MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
March 18, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:00 a.m., on Tuesday, March 18, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Barbara Moss, Committee Secretary
OTHERS PRESENT:
Susan J. Meuschke, Lobbyist, Nevada Network Against Domestic Violence
Barbara Spring, Director, Protection Order Project, Committee to Aid Abused Women
Nancy Hart, Deputy Attorney General, Office of the Attorney General
Dan Musgrove, Lobbyist, Clark County
George Wm. Treat Flint, Lobbyist, F.T.H. Corporation
Todd L. Torvinen, Lobbyist, Nevada Trial Lawyers Association
Chairman Amodei:
I request a motion to introduce two bill draft requests (BDRs).
BILL DRAFT REQUEST 5-318: Provides for release of certain records of pupils under certain circumstances. (Later introduced as Senate Bill 393.)
BILL DRAFT REQUEST 15-1026: Revises various provisions relating to certain criminal statutes. (Later introduced as Senate Bill 394.)
SENATOR MCGINNESS MOVED TO INTRODUCE BDR 5-318 and BDR 15‑1026.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NOLAN, TITUS, AND WASHINGTON WERE ABSENT FOR THE VOTE.)
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Chairman Amodei:
The hearing is open on Senate Bill (S.B.) 224.
SENATE BILL 224: Allows designation of attendant in all civil and certain criminal proceedings involving victim of act of domestic violence. (BDR 3‑136)
Senator Dina Titus, Clark County Senatorial District No. 7:
The Senate Committee on Judiciary has heard much testimony from people who have been to court for one reason or another. It is always a traumatic experience. You are in an alien environment, a hostile setting, and even if you speak English the language is difficult to understand. You are always fighting for something dear to you, whether it is your fortune, your freedom, your children, or perhaps your life. This kind of situation is worse for someone who has put everything they have into getting to court. It is traumatic to be there as the victim.
Senate Bill 224 is an attempt to alleviate that difficulty. It is a helping hand for the person who finds him or herself in that situation.
Susan J. Meuschke, Lobbyist, Nevada Network Against Domestic Violence:
I will read my prepared testimony (Exhibit C).
Senator McGinness:
Page 2, line 8, section 1, subsection 5, of S.B. 224 says,
The attendant may be designated by a party as a witness and must not be excluded from the proceedings. If a party designates the attendant as a witness, the attendant must be examined and cross-examined before any other witness testifies.
Will it change the way court proceedings are handled if the witness testifies first?
Ms. Meuschke:
This is not an uncommon practice in these types of statutes in other states. In the past, people have been put on the witness list, but never called. Those people could have been the support system for the victim. I am sure if there was an issue that would in some way jeopardize the defense, the court could say it would not apply. In most cases, however, I am not sure whether or not it would be a problem.
Senator Titus:
A witness must remain outside the courtroom until called. If the witness is the support person and not called until last, then the support person will not be in the room until the end. If called first, the support person can testify and provide support to the victim throughout the remainder of the procedure.
Senator Care:
How often does civil action follow criminal conviction in a case where the spouse, former spouse, girlfriend, or whatever, sues the person who inflicted domestic violence? I assume there are far fewer civil casesthan criminal prosecutions on the theory that once the conviction is entered, nobody wants to do anything more with it.
Ms. Meuschke:
This is not a follow-up lawsuit to a conviction, but in a case of divorce, child custody, or protective order hearing, opposing counsel could request the courtroom be closed. I understand it happens frequently in Clark County. Victims are left alone because they cannot afford an attorney; consequently, they sit alone with the person who abused them. This measure will cover all instances in which the victim feels a need for a support person. It would not necessarily have to be in an action that specifically addresses domestic violence. If a person needs a support person, S.B. 224 would allow it.
Senator Care:
I had not thought of this in the family court context. Does it happen often, or at all, where a former spouse actually sues for damages?
Ms. Meuschke:
Currently, in Nevada, it is not common practice, but the statute has been amended to allow it. A person has the ability to sue his or her abuser and be recompensed, but it does not happen often.
Senator Care:
A person should be allowed to sue for damages. In the context of a jury trial, would the support person sit beside the victim while on the stand in presence of the jury? I have reservations about it in that context.
Senator Wiener:
Is there a requirement for the perpetrator of domestic violence to be convicted in order for the abused person to qualify as a domestic violence victim? Also, how do children fit into the scope of this measure?
Ms. Meuschke:
Senate Bill 224 would allow people to bring a support person with them to court. It is not a process wherein the person will be adjudged a victim. That is not the purpose of the bill. It would allow a support person to someone in need of moral support. It does not mean the person may bring 75 people, but he or she can identify a person to accompany him or her. The bill does not specifically say anything about children, but I hope it would not preclude them. If children coming to court need someone to hold their hand, then it should be allowed.
Senator Wiener:
I would like to ask staff counsel, would an act of domestic violence require conviction for the abused to be determined a victim?
Bradley Wilkinson, Committee Counsel:
In that area, Senate Bill 224 is not as clear as it could be.
Senator Wiener:
I do not want to lose what the bill is attempting to accomplish.
Mr. Wilkinson:
It is now on record as to the exact intention of the scope of S.B. 224.
Senator Wiener:
I would be happy to work with the author of S.B. 224 and others to make sure the bill is not lost due to a technicality.
Senator Titus:
I would appreciate that. We need to clarify how children fit into the scope of the measure and determine the existing rules on children who go to court accompanied by a support person and, perhaps, attempt to match it up.
Barbara Spring, Director, Protection Order Project, Committee to Aid Abused Women:
I will read my prepared testimony (Exhibit D).
Senator Nolan:
I agree with your intentions. I have been working with a constituent on a spousal abuse case and she is very uncomfortable being anywhere near her ex‑husband. The definition of “attendant” in Senate Bill 224 says they shall “provide moral and emotional support,” and “assist the victim in feeling more confident.” I think this language could encourage people to establish a profession, although the bill says the support person is not required to obtain a special license.
I suggest using the word “may” rather than “shall.” Senate Bill 224 attempts to provide a domestic violence victim another person to hold his or her hand in the presence of the abuser. However, it says the person must give moral support, must give emotional support, and must assist the victim to feel more comfortable. I think the word “may” would be a better term to use in this context.
Senator Titus:
Thank you for that suggestion. We are not looking for an occupational attendant or a mediator who will hang out a shingle advertising he or she is a professional attendant in these types of cases. Perhaps we can also look at Illinois and California statutes to ascertain whether we could borrow something from their language.
Ms. Meuschke:
We tried to make clear the support person is not present to provide legal assistance or perform any kind of a professional process. In an attempt to do that, the language may have overstepped its bounds.
Senator Care:
Part of my job here is to think of scenarios that might happen someday. I suppose there are cases in which both the boyfriend and girlfriend, or husband and wife, claim to be the victims of domestic violence. Arguably, there could be a setting in which both claimed abuse. Courts have a lot of discretion and it seems to me there are judges who, in some cases, already permit something like this. I gather that is not the case or it is not the case as often as you would like.
Senator Titus:
There is a packet of letters from people in Las Vegas who wished to testify (Exhibit E), but were unable to do so because of the lack of videoconferencing at this meeting. Many of them mentioned they served as attendants in these types of situations. We want to be assured in a situation where a victim wants a support person in attendance, they will be able to have such.
Nancy Hart, Deputy Attorney General, Office of the Attorney General:
The Office of the Attorney General supports S.B. 224 because it establishes the right of a victim to have a support person with him or her in all court proceedings. We think this is very important from our work with victims in our office and from working collaboratively with victim service programs throughout the State involved in domestic violence prevention.
I submitted a letter (Exhibit F) and will address any questions.
Senator Care:
I have three concerns. First, would the attendant be allowed to accompany the victim to the stand? If so, it seems to me it would be prejudicial.
Second, the defense counsel might say there will be no privileged communication between the defendant and victim, and counsel might want to call the attendant to the stand for some revelation of the conversations he or she may have had with the victim.
Third, would the attendant be excluded from supporting the victim if he or she was a witness to the act of domestic violence?
Ms. Hart:
With respect to the first question, I am not sure whether a jury would get an impression of bias from someone physically sitting next to a victim in the stand. There may be some logistical problems with having another person in the stand, but I am not sure it would be entirely precluded. The attendant could be near and available in the courtroom should the victim break down and need a break from testifying. Nothing in the bill specifies the attendant must be physically next to the victim in a situation where the defense might raise a question of bias.
Second, at present there is no privileged communication between victim and advocate. The support person position is not considered an advocate, it is an attendant who may or may not be an advocate. A privilege would attach if, for example, the victim brought his or her psychiatrist, because it would be a separate privilege that would attach. Otherwise, there is no existing privilege to cover conversations between the attendant and the victim. Therefore, the attendant could be called as a witness and, under the terms of the proposed legislation, it would be at the beginning of the proceeding.
Third, to answer your question of whether the attendant was witness to the domestic violence, if the case concerned the act of domestic violence, one would assume the defense would call that person as a witness first.
Senator Nolan:
In the majority of spousal abuse cases it is the woman who is abused, however, there are cases in which a man claims to have been abused by the woman in the relationship. In a family court case in which both parties claim abuse, would both be considered victims and entitled to an attendant?
Ms. Hart:
In my view, the intent of S.B. 224 is to cover any person who considers him or herself a victim of domestic violence and allow that person to designate an attendant. If both parties perceive themselves victims of domestic violence they should be entitled to that extra support. Again, it is all about enabling a person to participate in the proceeding better and experience it more positively. It is only in regard to assisting the person emotionally.
Senator Amodei:
I will close the hearing on S.B. 224. Senator Titus, it is my intention to work session S.B. 224 Friday, March 14, based upon the suggestions of Senators Wiener and Nolan. Mr. Wilkinson, please be prepared for that work session in the context of this bill.
I will open the hearing on Assembly Bill (A.B.) 94.
ASSEMBLY BILL 94: Revises provisions governing hours of operation for office of commissioner of civil marriages in certain larger counties. (BDR 11‑292)
Dan Musgrove, Lobbyist, Clark County:
Assembly Bill 94 is a simple bill requesting Clark County be given the ability to keep the office of the marriage commissioner open at different times than the marriage license bureau. Currently, Clark County is the only county required to have both offices open the same hours.
Having both offices open the same hours proposes a safety problem and is not cost effective. The number of people using the civil marriage commissioner has lessened over the years. We continue to keep the hours of the marriage license bureau open at varying degrees of time in order to give the public access to the office. The civil marriage commissioner is required by statute to be off-site. This has posed security hazards because the staff is in a separate building isolated from the courthouse and is less secure, particularly during weekend and overnight hours. We would be willing to keep the office open for appointments.
It would also lessen competition between private wedding chapels that provide services to people who want to get married, from religious to very unique ceremonies. The original intent of the civil marriage commissioner was to allow people the choice of not having a religious ceremony.
Clark County wants the flexibility afforded other counties for the office of the civil marriage commissioner to set hours best for the public and not necessarily those of the marriage license bureau.
The Clark County civil marriage commissioner is always available for appointments and is present during daylight hours. We think it would be more cost effective and safer to lessen the hours.
George Wm. Treat Flint, Lobbyist, F.T.H. Corporation:
Assembly Bill 94 concerns us more for what it does not say than what it does. I think the committee needs some clarification. This office only exists in Washoe and Clark Counties. There are no other counties in the State that have a marriage commissioner and there is only one in each county. More than 30 years ago, it was a creation of the Legislature to offer an alternative for people who did not want a ceremony in a chapel or a church, or with any religious overtones.
Thirty years ago, the Legislature removed justices of the peace from the two large counties, and the larger townships within them, from the performance of marriage because their calendars were becoming too cumbersome. Therefore, it was a creation of the Legislature, but in reality, a product of my imagination to come up with an alternative to provide people an opportunity to have a civil‑style wedding.
Subsequently, many court decisions, up to the Ninth Circuit Court of Appeals in San Francisco, upheld the fact that ministers, priests, and rabbis can perform civil marriage in Nevada. Because of that, the marriage commissioner’s office has become much less used through the years. Approximately 10 years ago, Legislative wisdom said Washoe County could be given the privilege of adjusting its hours to whatever they chose. In fact, Washoe County does very few weddings through that office any longer.
The wedding chapel industry has no problem with A.B. 94. We agreed among ourselves, on both sides of the issue, there should be no amendments to prevent the bill from being used as a vehicle to get off on other things that might be of interest to either the county clerks or the chapels.
Therefore, A.B. 94 has our support. It will probably save money for Clark County and streamline the marriage commissioner office. I am happy to inform you, since last Legislative Session, the office now creates money for domestic violence and $5 from every wedding goes directly into that area of concern. Our hope is A.B. 94 will pass as written.
Senator Amodei:
The hearing is closed on A.B. 94. What is the pleasure of the committee?
SENATOR WIENER MOVED TO DO PASS A.B. 94.
SENATOR NOLAN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR WASHINGTON WAS ABSENT FOR THE VOTE.)
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Senator Amodei:
The hearing is open on Assembly Bill 101.
ASSEMBLY BILL 101: Provides that divorce or annulment of marriage of settlor revokes certain provisions of revocable inter vivos trust related to former spouse under certain circumstances. (BDR 13-371)
Todd L. Torvinen, Lobbyist, Nevada Trial Lawyers Association:
I support A.B. 101, a housekeeping bill that amends chapter 163 of Nevada Revised Statutes (NRS), to treat a revocable trust exactly the same as a will. Under chapter 163 of NRS on divorce, all beneficial designations to a former spouse, and the right of a former spouse to serve as an executor, are revoked.
In this day and age many more people are using the revocable trust as an estate-planning vehicle. It does precisely the same thing. If the revocable trust is in existence on divorce, A.B. 101 revokes the beneficial designations to a former spouse and bars the former spouse from serving as executor. In essence, it treats the former spouse as if they predeceased and the other designations in the trust would step up and either receive beneficial amounts as beneficiaries, or alternate trustees would step up and serve in the trustee’s spot.
I discussed this with several leading estate planners in Reno, G. Barton Mowry, Mark Noble, and the probate commissioner in Washoe County, Pamela Gullihur, who all support A.B. 101. Two of them commented it should have been done years ago.
Senator Care:
This will put some burden on family law attorneys to make sure their clients understand it. It will also affect divorces when no attorney is present. What do the courts do when husband and wife divorce without attorneys? At some time people will have to made aware of the law should A.B. 101 pass.
Mr. Torvinen:
Typically people are not informed of this if they do not have counsel. In this day and age, in the divorce context, there are more self-help centers and paralegal services in Las Vegas and Washoe County. One of the first things I ask a new client is their testamentary designations because they affect a divorce. I also do estate planning along with divorce work.
Using paralegal services or divorce self-help centers is not addressed in A.B. 101. In a will, the law makes sense because there is revocation on divorce. Regarding a trust, many times people who do not consult a lawyer leave their trust intact. Assembly Bill 101 would allow the law to reflect the divorce documents. Under certain circumstances if a trust remains intact, the whole intent of the divorce could be defeated, which is to divide assets and send people their own ways.
Senator Care:
I understand the need to make a change in the law, however, the parties in a divorce would have to be informed of the change. It would be an operation as a matter of law and perhaps nobody would be aware of it until 5 years later.
Mr. Torvinen:
That is true. It is the same thing with wills.
Senator Wiener:
Let us create the scenario of an amicable divorce and, for whatever reason, there is legal separation of the parties. The person whose estate is affected still wants the ex-spouse to retain that role in the estate. Are there protections for that situation? Would A.B. 101 inadvertently stand in the way should there be an attempt to retain the ex-spouse in the estate loop?
Mr. Torvinen:
The terms of A.B. 101 say “unless otherwise provided.”
Senator Wiener:
Would section 1, subsections 1 and 2 of A.B. 101 protect that?
Mr. Torvinen:
Exactly. That is precisely why it is there. It occurs many times when people are divorced late in life and they do not necessarily want to divide the assets.
Senator Amodei:
The hearing is closed on A.B. 101. What is the pleasure of the committee?
SENATOR CARE MOVED TO DO PASS A.B. 101.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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Chairman Amodei:
There being no further business to come before the committee, the meeting is adjourned at 8:47 a.m.
RESPECTFULLY SUBMITTED:
Barbara Moss,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: