MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
April 28, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 9:30 a.m., on Monday, April 28, 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 Mike McGinness
Senator Dennis Nolan
Senator Valerie Wiener
Senator Terry Care
COMMITTEE MEMBERS ABSENT:
Senator Maurice E. Washington, Vice Chairman (Excused)
Senator Dina Titus (Excused)
GUEST LEGISLATORS PRESENT:
Assemblywoman Peggy Pierce, Assembly District No. 3
Assemblyman Bob McCleary, Assembly District No. 11
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Jo Greenslate, Committee Secretary
OTHERS PRESENT:
Stan Olsen, Lieutenant, Lobbyist, Las Vegas Metropolitan Police, and Nevada Sheriff’s and Chief’s Association/South
Bonnie L. Parnell, Lobbyist, Nevada Alzheimer’s Advisory Council
Kristen L. Erickson, Lobbyist, Nevada District Attorneys’ Association/Carson City, and Washoe County District Attorney’s Office
Gina Session, Senior Deputy Attorney General, Boards and Commissions Division, Office of the Attorney General
Carol Hanna, Executive Director, Private Investigator’s Licensing Board, Office of the Attorney General
Chairman Amodei:
We will open the hearing on Assembly Bill (A.B.) 126.
ASSEMBLY BILL 126 (1st Reprint): Revises definition of "exploitation" for purposes of provisions concerning abuse of older person and for purposes of provisions concerning civil liability for exploiting older person or vulnerable person. (BDR 15-879)
Assemblywoman Peggy Pierce, Assembly District No. 3:
Thank you for hearing this important bill to further protect our seniors. Assembly Bill 126 is needed because the current definition of exploitation fails to achieve the protection the law was originally designed to give to the elderly population in our State. The current law was aimed at protecting seniors, who for reasons often beyond their control, find themselves in a position where they are no longer able to fully handle and manage their own finances. With me today is Lieutenant Stan Olsen from the Las Vegas Metropolitan Police Department (Metro).
Stan Olsen, Lieutenant, Lobbyist, Las Vegas Metropolitan Police, and Nevada Sheriff’s and Chief’s Association/South:
Assembly Bill 126 is an important piece of legislation. As Las Vegas becomes grayer, with the influx of a lot more seniors, those seniors reach a point where they cannot handle some of their own affairs. People are sometimes initially put into a trusted position, and later take advantage of the senior he or she is caring for, in financial and other ways. This bill will close a loophole and enable our investigators to conduct appropriate investigations and hold those taking advantage of seniors accountable.
Chairman Amodei:
This sounds like a larceny situation, correct?
Lieutenant Olsen:
That is correct. An example of the problem is a person placed in a position of trust to handle the financial accounts of Ms. Pierce. The individual does the right thing for a while, but after a period of time, the trusted person begins to think, “I could use a little of this extra money for myself and I have the power to write a check.” The person will take the money for his or her own use. Most of the time, the abuse involves money. Currently, our investigators are having problems dealing with these cases.
Senator Care:
I have had a couple of cases that remind me of this, but they are more complex. For example, the son is living with his mother. He does not take anything, but he talks her into conveying to him the title of the house and the lot, but gives her a life estate. The son has not borrowed or stolen anything, but he has taken advantage of his frail, perhaps, infirm mother to execute some sort of document allowing the conveyance to happen. I know these cases go on, and I wonder if you believe A.B. 126 would cover a situation such as the one I described, or if there is an existing statute that would handle it? Another situation involves a son, it seems like it is always the son, who talks his mother into lending him $20,000 or $50,000, which the son never pays back. He has not stolen anything, but section 1, subsection 2, paragraph (b) of A.B. 126, states, “the intention of permanently depriving … .” I was wondering if this bill would be needed to cover a situation such as I described.
Lieutenant Olsen:
The incident you described, where the person borrowed the money, is not one of the areas the bill drafters were concerned with, although we are aware of those types of situations. An incident comes to mind in which an elderly man was living in an apartment complex in the area of Eastern and Bonanza, who invited somebody to live with and take care of him. He did not have a car and wanted the person to drive him on errands, help make meals, and things of that nature. Over an 8-month period, the individual moved in a couple of friends, took over the man’s bank account, and wrote checks for himself and his friends. Initially, the individual was in a position of trust and doing the right thing. After a while, he started to do inappropriate things. Eventually, he started giving the elderly man half his prescribed drugs and selling the remainder on the street.
When the trusted individual moved in two other people, they moved the elderly man out of his bedroom and onto the floor in the living room, where he was barely able to sustain life. A neighbor spotted an officer walking through the area on an unrelated call and told the officer something was not right in the elderly man’s apartment. We became involved and arrested the suspects. We could not arrest the first person who moved in for many of the issues because he was initially in a position of responsibility, though we were able to arrest him for selling the man’s drugs and some of the other things. If he had just been in a position of trust, had access to the man’s money, and began using the money for things other than the elderly individual’s care, it would have been difficult to identify an appropriate charge against him.
Bonnie L. Parnell, Lobbyist, Nevada Alzheimer’s Advisory Council:
Today I am representing the National Alzheimer’s Association, which is very much in support of A.B. 126. I believe if you think about the situations Lieutenant Olsen was talking about, they could happen to anybody. When you take somebody who is suffering from the degree of dementia-related conditions such as Alzheimer’s disease, you can see the chance of that happening as being much greater. When you lose cognizance and are unaware of what is going on, it makes you that much more vulnerable. On behalf of the National Alzheimer’s Association I would wholeheartedly urge your support of A.B. 126.
Kristen L. Erickson, Lobbyist, Nevada District Attorneys’ Association/Carson City, and Washoe County District Attorney’s Office:
I simply want to add our “me, too” to A.B. 126. We believe it is an excellent piece of legislation. In response to Senator Care’s question, I believe this piece of legislation will give us the vehicle to at least argue exploitation has occurred.
Senator Wiener:
I am going to go back to what Lieutenant Olsen shared with us. Maybe it is a gray area, but I am curious about other charges as well regarding the person who was in a position of trust, taking care of a senior who then devolved that relationship, withheld medication, and so forth. If there is an established relationship of trust, which there must have been, since the person was living in the dwelling and acting as a caregiver, can abuse and neglect be imposed?
Ms. Erickson:
If I understand your question correctly, I believe it can if a person is taking advantage of the person in their care and using the assets or monies for purposes other than those in which he or she was entrusted.
Senator Wiener:
In the particular scenario Lieutenant Olsen shared, the caregiver was halving the medication, thereby creating a real issue, and certainly diminishing the life of the person. I am wondering if because there was an established relationship of trust, abuse and neglect could also be imposed.
Ms. Erickson:
Yes, I believe it can. We can certainly argue that theory, and hopefully it would be accepted. Whether it would or not, I am not certain, but at least it would give us a vehicle with which to argue.
Senator Care:
For purposes of legislative intent, I would agree with you. I believe the bill can be read more expansively than is apparent. I know of a particular case in which a son was living with his mother and talked her into executing a power of attorney. He then went to a lender and borrowed a large amount of money in her name and fled the State. Guess whom the lender went after? We ultimately resolved that case. As I recall, Lieutenant Olsen, Metro got involved in the case, which was considered exploitation, without enactment of anything like this bill.
Chairman Amodei:
We will close the hearing on A.B. 126.
SENATOR WIENER MOVED TO DO PASS A.B. 126.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NOLAN, WASHINGTON, AND TITUS WERE ABSENT FOR THE VOTE.)
*****
Chairman Amodei:
We will open the hearing on A.B. 78.
ASSEMBLY BILL 78 (1st Reprint): 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, Assembly District No. 11:
I am bringing A.B. 78 before you today. I would like to give you my intent and some of my reasons for the bill. I am new to public office; this is my first term. As I was growing up, a couple of my family members were molested by individuals, so this affects me personally. As an avid newspaper reader, I read about people being arrested for their fourth and fifth times for doing the same crime. In talking to people in the district attorney’s office, I have discovered recidivism is high for people committing this type of crime. The intention of this bill is if a person commits two felonies for this crime, the felon would be put away for life. For the first offense, I would be willing to give the person leniency and allow the courts discretion, but the second time the felon would be removed from society so they could not hurt anybody else.
Ms. Erickson:
Assembly Bill 78 attempts to fill in some of the gaps in the State’s sexual assault laws. As our State laws currently stand, sexual assault of a minor, meaning 13 years and younger, carries a sentence of life with eligibility for parole at 20 years. Sexual assault of an adult is a life sentence with eligibility for parole at 10 years or a definite term of 25 years with eligibility for parole at 10 years. However, sexual assault of a 14- or 15-year-old child brings a sentence of life with eligibility at 20 years or a definite term of 20 years with eligibility at 5 years. Therefore, sexual assault of a child 13 years old or younger carries a minimum sentence of 20 years; sexual assault of an adult has a minimum sentence of 10 years; sexual assault of a child 14 or 15 years old carries a minimum sentence of 5 years. This bill attempts to change the definite terms of 20 years to 40 years with a minimum of 15 years. That would bring it in line with the other sexual assault penalties.
Assembly Bill 78 also adds, as Assemblyman McCleary stated, sexual assault of a child under 16 years, with a prior conviction, would now be life without the possibility of parole. Once the felon had been sentenced for the crime once, if he or she came back into the system for the same or a similar crime, he or she would go to prison for life.
The next change addresses the crime of lewdness with a child under the age of 14. The difference between lewdness and sexual assault is basically penetration. There must be penetration for a sexual assault, but not for lewdness. Lewdness is generally molesting or fondling. There is only one sentence currently for lewdness with a child under 14 years of age: a life sentence with eligibility for parole at 10 years. That sentence gives the judge two options. When sentencing, the judge can give a life sentence with eligibility at 10 years, or probation. That is it; there is nothing in between. There are many crimes of lewdness with a child that do not merit a life sentence with 10 years until parole, but they certainly do not merit probation. This change would give the judge the option to better tailor the sentence to fit the crime by giving a second option of 2 to 20 years in prison. The option would enable the judge to give the perpetrator a minimum sentence of 2 to 5 years, anywhere up to the maximum sentence of 8 to 20 years. Assembly Bill 78 brings sentencing options in line for the judge.
Once again, we have a prior conviction change. If a person has previously committed, and has been convicted of, lewdness with a child under age 14, and the person does it again, he or she would face a life sentence without the possibility of parole. We strongly urge support of A.B. 78.
Senator Care:
Ms. Erickson, regarding the luring of a child, the other crimes, incest, gross lewdness, and sadomasochistic abuse, all require close physical proximity, but luring does not, necessarily. Is the current law such if you attempt to lure a child, never meet with the child, but attempt to lure, it is punishable on the same scale as the other acts?
Ms. Erickson:
I believe there is actually a luring bill this session. As far as I recall, it is not punishable the same as under these statutes. The punishment is not nearly as harsh as in A.B. 78. The luring bill primarily addresses luring through the use of computer networks.
Senator McGinness:
A fiscal note is shown on A.B. 78, but we do not have it in our book. Have you been apprised of what that might be?
Assemblyman McCleary:
Senator, I do not. I have not seen it. If you would like, I could find out and bring it to you today.
Senator McGinness:
Did this bill go to the Assembly Committee on Ways and Means?
Assemblyman McCleary:
It did not. They did not believe it created a big enough impact.
Senator Wiener:
When I brought the identity theft bill to committee, I was told there would be a fiscal note. I talked to people who know more about it than I do, and was told any time there is a new or expanded criminal penalty, a fiscal note is attached. It does not necessarily mean the Department of Corrections would actually send over a fiscal note. Sometimes it is difficult to determine whether the bill would have a fiscal impact.
Chairman Amodei:
We will close the hearing on A.B. 78. What is the pleasure of the committee?
Senator McGinness:
Assemblyman McCleary, if the situation is exactly as Senator Wiener said, it is an undetermined fiscal note. I would appreciate it if you could get the Department of Corrections to give it to us.
Chairman Amodei:
Mr. Anthony, would you check with the fiscal analyst and get that information? If it is along the lines of what Senator Wiener indicated, we will call this up in work session sometime this week.
We will close the hearing on A.B. 78 and open the hearing on A.B. 155.
ASSEMBLY BILL 155 (1st Reprint): Makes various changes regarding authorizing background checks to ensure compliance with federal law authorizing Federal Bureau of Investigation to exchange records of criminal history with officials of state and local government for purposes of employment and licensing. (BDR 14-430)
Gina Session, Senior Deputy Attorney General, Boards and Commissions Division, Office of the Attorney General:
I will read my prepared testimony (Exhibit C).
Carol Hanna, Executive Director, Private Investigator’s Licensing Board, Office of the Attorney General:
The board is entirely in support of A.B. 155, and we need it to continue operations.
Chairman Amodei:
This is just to bring us into compliance, in a statutory sense, with what the criminal repository the Federal Bureau of Investigation runs in order to exchange information. Is that essentially it?
Ms. Session:
Mr. Chairman, that is correct. It is kind of a cleanup bill to make sure we are in compliance and can continue to get records.
Chairman Amodei:
We will close the hearing on A.B. 155.
SENATOR NOLAN MOVED TO DO PASS A.B. 155.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS TITUS AND WASHINGTON WERE ABSENT FOR THE VOTE.)
*****
Chairman Amodei:
We are adjourned at 10:05 a.m., until tomorrow morning at 8 a.m.
RESPECTFULLY SUBMITTED:
Jo Greenslate,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: