MINUTES OF THE
SENATE Committee on Judiciary
Seventy-First Session
April 12, 2001
The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:57 a.m. on Thursday, April 12, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was video conferenced to the Grant Sawyer Building, Room 4401, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator Mike McGinness
Senator Maurice Washington
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
COMMITTEE MEMBERS ABSENT:
Senator Jon C. Porter (Excused)
STAFF MEMBERS PRESENT:
Bradley A. Wilkinson, Committee Counsel
Allison Combs, Committee Policy Analyst
Ann Bednarski, Committee Secretary
OTHERS PRESENT:
Gene T. Porter, District Judge, Department 1, Eighth Judicial District Court
Judy Holt, Manager, Budget and Finance, Administrative Office of the Courts, Supreme Court
Ben Graham, Lobbyist, Nevada District Attorneys’ Association
Chris Bunn, Detective, Narcotics Division, Las Vegas Metropolitan Police Department
Susan Stornetta, Concerned Citizen
James F. Nadeau, Lobbyist, Captain, Washoe County Sheriff’s Office, and Nevada Sheriffs and Chiefs Association
JoNell Thomas, Lobbyist, Nevada Attorneys for Criminal Justice, and American Civil Liberties Union of Nevada
Martha Gould, Concerned Citizen
Jan Hamilton, Juvenile Court and Probation Department, Clark County
Leonard Pugh, Director, Juvenile Services, Washoe County
Gemma Greene Waldron, Lobbyist, Deputy District Attorney, Criminal Division, District Attorney, Washoe County
Chairman James called the meeting to order announcing this committee meeting will be considered temporarily as a subcommittee meeting, as a quorum was not present. He said the three members present, Senator Washington, Senator Wiener, and he would consider these bills.
The first bill discussed was Senate Bill 181.
SENATE BILL 181: Makes various changes to retirement benefits of justices of supreme court and judges of district court. (BDR 1-518)
Gene T. Porter, District Judge, Department 1, Eighth Judicial District Court, said he was speaking on behalf of the Nevada District Court Judges Association. He introduced Chief Justice of the Nevada Supreme Court A. William Maupin and Senior Judge Norm Robison and Judy Holt from the Administrative Office of the Courts, and Mr. Rick Loop of the Eighth Judicial District Court. He said their association in May 2000, at their annual meeting, requested this bill.
Judge Porter said the history of this proposed legislation is it was introduced and considered by the Seventieth Session of the Nevada State Legislature, though ultimately, it was not enacted. He said there were competing concerns during the Seventieth Session, and an interim study subcommittee, headed by Assemblyman Lynn Hettrick, was formed to study the total judicial pension system. The recommendations of the interim subcommittee are contained in A.B. 232, and currently are pending before the Assembly Committee on Ways and Means. Senate Bill 181, he said, was requested prior to the conclusion of the interim study; therefore, existed prior to the issuance of the recommendations of January 2001.
ASSEMBLY BILL 232: Establishes judicial retirement system for certain justices of the supreme court and district court judges. (BDR 1- 208)
Judge Porter said:
I want to state unequivocally that the Nevada District Judges Association supports most of the provisions contained in A.B. 232. I have the utmost respect for Chairman Hettrick and want to publicly compliment him and the other members of his subcommittee for their tireless efforts on behalf of all Nevada judges. Because of the economic uncertainty surrounding the budget this next biennium, it is unknown to us at the present time whether A.B. 232 will be considered and processed during this legislative session.
Judge Porter continued S.B. 181 was not requested in competition with this Assembly bill or in contradiction to the efforts of the interim committee. Therefore, he said, we would leave the decision to process this legislation in the hands of this Senate judiciary committee. He added the judges association will respectfully abide by the committee’s decision.
Judge Porter continued Nevada has 56 district court judges and 7 Supreme Court justices. Currently, he explained, there are two separate and distinct retirement systems which apply to the Judicial Branch. The division comes between those judges whose service was in the public sector, therefore members of PERS (Public Employees’ Retirement System), and those judges who came to their judicial positions from the private sector and are now members of the judicial retirement system. Judge Porter said one fundamental tenet of A.B. 232 is to merge the judicial plan into the PERS plan. Currently, he said, half of the judges are in one plan or the other; it is evenly split (Exhibit C).
Judge Porter said there are important distinctions between the two plans. Currently, he explained, the judicial plan is a “pay as you go” system; those judges do not pay into a retirement and upon retirement their pensions are handled by direct legislative appropriation. Assembly Bill 232 appropriates approximately $14 million to actuarially fund those judges in the current judicial plan. This capsulizes the reason for the uncertainty concerning its passage, he said.
Senate Bill 181, Judge Porter continued, contains three basic changes. The first concerns when benefits initially accrue judicial plan participants. Currently, a judge accrues benefits at a rate of 4.166 percent of his salary for every year after 5 years of service. Senate Bill 181 reduces the amount to 3.4091 percent but provides for benefits from the judge’s first year of service (section 5, S.B. 181), he said.
The second major aspect of this legislation allows for judges in the judicial retirement plan to elect to take a reduced pension during their retirement, Judge Porter elucidated, in order to allow benefits to continue at a reduced rate to their surviving spouses. This option, Judge Porter said, is currently available to PERS judges. It is currently not available to those on the judicial plan.
The third aspect of S.B. 181 is contained in section 11 and allows a judge who has retired under the PERS system and then is recalled to active service to begin to accrue additional benefits towards retirement credit. These benefits are currently available to judicial plan participants who return to senior status but are not similarly situated for PERS judges, Judge Porter said.
Judge Porter stated he wished to reiterate deference to the work of the interim study committee. Should A.B. 232 ultimately be processed, he said, the judges will return in support of most of its provisions. Should it not be processed, the fate of S.B. 181 is in the hands of the judiciary committee.
Chairman James thanked Judge Porter for his time. Senator Wiener noted the change in the percentage and asked how the original figure and the subsequent figure were determined. Judge Porter said, historically, he did not know where the 5-year figure originated, explaining over time and taking maximum benefits, it equals the same amount, but these changes benefit in the short run and are known as “front-loading.”
Senator Washington asked about section 5, subsection 6. Judge Porter responded, “Currently, you have to reach the magical combination of 22 years’ service and 60 years of age. At that point, you are then eligible for retirement.” What the option section talks about, he said, is upon retirement, a judge can draw full pension or choose to take a reduced sum to allow his spouse to enjoy the benefits after the judge’s death. This option, he said, is currently available to all PERS employees.
Senator Wiener asked about the provision for either a surviving spouse or a surviving child and if those are the only electives possible. Judy Holt, Manager, Budget and Finance, Administrative Office of the Courts, was introduced by Judge Porter to answer Senator Wiener. Ms. Holt is the office manager and explained a retiree can assign anyone to be the beneficiary. She said the surviving spouse and surviving child provision applies to a preretirement death benefit. It is different and slightly more restrictive, she said.
Senator Washington asked about Assemblyman Hettrick’s bill, A.B. 232, which combines the two retirement systems. Judge Porter explained the interim study committee whose members included Senator O’Donnell and Senator Neal, contemplated the bill. He said with one exception, both Senate Bill 181 and Assembly Bill 232 are the same; the judges’ association supports both. He said S.B. 181 was drafted well before the interim study.
Chairman James asked for further questions. He said this subcommittee would recommend S.B. 181 to full committee in tomorrow’s work session.
Chairman James opened the hearing on Senate Bill 242, addressing the growing of marijuana.
SENATE BILL 242: Prohibits growing, cultivating or propagating of marijuana. (BDR 40-469)
Chairman James asked Ben Graham, Lobbyist, Nevada District Attorneys’ Association, to explain this bill. Mr. Graham introduced Chris Bunn, Detective, Narcotics Division, Las Vegas Metropolitan Police Department. Mr. Graham explained the growing of marijuana was inadvertently removed from the manufacturing provisions of controlled substances. What S.B. 242 does, essentially, is request the Legislature to put the provision back to what it was in 1999, specifically, make it illegal to cultivate marijuana, he said. Currently, Mr. Graham said 50 pounds of marijuana is valued at several thousands of dollars. He said marijuana is grown in houses in Las Vegas, usually destroying the homes, and unless the crop is over 100 pounds, there is no legal trafficking charge. The chairman asked Mr. Bunn to speak about the technical aspects of growing marijuana illegally and associated problems.
Chris Bunn, Detective, Narcotics Division, Las Vegas Metropolitan Police Department, said as recently as last week, he was involved in closing down a marijuana cultivation organization in Las Vegas comprised of nine residences and four growers, one with 2400 plants inside a home. Each plant, he said, is capable of producing 2 pounds of marijuana during its lifetime. The homes involved were rentals which owners found “ultimately completely trashed because of the damage done to them by excess water and moisture within the homes.” One house, he added, had been used for marijuana cultivation for three years and had basically rotted. The problem with cultivation of marijuana is an ongoing one, he said. Legal penalties, he concurred with Mr. Graham, are variable depending on the amount of marijuana cultivated, with high-level trafficking charges only when it is over 1000 pounds and low-level trafficking at 100 pounds, with no trafficking charge for any amount less than 100 pounds. He explained there is an excessive amount of money being made with market wholesale prices for a pound of marijuana ranging from $1000-$1500 per pound for low-quality marijuana. The high-quality product, he said, can sell for up to $6000 per pound. The problem continues, Mr. Bunn said, because of the weights involved for illegal trafficking charges.
Chairman James verified Senate Bill 242 would make it “a Category B felony crime to cultivate even one marijuana plant.” Mr. Graham answered affirmatively, stating this is what the law was in 1999. Chairman James asked what the penalty is for selling marijuana to children. Detective Bunn responded the penalty is the same for sales to a juvenile or to an adult. He added he believed the sale of marijuana is a Category D felony, inserting the only difference is an enhancement, which means the sale occurs within 1000 feet of a school property.
Allison Combs, Committee Policy Analyst, Research Division, Legislative Counsel Bureau, said she studied the tables for drug-related crimes, and the changes in the charges between first and second offenses. She said the first offense is listed as a Category D felony with a sentence ranging between 1 to 5 years in prison; the second offense is a Category B felony offense with penalty of 2 to 10 years in prison; and the third offense is also listed as a Category B felony offense with a 3 to 15 years’ possible sentence. She said Nevada Revised Statutes (NRS) 453.334 provides that a subsequent offense of the sale of a controlled substance to a minor is a Category A felony offense. Generally, she said, the severity and sentence for sale of controlled substances increases with each offense.
Chairman James said, “We have an overwhelming public opinion saying they want marijuana to be available to people who need it for medical use; it has some proven medical use. We don’t know where the Nevada Supreme Court stands in terms of that.” He went on, stating if marijuana is used in a certain way, the Nevada Supreme Court issue is avoidable. Ms. Combs explained if the use of marijuana is part of a research program approved by the federal government it is exempt. Chairman James said, as a legislator, he would aim to have penalties for marijuana use become stiff and motivate law enforcement to prosecute the sale of drugs, including marijuana, to minors. In addition, he said he thought it should be a felony to grow marijuana, with the exception of medical marijuana. Chairman James questioned whether the state prisons should be used for adults who used marijuana.
Detective Bunn responded marijuana had some unique properties, especially at the juvenile level. One significant characteristic of marijuana is it is not water-soluble, but fat-soluble which, he explained, means when ingested into the body it attaches to cellular walls. Marijuana’s molecular structure, he said, is not able to pass through the cell wall but creates a blockage, which eventually causes the cell to die. In juveniles, the high blood-flow areas, for example, the pituitary gland, producer of the growth hormones, are significantly affected. Detective Bunn reported the result in juvenile males is failure to develop muscular structure, increased breast size, and retarded development of facial hair. With continued use of marijuana, he said, a significant impact to the right frontal lobe of the brain develops, which, affects the short-term memory and keeps the long-term memory from being useful. These losses, from continued and prolonged use of marijuana, are manifested by a decrease in vocabulary skills and math skills. Marijuana use continually causes cell damage to the brain, Detective Bunn said. He used speech examples of “hey” and “wow” as monosyllabic words indicative of brain-function deficiency.
Chairman James said many of the problems of marijuana use are similar to those of kids using alcohol. He then asked, “In terms of interdiction, are we as successful or more successful in terms of interdicting marijuana for use or alcohol?” He said what he sees in newspapers and from talking to parents are problems with both marijuana and alcohol use. He said his concern was, "Are we focusing on the right thing with an overall interdiction of marijuana?"
Detective Bunn said we have been effective somewhat in reporting a decrease in the use of marijuana in the juvenile population; however, he said, there is an increase in the use of methamphetamine and some of the harder drugs. He said he felt this was an unusual occurrence, but Drug Abuse Resistance Education (D.A.R.E.) and some other drug-education programs target the four primary drugs. Marijuana users believe, “It is healthy because it is a natural grown plant,” he said, adding we do not talk about the “rave” type of drugs, but there has been some change in the juvenile use of these products. Detective Bunn said alcohol and marijuana abuse continue as the availability is still out there. He explained the criminal charges for trafficking marijuana are regarded as minimal to those dealing in the sale of it. He expounded, from a law enforcement standpoint, it is a financial asset for people to traffic in marijuana because it is a high-volume business enhanced by the geographic location close to states bordering Mexico. He said a trafficker can purchase marijuana in the southern border areas of the country for $400 per pound and sell it in the Las Vegas area for $1500 per pound and realize a significant income. Especially, he said, if they stay below the 100-pound level to avoid an illegal trafficking charge.
Chairman James asked Detective Bunn if he primarily tries to apprehend marijuana operations cultivating large amounts of the substance as opposed to seeking those who are using a small amount of the drug. Detective Bunn said the approach is two-pronged: from the narcotics bureau, the involvement is with the large, conspiracy operations; but on the street level, officers come in daily contact with people in possession, sometimes up to a full-pound level, and they handle these illegal possessions as the routine patrol responsibilities of their beat.
Chairman James asked if more marijuana is brought into Nevada or is more actually produced in Nevada. He said he was wondering if the large drug rings are cultivating it or importing it from outside the United States. Detective Bunn said both are true, but the majority of marijuana is brought into Nevada from Southern Arizona or Southern California. He said typically it is purchased out of the country and routed through these border states into Nevada. Chairman James asked if the larger drug operations are part of even larger crime organizations like gangs. Detective Bunn said some are dealing marijuana on a personal level with an established source of supply, or some dealers are part of an organized gang that traffics the drug. Typically, he said, there are 5 or 6 people involved in a distribution conspiracy operation.
Chairman James said the difficulty of this problem is we are trying to make marijuana available to people who need it for medical reasons, but somehow we are trying to make it legal to possess something brought into Nevada by criminal organizations. Chairman James emphatically stated:
I will have no part in that. None. Absolutely not, would I do anything and I don’t think this Legislature should do anything that will put one penny into the coffers of some disgusting crime organization because that’s the lowest thing.
The chairman continued the need is to come up with a way to implement medical marijuana, as the people wish, but not aid criminals. He said he thought, “That’s the head in the forefront of the offending in terms of the whole drug problem in the country.” He explained all present should aim to reduce the power of this huge, gigantic, economic illegal operation.
Detective Bunn said he wanted to address the chairman’s concerns. He began with saying in order to provide a consistent quality product (marijuana) to those with a medical need for it, quality control needs to be established. He said availability of marijuana has to be through a licensed and monitored program to completely bypass any criminal conduct. Without those provisions, he said, concerns about the grower of the plant, the quality, the plant derivation, and the THC (tetrahydrocannabinol) levels would be totally uncontrolled.
Chairman James said he could not agree more and this discussion today has solidified and clarified for him this is the only way providing medical marijuana should to be done. He defined his concerns as a person who does not wish to criminalize the average adult who uses a small amount of marijuana. He said he believes minimal users should not be charged as felons nor imprisoned, but by having a desire to decriminalize marijuana and make it less burdensome to the criminal justice system, the user is facilitating crime organizations trafficking marijuana. He expressed a desire to focus on this with a hope this session would provide ample time. Chairman James expressed gratitude to Detective Bunn for enlightening the committee.
Senator Wiener asked to address some points regarding gangs. She said trafficking of drugs is a huge enterprise in the youth gang arena, stating many gangs are organized around the economic facilitation of selling drugs. Senator Wiener said when she was writing her book, Winning the War Against Youth Gangs (1999), one of the primary and consistent messages among young gang members was (interjecting, many of these youths were preteens and developing physically), “You can’t be on drugs and in the gang too, because then your loyalty is to your drug and not to your gang.” She continued, when young gang members are specifically asked about marijuana, they say, “That’s not a drug. I don’t know what you are talking about.” Many, she reported, are on marijuana but do not recognize it as a drug.
Senator Wiener noted the importance of the developing issue of pregnancy in adolescents using marijuana. She said many young girls get pregnant while on marijuana and pass on the effects of the drug to the unborn child, thereby creating another problem. The problems inherent with marijuana use are spread to the next generation, Senator Wiener said. Chairman James agreed and mentioned the problem is similar with alcohol use in youth. He said it is vitally important to keep alcohol and drugs away from kids. The question, he said, is whether or not the current “regime,” failing at their efforts to control use of drugs and alcohol by youth, should continue interdicting an ineffective policy?
Chairman James said he thought a state-regulated and licensed system to facilitate contracts with cultivating marijuana for medical use should be consistent throughout the state and monitored. Without some control, we aid criminal operations, he noted, stating it is the wrong thing to do. He said it is well known big organizations do not deal only in marijuana; rather, they are in the drug business. Detective Bunn agreed most organizations are “poly-drug” operations when it comes to smuggling activities.
Chairman James referred to Senate Bill 242 as the talisman of the process, to do everything possible to implement medical marijuana without aiding the drug-crime organizations. To that end, he said, we should pass this bill. It warns anyone out there renting houses for the purpose of processing marijuana will be prosecuted. He added, at the same time, we must create a state-run, licensed procedure to make medical marijuana available to those who are deemed in need of it.
Mr. Graham said he wholeheartedly agreed and urged a do pass of this legislation. He said he has not yet given a lot of time to implementing a legal procedure to obtain medical marijuana but said he would share information to assist in its inception. He added Detective Bunn knows more about the current problems than most others. Chairman James acknowledged Detective Bunn and the dangerous and serious work he does.
Chairman James asked for those who were present to speak against S. B. 242.
Susan Stornetta, Concerned Citizen, came forward to say she understood why the prosecuting attorneys and law enforcement agencies want to make statutes consistent, but did not realize medical analysis and knowledge regarding the problems with youth development was advanced to the degree Detective Bunn described. She said she did not realize public sentiment had increased for reducing the penalties for use of marijuana. Ms. Stornetta said 390,000 people voted, representing 2 out of 3 voters in the state, to legalize use of medical marijuana. What the State Department of Agriculture, in conjunction with the Assembly bill has proposed is a very expensive way of growing and distributing marijuana for patients. She said S.B. 242 would probably pass with no provisions for distributing this medicinal drug. She asked to propose a provision to be added to S.B. 242 to enable eligible patients and/or their designated caregivers to cultivate minor amounts of plants for medical use.
Ms. Stornetta suggested the sheriff or county officials could monitor these people periodically to assure compliance. She added this would allow patients who do not wish to smoke marijuana to have quantities sufficient to brew tea, have infusions, or cook with it. She concluded she would prefer to see some provision made rather than force those in need to resort to criminal involvement and increase chances of imprisoning seniors or younger people with catastrophic illnesses.
Chairman James thanked Ms. Stornetta and commented she had outlined the existing problem very well.
James F. Nadeau, Lobbyist, Captain, Washoe County Sheriff’s Department, came forward to say Mr. Graham had expressed the opinion of Washoe County well. Captain Nadeau voiced support of S.B. 242.
JoNell Thomas, Lobbyist, Nevada Attorneys for Criminal Justice, and American Civil Liberties Union of Nevada, spoke from Las Vegas, and stated she concurs with Chairman James and many of the previous speakers. However, she said, she would suggest a quantity breakdown included in the bill. She said if the marijuana is cultivated for personal use, she did not believe the punishment should be as harsh as cultivation for distribution and sale. Ms. Thomas said she does not see any mention of quantity and feels if there were some quantity breakdown, it would address many of concerns presented. Chairman James asked Mr. Graham to explain why there was no quantity provision.
Mr. Graham answered the reasoning was simple, possession of any amount has been a criminal offense. He reiterated the position of wanting this bill passed first, to return the law to where it was in 1999, and then carve out exceptions and/or limitations. On the issue of personal use, he said there will be individual differences there. We want to start from “ground zero,” he said. Chairman James cited an example of 30 people living in a commune and indicated he understood Mr. Graham’s point.
Chairman James said it is important to seriously approach the medical marijuana issue and said both the medical issue and the criminal issues have to be addressed. Without considering both, he said, a situation is created where one person could grow one plant and be convicted of a Category B felony and yet, the same person could buy a small amount and be convicted of a Category D or Category E felony crime. Mr. Graham again said he understood and concurred with Chairman James’ logic, but asked to first return to 1999 statute and work out specifics from that point. He said, “If we are back to ground zero, then exceptions and regulations would make some sense.”
Chairman James closed the hearing on Senate Bill 242, announcing the matter would continue in a work session.
Senator Washington asked to recognize Martha Gould, a long-time outstanding resident of the Reno/Sparks area. He said Ms. Gould has contributed a lot of her time and described her as a great librarian. He asked to tip his hat to her and welcome her to the Senate judiciary committee meeting. Chairman James joined him and welcomed her.
Chairman James called a recess at 9:50 a.m.
The committee reconvened at 10:39 a.m. to commence a work session. Chairman James began with an apology for the confusion surrounding the committee meeting earlier without a quorum present. He announced the subcommittee meeting would follow the work session with Senator Wiener and himself acting as a subcommittee due to Senator Porter’s absence. He asked to have the work session agenda (Exhibit D) distributed.
Chairman James introduced Senate Bill 101, regarding senior bingo games for recreation.
SENATE BILL 101: Authorizes facility that provides social or recreational activities for senior citizens to conduct bingo under certain circumstances. (BDR 41-330)
Chairman James said he asked Dennis K. Neilander, Chairman, State Gaming Control Board, to meet with Senator Neal, the bill’s sponsor, and come up with an amendment. The amendment is found on page 7 of the work session document (Exhibit D). Senator Wiener asked for clarification a player must be a senior. Chairman James said a player must only be over 21 years of age to win a bingo game at a senior facility. He explained nonmembers of the senior facility are eligible to play there.
SENATOR WIENER MOVED TO AMEND AND DO PASS S.B. 101.
SENATOR WASHINGTON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman James announced he would present S.B. 101 on the Senate Floor.
Next on the agenda was Senate Bill 339 dealing with release of education records.
SENATE BILL 339: Provides for release of education record to certain persons under certain circumstances (BDR 34-424)
Chairman James said this bill authorizes juvenile probation officers to inspect education records. He asked Ms. Combs to explain the amendments. Ms. Combs said the amendments are found on pages 8-14 of the work session document (Exhibit D) and were voted on by the subcommittee. Essentially, she said, the subcommittee decided to delete all references to the advisory board to review school attendance, which means deleting section 5 of the bill, on page 14 (Exhibit D). Ms. Combs continued, referring to page 6 of the work session document, which explains records can be released to a juvenile probation officer, law enforcement officer, district attorney or anyone who is conducting an investigation.
Senator Washington, chairman of the subcommittee on this matter, said Ms. Combs had explained it correctly. He said the truancy provisions of S.B. 339 would not be part of this legislation but would be diverted to the Department of Health and Human Resources. Chairman James reiterated truancy is not a part of this bill. Senator Washington confirmed.
SENATOR WASHINGTON MOVED TO AMEND AND DO PASS S.B. 339.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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Chairman James asked Senator Washington to present the bill on the Senate Floor.
Chairman James introduced Senate Bill 366, which he described as creating a mental health court.
SENATE BILL 366: Enacts provisions governing establishment by district court of program for treatment of mentally ill offenders. (BDR 1-1006)
Chairman James said an amendment regarding the definition of mental illness was proposed by Assemblywoman Sheila Leslie. Chairman James announced he would not process the bill with the amended definition. He said it allows licensing boards to examine sealed records to determine suitability for licensing or liability to discipline for misconduct. This relates to drug and alcohol addiction courts and this is a different kind of court. He suggested removing this definition because a licensing board might be interested in a drug or alcohol problem but a mental health problem is a disability and therefore not relevant or “any of their business.” Chairman James proposed S.B. 366 be amended and passed, the amendment would remove provisions for licensing boards to access sealed records regarding court-related mental health matters.
Senator Wiener said testimony from Carlos Brandenberg, Ph.D., Administrator, Division of Mental Health and Developmental Services, Department of Human Resources, estimated a $200,000 fiscal note would be attached to this bill, stating it could not be included in the budget. She added she believed there was a request for state funds for this bill. Senator Wiener asked if the motion should include a referral to finance.
Chairman James responded he would prefer not to refer it to finance, as it is only one part of a mental health program. He asked if there was a motion to amend the bill to remove the professional licensing boards and do pass.
SENATOR WASHINGTON MOVED TO AMEND AND DO PASS S.B. 366.
SENATOR WIENER SECONDED THE MOTION.
Senator McGinness asked if the definition of mental illness contained in the bill in section 4, page 3, is different than the one found in chapter 433 of NRS. Chairman James said the definition in the bill is different. The definition found in S.B. 366 eliminates all kinds of diseases including mental retardation and Alzheimer’s disease that possibly could contribute to someone committing a crime, he explained. Chairman James asked for a vote on the motion.
THE MOTION CARRIED UNANIMOUSLY.
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Chairman James asked Senator Wiener to assist Senator Townsend on the Senate Floor and with the amendment.
Chairman James introduced Senate Bill 412 addressing procedures for registration for parole and probation of certain offenders.
SENATE BILL 412: Revises various provisions pertaining to certain offenders. (BDR 14-798)
This bill, began Chairman James, concerns registration and transmission of the names of sex offenders to the central repository. There are many amendments and he turned explanations over to Allison Combs, Committee Policy Analyst.
Ms. Combs said the first amendment to Senate Bill 412 was proposed during the hearing. It allows those who must register to do so not only in writing but also in person. This amendment, she said, affects several portions of the bill. She referred to pages 15-16 of the work session document (Exhibit D), which contains the proposed changes in language.
The second amendment, she said, relates to polygraph examinations required. Currently, Ms. Combs explained, sex offenders must submit to such an examination. The amendment requests full cooperation with the polygraph examination. But, she added, there may be some constitutional questions about this amendment.
Cynthia Dianne Steel, District Judge, Department G, Family Division, Eighth Judicial District; Ben Graham; David S. Gibson, Lobbyist, Clark County; and Kirby Burgess, Director, Family and Youth Services, Clark County, requested the third amendment during the hearing, Ms. Combs said. It asks the court to provide a 3-year registration for juvenile offenders, after which the court can determine if they need to continue until the juvenile is 21 years of age.
Another of the proposed amendments limits registration to felony convictions, Ms. Combs said. She also said, currently three charges are classed as gross misdemeanors: open and gross lewdness; indecent exposure; and annoyance or molestation of a minor. Second charges on these above mentioned offenses are currently felonies, said Ms. Combs. In addition, she said, the proposed amendment adds kidnapping, false imprisonment, or invasion of the home. These convictions, when commission of them is sexually motivated, are proposed as additions to the definition of a sexual offense.
Ms. Combs said another amendment affected the provision regarding a child who committed a sexual offense attending the same school as his victim. She explained the amendment proposed to authorize a child to attend the same school certain if certain conditions exist. They include: the perpetrator and victim resided in the same place at time of the offense; the probation officer notifies the court the offender has complied with the terms and conditions of probation including therapy; the offender’s therapist recommends a reunification of the family; and the victim’s parents or guardian and the victim consent to the reunification. She added, the testimony indicated the amendment addresses cases involving incest.
Chairman James asked for questions, and asked Mr. Graham to come forward to testify regarding changing the registration requirements for certain offenses. Mr. Graham said his interpretation was the offenses of open and gross lewdness, indecent or obscene exposure, and annoyance or molestation of a minor would not require registration on the first offense. Mr. Graham referred Chairman James’ inquiry to Leonard Pugh, Director, Department of Juvenile Services, Washoe County, and Jan Hamilton, Juvenile Court and Probation, Clark County.
Mr. Pugh responded there is no notification to schools on the three offenses Mr. Graham listed. Notification is not required, he said, if these offenses have been committed for the first time. On the second offense however, he said, these offenses become felonies and school notification is required. He said he supports the amendment.
Senator Washington asked about the second amendment requiring a polygraph examination and the possible constitutional issue, and wondered if it is likely to be a problem. Bradley A. Wilkinson, Committee Counsel, responded some of the language is unnecessary. Currently, he explained, the probationers or parolees comply by submitting to a polygraph examination, and if they are leaving without compliance, he said, he did not feel changing the language would change behaviors of offenders. Mr. Wilkinson said some of the polygraph questions are not constitutionally required under the Fifth Amendment rights. He said it is probably better to leave out the changes to section 3 of the bill requested by the parole and probation division.
SENATOR WASHINGTON MOVED TO AMEND AND DO PASS S.B. 412 LEAVING SECTION 3 AS IS.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Mr. Graham thanked those who came from Las Vegas to testify. Chairman James asked Mr. Graham to stay to testify on penalties for child abuse, the next bill on the agenda, Senate Bill 546.
SENATE BILL 546: Revises penalties for second or subsequent offense of abuse or neglect of child. (BDR 15-471)
Chairman James explained this bill makes it a Category C felony to abuse or neglect a child if the perpetrator had already been convicted of a first offense. This bill, he explained, resulted from the realization, by legal definition, a person can commit some heinous acts against a child and be charged with a misdemeanor offense. He said he and Senator Care acted as a subcommittee and proposed some amendments to revise child abuse penalties to provide stronger penalties for willfully causing a child to suffer unjustifiable physical pain or mental suffering as a result of abuse and neglect when these actions do not result in substantial bodily harm or mental harm. He reported currently the charge is a gross misdemeanor; additionally a person who allows a child to suffer such pain or to endanger a child by placing him in a situation where he may be abused would be a separate crime. Chairman James said a less culpable person is separated from the abuser. He asked Mr. Graham if he concurred with these amendments. Mr. Graham agreed, “Absolutely.” Pages 17-18 of the work session document contain the proposed amendments (Exhibit D).
Chairman James began reading the amendments and stopped to clarify the definition of mental harm found in the work session document on pages 17-18, NRS 200.508, subsection 3, paragraph (e) (Exhibit D). He explained, section 2, subsection 1, paragraph (b), subparagraphs (1) and (2) are the parts of the amendment to S.B. 546 changing the willful causing of harm from a gross misdemeanor to a Category B felony.
Senator Care said he agreed separating the perpetrator, the person who actually harms the child, from the one who placed the child in a potentially abusive situation, was the correct way to amend the bill. He said the penalty for the abuser should be stiffer.
Chairman James recalled an incident wherein a man threw an infant up in the air into a ceiling fan and let the baby fall on the floor hitting his head, and added, because the resulting skull fracture would heal, the perpetrator was charged with a gross misdemeanor. Chairman James said this act must be a felony charge. He went on, a definition for this kind of conduct is necessary, otherwise, he reasoned, a person could conceivably be charged with a Category B felony for something very minor.
Mr. Graham admitted he had not reviewed this bill carefully, therefore, he was not certain a new definition was necessary, citing “unjustifiable physical pain” would need a fact-finding claim.
Chairman James discussed the word “willfully” in section 2, subsection 1, a Category B felony charge for willful bodily harm; and subsection 2, a gross misdemeanor if bodily harm does not result and it is not willfully executed as the substantial difference between subsection 1 and subsection 2 of S.B. 546. He asked Mr. Graham to comment. Gemma Greene Waldron, Lobbyist, Deputy District Attorney, Criminal Division, District Attorney, Washoe County, said in paragraph 2, a neglect situation exists and allows a child to be abused.
Senator Wiener said she had difficulty distinguishing between the differences and felt her problem was the word “or” in the language of the amendment. She said there are two behaviors here, rather than “either/or” circumstances. She suggested changing language to, “and permits or allows” without willful intent to harm.
Chairman James said the penalty is based on a Category A felony charge for the behavior of a facilitator if substantial bodily harm results which, he said, is the same punishment as being the actual perpetrator of the willful act of harm. Mr. Graham agreed the penalty currently is the same for different culpability. Chairman James decided to work further on this bill and asked Mr. Graham to do some research on these questions asked during the work session. Mr. Graham agreed to meet with the Legislative Counsel Bureau to sort out the incongruity existing in the language of the bill. Chairman James added he was aware of the existing law, but said the new law has to be modified in order to be effective. He suggested perhaps a third level of culpability is needed. Ms. Waldron added it is a policy decision what charge is made against, for example, a mother who knows her boyfriend beats the child and allows it to happen. Mr. Graham called it an inadvertent action and excluded the “willful” portion of the bill. Chairman James said the third level is what needs to be refined and suggested perhaps the word “inadvertent” needs to be augmented with “blind indifference.” There was no action on Senate Bill 546.
Chairman James opened discussion of Senate Bill 548 dealing with civil rights of certain offenders.
SENATE BILL 548: Makes various changes concerning sex offenders and other persons convicted of crimes. (BDR 14-512)
Chairman James explained this bill deals with sexual offenders and other offenders generally including genetic marker testing, psychosexual testing and evaluations, and procedures for restoring civil rights. There are amendments to the bill, he said. The Division of Parole and Probation, he said, proposed an amendment to eliminate all provisions in the bill relating to genetic marker testing because there is another bill addressing this testing aspect.
The second amendment, Chairman James continued, was proposed by Senator Wiener and changes the standard for certification prior to release on probation. He said wording in S.B. 241 was changed from: “a menace to health, safety, and morals of others” to “does not represent a high risk to reoffend based upon currently accepted standards of assessment.” Chairman James questioned the use of the term, “high risk,” asking if the term was related to the tier level of the crime. Mr. Wilkinson said the amendment language was not determined by the offender’s tier level, although the analysis of risk might be similar. He explained this is part of the certification to release someone granted probation who has committed a sexual offense and, he added, is similar to procedures regarding other prisoners about to be released on parole.
SENATE BILL 241: Revises provisions relating to certification panels that must determine whether certain prisoners who are eligible for parole constitute menace to health, safety or morals of others. (BDR 16-435)
Chairman James discussed another amendment proposed by the Division of Parole and Probation to set forth qualifications for persons conducting the evaluations for certification. It adopts a psychosexual evaluation criterion to include psychiatrists, psychologists, social workers, registered nurses, and marriage and family therapists.
Mr. Wilkinson verified the standard for certification for parole would be amended to be similar to the standard for probation. Chairman James confirmed. Mr. Wilkinson asked who has the responsibility of the certification panel. Chairman James said Senate Bill 241 had already been passed and Senate Bill 548 only changes the standards used for certification.
SENATOR WIENER MOVED TO AMEND AND DO PASS S.B. 548.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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Chairman James asked Senator Wiener to handle Senate Bill 548 on the Senate Floor.
Senator Titus asked about Senate Bill 176 dealing with community common-interest projects. She said the bill is about voting machines and though it was withdrawn, she said she had a request and asked if Chairman James would consider amending it. He answered he would discuss it with her.
SENATE BILL 176: Authorizes use of mechanical voting machines for election of executive board of certain common-interest communities. (BDR 10-63)
Chairman James asked Senator McGinness if he would replace the absent Senator Porter in the subcommittee meeting about to commence. Chairman James announced he, Senator Wiener, and Senator McGinness will act as a subcommittee.
Chairman James said the full committee meeting is adjourned at 11:21 a.m.
Ann Bednarski,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE: