is not substantial bodily harm.  Mr. Herndon opined, “That is not proper.” 

 

Further, Mr. Herndon pointed out, the crime most analogous to child abuse currently in the statutes would be battery/domestic violence.  He explained child abuse is essentially battery/domestic violence, only a child is the victim instead of the mother or girlfriend who also resides in the household.  He said even with battery/domestic violence, the first offense is a misdemeanor with a mandatory 2 days in jail, as well as counseling and fines.  A second offense carries a mandatory 10 days in jail and counseling and fines.  A third offense within 7 years is a Category C felony, non-probationable, carrying a sentence of 1 to 5 years in prison.  Mr. Herndon stated, in light of everything, it is time child abuse is raised to require subsequent offenses to carry more severe penalties.  He noted there had been cases with repeat offenders whose attitude was, “These are my children, I will do with them what I want, and you cannot do anything about it.”

 

In conclusion, Mr. Herndon said not everything that should be done is being accomplished by leaving substantial bodily harm child abuse as a gross misdemeanor.  Children, unlike adults, cannot leave the house, drive away, or call the police, and most of the time they do not report child abuse.  He said teachers, counselors, and/or family friends usually report child abuse on behalf of the child.  Mr. Herndon indicated, raising subsequent offenses to a felony level would benefit children and send a message to perpetrators what their continued conduct might entail in the future. 

 

Senator Care referred to NRS 200.508, subsection 1(b), “A person who:  Is responsible for the safety or welfare of a child and who permits or allows that child to suffer unjustifiable physical pain or mental suffering . . .”  He noted a second offense might be the refusal to make necessary medical aid available to a child, or transporting a child in a stolen car.  He asked how it is determined whether a child has been placed in a situation in which he/she might be subject to unjustifiable physical pain.  In response, Mr. Herndon said in practical application subsection 1(b) of NRS 200.508 applies to parents or other caregivers who have knowledge the child is being physically abused by another parent or caregiver and not taking action to stop the abuse, protect the child, or seek medical attention.  He said in many cases when a parent has been charged with felony abuse or child neglect for having knowledge of abuse, juries are often more troubled by the parent who does nothing about the abuse than the parent who does the abusing.  Mr. Herndon said it seemed a backward rationale, but the public takes great umbrage with a parent who turns his/her back on a child, rather than trying to protect him/her.

 

Further, Mr. Herndon pointed out, the practical application is not that the alleged observer is told of the abuse and takes no action, but it must be proven the alleged observer had good reason to have knowledge that the child was physically abused, or in need of immediate medical attention because of it, before a charge can be made.  Therefore, should a person have a prior gross misdemeanor for abuse or neglect, and the situation arises again, and he/she turns his/her back on it, Mr. Herndon asserted a felony charge is appropriate in that case.

 

Senator James reiterated he had questions regarding the definition of “substantial bodily harm.”  He referred to NRS 200.508, subsection 1(a), “A person who:  Willfully causes a child who is less than 18 years of age to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect or to be placed in a situation where the child may suffer . . .”  The Senator indicated the statute signifies general intent.  He proclaimed the act of throwing a baby into a ceiling fan, causing a broken skull, and allowing the child to fall onto the floor is a felony on the first offense.  The Senator remarked an example of a gross misdemeanor is the act of running a horse down a highway.  Senator James pointed out, in the same statute with the same definition, it mentions permitting a child to be in a situation where some physical pain or mental suffering could happen, whether or not it does, with no intent requirement.  He hypothesized there could be a situation, at the other end of the spectrum, in which a child was in a dangerous situation, but nothing happened, and there was no intent.  In that event, Senator James said the legislators could not do what is required, which is to make substantial bodily harm a felony.  The Senator voiced his intention to propose making substantial bodily harm a Category B felony on the first offense.  He suggested S.B. 546 be broken out into two separate statutes, including an intent requirement for the endangerment part.  Senator James queried whether or not subsection 1(b) of NRS 200.508 covers child endangerment, or if a separate statute covers it.  In response, Mr. Herndon stated subsection 1(b) of NRS 200.508 was essentially the child-neglect portion of the statute.

 

Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association, suggested working with the language in order to serve Mr. Herndon’s needs, as well as the matters brought forth by Senator James.  Mr. Herndon explained the initial examples he cited could be used as an argument for child abuse being a felony as a first offense, even without substantial bodily harm, although that was not the way S.B. 546 was written by the AG’s office.  He suggested bifurcating the statute to make child physical abuse without substantial bodily harm a felony on a first offense, and child physical neglect a gross misdemeanor. 

 

Senator James said, although every situation cannot be written into the law, there needs to be a panoply of conducts that could result in harm to a child.  He noted felony conduct is reprehensible and deserves severe punishment, and then there is gross misdemeanor conduct.  The statute had done a poor job directing the courts.  The Senator asserted the notion that anyone could commit some of the acts cited by Mr. Herndon and only be faced with a misdemeanor of any kind is a complete travesty.  At the other end of the spectrum, there is probably another travesty where someone could act negligently and place a child in a situation where something could happen, but does not.  Senator James noted this is not a case where someone leaves a child in a car on a hot summer day in Las Vegas, which goes into the felony category.  He said the whole idea of criminal law is to punish different levels of intent with different severities. 

 

Again, referring to subsection 1(b) of NRS 200.508, “Is responsible for the safety or welfare of a child and who permits or allows that child to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect or to be placed in a situation where the child may suffer physical pain or mental suffering as the result of abuse or neglect,” Senator James indicated culpability is not defined.  He indicated if the statute is to be “beefed up” to make those types of cases felonies, it cannot be done in a broad sweep the way the statute is written at present, because it will “net in” conduct that should not be at that level.  He offered an example:  Parents hire a babysitter, the babysitter leaves the child, which places the child in a dangerous situation.  Under the current statute, an aggressive prosecutor could prosecute the parents because they placed the child in a situation with an incompetent babysitter. 

 

Mr. Herndon pointed out section 4 of S.B. 546 defines the terms “allow” and “permit,” gives more direction in terms of intent, and puts more emphasis on what a person must do to meet, allow, or permit, for placing the child in a situation.  He pointed out it is not a situation in which a mother would be prosecuted for dropping her child off at a babysitter, and the babysitter does something the mother has no reason to think could happen. 

 

Senator James commented about use of the terms “knows,” or “reason to know,” and said they create doubt, but stated he had no problem with the definitions.  The Senator wished to make a separate statute and put in the definition of a crime that involves intent and permitting physical suffering of a child to occur.  He elucidated throwing a child into a ceiling fan is different in every respect than hiring a babysitter, because of the intent, knowledge, and immediacy of the act. 

 

Mr. Graham proposed that Mr. Herndon and himself create amending language within 48 hours to accomplish the intent of S.B. 546, as well as address the concerns of the chair.  Mr. Herndon clarified the language would pertain to subsection 1(b) of NRS 200.508, and asked whether that section would be made into a separate statute, or the language amended to delineate intent in that portion of the statute.  Senator James said both, and explained a separate statute would be made of subsection 1(a) of NRS 200.508, and made a Category B or Category C felony category.  Mr. Herndon indicated the AG’s office proposed it as a Category C felony.

 

Mr. Graham pointed out S.B. 546 was a bill the Attorney General introduced as a courtesy to the Nevada District Attorney’s Association; therefore, any problems with the legislation did not rest with the AG’s office.  Senator James suggested Ms. Rushton help with the creation of new language. 

 

Mr. Herndon, referring to Senator James’ proposal in terms of making child abuse non-substantial bodily harm a felony for a first offense, asked whether the proposal making subsequent offenses a felony would be omitted.  In response, Senator James directed him to treat it as any other felony statute and aggravate the penalty after the subsequent offense.  He suggested creating a better definition, or an interim definition, of substantial bodily harm, such as a definition of bodily harm without permanent injury, which could become a separate type of felony.  The Senator said a person who spanks a child too aggressively and forcefully cannot be charged with the same crime as a person who throws a child into a ceiling fan. 

 

Senator Care indicated his thoughts paralleled those of Senator James.  He requested Mr. Graham to keep in mind the case in which a parent or a babysitter has a child in the backseat of the car, drives up for a drug buy, there is gunfire, and the child is wounded or put in jeopardy; or a case in which a father keeps three or four loaded weapons in the garage and knows his and his neighbor’s 6-year-old sons play in the garage, and something happens.  Senator Care indicated he could make a distinction between those cases and the case of a child being thrown into a ceiling fan or hit with a baseball bat.  He asked, “What do you do with those other cases?” 

 

Mr. Graham said he would work with Mr. Herndon on the language, keeping in mind the short time frame.  Senator James appointed Senator Care and himself as a subcommittee to amend S.B. 546.

 

Senator James expressed appreciation to Mr. Herndon for bringing S.B. 546 forward to identify an obvious gap and a problem with the statute.

 

Senator James closed the hearing on S.B. 546.

 

There being no further business to come before the committee, the meeting was adjourned at 9:29.

 

RESPECTFULLY SUBMITTED:

 

 

 

Barbara Moss,

Committee Secretary

 

 

APPROVED BY:

 

 

 

                       

Senator Mark A. James, Chairman

 

 

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