MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
April 16, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:00 a.m., on Wednesday, April 16, 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 E. Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Terry Care
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Jo Greenslate, Committee Secretary
OTHERS PRESENT:
The Honorable Mark Gibbons, Associate Justice, Supreme Court
R. Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association/Las Vegas
Kristen L. Erickson, Lobbyist, Nevada District Attorneys’ Association/Carson City, and Washoe County District Attorney’s Office
Richard L. Siegel, Ph.D., Lobbyist, American Civil Liberties Union of Nevada
David K. Schumann, Lobbyist
Jon L. Sasser, Lobbyist, Washoe Legal Services
Melody L. Luetkehans, Lobbyist, Nevada Association of Realtors/Reno
Marshall Schultz, Residents Information Center, Incorporated
Misty R. Davies, Lobbyist, Northern Nevada Apartment Association, and Southern Nevada Multi-Housing Association
Chairman Amodei:
We will open the hearing on Assembly Bill (A.B.) 133.
ASSEMBLY BILL 133: Revises provision governing duties that may be performed by masters in district courts. (BDR 1-602)
The Honorable Mark Gibbons, Associate Justice, Supreme Court:
In addition to being here on behalf of the Nevada Supreme Court, I am also here in my previous capacity as chief judge of the Eight Judicial District Court, testifying in support of A.B. 133. Basically, A.B. 133 gives the county commission the option of employing hearing masters to hear certain criminal matters, which would be set by the Nevada Supreme Court under rule. Just to give the committee a brief background, in the federal system, the magistrates hear certain matters also heard by district judges. There are alternate magistrates allowed under the federal system, which many times are private attorneys appointed to hear matters, usually criminal matters. As private attorneys, they cannot practice criminal law in front of federal courts. They help hear bail issues and certain preliminary matters when the regular masters and federal district judges are not available.
What we would like is to allow hearing masters in criminal cases. The idea would be they would basically take pleas, and do rudimentary things, which are time-consuming in the morning. Many times civil attorneys, if they have trials, must wait sometimes into the afternoon until their cases are heard. In Clark County, it is typical to have 30-page calendars in criminal cases, most of which are taking pleas and setting bail. The thought would be the hearing masters would not determine sentences; that would be the role of the district judge. They also would not handle probation revocations. They would strictly handle rudimentary issues, such as initial appearances, to clear up the calendars. In Clark County, in the regional justice center, there is a large arraignment courtroom currently under design, in which, if approved by the county commission, arraignments could be handled on the lower floor so prisoners would not have to be transported upstairs to the courtrooms from the eleventh floor up. That would free up the judge, allowing him or her more time to get trials started earlier and handle other matters.
Senator Wiener:
When you say taking pleas and dealing with arraignments, the language of A.B. 133, beginning on line 9, where it says, “any subordinate or administrative duties … ,” I know how you have explained the rudimentary duties to free up the calendar for the judge, but when I see “any” subordinate or administrative duties, I am concerned it could be more. Is “any” the appropriate word, or would there be a way to change the language of the bill so it does not appear to be everything up to sentencing?
Judge Gibbons:
That issue came up before the Assembly Committee on Judiciary as well. This is the role we envision for the hearing masters. The Supreme Court, I know, will be setting rules exactly as I am describing them to you. Twenty years from now, we do not know if the system will change, and we believed it would be better to have some flexibility with the court. The Supreme Court will set rigid standards by way of court rules. The idea is not to delegate all the work to hearing masters. The masters would take care of rudimentary matters simply to facilitate the calendars and speed up trials, saving the county money in the long run. We would ask for the discretion to give the Supreme Court the flexibility to set the rule. If for some reason you disagree with that, you can change the law in that regard; however, we would ask that you, at least initially, give us the discretion to set it up, knowing this is exactly what we have in mind.
Chairman Amodei:
Since there is no other testimony, we will close the hearing on A.B. 133 and open the hearing on A.B. 60.
ASSEMBLY BILL 60: Provides that decision of juvenile court to deny certification of child for criminal proceedings as adult may be appealed. (BDR 5‑280)
R. Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association/Las Vegas:
I have with me Kristen Erickson, Chief Deputy from Washoe County, who has been of great assistance to me this session. We are here seeking support for passage of A.B. 60. This is essentially in the juvenile arena and, under some circumstances, I would have liked the prosecutor in charge of the Juvenile Division of the Office of the District Attorney, Mr. Teuton, to testify. He is unable to do so, and has supplied us with quite a bit of information, which should be helpful (Exhibit C). In most situations when a litigant is in district court there are procedural rulings, some substantive, but mainly questions of law. If a court rules adversely, the litigant can appeal to the Nevada Supreme Court. The Supreme Court can review the case to see if there was possibly an error or an abuse of discretion, which is rare.
One of the few areas in which that option is not available to the State is in juvenile certification, seeking to remove the child, in age only, from juvenile court into regular district court. Of the approximately 8000 cases we see every year in juvenile court, last year we sought to certify only 36 young people. Of the 36, we withdrew 5, because after investigation by the parole and probation division and our departments, even though the crimes were serious, burglary, robbery, and sexual assault, we decided they could be served in juvenile court. Of the other 31, 21 were granted, but 10 were denied. If a certification order is granted in juvenile court, it goes to district court. At that time, the young person and his or her attorney can appeal the decision to the Nevada Supreme Court, to be returned to juvenile court.
On the other hand, if the juvenile court refuses to certify up to adult court, the State cannot appeal the decision, and the child remains in juvenile court, where it is often ultimately decided the person cannot be helped in that venue. Essentially, what we are asking for is the right of judicial review for the denial of the right to certify, which would only be exercised once in a great while. Sometimes we get a person who is sophisticated and young in age only. His or her criminal background, family background, and rehabilitation efforts clearly reflect the juvenile services have done all that can be done. It is obvious it would better serve the offender and society to have the person certified up and treated as an adult.
When A.B. 60 was heard in the Assembly, there was some dissention, primarily with newer people who strongly believe young people should stay in juvenile court. As you can imagine, with over 8184 cases, and only 36 of those proving contrary to the majority, we feel that way too. However, occasionally, the truly bad violator does need to be certified, and if the court rules primarily on a question of law in this interpretation, we would like the ability to challenge the decision in the Supreme Court.
Senator Wiener:
To help us understand the significance of the cases for which you are requesting the ability to appeal certification, could you give us a couple of examples from the 36 cases, without naming names?
Mr. Graham:
One case is a burglary, three counts; robbery, three counts; kidnapping, two counts. Prior adjudications included taking a vehicle, affray, consuming alcohol, violating curfew, felony coercion, and resisting arrest. Over the course of 4 years, he had been on formal probation a number of times and continued to re-offend. Another case included home invasion, burglary, robbery with a deadly weapon, and kidnapping. These are serious crimes. Prior matters included burglary, violation of probation, battery by a prisoner, possession of a stolen vehicle, battery and burglary. Over a course of 3½ years, he had informal supervision, formal probation, was committed to Spring Mountain Youth Camp, and was committed to the Division of Child and Family Services and the Division of Parole and Probation. Juveniles who commit crimes of kidnapping, robbery, sexual assault, and have a history of crime, are the ones juvenile services is unable to reach.
Senator Wiener:
Could you give us the ages of those offenders?
Mr. Graham:
I do not, apparently, have the ages of those, although they are generally in the 15 and up category. I see one who turned 18 on November 1, 2001. I could get the ages for the record, if you would like.
Senator Care:
The committee members were given a note about an unpublished case, State v. Brian L., where the court said what you want to do is not an appeal of an order. They may have done that in the absence of statutory authority. Are you familiar with that case and what the grounds would have been or whether they just thought it was bad policy?
Mr. Graham:
No, I am not, but I certainly would like to review it.
Senator Care:
Are you aware of what surrounding jurisdictions do if both the prosecutor and the juvenile can appeal the order regarding which way it should go?
Mr. Graham:
It is my understanding we are one of the few States that do not allow an appeal from both the prosecution and the defense. Again, I do not have an actual count.
Senator McGinness:
Mr. Graham, how would the appeal work if the certification was made? I do not deal with these things on a daily basis.
Mr. Graham:
From a juvenile process, we dealt with over 8000 young people in Clark County, and out of that, they initially come in and are frequently in custody for a period of time. Generally speaking, we have dealt with the ones who have reached the level at which we would request they be certified for 3 or 4 years. Juvenile court would send them back home with a family, informal probation to a probation officer, and ultimately, if it is more serious, placement in a youth facility. If they perform up to the standards, their supervision is terminated, and they are turned back into society. However, once in a while, we will have a case similar to those I just read, where our district attorney’s office looks at the record and says, “We have done all we can do with this young man,” generally young men, “in this juvenile structure. We feel it is time for this person to go to adult court, where he probably will get probation, but he will have a more structured probationary status than in juvenile court.” As I said, in 2002 that was the procedure 36 times.
Senator McGinness:
That happens in juvenile court?
Mr. Graham:
Yes, in juvenile court.
Senator McGinness:
You ask for certification as an adult?
Mr. Graham:
We do, but that does not happen immediately. There is a period of approximately 45 days, I understand, where there is further investigation of family resources, community resources, and other things that may demonstrate the young man should stay in juvenile court. As I indicated, of the 36 in 2002, we decided to keep the young men in the juvenile system. However, there were 31 cases in which we believed we had done all we could do. If the juvenile judge agrees and certifies the young man up to adult court, the child and his attorney can appeal that decision and ask to be sent back to juvenile court.
Senator McGinness:
At the present time, if the certification is not made, the district attorney has no course of action?
Mr. Graham:
No, we have to live with that decision. The decision is seldom made on a factual matter; more likely it will be determined on an interpretation of law. Generally, factual matters are primarily discretionary, and it has to be a clear abuse before any court reverses on discretion.
Senator McGinness:
Where would the appeal be made if A.B. 60 passes?
Mr. Graham:
It would go to the Nevada Supreme Court, just as the petitioners would.
Senator Wiener:
Are there certain crimes that do not involve certification, but automatically put a juvenile into adult court, that would not be involved in this process?
Mr. Graham:
There are, and Ms. Erickson can address that.
Kristen L. Erickson, Lobbyist, Nevada District Attorneys’ Association/Carson City, and Washoe County District Attorney’s Office:
Jurisdiction is automatically assumed in district court, meaning the juvenile is treated as an adult if the juvenile commits a crime of murder or attempted murder or if he or she is 16 years of age or older and has committed the crime of sexual assault or attempted sexual assault and has previously been adjudicated delinquent for a crime which would have been a felony if he or she had been an adult. An offender would also automatically be considered an adult if he or she committed an offense involving a firearm, again, if 16 years of age or older, and if previously adjudicated delinquent for a crime which would have been a felony committed as an adult. There are two additional circumstances where the offender would be considered an adult. A felony resulting in death or substantial bodily harm if committed on school grounds, in the presence of a school activity or school bus, or if the offender was previously certified as an adult.
Mr. Graham:
All those decisions are appealable by the involved person. If the juvenile fails to appeal, there is no recourse for the State. We would have to live with what may be a questionable ruling on the law.
It is my understanding there may be an amendment offered this morning, and I am not sure where it fits in, or whether it is needed. I would like to read briefly from a memo from Mr. Teuton (Exhibit C), who is the chief of our division in Las Vegas. I believe the memo says what the amendment is trying to do is already being done. I will read from page two of Mr. Teuton’s memorandum, on page 3, starting with the third sentence (Exhibit C).
We truly and sincerely have the best interest of the child first. We balance that with the interest of society, and if we err, it is on the side of trying to help young people achieve adulthood and get out of criminal-type of behavior. We respectfully ask the committee to do pass A.B. 60. If there are issues that need to be addressed by others, I certainly would like to work with them and possibly prepare a bill draft that would specifically address their needs.
Richard L. Siegel, Ph.D., Lobbyist, American Civil Liberties Union of Nevada:
I am the president of the American Civil Liberties Union of Nevada. Basically, I am back from a showing on March 12, 2003, as indicated by the memo in front of you (Exhibit D), which is a proposed amendment. It is my understanding the committee did not wish to interrupt the re-codification of the juvenile justice bill, Senate Bill (S.B.) 197, to consider this issue.
Senate Bill 197: Repeals, reenacts, reorganizes and revises certain provisions relating to juvenile justice. (BDR 5-633)
Dr. Siegel:
Senator Titus’s office suggested we resubmit the amendment in relation to A.B. 60. As a reminder, I came in on March 12 with a study from the MacArthur Foundation. The gist of it was, the foundation had done a significant social science study which indicated about 20 percent of juveniles in the 15 to 16 year age range tested as not developmentally or mentally competent to understand their situations and the court proceedings, or to aid their attorney in their proceedings.
The MacArthur Juvenile Adjudicative Competence Study recommended legislation like my proposed amendment to A.B. 60, and in reviewing the codification, I found a silence in the Nevada Revised Statutes (NRS) in this area. Generally speaking, I believe the area of competence is handled by judge-made rulings, but in this case, we would like assurance the juveniles are developmentally or mentally competent to understand their situations and the court proceedings in an adult setting. I hope you will recognize this is a fundamental principle of due process of law. We really would not want to see juveniles put into the situation where, particularly at the age of 15 or 16, they do not understand what is going on. I understand the position of the district attorney, and I can see his good intentions. I also recognize the good record of Clark County, but I would like to emphasize this.
When we had the hearing on Senator Wiener’s compilation, the judge who was the principal testifier for Senator Wiener said, “I do this, but many of my colleagues do not.” Mr. Graham has testified to the good intention of the district attorney’s office, but the ultimate protector of the juvenile and the interests of the public is the judge. We want the judge to be cognizant of the need to make this kind of interpretation. In a conversation with Senator Washington from the last hearing on this subject, he indicated serious crimes require serious punishment. As you know, Senator Washington, there are two issues involved: the crime and the juvenile. We have always considered both. I will not make a choice between the crime and the individual juvenile. I believe we all want both the seriousness of the crime and the competency of the individual juvenile to be considered. The American Civil Liberties Union is not trying to keep juveniles from being punished. We are simply trying to make the law appropriate.
Chairman Amodei:
Dr. Siegel, you indicated you looked through the statutes before and you did not see anything that specifically dealt with what your proposed amendment is addressing?
Dr. Siegel:
Yes, I personally searched the statutes.
Chairman Amodei:
As I look at your proposed amendment, I assume it would be part and parcel of the determination, but if I understand you correctly, you are saying there is nothing specifically requiring this, and we would like to have it in statute?
Dr. Siegel:
Yes, that is correct.
We will close the hearing on A.B. 60. Assemblywoman Leslie is unavailable to testify on A.B. 89, but we have her permission to open the hearing on A.B. 89.
ASSEMBLY BILL 89: Removes exemption for landlords who own and personally manage four or fewer residential dwellings from provisions relating to landlords and tenants. (BDR 10-952)
I am here to testify against A.B. 89. I would like to start off by noting the fiscal note is undoubtedly incorrect to say there is no effect on local government or on the State. Once this goes into effect, there has to be a great increase in employment in local government just to hear all the complaints passage of A.B. 89 will create. There will be, obviously, a need to raise taxes to cover the amount of money local government will have to spend hounding small business operators who own a couple of apartments. I would think the section being struck, the persons who own and personally manage four or fewer dwelling units, except with respect to the provisions in NRS relating to landlords and tenants, constitutes the definition of a small business. “Owns and personally manages,” means he or she does not have the resources to hire a professional manager.
Here we have the wisdom of the earlier writers of the statute, who understand a person with limited means does not have the resources to go out and contend with the Americans with Disabilities Act of 1990 (ADA) and all the other rules that will come down on him or her, so they exempted them. Now we have a group coming along and saying, “The Sears study has proven this is not a great expense.” Ladies and gentlemen, every Sears, Roebuck and Company (Sears) store I have been in has elevators, eliminating the need to build ramps for people in wheelchairs. Every Sears I have ever been in has stalls for people with wheelchairs, so they do not have to install wheelchair-tolerant toilets for employees in wheelchairs. A little guy, who owns four or fewer apartments, does not have the resources to do this sort of thing. The original drafters of the provision had it right.
This bill will unnecessarily expose small business people, in many cases, retired, who have saved their money during their lives and put it to use in this way to provide for their livelihood and not depend upon the government to provide for them. Passage of A.B. 89 will expose them, not only to the ADA, but the American Trial Lawyers Association, which has a leech-like ability to determine where there is blood. They will take advantage of things like this to magnify small, inconsequential things into mega-buck lawsuits. I do not believe it is the business of government to say to somebody who buys a building, which is a regular apartment building, they will have to spend $10,000 to modify the toilets in the building because they now come under the provisions of all these NRS sections. I ask that you adhere to the wisdom of the original drafters of this bill and not try to follow in the steps of your sister state to the west, whose legislature adamantly believes it is the right and proper thing to micromanage the economy. I believe we are now seeing the legislators in California are absolutely incorrect, and the state of California is suffering greatly from the attempt to micromanage the economy. Therefore, I ask that you kill this sad bill.
Jon L. Sasser, Lobbyist, Washoe Legal Services:
I am testifying in support of A.B. 89. I will read my written testimony (Exhibit E).
Senator Nolan:
When the current language refers to a person who owns and personally manages four or fewer dwelling units, does it apply to a person who owns a fourplex? Would this apply to the person who owns several fourplexes or just one fourplex?
Mr. Sasser:
It is a matter of owning and personally managing four or more units. I could own four single-family homes, one fourplex, or two duplexes, and I would have to personally manage them. If that was the case, I would be exempt from the Nevada Landlord Tenant Act.
Senator Nolan:
If an individual owns a fourplex on one side of town, and a fourplex on the other side of town, he would not fall under this act the way the language is currently written?
Mr. Sasser:
He does not fall under the exemption from the act; therefore, the act would apply. The act applies to all landlords who do not fit the definition in the exemption.
Senator Care:
Mr. Sasser, all this bill really does is take the current exemption for four or fewer and throws it into the scheme of chapter 118A of NRS, and all that does is talk about the obligations of landlord and tenant and the remedies for each if the other breaches. I would suspect most of the calls you received were from people who called you after they called an attorney. I receive those calls myself and, frankly, as you pointed out, this is not a money making field of law. It is my experience when these types of cases go to court, people usually represent themselves. The judge will often apply common law, warranty of habitability, which is addressed in the statute, but it is a little unclear because they cannot go to the statute directly. That is the only thing this bill does; it does not create anything, it has nothing to do with ADA, or government regulation. I do not think it would even increase caseload. It merely gives guidance to the court about applying statutory law as opposed to common law to some cases, and it may decrease the number of times I have seen the judge yell at the tenant, “Why did you sign this?” That is the way I read it.
Mr. Sasser:
I believe your observations are correct. It will not increase the caseload in any way. It is just a matter of which law the justice of the peace would apply to the landlord and tenant standing in front of that justice. However, A.B. 89 would not create any fewer or more additional cases.
Senator McGinness:
Do you have any idea what percentage of rentals are four or fewer units?
Mr. Sasser:
In terms of complaints, it would be purely anecdotal, not scientific at all. The Nevada Apartment Owners Association would say a large percentage of their complaints are about this group, because the group does not comply with the laws everybody else has to comply with. In terms of the actual number of rental units, I have no idea.
Melody L. Luetkehans, Lobbyist, Nevada Association of Realtors/Reno:
I am general counsel for the Nevada Association of Realtors. We are here today because, as a real estate trade organization, approximately one-fifth of our members, or about 2500, are property managers. Therefore, they oftentimes come in direct contact with NRS 118A. We testified for this bill on the Assembly side, and I am here today to testify again in support of A.B. 89. We believe a couple of areas of the bill are good for Nevada’s tenants because, as the law stands now, there is not an even playing field. The tenants renting from individual owners are not subject to the same kind of protections they would have if they had either property managers or the law this exemption has removed. The smaller landlords, who do not know the law and have not applied it because they are exempt, create some of the greatest abuses of Nevada landlord tenant law. Therefore, because of the lack of a uniform playing field, the potential for abuse, and uneven enforcement elements, the Nevada Association of Realtors has come on board in support of A.B. 89.
Senator Care:
Is there anything in current law requiring a landlord who owns more than four units to advise the tenant of the mutual obligations under chapter 118A of NRS?
Ms. Luetkehans:
No, it is my understanding NRS 118A does not require, unlike the mobile home statute of NRS 118B, which does require, the park owner to distribute copies of the statutes. There is nothing like that under NRS 118A, as far as I know.
Senator Care:
I am just speaking for myself and do not want to create a problem for Assemblywoman Leslie, but I wonder if the industry believes there should be a requirement of the landlord similar to NRS 118B.
Ms. Luetkehans:
Senator Care, I would run that past Assemblywoman Leslie.
Senator Care:
Would you do that and let me know what she says?
Ms. Luetkehans:
Yes.
Marshall Schultz, Residents Information Center, Incorporated:
I will read my written testimony (Exhibit F).
Misty R. Davies, Lobbyist, Northern Nevada Apartment Association, and Southern Nevada Multi-Housing Association:
I do not have any new information, but I would like to say we are in support of A.B. 89, and I would also like to verify former testimony that yes, we do field telephone calls from tenants who have problems with their landlords. Although I do not have specific percentages, I can say I have been told most of the complaints are regarding property owners of four or less units.
Senator Care:
There were some votes against this bill in the Assembly, and there has been no opposition testimony other than Mr. Schumann’s. Can you give us an idea of what the objections were?
Ms. Davies:
With no opposing testimony, I can only speculate.
Senator Care:
There was no opposing testimony on the Assembly side that you recall?
Ms. Davies:
That is correct.
Chairman Amodei:
We will close the hearing on A.B. 89 and return to A.B. 133. Senator Wiener, do you have a suggestion for processing A.B. 133?
Senator Wiener:
Yes, Mr. Chairman. With the utmost respect for the judicial process and the Supreme Court, I would offer to amend and do pass with the following amendment. At line 9, I would substitute the word “certain” for the word “any.” The masters would still have discretion as in regulation to determine what those subordinate or administrative duties would be, but it would show the intent that it is not carte blanche; it would need to be a deliberative process and not include everything that is subordinate and administrative.
SENATOR WIENER MOVED TO AMEND BY SUBSTITUTING THE WORD “CERTAIN” FOR “ANY” ON LINE 9 OF SECTION 1 AND DO PASS S.B. 133.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
The meeting is adjourned at 9:20 a.m.
RESPECTFULLY SUBMITTED:
Jo Greenslate,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: