MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
February 20, 2003
The Committee on Judiciarywas called to order at 8:14 a.m., on Thursday, February 20, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4406 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
GUEST LEGISLATORS PRESENT:
Senator Terry Care, Senatorial District No. 7, Clark County
Assemblyman Bob McCleary, Assembly District No. 11, Clark County
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney, and representing the Nevada District Attorney’s Association, Reno
Ben Graham, Legislative Representative, Nevada District Attorney’s Association, Clark County, Las Vegas
Lucille Lusk, Co-chair, Nevada Concerned Citizens, Las Vegas
Elana L. Hatch, Chief Deputy District Attorney, Family Support Division, Las Vegas
Todd L. Torvinen, Attorney, representing Nevada Trial Lawyers Association, Reno
Marshall S. Willick, citizen, Las Vegas
Leland Sullivan, Chief, Child Support Enforcement, Welfare Division, Department of Human Resources, Carson City
Don Winne, Chief Deputy Attorney General, Office of the Attorney General, representing the Welfare Division, Carson City
Ben Blinn, citizen, Reno
Debbie Cahill, Director of Government Affairs, Nevada State Education Association, Las Vegas
Chairman Anderson made opening remarks and noted a quorum was present. He opened the hearing on Assembly Bill 78.
Assembly Bill 78: Revises penalty for certain sexual offenses committed against children and prohibits suspension of sentence or granting of probation to person convicted of lewdness with child. (BDR 15-1031)
Assemblyman Bob McCleary, Clark County Assembly District No. 11, stated the purpose of the legislation was to send a clear message to sexual predators that if they preyed upon Nevada’s youth and were convicted of sexual assault, they would be sentenced to prison “for a long time.” Additionally, conduct that resulted in subsequent sexual assault convictions might result in a prison sentence of life without the possibility of parole (LWOP).
Another crime often used in sexual assault negotiations was lewdness with a child. A first conviction would result in a minimum of two years in prison; additional convictions would result in LWOP. Mr. McCleary introduced Kristin Erickson and Ben Graham, who would address the specifics of the legislation.
Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney, and representing the Nevada District Attorney’s Association, Reno, spoke in support of A.B. 78 because “it made good practical sense.” As the law currently stood, there were three tiers for sexual assault crimes not involving substantial bodily harm:
Ms. Erickson recapped the parole years for each tier—10 years for sexual assault of an adult, 20 years with children under 14, and 5 years with 14- and 15-year olds. She said it did not make sense as it currently stood. It was possible to plea-bargain an adult sexual assault charge down to a “fiction” of assault of a 1‑ or 15-year old because the sentence received would be less. This legislation would change the [charge for assault of a] 14- to 15-year old sentencing range. It would still allow the judge the option of LWP [with parole eligibility at] 20 years or that of a definite term of 40 years with a minimum of 15. This seemed more appropriate than allowing the option of a lesser sentence than that of [sexual assault of] an adult. Finally, a second conviction of sexual assault of a child under 16 would receive a sentence of LWOP.
Continuing, Ms. Erickson stated that lewdness with a child less than 14 years of age was different than sexual assault of that child, which included penetration; lewdness was fondling. A judge, when faced with a person convicted of lewdness with a child less than 14, was allowed two sentencing options: LWP with parole eligibility at ten years and/or a $10,000 fine, or probation. Ms. Erickson said that although lewdness (fondling) was a horrible crime, not every instance deserved a life sentence or ten years in prison. Defendants also did not deserve probation; they should be punished and go to prison. She said the judge was placed in a quandary as to whether to send an offender to prison for ten years or allow him to roam the streets on probation.
Further, Ms. Erickson said the proposed legislation would provide the judges with a third alternative—a term of years between 2 and 20. This would enable a judge to accurately tailor the sentence to fit the crime. A more heinous crime would qualify for LWP with parole after 10 years, or 8 to 20 years. If the case were not as severe, in the judge’s eyes, he could hand down a sentence of 2 to 5 years. Second offense lewdness would result in sentence of LWOP.
Ben Graham, Legislative Representative, Nevada District Attorney’s Association, Las Vegas, stated he had worked with Mr. McCleary and supported A.B. 78. There was a sister bill, Assembly Bill 62, which essentially was covered in A.B. 78, which Mr. Graham asked to be “put in the drawer.” The intent was to place those who continued to prey upon young people into prison and eliminate “the revolving door situation.”
Chairman Anderson expressed his concern that this statutory question had not been identified earlier. If the legislation expanded the choices given to a judge, would it also limit his discretion in dealing with those charged with lewdness. Mr. Graham admitted that he did not know what happened; this was an issue discussed previously but not fixed. Relating to placing a limit on a judge, the legislation should provide more discretion. This legislation would also provide some leverage to the defense attorneys and the state, permitting good “compromise” sentences, which might reduce the necessity of going to trial.
Taking into consideration the realignment of sentencing guidelines in 1995, Chairman Anderson asked if the sequence of events could lead to a scenario resulting in unintended consequences. Recalling the massive efforts in 1995, Mr. Graham noted that some of the 1995 amendments were currently being adjusted to become more useful. In situations of sexual assault where it was not traumatic, parents preferred a negotiated compromise charge of lewdness with a minor.
Referring to page 2, Section 1, subsection 4(b), which took into consideration convictions from other jurisdictions, Assemblyman Horne questioned whether there might be constitutional problems with that provision. Mr. Graham said that provision was frequently used. There were some states where misdemeanors were punishable by five years; Nevada misdemeanors were punishable by six months. When extradition work was done, Nevada gave full faith and credit to an out-of-state jurisdiction. He noted that if a conviction fit Nevada’s statutory language of that offense, it could only be used for enhancement. He did not recall any constitutional challenges.
Mr. Horne asked whether this statute would affect a 17-year-old boyfriend/ 15‑year-old girlfriend scenario. Mr. Graham deferred to Ms. Erickson to answer that question. Ms. Erickson said the legislation should not affect that particular situation, since sexual assault was not consensual. Mr. Horne queried what would happen when parents filed statutory rape charges against boyfriends. Mr. Graham said parents had limited abilities to seek prosecution. The statute made it a lesser offense, the closer the people were in age.
Assemblyman Carpenter questioned why the description of lewdness with a child was being added to this legislation; had it been missed previously. Mr. Graham said it had not been excluded in 1995, but A.B. 78 brought the sentencing in line and provided for an enhanced penalty.
Lucille Lusk, Co-chair, Nevada Concerned Citizens, Las Vegas, appeared in support of A.B. 78 and spoke as one with experience working with adults who were victims of child abuse as children. The consequences of experiencing sexual abuse lasted well into adulthood. The time required to overcome the consequences of sexual abuse was extensive, even when there was no substantial bodily harm associated with the sexual abuse. Consequently, Ms. Lusk said it was “manifestly unjust” for the perpetrator to be released in as little as five years. She opined that this piece of legislation made sense in that regard. The recidivism rate in these cases was extremely high, so the protection of other children should be a primary factor to be taken into consideration. The provision regarding lewdness in A.B. 78 also made sense because of the wide variety of acts that fell under that definition. The additional flexibility for the court would be beneficial. The only place there was reduction in the court’s discretion would be the prohibition on probation as it related to lewdness. She said that the most important provision of the bill was the penalty of LWOP for second offenders because of the high rate of recidivism.
Chairman Anderson closed the hearing on A.B. 78. He then opened the hearing on Assembly Bill 62, a similar piece of legislation.
Assembly Bill 62: Increases penalty for committing sexual assault not involving substantial bodily harm against child under age of 16 years. (BDR 15‑282)
Mr. Graham stated that A.B. 62 was originally drafted at the request of the Nevada District Attorney’s Association, but the provisions were handled in A.B. 78. Rather than indefinitely postpone the bill, Mr. Graham requested that the bill be taken back to await a “meritorious” purpose.
Chairman Anderson closed the hearing on A.B. 62. He stated that A.B. 62 would be taken “back to the board,” keeping it alive. He explained that A.B. 62 had been drafted without knowledge that a similar piece of legislation was coming forward and the provisions of A.B. 62 were already included in that subsequent bill. This left a piece of legislation “on the board” in the event that the Committee ran out of bill drafts. Thus, the bill could be brought back to amend this section of the law at a later date.
Chairman Anderson opened the hearing on Assembly Bill 27.
Assembly Bill 27: Revises method for adjusting presumptive maximum amounts of child support owed by noncustodial parents. (BDR 11-244)
Elana L. Hatch, Chief Deputy District Attorney, Family Support Division, Clark County District Attorney’s Office, Las Vegas, said A.B. 27 would correct an unintended result in NRS 125B.070 by applying the Consumer Price Index (CPI) to maximum presumptive amounts of child support, or caps, and not applying CPI to income ranges.
Referring to Exhibit C, Table 1, “July 1, 2002 through June 30, 2003,” Ms. Hatch said the right column illustrated the presumptive maximum amounts of child support at cap. On the left, income ranges of noncustodial parents were shown. She said that last session she had brought forth a bill to improve the lives of children by increasing the presumptive maximum amounts of child support at cap in NRS 125B.070; that bill was widely supported. The final version of the bill passed by the Legislature had graduated presumptive maximum amounts of child support as shown in the right column of Table 1. The final version also had CPI applied to the presumptive maximum amounts of child support caps. Both these changes had worked well.
Continuing, Ms. Hatch said that what had not worked well was the application of the CPI to the income ranges. The unintended result was that a noncustodial parent could move from one income range to another with no change in income resulting in a large inappropriate increase or decrease in child support. She noted that she referred to noncustodial parents as “he,” but nationwide as of January 2002, 17 percent of noncustodial parents were female. It would appear that the CPI was properly applied to the presumptive maximum amounts of child support caps and inadvertently applied to income ranges.
As the bill passed last session, Ms. Hatch stated the CPI would be added to or subtracted from the child support cap depending on how the economy fluctuated. Table 2 (Exhibit C), titled “Future,” illustrated changes to both the child support amounts and the income ranges based on a 1.6 percent increase in the CPI. Table 3 (Exhibit C) illustrated changes to both the child support amounts and the income ranges based on a 4 percent decrease in the CPI. Returning to Tables 1 and 2, Ms. Hatch said if a noncustodial parent who earned $4,235, Step 2 on Table 1, could be reclassified, or pulled down, as Step 1 on Table 2. This illustrated that, with a possible increase in the CPI of 1.6 percent, the noncustodial parent would pay less child support—the unintended result of having the CPI applied to the income range.
Ms. Hatch reported she had met with Brenda J. Erdoes, Legislative Counsel, Legal Division, Legislative Counsel Bureau, who had indicated that there had been no testimony in support or opposition to the legislation enacted last session.
According to Ms. Hatch, the most serious injustice could be seen when comparing income levels on Table 1 and Table 3. A noncustodial parent, with no change in his income but a 4 percent decrease in the CPI, should experience a decrease in his child support. However, the income range would reclassify that noncustodial parent with an income of $4,235 from Step 1 on Table 1 to Step 2 on Table 3, increasing his child support payments. She concluded that the CPI should be added to the presumptive maximum amounts of child support but should not be applied to the income ranges.
In conclusion, Ms. Hatch stated that A.B. 27 proposed to remove the CPI from income ranges, thus correcting the unintended result. Assembly Bill 27 had the support of the Washoe County District Attorney’s Office and the Nevada District Attorney’s Association. Ms. Hatch disclosed that in her examples she used those income ranges that would be most dramatically affected; noncustodial parents would not be affected if in the middle of the income ranges.
Chairman Anderson said it was [another example of] the inevitable rule of unintended consequences. Since it was not discussed in the initial legislation, an erroneous assumption was made that income would move relative to CPI and the cost of raising the child would continue to grow. Chairman Anderson queried how to put pressure on noncustodial parents to recognize that the cost of raising the child was increasing, even when their income was not increasing. If the family was still together, the overall cost and the effect on the family itself would be experienced. This rise in costs might encourage parents to find better jobs, which would place them into a higher income range. A big concern was that noncustodial parents no longer felt the obligation to better their economic position in terms of the needs of the family since the family was not there. That was often the time at which and the reason why people changed jobs; they needed more money to make ends meet in the family. Chairman Anderson said the cost obligation to the parent was still there, “so what are we going to do?”
Ms. Hatch responded that NRS 125B.070 had another section that included the percentages of gross monthly income and how child support was determined, and that capped the amount of child support. She stated that graduated steps were realistic. An employment assistance court to assist noncustodial parents to obtain a job or a better job had been established in Clark County. Clark County also had the first and only drug court program in child support court that assisted people with drug and alcohol problems. Clark County was attempting to provide resources to noncustodial parents as allowed by statute, as it was to everybody’s benefit if noncustodial parents improved their income and that goods and services addressed by CPI fluctuated, keeping pace with the economy.
Assemblyman Brown questioned whether there had been an analysis completed related to fixed versus variable expenses. Ms. Hatch responded in the affirmative. She said the CPI was reviewed because the child support caps had not been changed since 1987. The Assembly Committee on Judiciary had been instrumental during the last session in amending CPI into the legislation. She acknowledged that there were fixed expenses, but there were also variable expenses. She noted that when she talked about providing services to custodial parents, as well as noncustodians, the Family Support Division was required to do that; it was part of the state and federal program. The goal was to ascertain the correct number and ensure that the law reflected what was happening with the economy. That was the most “just way” to accomplish that.
Todd L. Torvinen, Attorney, representing Nevada Trial Lawyers Association, Reno, recalled that two years ago the CPI adjustment presented by the federal government included goods with different inflation rates and those that were fixed. Mr. Torvinen provided to the Committee two exhibits:
The information provided supported testimony given by Ms. Hatch. Mr. Torvinen said the essence of this technical correction would be to correct nonsensical results:
· While the cost to care for a child rose every year, the child support amount would fall.
· Conversely, if there was deflation, an obligator could be placed in a higher income class, which would also be unfair.
Assemblyman Carpenter questioned when a person was required to report an increased income level. Ms. Hatch said there was a program called “review and adjustment,” which allowed for modification of child support orders, and there was a statutory section that addressed it. A noncustodial or custodial parent supplied income information and a request to have the child support adjusted. If the parties did not agree, it would go to court, where the judge would make a decision. Deviations were allowed if the obligator supported other children or there were substantial childcare costs. The parents could also go to family court to have the child support order adjusted.
Marshall S. Willick, citizen, Las Vegas, appeared in support of A.B. 27. He said it was an administrative correction that would “do more good than harm.” He noted he took a “snap poll” of the Nevada Chapter of the American Academy of Matrimonial Lawyers in Las Vegas; they concluded it was a good administrative correction.
Chairman Anderson questioned whether the Welfare Division had identified the disparity under discussion.
Leland Sullivan, Chief, Child Support Enforcement, Welfare Division, Department of Human Resources, Carson City, admitted that the Welfare Division had not been aware of the discrepancy until Ms. Hatch brought it to their attention.
Ms. Hatch presented an amendment (Exhibit F) to A.B. 27 written by Madelyn Shipman, Deputy District Attorney, Civil Division, Washoe County District Attorney’s Office.
Mr. Sullivan read from a prepared statement (Exhibit G) and appeared in support of A.B. 27 and the amendment regarding interest (Exhibit F). He testified that the child support program was a federal, state, and local partnership operating under Title IV-D of the Social Security Act. The program provided four basic services to Nevada’s children and families: the location of the obligor parent, establishment of parentage, establishment of obligations, and enforcement of child support orders. In state fiscal year 2002, the child support program collected and distributed to families over $115 million.
Continuing, Mr. Sullivan said that state programs must comply with Title VI-D mandates to be eligible for federal funding. Federal regulations established program requirements and mandatory services states must provide to families participating in the program. Currently, NRS 125B.140 required the court to determine and award interest on child support arrearages. However, under federal regulations, Title IV-D child support enforcement programs were not required to calculate interest. It was a Title IV-D function to collect interest that had been reduced to a sum certain amount. Requiring the Title IV-D program to calculate interest represented an enormous burden to the program’s limited resources. Although the statute directed the courts to calculate interest, in practice the program must provide the calculations to the court to avoid time spent during the hearing process.
Mr. Sullivan reported that as of December 2002, there were 61,034 child support cases in Nevada with arrearage balances. This represented 59 percent of the state’s total caseload. The majority of cases entered the child support program with existing arrearage balances, each requiring the program to calculate interest. The interest question was further complicated by the adoption of the federally mandated Uniform Interstate Family Support Act (UIFSA). State differences in arrearages and interest calculations compounded the labor necessary for child support enforcement caseworkers to comply with the provisions of NRS 125B.140. UIFSA required responding states to enforce the initiating state’s order, yet the interest rate of the state, with continuing exclusive jurisdiction, determined the interest rate applied. The Personal Responsibility and Work Opportunity Reconciliation Act mandated distribution requirements and added another layer of complexity to interest.
Further, Mr. Sullivan stated that for TANF (Temporary Assistance to Needy Families) and former TANF cases, there were no fewer than five categories of arrearages, which might or might not be assigned to the state depending on case circumstances. Interest must be addressed separately for each category of arrears. As the statute was written, it created a consistency problem on how interest was applied. The majority of cases going to court in the program would be to establish an obligation, establish parentage, to modify existing obligations, and to address noncompliance issues.
Currently, a significant portion of the caseload did not go before the court in Nevada because:
Pursuant to NRS 125B.095, the program was required to pursue and collect a 10 percent penalty on missing installments of child support. The program anticipated building that function into the system by the end of the calendar year to collect interest and penalties. Recently, Welfare Division staff had met with Clark and Washoe County's child support management staff and had jointly agreed the elimination of interest provisions was in the best interest of the program. Modification of the statute did not compromise the custodian’s ability to pursue interest assignments under the general interest provisions contained in NRS 99.040. However, it clearly distinguished it was an option of the court rather than an obligation of the child support program.
Chairman Anderson commented that he had received an e-mail (Exhibit H) from Judge Scott Jordan, Second Judicial District Court, Department 11, Family Division, Washoe County. He said that Judge Jordan indicated that Washoe County had been calculating and collecting interest for eight years. Chairman Anderson queried if Washoe County was performing this task, why was the amendment necessary.
Mr. Sullivan said it was dependant on the judges, the requests submitted to the case manager, and the representative from the district attorney’s office. He opined that Washoe County had 11,000 cases with orders for child support obligations, with only 1,000 of those cases actually going to court. Again, Mr. Sullivan noted there was an inconsistency since the statute required the court to address the matter. There was a significant portion—85 to 90 percent of the cases with support obligations—where interest would not be addressed. While Washoe County might not have a problem with those cases that went before the court, there was a fairness issue regarding the majority of the cases that did not go before the court.
Further, Mr. Sullivan mentioned that in this area, if the Division attempted to take all the cases it could before the court, it would increase the court workload fivefold. Thus, a significant burden would be put on the court staff, as well as on the Division staff to calculate and take the information before the court.
Assemblyman Carpenter noted the amendment also addressed attorney’s fees. He said it was his understanding that the court had the latitude to determine where the interest would cause a hardship, the obligor would not be forced to pay the interest or could pay a lesser amount. He said he was concerned that a person who had been avoiding child support for many years, when finally found to have the capability to pay child support because he or she had a good income, would contest reasons why he should pay interest. This amendment gave the impression that the obligation was being reduced or eliminated.
Mr. Sullivan responded that A.B. 27 was removing the burden from the child support program. The custodial parent could still pursue legal counsel to assist in the collection of interest. A burden would be placed on the counties if they were forced to calculate the interest on all the obligations that went to court.
Ms. Hatch shared specific information about Clark County, where the situation was not different than in other areas of the state except for the caseload volume. She announced that in Clark County there were 79,000 open, active cases, even some without arrearages. Clark County had accepted approximately 23,000 cases from the Nevada State Welfare Division about 2 years ago. There were over 7,000 open, active cases per attorney. Each case manager supervised 1,000 open, active cases. Collections had exceeded $75 million last year. Ms. Hatch emphasized that the process was working.
In a business sense, the primary interest and goal was identified as collecting current child support for children. There was a “greater” mission to provide food, clothing, and shelter money through these collections. She said this discussion should focus on keeping children and families going and providing the basic needs. Calculating interest on child support was not federally required in child support programs. Ms. Hatch asked the Committee to bear in mind that there was a difference between calculating interest and collecting interest. Federal requirements mandated that Nevada had one computer system in the state to stay “in sync” and to qualify to receive federal funding at a minimum of 66.6 percent or as high as 82 percent in Clark County. Manually calculating interest each month was very time consuming and detracted from collecting child support. Ms. Hatch revealed that Clark County was “tapped out” on resources.
Even though there was a private calculator system, which had been reviewed, Ms. Hatch said Clark County had complex child support orders. The orders had as much variance as judges and courts had creativity, making the orders fit the families. Custodians could establish interest. Clark County District Court would enforce interest judgments, even for Nevada residents with the orders from other states. Without the burden of establishing interest, Clark County could properly enforce child support, as well as establish and collect penalties. Clark County would receive federal reimbursement for penalty work. This amendment (Exhibit G) had the support of the Washoe County District Attorney’s Office and the Nevada District Attorney’s Association.
Chairman Anderson questioned whether Ms. Hatch recognized the amendment would be a major issue, and if so, why was it not covered in the original draft of the bill. Ms. Hatch disclosed that Clark County had a case where the time involved in “pencil and paper” calculations was estimated per month per child support obligation. It was determined that for a noncustodial parent whose paychecks were paid on the 10th and 25th of each month, possible interest would be assessed for any payment received after the 1st. A decision was reached; Madelyn Shipman wrote the amendment.
Chairman Anderson asked how would the custodial parent, who was forced to hire an attorney to determine why the funds were not being paid, pay the attorney fees. Recognizing that the noncustodial parent had the ability to pay, and if the judges assigned those dollars to the noncustodial parent, Chairman Anderson said the burden of paying those dollars was taken from the judge’s ability to assign and left the custodial parent with the attorney obligation. He said this process could disquiet the custodial parent from bringing forth the suit to obtain the money to keep their family together. Ms. Hatch said Clark County reviewed what was happening in child support court, the district attorneys’ offices, and the Division of Welfare at no cost to either party. Additionally, family court was part of district court, where custodial or noncustodial parents could appear on their own or with attorneys. In child support court, attorneys’ fees were not requested. Attorneys’ fees could be requested under another statute.
Mr. Sullivan said the program could be included in NOMADS (Nevada Operations Multi-Automated Data Systems), where there was some existing functionality to calculate the interest. Problems with the existing state law needed to be addressed by the court. There was a small percentage of cases that actually went before the court, where the interest issue could be addressed. He reiterated that the penalty process would assess penalties on missed installments and should be functioning by the end of the year. If a noncustodial parent missed a monthly installment, a penalty would be assessed. The amendment proposed that the interest not be placed as a responsibility of the child support program while the family could still obtain counsel to collect interest. Interest did not increase the monthly amount going to the family. Currently, there was $700 million in arrearages due on the 113,000 cases in the program. It simply added more accounts receivable, which only increased the payment schedule, not the monthly obligations.
Assemblywoman Buckley asked who received the proceeds of the penalty. Mr. Sullivan said the amount of the penalty would be passed along to the family in all cases. Ms. Buckley asked if the computer system could be fixed to collect the penalties, why not collect the interest. Mr. Sullivan said the functionality to calculate the interest was stipulated in the current statute, but collection of the interest could not be enforced until the court addressed and adjudicated it.
Ms. Buckley said she supported the original bill, but not the amendment. She said she would advocate to the counties to provide the resources needed to perform this task. It appeared that the amendment was creating an incentive not to pay child support from a public policy point of view. Ms. Buckley said she would not support that. Ms. Hatch said what was being discussed was the reality of where the program was and the primary goal of the program. She opined the penalty would be an easier computer task; with interest there would be adjustments every six months based on NRS 99, prime plus 2 percent. A penalty was a flat rate; it did not change. Ms. Hatch said it was her goal to communicate with noncustodial parents to inform them of possible penalties to motivate them to keep their payments current. She expressed concern about detracting from the primary goal of the program.
Assemblywoman Angle asked for clarification on how the penalty and interest worked together. She queried how often the 10 percent penalty was calculated and if it was compounded. Secondly, she asked how often the interest was calculated and if it was compounded. Finally, she asked if it was an “either/or” situation or if it was interest plus the penalty. Ms. Hatch responded that interest was prime plus 2 percent, to be adjusted every six months. As she read the statute, she said there was no compounding. The penalty was a flat 10 percent per annum, broken out into a monthly charge, and there was no compounding. Ms. Hatch said it was not possible to calculate interest by “pencil and paper” each month for 79,000 open cases, though some did not have arrearages. Automation was necessary, which would need to take into consideration policy issues.
Assemblywoman Angle reiterated her question regarding whether the program allowed interest plus penalties or just one. Ms. Hatch said the statute was currently written that the court could charge interest. The court did not have the personnel or the functionality to perform the interest calculations. The court expected the district attorneys’ office to perform the calculations. Penalties were an easier calculation to perform as sum certain as stipulated in statute and would not be variable. The program did not permit “either/or.” Ms. Hatch said that from her reading of the statutes, she understood that penalties were mandatory; interest had a discretionary aspect and was a court obligation.
Mr. Sullivan said that the program included 33,000 TANF and former TANF cases. When the families began to receive this public assistance, child support was assigned to the state and the federal government. As testified previously, TANF cases had five categories of arrearages, which caused additional complexity when calculating interest and determining whether that interest was passed on to the family or assigned to the state.
Assemblywoman Angle restated her understanding of the situation. She said that interest was discretionary and often was not charged, and the penalty was a mandatory 10 percent, which was charged and was easier to collect. Because of the complexity of calculating the interest, the work was performed but not always passed along. Mr. Sullivan agreed that the penalty was easier to calculate, enforce, and pass to the family.
Don Winne, Chief Deputy Attorney General, Office of the Attorney General, representing the Division of Welfare, Carson City, spoke from the audience and said he appeared only to answer questions if needed.
Ben Blinn, citizen, Carson City, spoke on the discretionary interest to point out what happened to those in prison. If inmates had a job and money could be paid towards restitution or good credits earned, the judge and parole board decided whether to keep the child support current. Yet, inmates still had the responsibility to pay for their loved ones’ growth. He said he had seen inmates who “live on the installment plan” and said it was difficult to figure out what they owed. The human element could not be legislated out; it must be considered.
Chairman Anderson indicated to the members of the Committee that Mr. Blinn was a resident of Sparks. He brought to the Committee the reality of time spent in custody, where part of his responsibility had been providing services on death row. Mr. Blinn said he defended inmates in the 1977 trials. Chairman Anderson said Mr. Blinn was a jailhouse lawyer. Mr. Blinn said he would rather be known as a Nevada school educator, which he still was.
Referring back to A.B. 78, Mr. Blinn said the word “calendar” should be added in front of “40 years” so that “good time” did not allow an early release; ten years meant ten calendar years and life meant “natural life.” It would eliminate the loophole of allowing anybody to return.
Chairman Anderson closed the hearing on A.B. 27. He noted there were concerns regarding the amendment, but the primary bill could be added to the work session.
Chairman Anderson opened the hearing on Assembly Bill 54, a piece of legislation requested by the Chairman.
Assembly Bill 54: Revises provisions governing parental access to certain records of and information concerning child. (BDR 11-372)
Chairman Anderson acknowledged the time spent by Todd Torvinen with the “We the People” and “Constitution” programs and said it was greatly appreciated by the school districts and classes that benefited from the volunteer time expended.
Todd Torvinen, appearing as a representative of the Nevada Trial Lawyers Association and on behalf of Ann McCarthy, said A.B. 54 addressed the problem found in NRS 125.520 where it said, “access to records and other information pertaining to a minor child for example medical, dental, school records must not be denied for the reason the parent is not the child’s custodial parent.” He said this statute was not strong enough. Numerous cases had occurred where a school principal denied a noncustodial parent access to education records. The same situation existed with doctors’ offices. Mr. Torvinen urged the passage of A.B. 54.
Referring to an amendment (Exhibit I) submitted by Judge William O. Voy, Eighth Judicial District Court, Department A, Family Court, Clark County, Mr. Torvinen noted that Judge Voy proposed to amend the language in Section 2, line 41, of the bill as follows:
Except as otherwise provided in subsection 2, and except as otherwise prohibited by law,
Mr. Torvinen said that there might be a federal statute that would prohibit the release of information.
Making reference to his life as a teacher, Chairman Anderson said the Internet had changed classroom life dramatically. He said he received e-mails from parents requesting information relative to what was happening with their children. That was not an unusual occurrence. As the result of a mandate from the Legislature, he said he had sent home a letter to the parents of all his students indicating how to reach him. The problem occurred when the noncustodial parent did not receive the letter. Chairman Anderson queried how he would know, as a classroom teacher, if there existed a court order prohibiting him from disclosing the information. He said he had an ethical responsibility to his students not to disclose information about them to the general public, such as posting grades and class standings. There was a certain sense of confidentiality with only the parents. In the Internet age, how was a teacher to know, where there were different names involved, who the custodial or noncustodial parent was for the 150 to 160 children in his classes.
Mr. Torvinen said that was a difficult question to answer. He said he did not know how else to deal with that situation unless a copy of the court order was included when the child was enrolled in school.
Chairman Anderson said enrollment in elementary schools in Washoe County ranged from 300 to 1,100 students, middle schools enrolled up to 1,000, and there were 2,300 students at the high school where he taught. In Washoe County, those enrollments were considered large; in Clark County, those numbers would be considered small. Chairman Anderson said the question was not whether the parent should obtain the information, but who would receive it. He expressed concern related to the possibility of a teacher violating a court order unknowingly.
In his 12-year experience practicing law, Mr. Torvinen stated he had never seen a judge order this information to not be available to a noncustodial parent. He suggested that the risk of disclosing something that should not be disclosed was low.
Chairman Anderson asked Mr. Torvinen how he dealt with his client privilege. Mr. Torvinen said it was very important to him; it was part of his job to protect the privilege. Chairman Anderson said it was no less important for a teacher. He related a situation at an elementary school where a court order was submitted that prohibited a noncustodial parent from picking up three children from that school. Only one teacher was informed of the court order; the other two teachers were not in school that day. Mr. Torvinen said that court order appeared to be related to a domestic violence issue. Continuing, Mr. Torvinen said A.B. 54 addressed information that a noncustodial parent should be entitled to.
Assemblywoman Buckley questioned if Mr. Torvinen had experienced cases where there was a concern about parents getting records in circumstances of divorce or custody problem. Mr. Torvinen replied in the affirmative. Ms. Buckley asked if the parent seeking the records would have legal custody but not physical custody. Again, Mr. Torvinen replied in the affirmative. Ms. Buckley then asked if lawyers, self-help centers, or legal aid organizations attempted to address this problem by placing a standard form provision in the divorce degree that allowed a legal custodian access to school records. Thus, if a parent wanted the information, they would have a court order to give to a principal’s office and the teacher would not be caught in the middle. Mr. Torvinen said that was often done and that he attempted to do that in his practice.
In that case, Ms. Buckley asked why the law was needed. Mr. Torvinen said the self-help centers in Washoe County were handling 60 to 70 percent of the litigants. He did not recall that provision being included in the forms. In circumstances where the paralegal did not include the provision in the forms, the litigant was forced to pay an attorney a substantial amount to get access to the records. Ms. Buckley said the self-help centers should incorporate the provision in their standard forms. She expressed concern that the legislation as written could apply to situations where there was no legal custody; there were circumstances involving child abuse where Department of Child and Family Services (DCFS) had custody. Ms. Buckley said the language should be amended to stipulate the parent had legal custody. Mr. Torvinen agreed that would be acceptable.
Assemblyman Gustavson questioned what would happen if a TPO [temporary protection order] was issued at a later date but was not presented to the school.
Mr. Torvinen replied that TPOs were usually issued against a noncustodial parent and the custodial parent ensured that the school was informed. In the Internet age, Washoe County court system had a Web site that listed current court orders. He said he understood that Clark County had a similar system.
Chairman Anderson related the types of Internet e-mail requests he received from parents regarding the status of their children. He questioned whether he would be required to review the original school records, which were kept confidential in a safe, and access the Internet to answer each request. He noted his primary function was to teach the children, grade their papers, and ensure that the educational process progressed. He said he did respond to parents on a regular basis. Mr. Torvinen recommended the addition of such amendatory language as “unless a court order states otherwise.” Further, he said a separate court order could be required.
Assemblyman Mortenson commented that lives had become very complex and complicated.
Debbie Cahill, Director of Government Affairs, Nevada State Education Association, Las Vegas, said her concerns had been expressed. She stated she was not opposed to allowing parents access to information, but the language of the bill should be amended to prevent putting teachers in a questionable position. She suggested that a provision be added to “hold harmless” someone who unintentionally violated a court order of this nature.
Lucille Lusk, Co-chair, Nevada Concerned Citizens, Las Vegas, said she was in complete support of the intent of the legislation, which was to provide access to information for parents regardless of the situation. She added that the Committee had articulated well her concerns regarding the court order being known. One item not mentioned was that when the person requesting information was previously unknown to the recordkeeper, how would that person establish that the person was a parent of the child. Also, the bill did not say just information, it stated “access to the records,” which could imply personally identifiable information such as address and location, which could, under certain circumstances, be dangerous to the child. While she supported the concept, Ms. Lusk said the details needed work.
Chairman Anderson noted that a person might not have knowledge of a physical location or the home address, but might know where the child went to school, which could be traced back to find the home address. He closed the hearing on A.B. 54.
Chairman Anderson stated a work session was scheduled for Tuesday, February 25, 2003. The bills requiring action had not been posted, although the death penalty bills should be included. Chairman Anderson noted he had received e-mails indicating that a number of Committee members were prepared to vote on the bills.
Chairman Anderson adjourned the meeting at 10:15 a.m.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: