MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Subcommittee on assembly bill 160
Seventy-Second Session
March 20, 2003
The Committee on Judiciary Subcommittee was called to order at 3:37 p.m., on Thursday, March 20, 2003. Chairman Marcus Conklin presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 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.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Marcus Conklin, Chairman
Mr. Jerry D. Claborn
Mr. Garn Mabey
GUEST LEGISLATORS PRESENT:
Assemblywoman Barbara Buckley, District No. 8, Clark County
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Carrie Lee, Committee Secretary
OTHERS PRESENT:
Wendy Kameda, domestic violence attorney, Retired, Clark County Legal Services Program
Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence
Birgit Baker, Administrator, Employment Security Division, Department of Employment, Training, and Rehabilitation
Estelle Murphy, Executive Director, Safe Nest
Tamara Utzig, Victim Advocate, Safe Nest
Mary Lau, representing the Retail Association of Nevada
Chairman Conklin:
I call the subcommittee on Assembly Bill 160 to order. We’re going to be talking about Assembly Bill 160 exclusively; it’s been assigned from the Judiciary Committee to this subcommittee to hear testimony in its entirety. Assemblywoman Buckley.
Assembly Bill 160: Makes various changes to provide protection to certain persons. (BDR 3-160)
Assemblywoman Barbara Buckley, District No. 8, Clark County:
[Introduced herself.] Thank you, Mr. Chairman, members of the Committee. To recap, quickly, Assembly Bill 160 has three separate and distinct components as it seeks to assist victims of domestic violence. The first provision has to do with having an easier way to get what is owed to a victim of domestic violence by having a wage withholding. The second issue has to do with publication when there’s going to be a name change for a domestic violence victim. That’s to make sure that they don’t have to publish both their old name and their new name, which would allow a stalker to find them. The third section has to do with a privilege between a domestic violence shelter counselor, or a sexual assault center’s counselor, and the person who has been victimized. What that does insure, is to say that the counselor can’t be hauled into court, mostly by defense lawyers trying to poke holes in the story, when all they did was provide counseling to the victim. Right now, there’s a privilege between psychiatrists; this is like the “poor man’s privilege.” You heard the testimony about how someone without insurance, someone who’s low-income, middle-income, they’re not going to the private psychiatrist; they’re going to the rape crisis or the domestic violence shelter, and we want these counselors to be free to give advice to help the victims without getting hauled into court. Those are the three purposes of this bill.
I think we did get on the record the general testimony, and since the hearing a few folks have come up with different concerns about the bill. We have fixed the concerns of anyone who contacted us, so I don’t know if there’s anybody left opposing the bill. We had some concerns from the Attorney General’s Child Support Division, about how the child support worked; that’s been addressed. We had some concerns from our state Unemployment Division; they got a letter from the feds saying there’s a concern about unemployment, so we’re fixing that by taking unemployment out. There were some concerns from the criminal defense bar; it was explained and those concerns have been withdrawn. If it pleases the Committee and the Chair, we can have Sue Meuschke and Wendy Kameda walk through what the proposed amendments are that address all those concerns for your presentation.
Chairman Conklin:
I think that’s the intent here. I’m under the assumption that Ms. Kameda will be speaking to the first part of the bill; that’s her expertise. So I think, just to make it easier, unless you had a different plan, we’ll go in order.
Assemblywoman Buckley:
That’s fine. Sure.
Chairman Conklin:
Are there any questions for Ms. Buckley? Seeing none, I think we’ll move to Ms. Kameda in Las Vegas.
Wendy Kameda, domestic violence attorney, Retired, Clark County Legal Services Program:
[Introduced herself.] Thank you. Just to expand a little on what Ms. Buckley said, I’m here to speak on behalf of two portions of the bill, wage assignment, and the name change issue. As to the wage assignment portion, which is the part that appears to have excited the concerns of others, what we are really seeking is not a new remedy, but, rather, expediting the time period in which an existing remedy, namely wage assignment in support of a child support order, is made available to a victim. I think it’s probably the law of unintended consequences that when the Legislative Counsel wrote what was a very comprehensive bill, it unfortunately raised a bunch of different concerns with federal statutes. [I discussed that] in my testimony that you received on March 10, 2003, which I would be happy to repeat, if you would like; would you like me to repeat that testimony, or just continue to speak?
Chairman Conklin:
I think at this point, we’d like you just to continue to speak.
Wendy Kameda:
What we have asked is that, instead of having these 16 sections that repeat certain definitions that are already within the Nevada Revised Statutes (NRS), all we are asking for is what was attached to my written testimony as Exhibit B (Exhibit C), which is, basically, the following. Sections 1‑16 would be deleted, all of which include the language that various persons and entities found fault with. What we are asking for is that an “order of the court for the support of a minor child shall include an order directing the assignment of income.”
Presently, the way it works in Clark County, if you are a victim of domestic violence and you receive a protection order that is extended for any period, and with it, you receive an order for child support. You must first wait until the child support is due, and then if it is not paid, you must file an affidavit for the order to show cause why the failure to pay as ordered is not a contempt of court. It entails a trip to court, filling out more paperwork, time from work, and daycare for children. Then you need to wait until the adverse party is served with the papers, and then you must go to another hearing in order to get the wage assignment issued. The intent behind this legislation is to remove that time delay and have the wage assignment issued immediately.
From a victim’s perspective, there is no reason that this child support payment assignment could not be done through the state collection agency, and we agree with the concerns of the employer’s groups regarding privacy for the victim’s residence. One of the salutatory effects of having the state collection agency involved, in addition to putting the imprimatur of the state in enforcing these protection orders so that it is not merely a piece of paper, is that it allows the victim’s residence to remain confidential from the batterer’s employer. We understand the concern of the employers not to have to have separate systems of payment, not to have multiple addresses; that’s all fine and well. I’ve spoken with Mr. Sullivan, who has agreed that he will devise a method by which a victim may easily get her protection order entered into NOMADS (Nevada Operations of Multi-Automated Data System), which appears to be the big stumbling block in many instances for getting payments that go through the state collection agency to get to the appropriate victim or intended recipient.
The amendment that we have proposed simply expedites the wage assignment; that is, have it issued concurrently with the order for child support, and it indicates that the Welfare Division will work together with the various affected agencies in order to have a system whereby the state collection agency can be used. By using the state’s statutes, incorporating them by reference as we have, I think we remove any concern that the employer’s groups have or that the Welfare Division had, of having multiple definitions in the statutes. Similarly, by limiting this wage assignment simply to child support, I think we also eliminate the concerns that the federal government recently expressed regarding unemployment benefits. That is the basis for the proposal.
As to the name-change statute, no one that I know of has indicated a concern with that. I provided in Exhibit A (Exhibit C) of my written testimony, copies of state statutes where similar legislation exists in other states. I didn’t include those additional states where the publication requirement is simply advisory and the judge already has the discretion whether to require publication or not. I simply included those states where publication is mandatory and an exception has been created for domestic violence. I’d be happy to answer any of your questions.
Chairman Conklin:
Thank you, Ms. Kameda. Are there any questions from the Committee? I’m going to attempt to clarify so that I make sure I understand, Ms. Kameda. You want to delete Sections 1—16 and replace it with the language in Exhibit B (Exhibit C), correct?
Wendy Kameda:
That’s correct.
Chairman Conklin:
That really shortens up the bill. Then Sections 17 and 18, which deal exclusively with name change, you want to leave as is, and to date, we’ve heard no opposition to that part of the bill, correct?
Wendy Kameda:
That is correct.
Chairman Conklin:
Any questions of the Committee? Thank you. Moving on, as far as the bill’s concerned, we’re going to be talking about the closing sections of the bill, Sections 19—28, is that correct?
Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence:
That is correct. [Introduced herself.] My testimony will only speak to those sections; I have provided you with a written copy of the testimony (Exhibit D), and I promise not to read it all to you. I will just spend time going through the sections dealing with privilege between victim’s advocates and victims. And as I go through those sections, I will talk about a couple of amendments that have been proposed.
Chairman Conklin:
Ms. Meuschke, could you hold on for just one minute; I want to make sure that all my Committee members have the appropriate documentation. Mr. Claborn?
Assemblyman Claborn:
Section 18, is that supposed to take the Section 17 out, and this would be the new 17?
Chairman Conklin:
No, that’s just a reprint, and if you’ll take a look on this 3-page document, pay close attention to the underlined sections; those are the actual changes that are being proposed. Is that correct, Ms. Meuschke?
Susan Meuschke:
That is correct. Section 18 merely talks about what section of NRS is being amended, for example, Chapter 49. Section 19 talks about the fact that the definitions in these sections will be included in what we’re talking about. Section 20 defines domestic violence as “an act described in NRS 33.018.” Section 21 defines sexual assault as a “violation of NRS 200.366 or an attempt to violate or conspiracy to violate NRS 200.366.”
Section 22, “victim’s advocate”; this section, while not amended, is one about which there were some concerns raised, and I want to be very clear about what this section means. “Victim’s advocate” means a “person who works for a nonprofit program that provides assistance to victims of domestic violence or sexual assault with or without compensation and who has received at least 20 hours of relevant training.” We want to be very clear that we are talking about advocates who work for nonprofit, private victim advocacy organizations; we are not talking about law enforcement or prosecution advocates. So if there’s any confusion, those are not the folks that we are talking about; we’re talking about advocates who work for private nonprofits. There was some concern. The advocates have very different roles, very different responsibilities. The folks that work for law enforcement and prosecution, obviously, work for law enforcement and prosecution, and that confidentiality is a different issue.
Section 23 is actually a new section, and it defines “victim” to mean “any person who consults a victim’s advocate for the purpose of securing advice, counseling or assistance.” We wanted to make sure that there was no need to prove victim status or have to go through some sort of test, or provide some sort of paperwork to document the fact that someone was a victim, but if she had sought counseling, then that information alone would extend the privilege to her; that’s how we defined “victim.” Section 24 says that “communication shall be deemed to be confidential if the communication is between a victim of domestic violence or sexual assault and a victim’s advocate and is not intended to be disclosed to a third person.” That’s fairly standard language; there are a couple of exceptions, in terms of someone who was there, a family member, or another advocate within that entity, who’s there as part of that process. In domestic violence programs, there are often support groups where there are a variety of folks who are involved in the process.
Chairman Conklin:
Ms. Meuschke, I’m going to interrupt you for a second so we can consult our actual document. You have offered an amendment to include a new section, which we would call, if approved, Section 23, but in describing the rest of them, if you’d use the normal number, just so that we make sure we’re on track, so the one that you’re just describing, which you called Section 24, is still Section 23 of the bill that we have in front of us, just to make sure that everybody’s following along. It can get a little confusing, working with multiple documents, here.
Susan Meuschke:
Yes, it is old Section 23 that has been renumbered in the draft in front of you as Section 24. It provides who the privilege covers and provides some exceptions. In some cases, there might be a translator that would be necessary to accomplish the process and that person would also be covered.
The next section, which would be old Section 24, which has now been renumbered as Section 25, provides that the victim is holder of privilege.
Chairman Conklin:
I have a question. The old Section 23, on your form, which is Section 24 now, you do have some amendments in it. That would be subsection 3, paragraphs (a) and (b), and the sentence right above that. Could you enlighten us here, as to why you’re adding that in?
Susan Meuschke:
The other issue was that not only is there a communication that occurs, verbal and oral, but that often that information is written up in notes of either the counselor or the agency, and we wanted to make sure that those documents would also be covered under this privilege, so that someone could not subpoena the documents in lieu of having the advocate testify. This would also be covered by privilege.
Old Section 24 has been renumbered to Section 25; there are no changes. It merely provides it is the victim that is the holder of privilege and provides that they can waive that privilege. There is an opportunity for them to allow this information, but they have to say that’s what needs to happen. Then we get to old Section 25, which has been renumbered to Section 26. Again, it has not been changed. I provided a list of individuals who can claim the privilege on behalf of the victim, and it clarifies the presumption that the privilege exists unless there’s evidence to the contrary.
Old Section 26 has been renumbered to Section 27 and provides limited exceptions to this privilege, including cases of elder or child abuse, or committing a crime or fraud; that communication would not be covered. Breach of duty or other disclosures that would, in the future, be required by statute [are in] the section on privilege. The concerns that had been addressed to us have been addressed, and we’re asking for your help on this bill. I would be happy to answer any question that I might be able to answer, as long as it doesn’t have to do with section numbers.
Chairman Conklin:
Thank you, Ms. Meuschke. Are there any questions from the Committee? I have two people signed in from the Employment Securities Division; one is neutral and one is against. I’m a little confused. Are you Ms. Baker? Please proceed.
Birgit Baker, Administrator, Employment Security Division, Department of Employment, Training and Rehabilitation:
[Introduced herself.] Yes, and this is Tom Susich, the [Employment Security] Division’s legal counsel. As you may be aware, all state unemployment insurance programs are federal/state partnerships, which require that state law must be consistent with federal law as a condition of employers receiving credit against the Federal Unemployment Tax. I am here to advise you that, although Assemblywoman Buckley has already indicated it appears there’s an amendment that takes care of this issue, I just want to make sure that it is on record.
We have provided a copy of a letter (Exhibit E) that was given to us from the United States Department of Labor expressing their concerns with the provisions that were in the bill, as introduced, as they relate to attachment of unemployment insurance benefits. I have a long testimony, but since the decision has already been made to exclude us, I just want to make sure that that is on record. What it means is, if we were not to fix that, then the employers in the state of Nevada could lose their offset credit, which is approximately $348 million a year; I just want to make sure that doesn’t happen. We already have legislation and law in place that allows us to intercept child support payments from unemployment benefits; that is one of the items that we are able to withhold.
Chairman Conklin:
Thank you, Ms. Baker. It’s my understanding that this is a very minor change requested to the bill. In everything that’s already been presented, have your concerns been covered, or are we still missing something?
Birgit Baker:
Yes, by deleting Sections 1—16 in the bill. Our areas of concern were with Section 5, subsection 3, and Section 16, subsection 1(a). As long as those are removed, I believe that the rest of the bill meets the requirements, although we’ve not been able to see all of the amendments formally. But as long as they’re not withholding anything from unemployment compensation, I believe that that would be all right.
Chairman Conklin:
Any other questions from the Committee? I have Ms. Estelle Murphy and Ms. Tamara Utzig, both from Safe Nest; would you like to come forward?
Estelle Murphy, Executive Director, Safe Nest:
[Introduced herself.] Safe Nest is the primary domestic violence advocacy provider in Clark County, Nevada. I wanted to speak to the amendment that adds protection of records that a nonprofit/victim advocacy agency would have. Last year, we received an average of one subpoena or court order per month requesting records on victims. In most cases, we were able to negotiate with the person that was requesting the records to either provide more limited information or to get them to withdraw the request. In some cases, we weren’t able to do that, and we had to seek a judicial review or a judicial decision based on an order to compel our records.
I’m sure that you realize the chilling effect it would have on victims if they knew that their records would become public record. However, what I wanted to speak to more specifically is the fact that if this were not included in the bill, that it also jeopardizes the funding of the domestic violence programs. There are at least five federal sources that domestic violence programs use to fund programs that actually require in their provisions that we keep the records on victims confidential; in some cases, they even require us to not disclose the identity of the clients that we serve. Oftentimes, I’ve had subpoenas, requests, or court orders for information that is considered non-confidential, in the sense that it’s not communications between advocates, it’s not even the notes on clients, but merely things like the dates that a person was in shelter. If I’m required by federal funding sources to keep the identities of people that come in for service confidential, I can’t very well release the dates because that’s divulging a person was there. That’s been a problem, even though the federal statutes require this of us, they don’t really speak to the fact that these records are privileged. It would be very helpful if we had at the state level statutes that would make that clear.
I did submit written testimony (Exhibit F) and, just for the record, these are the funding sources that have these requirements: the Family Violence Services and Prevention Act; the Crime Victims Fund; the housing assistance Emergency Shelter Grant Fund; the Violence Against Women Act Fund; and the Public Health Service, Alcohol and Drug Act. There are a lot of resources on a federal level that have these requirements, so we need some state statutes to help us with this. I’ll take questions if you have them.
Chairman Conklin:
Ms. Murphy, thank you. I just want to clarify something. On the amended copy—it’s not a copy of the bill, but it’s the amendment put forward by Ms. Meuschke—on the second page at the top, this is the specific section that you’re referencing, correct?
Estelle Murphy:
Yes.
Chairman Conklin:
And you’re testifying in support of this language as it is, correct?
Estelle Murphy:
That is correct.
Chairman Conklin:
Any questions from the Committee? Ms. Utzig, please go ahead.
Tamara Utzig, Victim Advocate, Safe Nest:
[Introduced herself and referred to an exhibit submitted in a previous meeting.] I submitted my testimony last week when we were here. I don’t know if you’ve already read it; I didn’t want to read it back to you if you’ve had a chance to look at it.
Chairman Conklin:
Ms. Utzig, did you send a copy to every member? I do believe I have a copy.
Tamara Utzig:
I believe it was done; if it wasn’t, I could read it. I just didn’t want to read it if everybody had already had a chance to look at it.
Chairman Conklin:
I do believe everybody has a copy.
Tamara Utzig:
I’m available for any questions, then.
Chairman Conklin:
Does anybody have any questions for Ms. Utzig? I’m assuming you’ve had a chance to see the documents that have been presented before us, and I think we’ve answered most of the concerns. Is there anything that has been presented for us that you have a concern about?
Tamara Utzig:
No, I believe everything was pretty well covered.
Chairman Conklin:
OK. I’d like to ask, at this time, is there anyone else that would like to come before us and offer additional testimony that has not already been covered in support of A.B. 160? Are there those that would like to come up and speak against A.B. 160? Ms. Buckley, do you have any closing remarks? [She indicated she did not.] Seeing none, I will close the hearing on Assembly Bill 160. I’m going to reopen the hearing on A.B. 160, and we’ll move it into a work session at this time. I’ll remind everybody that we don’t take testimony during work session; it’s an opportunity for us to work out the bill and see what we can come up with. Mr. Claborn.
Assemblyman Claborn:
I have a comment on A.B. 160. It is in regards to some protection; if a payment was made and the employer has possession of the victim’s address, it may place a person in harm’s way. I was wondering if there was any way that the payment could be paid to the courts, and the courts would forward the payment to the recipient?
Chairman Conklin:
I’m going to turn everyone’s attention to Exhibit B (Exhibit C) of Ms. Kameda’s document, dated March 10, 2003. I believe that this concern will be answered in this amendment. We’re going to delete sections, if we choose to accept this amendment, we will delete Sections 1—16, but the second paragraph allows the Welfare Division of the Department of Human Resources and the Judicial Council of the state of Nevada to work together, with other interested state and local offices, to develop procedures and forms that will enforce this in an expeditious and safe manner. Under that safe manner, as we heard testimony, that will be that the employer returns these to a state agency, and then the state, without knowing the address of the victim, would forward that on.
Assemblyman Claborn:
That was a real concern of mine, safety-wise; I think it needs to be put in there. Ms. Buckley assured me that it’s in there, so that’s good enough for me.
Chairman Conklin:
Ms. Lau.
Mary Lau, representing the Retail Association of Nevada:
I apologize for not being here earlier. This does answer all the concerns of the businesses that signed on to that list, and there are areas in other bills this session that we are working on with the Department, and this will be an expeditious way to assist the victims and to secure their anonymity. Thank you.
Chairman Conklin:
Are there any questions for Ms. Lau? Mr. Mabey.
Assemblyman Mabey:
I appreciate the opportunity to be here, and I actually understand this, so it must be good. I feel comfortable, so whatever the Chairman would like to do with this, I would agree with that.
Chairman Conklin:
As I look through this, we have three documents to work from: the original bill; the document provided by Ms. Kameda, in particular Exhibit B (Exhibit C), which deletes Sections 1—16 and adds two paragraphs of additional language in its place; and the document provided by Ms. Meuschke, replacing the current Section 23 with new language and bumping the additional sections down. What is in the current Section 23, which would be Section 24 under this amendment, it adds in the language that says, “This includes all records concerning the victim and the services provided kept by a victim’s advocate or the nonprofit program that provides assistance to victims of domestic violence.” If we are in agreement, I will take a motion to refer this back to Committee. I stand corrected; I’m looking for a motion to recommend to the full Committee an Amend and Do Pass, with the amendments that we have before us.
ASSEMBLYMAN CLABORN MOVED TO RECOMMEND TO THE FULL COMMITTEE TO AMEND AND DO PASS A.B. 160 WITH THE AMENDMENTS PROVIDED IN TESTIMONY FROM MS. KAMEDA, THE AMENDMENTS PROVIDING FOR A SECTION 23, AND ALSO THE ADDITIONAL AMENDMENT FOR SECTION 24
ASSEMBLYMAN MABEY SECONDED THE MOTION.
THE MOTION CARRIED.
I close the subcommittee hearing on Assembly Bill 160. The meeting is now adjourned.
RESPECTFULLY SUBMITTED:
Carrie Lee
Committee Secretary
APPROVED BY:
Assemblyman Marcus Conklin, Chairman
DATE: