MINUTES OF THE
SENATE Committee on Judiciary
Seventy-First Session
April 10, 2001
The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:30 a.m., on Tuesday, April 10, 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 Mike McGinness
Senator Maurice Washington
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
COMMITTEE MEMBERS ABSENT:
Senator Jon C. Porter, Vice Chairman (Excused)
STAFF MEMBERS PRESENT:
Bradley A. Wilkinson, Committee Counsel
Allison Combs, Committee Policy Analyst
Carolyn Allfree, Committee Secretary
GUEST LEGISLATORS PRESENT:
Senator Randolph J. Townsend, Washoe County Senatorial District No. 4
Assemblywoman Sheila Leslie, Washoe County Assembly District No. 27
OTHERS PRESENT:
Steve G. Holloway, Lobbyist, Associated General Contractors, Las Vegas
Renny Ashleman, Lobbyist, Southern Nevada Homebuilders Association
James L. Wadhams, Lobbyist, State Board of Architecture, Interior Design and Residential Design
Walter Bruce Robb, Attorney, Nevada State Board of Professional Engineers and Land Surveyors
Judith Fermoile, Member, State Board of Architecture, Interior Design and Residential Design
Scott W. Anderson, Deputy Secretary, Commercial Recordings Division, Office of the Secretary of State
Peter I. Breen, Judge, Department 7, Second Judicial District Court
David D. Spitzer, Attorney, Washoe County Drug Court
Carlos E. Brandenburg, Ph.D., Administrator, Division of Mental Health and Developmental Services, Department of Human Resources
Kathleen M. O’Leary, Lobbyist, Washoe County Public Defender
Robert S. Bennett, Lobbyist, Mental Health Association of Nevada
John C. Morrow, Lobbyist, Washoe County Public Defender
Ben Graham, Lobbyist, Clark County District Attorney
Richard L. Siegel, Lobbyist, American Civil Liberties Union of Nevada
Pam Matteoni, Concerned Citizen
Steve Barr, Lobbyist, Nevada Corrections Association
Renee Lacey, Chief Deputy Secretary of State, Office of the Secretary of State
Chairman James opened the hearing on Senate Bill (S.B.) 370.
SENATE BILL 370: Makes various changes relating to mechanics’ and materialmen’s liens. (BDR 9-971)
Steve G. Holloway, Lobbyist, Associated General Contractors (AGC), Las Vegas, speaking on behalf of a coalition of construction industry associations, said the coalition had submitted two bills to the Legislature. One, S.B. 370, was intended to make some needed changes in Chapter 108 of Nevada Revised Statutes (NRS), which provides for mechanics’ liens; the other, Senate Bill 274, was a companion bill and has been heard in the Senate Committee on Commerce and Labor.
SENATE BILL 274: Revises provisions governing rights and duties of contractors and subcontractors under contracts or subcontracts. (BDR 54-593)
Mr. Holloway explained S.B. 274 is a stop-work bill intended to address the most immediate of three problems the construction industry is facing with liens and non-payment owed to contractors. He said the bill allows contractors who are not being paid to stop work, thereby obviating the necessity to file large liens. S.B. 370, he said, is intended to address two things: provide definition and clarification to the existing lien law; and, preclude the prospective waiver of lien rights under a contract. Mr. Holloway said agreement has been reached with owners and developers on S.B. 274, and part of the agreement is to withdraw S.B. 370. The parties will work to perfect the bill and introduce it during the next legislative session, he said. Mr. Holloway, therefore, requested permission to withdraw S.B. 370.
Renny Ashleman, Lobbyist, Southern Nevada Home Builders Association, said he concurred with Mr. Holloway’s request to withdraw S.B. 370 and wished to assure the committee he will work with the coalition in the interim to revise the bill.
Chairman James closed the hearing on S.B. 370 and opened the hearing on S.B. 301.
SENATE BILL 301: Revises provisions governing formation and operation of professional corporation or association by certain multiple disciplines. (BDR 7-634)
James L. Wadhams, Lobbyist, State Board of Architecture, Interior Design and Residential Design, characterized S.B. 301 as a technical adjustment to Chapter 89 of NRS on professional corporations. About 4 years ago, he said, a modification was done in the architects’ law to allow the various disciplines licensed under that chapter, including architects, registered interior designers and residential designers, as well as contractors, engineers, landscape architects, and other design professionals, to form single professional corporations. The language in S.B. 301 clarifies this, he said.
Mr. Wadhams offered Assembly Bill (A.B.) 539 as an amendment to S.B. 301.
ASSEMBLY BILL 539: Makes various changes to provisions governing architects, registered interior designers and residential designers. (BDR 54-615)
Mr. Wadhams explained A.B. 539 was introduced in the Assembly Committee on Commerce and Labor, and that committee was unable to hear the bill and suggested it be offered as an amendment to S.B. 301. Senate Bill 301 is very straightforward, he said, and basically incorporates references in Chapters 623, 623A, and 625 of NRS.
Walter Bruce Robb, Attorney, Nevada State Board of Professional Engineers and Land Surveyors, presented a proposed amendment to S.B. 301 (Exhibit C). He said it amends only Chapter 625 of NRS, which governs engineers and land surveyors. He said the amendment would allow engineers and land surveyors to form a partnership with persons who are not registered or licensed. The reason for the proposed amendment is that many of the larger engineering firms are publicly owned, he said.
Senator Care said, as an attorney, he is reminded that paralegals cannot be members of a law firm, and he asked Mr. Robb if he is aware of any professions where not all owners need to be members of a particular profession. Mr. Robb answered, saying he did not know of any, other than land surveyors and engineers. Senator Care asked who the nonprofessionals are who own interests of 1/3 or less in corporations, and Mr. Robb replied they would be members of the general public and contractors. He emphasized the work is always done by professionals. “Our state board licenses individuals; we do not license corporations,” he said. The profession is monitored on an individual basis, rather than on a corporate or an entity basis, he added.
Mr. Wadhams asked that Judith Fermoile, Member, State Board
of Architecture, Interior Design and Residential Design, be allowed to explain A.B.
539. Chairman James said he does
not understand why this committee is being asked to review A.B. 539. “Does it really relate to this bill [S.B. 301]?”
he asked. Mr. Wadhams said he was told
the assembly simply did not have time to hear the bill, and it was suggested he
bring it here. He said A.B. 539 does
deal with the same topic as S.B. 301, with the exception of Mr. Robb’s
amendment, which “deals with language emanating from the law dealing with
Chapter 623 [of NRS].” Chairman James
said the problem for this committee is that the members customarily read bills
before coming into a committee hearing on them, and they have not had an
opportunity to read A.B. 539 and prepare questions. He asked Bradley A. Wilkinson, Committee
Counsel, whether it is
jurisdictionally appropriate for this committee to hear A.B. 539, and
Mr. Wilkinson said the bill pertains to the same general subject matter as
S.B. 301, and it would up to the discretion of the committee. Chairman James, therefore, agreed to help.
Ms. Fermoile began explaining A.B. 539, saying it seeks to do the following: provide further reciprocity for design professionals, in order to encourage designers from outside the state to come into Nevada; clarify the scope of residential designers; eliminate obsolete language related to the investigation of an application for a board member; and permit the board to adopt a prorated fee schedule. Chairman James interrupted, saying the committee needed more complete descriptions of the changes being requested than Ms. Fermoile was providing.
Mr. Wadhams said this is a “definitional change,” and provided a more detailed explanation of A.B. 539, as follows:
The prior statute had direct supervision. In the modern practice, control is exercised in a responsible fashion, which may not entail direct and immediate supervision. And this seems to be consistent with regulatory policy that is being adopted throughout the United States. It does not eliminate the . . . professional accountability of the licensee, but allows the licensee . . . to operate. That definition change, then, will be reflected in other sections through the chapter. Section 3 deals with the reciprocity issue . . . This profession basically operates off of national examinations, with a limited supplemental one . . .
Senator Washington, referring to section 3 of A.B. 539, asked if someone would be required to take the examination in Nevada before an application can be accepted. Mr. Wadhams said if someone has the required education and has passed a national examination in another state, all he or she will have to do is take, basically, a law exam in Nevada and register here without actually having to be a resident. The section provides parallel language for all three of the design professions licensed under the chapter, he said.
Mr. Wadhams continued explaining the bill:
Section 4 . . . is drafting language; section 5 . . . has to do with the practice of “residential” design. As we adopted “registered interior” design, there appeared to be a conflict . . . that may have limited what residential designers can do. This clarifies that conflict [and] allows them to continue to practice with the same scope they had. Basically, it eliminates an ambiguity that was unintended when we adopted registered interior design . . .
Chairman James asked Mr. Wadhams to describe the differences among the three different categories of designer, and Mr. Wadhams explained as follows:
The architect has the broadest scope. Architects are authorized to do anything that is habitational, or occupied by human beings. The architect designs, typically, structures; but, within their scope of authority, architects can do interiors, exteriors, and the entirety of the design of a project, both residential and commercial. A dozen or so years ago, a category of design professionals wanted to focus on residential design . . . They will design the residence, both interior and exterior, but they are trained and tested in an area on residential; they do not do commercial . . . If you look at the definition, you can see that is consistent with . . . section 5. The latest profession to be added to this chapter is registered interior design . . .
There are hundreds of people who operate as interior designers; registered interior designers have taken at least 4 years of college in a nationally-accredited design curriculum, and they are trained and have expertise in doing interior layouts. For example, a commercial building may have a vacant floor that has just been built; a registered interior designer is the professional that can come in and do office suite layouts with special attention to the fire ingress and egress, the placement of ventilation . . . the sorts of things that deal with fairly technical matters of fire code, building code, and the like. It is a life safety standard that they have to have the education and training to meet. I want to distinguish that from what we would understand to be interior designers, people who assist in selecting the amenities . . . They are . . . not required to be regulated; it was part of the issue that precipitated the law change. So, we have three discrete professionals. They operate cooperatively, and what we are trying to do is update the law to eliminate any confusion that might exist between them.
Chairman James said the explanation was helpful to him. Mr. Wadhams continued explaining A.B. 539:
Section 6: We are deleting lines 5 and 6 . . . That transitional language is no longer necessary; the governor is free to appoint from a pool of licensed professionals to sit on this board . . . Section 7 . . . page 3, lines 10 and 11. I think that is critical . . . This allows the board to devise a system to prorate that annual fee . . . It is permissive language . . . Section 8 . . . lines 30, 31, 32, and 33, in the simplest sense, is allowing for e-commerce . . . Historically, tradition and the law required plans be formally stamped, sealed, and the like, in order for the building departments to know the professional had been involved . . . This allows the acceptance and the development of systems for electronic signatures on plans, so the building department can still have some comfort that the appropriate design professionals have executed that review.
Section 9: The critical component of that appears on page 4, subsection 7. It requires that the registrant appear before the board to take the oath that is required by the board . . . We needed to eliminate . . . lines 40 and 41 . . . This is not an oral interview; they are taking traditional examinations . . . by computer . . .
Senator Care commented that lawyers no longer have an oral interview. He asked what professions currently require an oral interview. Mr. Wadhams said he was unable to answer that, but said that he does not think in modern professional licensing any profession has an oral interview.
Senator Wiener noted that earlier references included the registered interior designer, but section 9, subsection 7, did not. Mr. Wadhams said the registered interior designer should be in there and was omitted inadvertently.
Mr. Wadhams continued:
Section 10 . . . Three years ago, registered interior design was identified as a new profession and, in order to accommodate persons who where engaged, there was a series of transitional steps to accommodate upgrading the education without disenfranchising anyone in active practice. What this does is finally eliminate some . . . unnecessary language . . . and, in fact, comes back and addresses the comment that Senator Washington asked. The accreditation body is the Foundation for Interior Design Education Research [FIDER], and this places that in the statute.
Senator Washington asked Mr. Wadhams why the education requirement in section 5 is being deleted, and Mr. Wadhams said the accreditation process of the curriculum will accommodate that, and whether 4 or 5 years is required is left to the discretion of FIDER. If a program is accredited by that body, that would be sufficient to demonstrate the academic background, he said.
Chairman James said he is worried about doing something here that would be at odds with what the commerce and labor committee would approve.
Mr. Wadhams responded:
I think I can fairly represent to you that the philosophy the Senate commerce [and labor] committee had in those late hours of trying to design a transition [is] . . . in an effort to try to protect those people, we had a series of steps to allow people to bring themselves to a position where the standards ultimately agreed to by the Senate commerce and labor committee would be obtainable by anybody newly coming into the area. What we are presenting to you today really is the elimination of those steps, because we have passed that period of time; we actually had a 6‑year grandfathering system; that period of time has now passed.
Chairman James expressed his concern that A.B. 539 was never on the agenda and has never been noticed. “I do not know who out there might object because they do not know we are hearing it,” he said.
Senator Wiener said, “For those who did not know it was coming to Judiciary, I have received several e-mails questioning this because of those who did jump through these requirements. A lot of people are very unhappy that now they have done all the work and it is going to be changed.” She clarified the e-mail was not from people who were aware this bill was coming to this committee, only that they were aware of the bill and were chagrined that the process was being made easier for people, after they themselves had met the requirements established by the Legislature. Mr. Wadhams responded to Senator Wiener’s remarks, saying the following:
In the judgment of the board and those who participated in hearings in both ends of the state during the interim, the standards that will now be identified are no less restrictive than they were for those who were working themselves through the process for the last 6 years. And the reason for that is it is not that the education requirement is reduced; FIDER, the accreditation body, now requires a substantial curriculum that is the equivalent of 4 years. So, those who did 4 years are not going to find somebody coming in under that standard; the accrediting body has changed its accreditation level to reflect the professional standard. I respect the inquiry that has come in; and, the board did not leave that unevaluated . . . Ms. Fermoile . . . participated in a very difficult, very intense process of trying to find the right level of qualification. During that period of time, we had relaxed qualifications that, in 2‑year periods, were gradually increased, so that somebody who wanted to become a registered interior designer in 1995, when the original law was adopted, could do so basically on experience alone; then the academic was added for people who would come into the system later, so that the 2-year people from the community colleges who were in a design program could still qualify. So, the Legislature very carefully created a series of steps to bring it to the level that, at the outset, they felt was the appropriate level . . . The standards have not been reduced . . . It is that the accrediting board has refined their [sic] approach and the licensing board is attempting to accommodate those persons who wish to take that professional course.
Chairman James reiterated his concern that he wants to be sure the committee does not do something the committee on commerce and labor might not know about. He said, “At a minimum, we need to let the chairman of the committee know that we are doing this. I know if they were over there hearing a bill that was changing around the penalties for robbery and murder, or whatever, we would be really concerned over here . . . I understand the circumstances that you are in; I just want to make sure that we do not do something that the other committee does not know about.”
Mr. Wadhams continued explaining S.B. 539 with section 12, noting section 11 simply provided cross-references:
I think the pertinent change in this is really at line 23 [page 6], [which] allows us to go to a 1-year license rather than a biennium, 2-year, license. The board felt that the administrative burden was easier . . . Section 13 is one of those sections where that new definition comes in . . . Page 6, line 49, following up to line 1 on page 7, that is a substitution of the accountability language, “responsible control” from “direct supervision.”
Chairman James asked if the definition of “responsible control” is a national standard or a local standard, and Mr. Wadhams answered that it is a national standard. Chairman James asked whether that is understood by the language in the statute, and Mr. Wadhams said it is. “One of the defining marks of these design professions is that they have accommodated national registration and national examination to eliminate unnecessary barriers of transaction in the states,” he said.
Mr. Wadhams resumed explaining the bill: “Section 14 . . . The operative language is at line 44, ‘A residential designer.’ There was an ambiguity . . . when we adopted registered interior design, that may have unintendedly [sic] restricted . . .” Chairman James interrupted, saying he understands that this is a subset. “You are just making it clear that, if you have the one, you do not need the other,” he said. Mr. Wadhams said that is correct. He went on to explain section 15, saying the language currently requires that an architect have an office in the state, and this creates a parallel obligation for the other design professionals. Chairman James observed that, according to the language at line 10 in section 15, someone has to have “responsible control.” The point of that, Mr. Wadhams said, is accountability for the protection of the citizens of the state. He continued:
Section 16, again, is a substitution of direct supervision; in line 31 “responsible control” is substituted for the phrase “direct supervision.” In section 17, in reference to that transition, we actually had a provision that people could file a form and have up to 7 years to complete any of the requirements that pertained at that moment. Section 17 eliminates a deadline for those people who filed the letter. If they file the letter during this ramp-up period, from ’95 through current, the board feels that is sufficient vesting of their right to their grandfather status, and they can complete at any time in the future and still satisfy. In that regard, it does allow an extension of that time. Finally, the last 2 [sections] I think are just deadlines.
Senator Washington asked about the fee schedule outlined in section 12 of A.B. 539. “When you are moving from a biennial fee to an annual fee, are the fees the same?” he asked. Mr. Wadhams answered that the fee structure in the statute is unchanged; it is just going to be done on an annual basis.
Chairman James reaffirmed he would make sure Senator Townsend, Chairman of the Senate Committee on Commerce and Labor, knows about the changes, “especially section 10, the major change there,” he said.
Scott W. Anderson, Deputy Secretary, Commercial Recordings Division, Office of the Secretary of State, said he had some concerns about S.B. 301 and how it would affect his office and its customers. He explained as follows:
Chapter 89 of the NRS applies to all professional corporations, not just engineering, interior design, architectural design, and those types of businesses. In page 2, line 22, the sentence, “A professional corporation may be organized, in accordance with the provisions of NRS 623.349, to render a professional service relating to . . .” needs to be struck [sic] because this sentence applies to, basically, all professional corporations under this chapter, which includes medicine, homeopathy, osteopathy, and 623.349 specifically deals with architectural engineering. Then, also on page 2, line 1 . . . “from the regulating board or boards of the profession or professions to be practiced,” and in section 2, below, line 14 . . . “except as otherwise provided in subsection 2, a professional corporation may be organized only for the purpose of rendering one specific type of professional service and may not engage in any business other than rendering the professional service for which it was organized,” we feel there is some contrary language concerning the professions that may be confusing to our customers.
Chairman James interjected, “So you think it needs to say, ‘except as otherwise provided in subsection 2 and subsection (d) of section 1 of this act’ or something?” Mr. Anderson said, if it is the committee’s desire to allow professional corporations in these fields to practice these professions, the statute would need to be changed. He said, currently, if the secretary of state’s staff were to see more than one profession on a professional corporation application, the application would be rejected. Chairman James stated, “That is what this bill does; it lets them practice interior design, architecture . . .” Mr. Anderson said that would be acceptable, but he just wanted to make sure his office does not have the other professions coming in and trying to do the same thing. He said, “If we can refer back up to section 1, subsection (d) . . . I believe that would be the answer and would help clarify that for our customers.”
Chairman James asked Mr. Anderson who reads this and “picks up all these really technical things.” Mr. Anderson replied it is he and the supervisory staff who have to process these and deal with the customer calls, the complaints, and rejections letters sent when something is not in compliance with the statute.
Mr. Anderson stated that another concern regarding S.B. 301 is all the references to “except as provided in Chapter 623,” which makes the bill confusing to read. He said, when they send out the packets for filing, they do not send out Chapter 623; they send out Title VII. Chairman James said the reason for that is, they are now having a multi-discipline professional corporation where it was normally a single discipline. “In order to do that, you have to except-out this one special kind of special professional corporation,” he said. “So we have a choice; we can come up with a whole new Chapter 89A for this kind, or we will have to draft it with these exceptions in it,” he said. He acknowledged it is cumbersome, but he said he thinks that is the way it will need to be, for now.
Mr. Anderson said the secretary of state’s office works with the Legislature to make filings consistent throughout all the business entities it deals with. He pointed out, on page 6, subsection 2(c), the adding of the requirement professional associations certify “that all members and employees who are not licensed to render professional service . . . do not render professional service on behalf of the association except as authorized by law” establishes a further level of review for his office. He said, since they do so few of these, the provision could be missed. He said his main concern is the increase in turn-around time required to process applications and the consequent decrease in service his office can provide to the public. His office is being asked to make cuts in its budget requests, he said, and although this requirement is a small added level to the work load, “when you take into consideration other levels that are being requested on various bills [this legislative session], they all add up.”
Chairman James asked Mr. Wadhams to work with Mr. Anderson to try to simplify the process for the secretary of state’s office, and closed the hearing on S.B. 301.
Chairman James opened the hearing on S.B. 366.
SENATE BILL 366: Enacts provisions governing establishment by district court of program for treatment of mentally ill offenders. (BDR 1-1006)
Senator Randolph J. Townsend, Washoe County Senatorial District No. 4, introduced S.B. 366, stating it concerns a serious public policy that has evolved over time. The bill proposes a pilot program for a mental health court, he said. The term “homeless” encompasses approximately 70 percent of its internal population as individuals who suffer through some form of mental illness or substance abuse, he said. And, when law enforcement comes upon one of these individuals who may have broken a law, the person is taken away and housed in our jail; we are housing more individuals with mental health needs in the jail than we are at the Nevada Mental Health Institute, he asserted. Much of the time, these people need treatment as opposed to incarceration, and the system is not set up to accommodate for that, he said.
“The proposal in front of you today deals with individuals who need advocates,” Senator Townsend said. He said the program will have a significant fiscal impact, but it is being presented to this committee, where it will receive the appropriate public policy debate. “The financial component of this, obviously, would have to be debated in the money committees,” he said.
Assemblywoman Sheila Leslie, Washoe County Assembly District No. 27, stated she is a co-sponsor of S.B. 366 and worked with Judge Breen [Peter I. Breen, Judge, Department 7, Second Judicial District Court] and his task force in her former capacity as grants administrator for Washoe County. She presented a proposed amendment to section 4 of the bill that narrows the definition of mental illness to what is found in NRS 433A.115 (Exhibit D). She said the bill defines mental illness in an extremely broad manner and would include things such as Alzheimer’s disease, epilepsy, mental retardation, and other illnesses that are not the focus of a mental health court. She said mental health staff agrees with her that this is a more appropriate definition.
Chairman James said he feels Alzheimer’s disease is a mental illness as much as any other mental illness and should be included, and Ms. Leslie said she just did not think there would be many Alzheimer’s patients found in the mental health court. Senator Washington asked if the International Classification of Diseases found in section 4 was a federal classification or a state definition, and Ms. Leslie responded that she did not know where the classification system came from.
Ms. Leslie said it was not the intent of the mental health court to create an unfunded mandate to the state, and she explained the purpose of the proposal:
We are projecting to serve about 150 people, which I think is a reasonable size and client load for a pilot project. The clients that we are projecting to service are people we sometimes call the “recycled clients,” who bounce between the jail, the Mental Health Institute, and the community, and utilize a huge amount of resources through our courts, our law enforcement, jail, and mental health services. Many of these clients would qualify for public benefits, such as SSI [Supplemental Security Income] or food stamps, but they are not able to access these needed services, due to their illness. So, it is my belief . . . that this pilot will help us demonstrate cost savings achieved through reduced jail days, hospital days, and court time, as well as demonstrate improvement in the quality of life for these 150 individuals.
Senator Wiener asked whether there were any objective criteria for “appears to suffer from mental illness” in section 6, subsection 2(a) of the bill, and Ms. Leslie deferred to Judge Breen to answer.
Judge Breen stated he is the presiding judge in the adult drug court and “a few other specialty courts,” as well as judge of the Second Judicial District Court. He explained S.B. 366:
In essence, what this proposal does is enable the establishment of a mental health court in the Second Judicial District Court. We have an Executive Summary . . . of our task force report (Exhibit E) . . . The purpose of it is to have one mental health court in our district, with the justice and municipal courts being able to transfer their jurisdiction for misdemeanor cases to the mental health court for supervision and monitoring. We believe we can only justify one mental health court in our district because of our size, and the district court is the most feasible because of the broad range of its jurisdiction. We believe we are just the right size for this project, partly because it is expensive and partly because of the makeup of the criminal activity that we are dealing with here. We think much can be learned by trying this mental health court in our district.
The proposal is based on a federal study of four of the initial mental health courts in the country, from Broward County, Florida; San Bernardino [California]; King County, Alaska; and Seattle [Washington] and Anchorage, Alaska. The federal government has studied these mental health courts . . . The idea is to take 150 felons, gross misdemeanants, and misdemeanants who have entered a plea, who are competent but have a mental illness directly related to their continuing involvement with the criminal justice system. We will divert them early on. We intend to have trained monitors who can go out into the community and make sure the clients, as we will call them, are continuing and following their established mental health programs. This cost is not going to be cheap; we are going to be asking for $500,000 per year for treatment and supplemental housing. Other courts, it is costing them between $10,000 to $15,000 per year. Our proposal is for about a $1,000 a month . . . That is our best estimate . . . We are also seeking $270,000 from Washoe County. This is to help us staff a mental health court, because it is essential to have active case-managers and monitors with this kind of difficulty. We are on their agendas, we have it in our judicial budget, we are also on agendas for the cities of Sparks and Reno, to seek their assistance in defraying these expenses . . .
Our target of operation is July 1 . . . We are ready to go, if we have the money. I will be the mental health judge in our district. We have the unanimous support of our district judges . . . as well as the unanimity and the support of the municipal and justice courts . . . and the prosecutors and public defenders . . . We have universal support from our law enforcement, our medical community, our psychiatric community, the people at the jail who have to deal with these persons on a daily basis. I made many speeches throughout the community, and there is support on a grand scale for this. It is a problem that you do not need to convince somebody that exists . . . The type of people that we are seeking to encounter is not the person who has committed murder, not those that are considered dangerous to public safety; in fact, you will notice in the bill that, where there is a dangerous situation involved, it will require the prosecutor’s consent . . .
Chairman James said that is a provision he wondered about. “Why would we tell a judge that the judge can not do something unless the prosecutor agrees?” he asked. Judge Breen replied it should be up to the judge, but to build a consensus of support, it seemed like a good concession to make. Chairman James said he thinks it is an odd precedent to set, “that the judge cannot do something unless one party to the proceedings before him or her allows it; so I was concerned about it,” he said. Judge Breen agreed it is a limiting requirement and an unusual one. “But it is not always easy to get a broad base of support for a program like this,” he said, “and that is the reason it is in there.”
Judge Breen explained the need for S.B. 366:
We are talking about the 600,000 or 700,000 people who are booked in jails every year in this country who have severe mental illness, 75 percent of whom are repeat offenders. This is a way to do something about this. There will be a savings . . . [in] some jail time . . . there will be some savings of wear and tear on the families who do not know what to do, and the police who do not know what to do. But, mostly, we will take them off the treadmill that they have been put on . . . from the arrest, to the jail, to the court, perhaps to the street, back to the jail again . . . That is the invaluable and incalculable benefit.
Senator Care noted section 6 deals with the eligible defendant who has not entered a plea of guilty, and asked if the definition of “eligible defendant” went to misdemeanors only. Judge Breen answered no, it includes gross misdemeanors and felonies. Senator Care asked if the judge has the discretion to do this or if it has to be upon motion, and if it can be at any point. “I am assuming some of these mental illnesses do not even become apparent until some time during the proceedings,” he said. Judge Breen said that is correct, they do not. He said, “That is why it is really broad. At this point, any judge can order the transfer to mental health court. If it is a crime that involves violence, then the prosecutor has to agree to it; but, otherwise, it is not necessary,” he said.
Senator Care asked about the language in subsection 4 of section 6, “is without adjudication of guilt and is not a conviction for purposes of this section or for purposes of employment.” Judge Breen said it means that, on a job application, a person can answer, “No,” to the question, “Have you ever been convicted of a felony?” He said it is the same benefit a person who has been admitted to drug court or a diversionary program under NRS 453.458 is entitled to.
Senator Washington observed that section 8 deals with sealing records 3 years after completion of probation. The current statute for a person who has completed probation is 7 years, he said. He asked how 3 years was decided upon and what would happen if the person re-offended after 3 years, after the records are sealed. Judge Breen said the purpose is to provide the defendant with benefits similar to those under diversion; but he pointed out the provision on page 8 of the bill, “the court may, upon the application of a prosecuting attorney . . . order an inspection of such records . . . ”
David D. Spitzer, Attorney, Washoe County Drug Court,
stated, as a member of the mental health court planning committee, he assisted
in producing
the Executive Summary (Exhibit E) and the more detailed Final Report (Exhibit F). He addressed some of the questions
presented:
In terms of the eligible defendant categories, section 6 does primarily refer to misdemeanant defendants, who would be coming from justice and municipal courts, and defines their status and what would be the criteria on which a municipal or justice court judge would make a decision about whether they might be appropriate for this program. Section 7, paragraph 2, talks a little bit more about what the circumstance would be for, primarily, the felony or gross misdemeanor defendants, who would be looking at a condition of probation or being [in] mental health court . . . Senator Washington’s question concerning the sealing provisions, what we attempted to do with that language is make them parallel what is available for a drug offender or an alcoholic who takes advantage of diversion . . . Those provisions allow for them to complete a course of treatment under the supervision of the court and parole and probation; if they complete that course, then their felony is erased from their record, and their record can be sealed in 3 years, as the language reflects.
Chairman James asked if the provisions here are the same as for drugs and alcohol in terms of the access of a professional licensing board to those records. He noted, under subsection 5 of section 6, “[a] professional licensing board may consider a proceeding under this section in determining suitability for a license . . . Such a board is entitled for those purposes to a truthful answer . . .” and, in subsection 3 of section 8, “[a] professional licensing board is entitled . . . to inspect and copy from a record sealed pursuant to this section.” He asked why this exception was made to the non-use of this conviction, and whether it is the same for drug and alcohol offenders. Mr. Spitzer said it is the same for drug and alcohol offenders, and that is why it is here in this bill. The language protects the licensing boards in their ability to make inquiries into a person’s past, he said. Chairman James said the concern he has is that the mentally ill, who commit an offense because of their organic illness, seem qualitatively different from the drug or alcohol abuser, who has placed himself or herself in a position of compromised mental state and addiction voluntarily. Judge Breen responded saying this is part of the concept known as therapeutic justice. The concept of the mental health court evolved out of the drug court, and the thinking is they should be treated alike. Chairman James said, “It just struck me . . . what is the relevance to a professional licensing board that these proceedings took place, if we have given a person treatment and he has gotten it behind him? Maybe something like this should not come back to haunt him.” He said there should be a distinction between the two groups, addiction on one hand, mental illness that is not induced by drugs or alcohol on the other.
Senator Care asked if the court has discretion to order restitution in these cases in which the judge, rather than enter a felony conviction, transfers the defendant to the mental health court. Judge Breen said, yes, the judge enters the order for restitution at the time of the transfer. Chairman James pointed out this committee had established the plea of guilty but mentally ill, based upon the notion that the convicted person would be treated in prison; and the treatment is not available, he said. The justice system’s approach has been punitive, and the therapeutic approach proposed in S.B. 366 is good, he said; it addresses the human concern and the recidivism issue in terms of safety of society.
Carlos E. Brandenburg, Ph.D., Administrator, Division of Mental Health and Developmental Services, Department of Human Resources, testified in support of S.B. 366. (Exhibit G is Dr. Brandenburg’s written testimony.) He said his office has been working closely with Senator Townsend and Assemblywoman Leslie on the concept of the mental health court, and with Judge Breen and the task force. Unfortunately, he said, the concept of the mental health court arose after the division had already submitted its budget and, therefore, it was not addressed in the budget. However, the mental health division is ready to participate, he said.
Kathleen M. O’Leary, Lobbyist, Washoe County Public Defender, said her office supports S.B. 366, specifically as amended by Assemblywoman Leslie. Ms. O’Leary said she represents the mentally ill patients in Washoe County on civil commitments. The definition of mental illness contained in NRS 433A would exclude persons with Alzheimer’s disease, she said. She contended that Alzheimer’s disease and other forms of medically-based dementia should not be included in the mental health court. Persons who have led fully productive lives, who are struck by a medically-based disease, such as Alzheimer’s or dementia resulting from a stroke, should not be further stigmatized by being labeled mentally ill, she said.
Senator Wiener, addressing Dr. Brandenburg, asked if his estimate of $200,000 per year (Exhibit G, page 3) is included in the $500,000 estimate in Judge Breen’s proposal (Exhibit F, page 22). Dr. Brandenburg responded that it is.
Robert S. Bennett, Lobbyist, Mental Health Association of Nevada, representing the American Civil Liberties Union (ACLU) of Nevada and the National Alliance for the Mentally Ill (NAMI) of Northern Nevada, said all are in support of S.B. 366. He said it is a very good bill and Assemblywoman Leslie’s proposed amendment would make it better. He said he also speaks as a consumer of mental health services, who has been homeless and has been arrested a number of times on minor charges. He said the bill will enable more people to restore their lives and will provide for an improved community. He commented that funding outside the Legislature is being sought, but prospects are uncertain at this time.
Senator Care noted that referral to the mental health court must be with the defendant’s consent, and he asked if someone who is mentally ill is always capable of giving consent. Mr. Bennett answered that, at times, they would not be able to give consent. However, persons would undergo intensive treatment to restore competency, and then they could choose.
John C. Morrow, Lobbyist, Washoe County Public Defender, speaking from the floor, expressed support for S.B. 366. Chairman James asked him to come forward and state his opinion on the requirement that the prosecuting attorney stipulate to the transfer of a defendant to mental health court. Mr. Morrow said, “It is not necessarily a great idea; but it is probably one of the accommodations that we have to have to be able to get this off the ground.”
Ms. O’Leary addressed Senator Care’s concern about a mentally ill person’s being able to give consent to participate in the proposed program, saying the bill clearly indicates that the persons need to be deemed competent before they may even be asked the question. “If they are competent in the sense that they are fit for trial, they would be able to make that decision; if they are not, they would be diverted into the mental health system, under [NRS] 433A . . .” she said. Chairman James asked Ms. O’Leary about her earlier comments regarding mental illness and the stigma attached. He said his bigger concern is that the law operates properly. He said he had a family member with early‑onset Alzheimer’s disease and saw what a debilitating disease it is. He said, in the early stages, people do a lot of things over which they have no control, such as driving down the wrong side of a freeway. People in that position should have something like the mental health court available to them, he said. “I want to make sure we do not miss somebody in trying to avoid creating a stigma,” he said.
Ms. O’Leary said two questions arise: (1) whether a person suffering with Alzheimer’s disease would be competent, in a legal sense, to make the decision to participate in the program, and (2) whether such a person with an irreversible illness would benefit from the opportunities made available through the mental health court. Chairman James responded saying perhaps there should be a separate statute absolving them of their criminal culpability.
Senator James asked Ben Graham, Lobbyist, Clark County District Attorney, to comment on the issue. Mr. Graham said he has been with the district attorney’s office for many years, and he does not see that it is a problem. He said they use prosecutorial discretion, and the police are very understanding in most instances. “Everything may not be just perfect, but we think this is a good start, and we will certainly support it,” he said.
Richard L. Siegel, Lobbyist, President, American Civil Liberties Union of Nevada, stated he wanted to give his strongest support for S.B. 366. He said the ACLU has been very concerned about the mentally ill in jails and disturbed with the growth of facilities in the jails for dealing with the mentally ill. He said he participates in the Community Unity Coalition, which is comprised of about 25 to 30 social service organizations and has been meeting for about 5 years in Washoe County. The group has expressed unanimous support for the mental health court concept, he said, and regards it as a work in progress. They have concerns about identification and evaluation of the mentally ill defendants, which will require comprehensive medical assessment, and they hope the people involved will work with medical, as well as legal, professionals, he said. He added that it will take significant funding for the project to work as effectively as it should.
Pam Matteoni, Concerned Citizen, stated she is staff assistant for United States Senator John Ensign and worked on the mental health court task force, but testifies today as a private citizen. She said she has a 24‑year‑old son who was diagnosed with schizophrenia 4 years ago, and “you do not know the hell a family goes through on a daily basis.” She stated she is in full support of the mental health court concept and feels she might not have had to go through some of the things she did, if the mental health court had existed sooner.
Chairman James closed the hearing on S.B. 366 and opened the work session hearing with S.B. 233. (Exhibit H is the work session document.)
SENATE BILL 233: Makes changes pertaining to correctional officers employed by department of prisons. (BDR 16-1179)
Chairman James reviewed the proposed amendments to S.B. 233 outlined on page 1 of the Work Session document (Exhibit H).
Steve Barr, Lobbyist, Nevada Corrections Association, stated the Department of Prisons had concerns regarding the possible inclusion of Southern Nevada Women’s Correctional Facility, which created a fiscal note. He said, with the corrective language provided by the proposed amendments, the fiscal note is now moot and should be deleted. Chairman James said, if that is the case, the bill can be moved on without going to the committee on finance.
SENATOR CARE MOVED TO AMEND AND DO PASS S.B. 233.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR PORTER WAS ABSENT FOR THE VOTE.)
*****
Chairman James opened the hearing on Senate Bill 254.
SENATE BILL 254: Establishes moratorium on execution of sentences of death of certain persons until July 1, 2003, and provides for study of issues regarding death penalty. (BDR S-871)
Chairman James stated, during the original hearing on S.B. 254, he and some other members of the committee came to the conclusion that the issue of whether or not the state should have a death penalty is a moral question. He made the following statement:
What was raised in this hearing and has been raised surrounding capital punishment in Nevada and throughout the United States are all these other issues . . . the statistics given to us by the sponsors of the bill and, also, by a university professor and some others, that the penalty is meted out in a racially biased manner . . . that it is meted out in a socio-economically biased way . . . that the jury instructions that are given the juries are difficult to understand and there is evidence after death penalties are given by juries that the jury did not understand the penalty phase of the hearing instructions . . . that juries do not understand how to apply the mitigating and aggravating circumstances that are required by the [United States] Supreme Court’s decision in Furman v. Georgia [408 U.S., 238 (1972)] and, therefore, they do not understand exactly when they are supposed to give the death penalty and when they are not and can give life without parole . . . the question we heard about today in terms of whether people who are mentally ill, or youthful offenders, should be receiving the death penalty at all . . . whether we are properly utilizing DNA [deoxyribonucleic acid] evidence and the new technologies available with DNA evidence to determine guilt or innocence to ensure we do not have a miscarriage of justice . . . that there is controversy concerning the cost of the death penalty and there is dispute over whether the death penalty costs more or whether keeping someone for life without the possibility of parole costs more . . . [and] the controversy concerning the effectiveness of defense counsel in capital cases. Evidence was presented to the committee that these are handled by attorneys, on a pro bono basis a lot of times, who ordinarily do not handle criminal cases . . . Finally, there is controversy over whether or not the death penalty is an effective deterrent to crime.
None of those issues touches on the issue of whether the death penalty is proper from a moral standpoint, which is the retribution question . . . I am leaving that out; I am not suggesting that be part of what I am going to propose. I am proposing that the bill be amended to place a 2-year moratorium on the death penalty. It would become effective immediately, when this bill becomes effective, and there would not be any death sentences carried out during that 2-year period. During that time, the Legislature, which is the appropriate body to do this, would carry on an interim study of the death penalty. I understand that there is a bill that is going to be introduced here shortly that will seek a study, to study the death penalty [Assembly Concurrent Resolution (A.C.R.) 21].
ASSEMBLY CONCURRENT RESOLUTION 21: Directs Legislative Commission to conduct interim study of issues regarding death penalty and related DNA testing. (BDR R-1265)
Chairman James continued:
It could be done in the context of that study, if that bill were to pass, or it could be done in the context of the bill that this committee processed to create a criminal justice review committee [S.B. 286].
SENATE BILL 286: Revises provisions relating to certain committees that review issues pertaining to criminal justice. (BDR 14-774)
Resuming his statement, Senator James said:
Either way, this amendment could be drafted so there is a certainty that there is a study in the 2-year period and then a recommendation from that study committee based upon all of these issues.
What I am concerned about is, with all this [testimony] having been presented to the judiciary committees this session, for us to just ignore it and do nothing with S.B. 254 really does not indicate that we are performing our function properly as the ultimate arbiters of whether or not this penalty should be given or whether it is fairly meted out. Secondly, it does not allow someone to get to the moral question of whether we should have a death penalty. So, what I would propose is that we amend S.B. 254 [and] place a 2‑year moratorium on the death penalty. The moratorium would sunset at the close of the next legislative session of 2003, in the event the Legislature doesn’t do anything at all on this issue. In the same bill, we would mandate that all of the issues that I have articulated . . . and certainly any others that . . . any members of this committee might also suggest . . . be the subject of an intensive study, so that we have satisfied ourselves that we have the actual facts about all these things: racial bias, socio-economic bias, jury instructions, aggravating/mitigating factors, mentally ill/youthful offenders, DNA evidence, cost analysis, effectiveness of counsel, and deterrence.
Senator Titus said she commends Chairman James for doing this, and she thinks this is the wise way to go, at this point. She said:
I appreciate your including the DNA . . . In the study, I hope you will put one of the ‘whereases’ that we do a comparative study with other states and see about making sure Nevada does all that we can to take advantage of the most evidence and the most up‑to-date scientific information that is available.
SENATOR TITUS MOVED TO AMEND AND DO PASS S.B. 254.
SENATOR WIENER SECONDED THE MOTION.
Chairman James said he wants the members of the committee and members of the public to understand that he is trying to take a thoughtful and judicious approach to the death penalty and to the issues that have been raised concerning the way it is given. Other states have done this, he noted, and said:
So, whether you are for the death penalty or against the death penalty, you can be for Senate Bill 254, as I have proposed to amend it . . . If you are for the death penalty, you can . . . come back armed with the study and offer remedial amendments to the capital punishment laws . . . or there may be a result that we should not have the death penalty.
Senator Care said he would support an interim study, but he remembers the testimony of the victims’ families, and he said he thinks of Timothy McVeigh (mass murderer convicted and sentenced to death for the 1995 bombing of the Murrah Federal Building in Oklahoma City, Oklahoma), and said he will provisionally vote against the amendment, but may vote for it on the floor of the Senate. He stated, in Illinois, the governor placed a moratorium on the death penalty after law students of Northwestern University discovered an inordinate number of the people on death row had not committed the crimes of which they were convicted. That is very compelling, he said, but he does not see that here.
Senator Washington said he supports the study, but will not support the moratorium. He said he is reminded of the heinous crime committed in Reno at a U-Haul business, and the pain and suffering of the victim’s father. He believes in an eye for an eye and a tooth for a tooth, he said, and strongly supports the death penalty because he believes it serves as a deterrent. The death penalty needs to stay in place while the study goes on, he said.
Senator Titus said she wants to be sure people understand that by supporting a moratorium and the study they are not saying they are opposed to the death penalty. She added nobody has done more than Chairman James and this committee for victims’ rights, and that she and Chairman James had worked together on the victims’ rights amendment to the Nevada Constitution. “To suggest that by supporting a study on the death penalty there is no compassion for victims could not be further from the truth,” she said.
Chairman James explained:
The reason for the moratorium . . . is that it seems to me incongruous to recognize that there is a need to study . . . [and then] continue to carry out the death penalty under the existing regime, when it really is not necessary to do so . . . No one is going off of death row, no sentences are being commuted, no one is stepping out of the peril that he or she is in . . . It is just being frozen in time, so that the Legislature can carry out an important function . . . If we were a full-time Legislature, I would not be proposing this [moratorium].
Senator McGinness said he believes in capital punishment, but sees the merits of Chairman James’s proposal. However, by placing the moratorium on the death penalty, he told Chairman James, “You are giving an edge to the study before it begins.” “I will support your amendment,” he said, “but I will perhaps . . . take an amendment to the floor to take the moratorium section out.”
Chairman James asked for a vote on the motion to amend and do pass S.B. 254.
THE MOTION CARRIED. (SENATORS CARE AND WASHINGTON VOTED NO. SENATOR PORTER WAS ABSENT FOR THE VOTE.)
*****
Chairman James opened the hearing on S.B. 356.
SENATE BILL 356: Makes various changes relating to business entities. (BDR 7‑1206)
Chairman James recalled S.B. 356 required the Secretary of State to determine whether someone has the authority to file certain corporate documents. The committee had concerns with the bill, as originally written, because of the possibility that the Secretary of State’s duties and responsibilities would be raised beyond mere ministerial function. Allison Combs, Committee Policy Analyst, explained the amendments proposed to deal with those concerns (Exhibit H, page 2).
Mr. Anderson said the secretary of state’s office had some concerns over S.B. 356 and the proposed amendments, in that increasing the levels of review and services provided will require additional staffing and additional time for the office. He said the proposal is seen as a remedy for a relatively few complaints; it may be “overkill,” he said. Renee Lacey, Chief Deputy Secretary of State, Office of the Secretary of State, concurred with Mr. Anderson’s analysis of S.B. 356. Mr. Anderson said many times the address on an annual list of officers is not specifically the home address of the director. It may be a corporation address or it may be resident agent address, he said, so there is a good possibility it may not get to the proper parties.
Chairman James said the language proposed by Senator Ann O’Connell can be added, along with Ms. Lacey’s suggested penalties associated with filing annual lists, combining the proposals set forth under number 1, on page 2, of the Work Session document (Exhibit H). He said there is no need for further amendment.
Senator McGinness asked Chairman James to explain the private cause of action in the amendment proposed by Ms. Lacey. Chairman James said remedies already exist in the law, so there is no need for this provision creating a private cause of action.
SENATOR WIENER MOVED TO AMEND AND DO PASS S.B. 356.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR PORTER WAS ABSENT FOR THE VOTE.)
*****
Chairman James opened the hearing on S.B. 504.
SENATE BILL 504: Revises provisions relating to employment of wardens by department of prisons. (BDR 16-1308)
No amendments were proposed to S.B. 504.
SENATOR MCGINNESS MOVED TO DO PASS S.B. 504.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR PORTER WAS ABSENT FOR THE VOTE.)
*****
Chairman James opened the hearing on S.B. 547.
SENATE BILL 547: Makes various changes pertaining to litigation involving prisoners. (BDR 2-478)
No amendments were proposed to S.B. 547.
SENATOR WIENER MOVED TO DO PASS S.B. 547.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR PORTER WAS ABSENT FOR THE VOTE.)
*****
Chairman James opened the hearing on S.B. 550.
SENATE BILL 550: Allows division of parole and probation of department of motor vehicles and public safety to contract with person to conduct presentence investigation. (BDR 14-1436)
Chairman James explained that the proposed amendment to S.B. 550 (page 4 of the Work Session document, Exhibit H) deletes the supervision requirement because it created an employee relationship with the independent contractor. There would still be supervision, but it would be set up under the provisions of the contract, he said.
SENATOR WIENER MOVED TO AMEND AND DO PASS S.B. 550.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS VOTED NO. SENATOR PORTER WAS ABSENT FOR THE VOTE.)
*****
Chairman James requested a motion to indefinitely postpone S.B. 370.
SENATOR WIENER MOVED TO INDEFINITELY POSTPONE S.B. 370.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR PORTER WAS ABSENT FOR THE VOTE.)
*****
There being no further business, the meeting was adjourned at 11:40 a.m.
RESPECTFULLY SUBMITTED:
Carolyn Allfree,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE: