MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
May 1, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:15 a.m., on Thursday, May 1, 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 Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
COMMITTEE MEMBERS ABSENT:
Senator Maurice E. Washington, Vice Chairman (Excused)
GUEST LEGISLATORS PRESENT:
Assemblywoman Barbara E. Buckley, Assembly District No. 8
Assemblyman Bob McCleary, Assembly District No. 11
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Barbara Moss, Committee Secretary
OTHERS PRESENT:
Susan J. Meuschke, Lobbyist, Executive Director, Nevada Network Against Domestic Violence
Nancy E. Hart, Deputy Attorney General, Office of the Attorney General
Vicky LoSasso, Nevada Women’s Lobby
Joni A. Kaiser, Lobbyist, Committee to Aid Abused Women
James F. Nadeau, Lobbyist, Washoe County Sheriff’s Office and Nevada Sheriff’s and Chief’s Association/North
Christina Dugan, Lobbyist, Las Vegas Chamber of Commerce
The Honorable Robert E. Gaston, Department F, Family Division, Eighth Judicial District Court
Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, District Attorney, Washoe County
Jennifer Henry, Guardianship-Discovery Commissioner, Eighth Judicial District Court
Dara Goldsmith, Attorney
Kathleen Buchanan
Kim Spoon
Ernest K. Nielsen, Lobbyist, Washoe Storey Conservation District
Lora E. Myles, Lobbyist, Carson and Rural Elder Law Program (Care Law)
Larry Stout, Project Consultant, Law Enforcement Protocol and Training Project, Office of the Attorney General
Robert Roshak, Sergeant, Las Vegas Metropolitan Police Department
Chairman Amodei:
I will open the hearing on Assembly Bill (A.B.) 160.
ASSEMBLY BILL 160 (1st Reprint): Makes various changes to provide protection to certain persons. (BDR 3-160)
Assemblywoman Barbara E. Buckley, Assembly District No. 8:
I am pleased to be the sponsor of A.B. 160 which has three different components relating to domestic violence. It is an attempt to provide additional tools to domestic violence victims.
The first issue in A.B. 160 is modification of the Nevada statute for legally changing your name. The current law states if you want to change your name you must publish your old name and your new name. Therefore, should you be a victim of domestic violence, and followed by a stalker who will not rest until he or she kills you, the statute is of no help. Assembly Bill 160 provides Nevada judges discretion to waive the publication requirement upon a showing that such publication would place a person’s personal safety at risk. Nevada would be acting in a matter consistent with social security law, and Arizona, California, Colorado, Michigan, New Mexico, New York, and Washington have also modified their statutes. Exhibits relating to the issue (Exhibit C) include statements of a number of victims and domestic violence advocates who testified in the Assembly.
The second issue presented in A.B. 160 is the enforcement of extended protection orders containing an award of child support. Nevada Revised Statutes (NRS) 33.030 gives a court the authority to order a noncustodial parent to pay child support in an extended protection order. However, some abusers use court ordered child support payments as economic leverage to continue their harassment of the victim. At present, any method available to victims to enforce child support payment is very difficult. A person can obtain a private attorney or go through the district attorney’s office, which means filing an application and 45 days later an attempt is made to locate, and so forth. It is a difficult procedure, takes time, and leaves victims without means to support their children.
Assembly Bill 160, as amended, requires the issue of a wage assignment at the time an order is made. There were many discussions in the Assembly as to the manner in which it works. This procedure was worked out with employer groups, the child support office, the State welfare office, and would proceed as follows. The income assigned for child support would be sent to the State collection and disbursement unit. In addition to bringing such wage assignments in compliance with Nevada law, it would maintain confidentiality of the victim’s location. The income assignment form would also be consistent with current federal and Nevada income withholding notices. It helps break the cycle of violence and ensures the victim would get the money needed for child support sooner.
The third issue relates to creating privilege for rape centers and domestic violence centers in order to keep communication between the victim and the center confidential. In that event, a counselor could not be taken to court to divulge what was said by the victim. When Susan Meuschke and the Nevada Network Against Domestic Violence approached me about sponsoring A.B. 160, I was unsure whether or not I would do so. When I attended law school and learned about the evidence code I never heard of victim-counselor privilege, it was physician-patient privilege and lawyer-client privilege, however, I soon became convinced of the merits of it. It was put to me most clearly this way: Most middle class and lower income people cannot afford a psychiatrist. Where do they go? They go to rape and domestic violence centers in northern and southern Nevada. The State is fortunate to have dedicated people doing this work. Why should counselors be hauled into court and forced to testify against the victim when they are not a percipient witness? All they did was provide counseling, which is the same thing a doctor would do if the person had insurance coverage. Many other states have adopted this legislation. We struggled with it in the beginning, but eventually felt it was a good policy and it received universal support.
The last issue has to do with the service of protection orders. This was not presented in the Assembly because we did not come up with it in time. I struggled all session and asked domestic violence advocates what could be done about the issue of lack of service of protective orders. It is amazing to note in 2001 in Clark County there were over 7000 temporary protective order (TPO) applications. When it came to service, only 60 percent were served, which means there were about 2800 court orders protecting people from domestic violence that were not served. It is an appalling statistic. People go to court, obtain protective orders, but abusers cannot be located in order to be served. The sheriff and the civil division attempt to serve the orders multiple times, but offenders evade service which is consistent with their pattern. Therefore, we suggest an amendment to A.B. 160 (Exhibit D) that would allow service to take place by serving the employer should law enforcement attempts fail twice to serve the batterer.
Other states allow service on an employer: California, Colorado, Nebraska, New York, Oregon, Pennsylvania, and Wyoming. Some states have a different approach with a permissive statute which says a court may order service by any method, or combination of methods, reasonably calculated to apprise the defendant of the existence and pendency of the action. These states include: Alaska, Illinois, New Jersey, and New Mexico. States are dealing with this new issue which clearly asks what the point of getting a protection order is if the batterer continues to thwart the judicial system by evading service.
That is the proposal. We contemplated, thought, and brainstormed, but all the research individuals thought this was the best approach. An issue that might be raised is, it is a protective order and violation of a court could hold a person in contempt. What happens should the employer never give the protective order to the employee? My response is, if batterers can show they were not served, a judge will not hold them in contempt. However, at that point they can be handed the order and, finally, justice will be served because they will be in court and given the protective order. It may not be enforced the first time, but they will then be found and it will be enforceable the second time.
Susan J. Meuschke, Lobbyist, Executive Director, Nevada Network Against Domestic Violence:
I will read my written prepared testimony (Exhibit E). Attached to my written testimony is an article that is clear and to the point on extending the privilege to cover communications between victims’ advocates and victims. It also lists the states that modified statutes to allow it. This is not a groundbreaking effort because more than 30 states provide this kind of privilege. There is another lengthy document that provides the names of each of the states and the kinds of permissions they give around privilege. I would be happy to provide the document should you wish to receive it.
We are concerned that victims who cannot afford a psychiatrist, psychologist, or marriage and family therapist, be given the opportunity to have their communications covered by privilege. Those who cannot afford it do not do it, but we think the privilege should be extended. The communication to which we could testify would not be useful in most, if any, courts. It would be hearsay at best, and irrelevant. Undue burden is placed on domestic violence programs when time and money are spent attempting to avoid being served subpoenas in order to not testify. We hope this piece of legislation will help in that regard.
We support the entire bill and the amendment. We spent quite a lot of time discussing and talking about the ramifications. Lack of service of protection orders has been an ongoing problem for a long time. In 1997 there was an attempt to address part of the problem by providing a 24-hour protective order registry. Law enforcement could access information about protection orders and thereby notice someone of the existence of an order and subsequently be able to make an arrest and proceed with criminal sanctions in the case of subsequent offenses. Much to our horror, we found the notice did not carry weight on the civil side, and you actually had to have a copy of the order. Therefore, although you can notice someone, law enforcement can effect notice that may not help in terms of moving forward with the extended order, or in getting child support, or whatever else is being sought in terms of the remedies.
This is not the complete solution to the issue, but we think it could move in an important direction in making sure people can access the kinds of remedies that have been provided them. We ask for your support of A.B. 160 and the amendment.
Senator Wiener:
Section 8 of A.B. 160 says, “Victim” means a person who alleges that an act of domestic violence or sexual assault has been committed against the person.” I want to see it carefully crafted that the child who observes, or is the onlooker, could also be included in that definition.
Senator Nolan:
The victim, the guardian or conservator of the victim, or a personal representative, are all covered by this legislation. Would guardian include the victim’s parents? Would the legislation cover more than one person, such as a counselor, guardian, guardian’s parents, personal representative, or a number of people in whom the victim confides?
Assemblywoman Buckley:
No, it would be the communication between the victim, as defined in the bill, and the victim’s advocate, which is defined as a person who works for a nonprofit organization that provides assistance to the victim. It is an attempt to get at the privilege to promote counseling, not at any communication with anyone else.
Senator Nolan:
Would A.B. 160 limit investigation of an allegation by the other party or from seeking information about child abuse?
Assemblywoman Buckley:
There are mandatory reporters on child abuse and that law would remain untouched. Therefore, that type of information is not held sacred. Other than that, communications, counseling, and what the counselor writes in the records are privileged. Recently I have seen criminal cases wherein the batterer is trying to get off and seeking some shred of information in order to attack an inconsistency, but not many custody cases in which a person goes to mediation, has a court report, and experts.
Senator Nolan:
I agree with what you are trying to do in protecting victims and providing them some level of counseling when they cannot afford it. I want to make certain due process is afforded everybody.
Assemblywoman Buckley:
I think what finally pushed me over the edge was the issue of privilege between counseling center and victim televised Friday night on the show, Law and Order. When an issue makes it to Law and Order, you know its time has come.
Senator McGinness:
Section 8 of A.B. 160 says, “Victim” means a person who alleges that an act of domestic violence or sexual assault has been committed against the person.” Once a person alleges something happened, it would set up the rest of the sections and afford the individual privacy. Would this provide an opportunity for a person to abuse the system by alleging domestic violence and receive a whole set of protections when perhaps no violence actually occurred?
Assemblywoman Buckley:
No, I do not think it would provide an opportunity to abuse the system because of the narrowness of the legislation. There may be a rare case of someone who alleges domestic violence in order to get an edge. The only edge they could get would be if they received counseling due to domestic violence, the false story they would tell the counselor could not be divulged. On the other hand, when victims of domestic violence receive counseling by a doctor, their innermost thoughts in the counseling communication are privileged and protected. Therefore, the bill would promote seeking counseling and victims would be assured if they confided in a counselor regarding their horrible feelings about themselves, it would not be repeated in a courtroom.
Senator McGinness:
When delivery of the protection order is made to the employer, section 2, subsection 3, of the proposed amendment to A.B.160 says, “The person to whom the documents are delivered pursuant to subsection 2, shall make a reasonable effort to deliver the documents to the adverse party.” Are we setting up responsibility on the “person in apparent charge?” Somebody could be in charge, or not in charge, and now they have a responsibility that is not necessarily theirs. How would that be addressed?
Assemblywoman Buckley:
Currently, under the law, when a sheriff or process server is trying to serve a protection order to an individual, he can attempt to serve the person anywhere. The server could come into the committee room, a person’s job site, sit outside and wait until the person walks by, or disturb an individual while working. The proposed amendment to A.B. 160 follows the lead of other states that say, after two attempts at service where someone is evading, this mean can be effectuated. In some ways it is less intrusive to the employer because the protective order can be given to the person in charge or the manager. The question was asked, what happens if the person in charge does not serve the protection order? What happens if the person in charge or the manager is a flake and does not serve it, or discards it? In that event, there are penalties in the law for employers who do not follow through with service, or fire an individual as a result of garnishment. The employee can sue, get his or her job back, and receive treble damages. We did not put penalties in A.B. 160 because it was considered a first step. Let us see how it works. Let us trust employers to do the right thing. Let us not put in the penalties; observe how it works for 2 years, see what law enforcement reports back, and should it not work, we will fix it.
You are correct, the employer now has the responsibility to serve the protective order where they were not required to do so before. That was weighed against public policy in which 40 percent of those individuals were evading. Children are not receiving child support and domestic violence victims are not getting their custody order. What is the right balance of inconvenience in receiving a document and being required to give it to somebody, versus public policy not being enforced?
Nancy E. Hart, Deputy Attorney General, Office of the Attorney General:
It is my privilege to represent Attorney General Brian Sandoval. I distributed a letter (Exhibit F) indicating our support of all three provisions in A.B. 160. We believe automatic wage withholding is a critical piece of the bill that would allow a victim to receive meaningful support as quickly as possible. We also support confidentiality in name changes because we know it is another safety measure for someone attempting to leave his or her relationship. We support the establishment of a privilege for domestic violence and sexual assault victims who consult with nonprofit victim service programs. Finally, we also support the amendment presented by Assemblywoman Buckley.
The Office of the Attorney General is spearheading a research project in collaboration with the Nevada Network Against Domestic Violence and others to look at some of the problems of service of protection orders in the State. It is an enormous problem. There is a great deal of anecdotal information about the lack of service and we know the consequences of it. A great deal of time and effort is spent to obtain a protection order that is worth little more than the piece of paper on which it is written if not served. Therefore, we know this measure of providing for service on employers is only one small piece of the answer to this problem. We think it is an important step. We have tried to tailor it in a way it will not be a burden, see where we can go with it, and whether it makes some improvement in the service of protection orders. We strongly support A.B. 160.
Senator Wiener:
There are already federal mandates to protect that communication. How does it work? Is it there but we are unable to use it?
Ms. Hart:
All nonprofit programs in the State have confidentiality policies that state advocates working for their program need to hold their communications confidential. In fact, in addition to having those policies in place, the Violence Against Women Act of 1998, which provides a substantial amount of funding for a variety of programs in Nevada, requires not only victim service programs, but any recipient of federal grant money, to ensure there are confidentiality policies in place that protect communications. Therefore it is odd, if not contradictory, that we do not actually protect it in law. In Clark County there was a case in which a person was hailed into court and the judge decided the benefits of confidentiality outweighed any concerns about whether to release, or not release it, and, in our opinion, made the right judgment. However, it needs to be codified so nonprofit programs will not potentially face contempt of court.
There is an interesting Massachusetts case in which a rape victim’s records were subpoenaed and the nonprofit program was subject to a penalty of $500 a day for being in contempt of court for refusing to reveal the contents of the communication.
Senator Wiener:
Are you saying codification will secure the privilege?
Ms. Hart:
Yes, the statute that governs marriage licensing fees and sets the fees for victim service programs has a provision requiring confidentiality. That is where we get State law around confidentiality at victim’s service programs. There are policies on all those programs, as well as a federal law that requires confidentiality in order to obtain funding.
Senator Care:
What is the scope of the communications contemplated in the privilege? I think it would have to pertain to the rendering of assistance.
Ms. Hart:
Senate Bill 224 establishes the right of a victim to have a support person. I believe it refers to an attendant in the language of the statute and is not at all intended to be an advocate for the victim. It refers to a person who provides emotional and moral support for the person in the courtroom. Communication between the victim and the support person is not covered by A.B. 160 unless the support person was, for some reason, coincidentally the person with whom the victim communicated at the shelter and was asked to accompany the victim to the courtroom.
SENATE BILL 224 (1st Reprint): Allows designation of attendant in all civil and certain criminal proceedings involving victim of act of domestic violence. (BDR 3‑136)
Assembly Bill 160 creates a privilege only between the victim and the advocate who works for the nonprofit victim service program. The advocate may or may not be someone who is called upon to be an attendant in the courtroom.
Senator Care:
The statutory privilege proposed here reads almost word for word the same and includes the family therapist, marriage counselor, and social worker.
Vicky LoSasso, Nevada Women’s Lobby:
I represent the Nevada Women’s Lobby and we are in total support of A.B. 160, as well as the amendment. I also speak as a former domestic violence advocate who conversed with victims. I always wrote up my notes conscious of not writing anything that might make the client look bad. In so doing, I may have failed to write important information that would help the next counselor who spoke with the victim. I was always concerned with protecting the confidentiality of my client. Because we act in the same manner as social workers and counselors, I feel privilege is really important. Without it, I do not think people would have talked as freely.
As Assemblywoman Buckley said, victims sometimes divulge horrible feelings about themselves, which may not be fact, but is what they say and feel at the time. It could look bad written on paper when in fact it really had nothing to do with their actions, only how they were feeling at the time. The conversation should be privileged. If the victim does not feel safe he or she will not talk to anybody. Victims are very frightened. I was often the first person to hear their story. I could tell by their body language they were scared stiff and it was an effort to come forward and tell their story.
Joni A. Kaiser, Lobbyist, Committee to Aid Abused Women:
I will read my written prepared testimony (Exhibit G). Improving the court’s ability to enforce child support orders could be a potential benefit for our temporary assistance for needy families (TANF) welfare caseloads. If people can get emergency child support earlier they may not have to apply for TANF, food stamps, or other social services provided by Nevada. They would get more money as well.
Improving a court’s ability to protect a victim’s identity and location by sealing the record of a name change is critical. As you know, with Internet expansion of abilities to find people’s addresses and maps to their homes, and so forth, it is increasingly difficult for a victim to maintain a confidential location. Protecting the name change would be a benefit in this regard.
Protecting the principle of privileged communication between victims and their advocates is also an important issue for domestic violence programs. It was only a matter of time until a case was brought forward and, unfortunately, it happened in Clark County, but it could happen in any court in Nevada. We would hate to spend our time in court to defend a victim’s right to keep confidential information.
I provided a 5-year summary of protection orders (Exhibit G). I do not have the number of those not served, but will attempt to find it.
James F. Nadeau, Lobbyist, Washoe County Sheriff’s Office and Nevada Sheriff’s and Chief’s Association/North:
We support A.B. 160, however, we want it on record that we received assurance from domestic violence programs that their reference to victim advocates refers to nonprofit advocates. In theory, we work for nonprofits, but we want to be assured they do not use the terminology “law enforcement victim advocates” which would bring law enforcement into the net. There are individuals in law enforcement who communicate and deal with victim advocates in a variety of cases. It is our understanding those individuals are not part of this legislation and are part of the exemption.
Christina Dugan, Lobbyist, Las Vegas Chamber of Commerce:
We support A.B. 160 in its current form and appreciate Assemblywoman Buckley’s efforts to further the delivery of the various orders. We want to continue working with her in regard to employers.
Senator McGinness:
Do you support the amendment?
Ms. Dugan:
I just looked at the amendment this morning, therefore, I have not had time to analyze the various aspects of it and how it would affect the employer situation. We feel it is important the orders are served, we just want to find a way to accomplish it that works well for everyone.
Chairman Amodei:
It is our intention to work session A.B. 160 one week from today, Thursday, May 8, 2003. The hearing is closed on A.B. 160 and opened on A.B. 331.
ASSEMBLY BILL 331 (1st Reprint): Provides for issuance and enforcement of temporary and extended orders against person who allegedly committed certain crimes against child. (BDR 3-956)
Assemblyman Bob McCleary, Assembly District No. 11:
Two qualified experts accompanied me to speak on A.B. 331, therefore, I defer to them.
The Honorable Robert E. Gaston, Department F, Family Division, Eighth Judicial District Court:
I will read my written prepared testimony (Exhibit H).
Senator Care:
What are your thoughts regarding a child who is threatened by another child? I am not just referring to bullying on the school grounds, but the case of a 7‑year-old being bothered by a 12-year-old. Would a protective order be available in that case?
Judge Gaston:
The intent of A.B. 331 is not that broad. It provides a parent the opportunity to obtain a temporary protective order against an adult who has sexually victimized their child.
Chairman Amodei:
Line 7, Section 2, of A.B. 331 says, “… extended order against a person …,” with language that indicates a person who is of the age of majority. I was also concerned with the school situation because all parents err on the side of protecting their children. Should there be a situation at school, we do not want parents to avail themselves under this provision to attain a TPO against another juvenile.
Judge Gaston:
Please note page 2, section 2, subsection 1, paragraph (b), of A.B. 331, “Sexual abuse or sexual exploitation of the child.” It is not my perception that A.B. 331 covers school situations. However, even in that respect, we are referring to serious sexual abuse or serious sexual exploitation of a child.
Chairman Amodei:
I understand, however, page 2, section 2, subsection 1, paragraph (a), of A.B. 331 says, “Physical or mental injury to the child of a nonaccidental nature.” I do not mind holding adults to the standard of “mental injury” by any means.
Judge Gaston:
The intent is to protect children from an adult.
Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, District Attorney, Washoe County:
This piece of legislation will, in essence, provide a speedy and adequate remedy for child victims to gain a protective order. As the system currently stands, a victim, or typically the victim’s parents, would contact the district attorney’s office, the deputy district attorney assigned to the case would then write a motion, serve it on the defense, wait approximately 10 days for the defense to respond, and then request a hearing from justice court. Depending on the justice court calendar, the hearing could take place anywhere from a couple of days to a couple of weeks. Essentially, the earliest I would anticipate a protective order being heard would be approximately 3 weeks to a couple of months. Assembly Bill 331 would provide a remedy for the victim to bridge that gap and there would be 3 weeks less time that a victim would live with fear and uncertainty.
Senator Care:
Page 3, line 41 section 5, subsection 2 of A.B. 331 says, “A peace officer, without a warrant, may arrest and take into custody a person when the peace officer has reasonable cause to believe that … .” Although I do not practice much criminal law, the operable words are “probable cause” and “reasonable suspicion.” What is the legal distinction between those two phrases?
Ms. Erickson:
It is my understanding the language is taken from the harassment and stalking statutes.
Senator Care:
Is that the only other place in existing law we see that language?
Ms. Erickson:
I am unable to answer that question.
Bradley Wilkinson, Committee Counsel:
It is a standard generally used throughout arrest statutes.
Chairman Amodei:
The hearing is closed on A.B. 331. Senator Care, have you any thoughts regarding a relatively simple amendment to limit the scope to those the age of majority or older?
Senator Care:
Testimony indicated that is the intent of A.B. 331. I can see amend and do pass with a conceptual amendment specifying it only applies to TPOs issued to adults 18 years of age or older.
Chairman Amodei:
Mr. Wilkinson, we leave it to your discretion, but I suggest perhaps adding age discrimination language at page 1, line 7, section 2, subsection 1 of A.B. 331. The amendment would disallow competing TPOs for mental injury on school grounds among students on one another.
SENATOR CARE MOVED TO AMEND AND DO PASS A.B. 331.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS TITUS AND WASHINGTON WERE ABSENT FOR THE VOTE.)
*****
Chairman Amodei:
The hearing is open on A.B. 365.
ASSEMBLY BILL 365 (1st Reprint): Makes various changes to provisions regarding guardianship. (BDR 13-953)
Jennifer Henry, Guardianship-Discovery Commissioner, Eighth Judicial District Court:
Dara Goldsmith and I are coauthors of A.B. 365. The bill is timely because this provision of the law has not had a general overhaul in 30 years. Currently, I am the judicial officer who sits, adjudicates, and presides over 7000 guardianship cases in Clark County. During the last calendar year I filed 1325 new cases. The state of the law is extremely poor and the statutes leave too many unaddressed issues and areas of gray. With the sophistication of issues presented today in court, and to fill the gaps in the statutory authority, I am regularly forced to analogize statutes from other chapters of NRS, as well as from other states. The Nevada Supreme Court, in an unwritten order, indicated this is inappropriate practice and we can no longer do it. Therefore, in numerical order and no particular preference, I will tell you the important changes that must be made to chapter 159 of NRS from my perspective as the court.
Section 4 of A.B. 365 allows the appointment of a guardian ad litem to represent the best interest of the ward. At the present time, there are only provisions that allow an attorney to be appointed. The role of a guardian ad litem is different than that of an attorney who must be an advocate. Based upon the kinds of issues presented these days, there must be a guardian ad litem appointed for a ward should it be deemed appropriate.
Sections 5 through 35 of A.B. 365 will import various probate sections fashioned to be applicable to guardianship cases. These changes need to be done in response to the Nevada Supreme Court’s unpublished order that says we can no longer rely on probate statutes to fill the gaps in the guardianship statutes.
Sections 36 through 42 of A.B. 365 delineate the procedures of removal or resignation of guardians, or termination of guardianships. Right now there are very sketchy rules of what can and should be done when a person resigns as a guardian, or when a guardianship is terminated. More specificity is needed in the duties of the guardian in order to conclude cases, send them to probate, or return the assets to the ward.
There are temporary guardianships in the State of Nevada but no rules regarding what happens if the temporary guardian is not appointed general guardian. We need applicability of the termination and resignation rules to temporary guardians, as well as general guardians, which would be done by sections 36 through 42 of A.B. 365.
From my perspective, section 43 of A.B. 365 is a very important change because it allows personal service on family members and the ward. Currently, the only type of service permitted by chapter 159 of NRS is certified mailing. Personal service is a higher and more appropriate type of service when dealing with putting a person under a guardianship, which is a stripping of civil liberties.
Section 47 of A.B. 365 is an important new section that deals with appeals. A case just came down as part of an ongoing appeal, but the Nevada Supreme Court said an appeal is not timely in a guardianship case, under most circumstances, until the ward dies. Unfortunately, people live under demented or diminished cognitive capacities for years. People should have the right to an appeal because the court mandates how they will live and where their finances will be used, however, they do not have the right to take their case beyond district court level to obtain a higher opinion. Should a family have a loved one under a guardianship, and family members disagree, the family must wait 20 years until the loved one dies to be able to appeal. The damage has been done by then; consequently, there is a need to have places where appeals can be taken.
Section 47.5 of A.B. 365 is the modernization of guardianships. It would allow practitioners and the court to remedy fraud, abuse, and exploitation that occurred prior to the imposition of a guardianship while a person was under diminished capacity. It allows the court to take estate planning documents, which have become more common in the last 30 years, after a finding of abuse, exploitation, or undue influence, and alter those documents to make sure the person who committed the abuse, fraud, or undue influence, has not gained from his or her impropriety. Additionally, this section would allow the court to create trusts, which it has never had the ability to do, but has on the local level. There are special needs trusts and income reduction trusts, which are common planning tools these days, but the court has no statutory authority to create them.
Ms. Henry:
From my perspective as the court, section 57 of A.B. 365 is the most important provision. Identifying information is needed on the ward and their guardian. There are missing wards, guardians, and assets, and when the court has 20 “John E. Smiths” living in Clark County, 1000 “John E. Smiths” living in Nevada, and 1 million “John E. Smiths” living in the United States, how does it find the ward, the guardian, and the assets? Unfortunately, society preys upon those less fortunate, the elderly and infirm. The court needs the ability to find these people, get their assets returned, and ensure they receive appropriate care.
Section 93 of A.B. 365 submits trusts to the jurisdiction of the guardianship judge, which is the family court in limited situations. Currently, it needs to be implemented because of one judge/one family. It has been mandated in past legislative sessions and now, as the judicial officer, the court has no ability to take jurisdiction over an inter vivos trust. Unfortunately, when a person is put under guardianship, the court can give their care to somebody by court order, but can do nothing with the money. Court action to confirm the trust to appoint a successor trustee is done in probate court. The courts are in two separate buildings in Clark County. A caregiver running expenses is in one court, however, a successor trustee in another court will not pay over the expenses because a trustee pays at his or her discretion. There are many cases that return to court and there is no jurisdiction over the trustee to force payment of the ward’s medical and personal needs. This needs to stop. It is time for one judge/one family.
Section 95 of A.B. 365 allows a guardian to keep the ward’s assets invested in the stock market, mutual funds, and bonds. Currently, there is no statutory authority to allow a guardian to do so. Society has become more sophisticated and 30 years later peoples’ assets are placed in the stock market, mutual funds, and bonds. The court needs to be able to allow the guardian who takes over the ward’s assets to stay in the stock market because it was a course of action the ward took on himself or herself when competent. Why should his or her assets be removed from a better vehicle and put only into federally‑backed funds?
We provided some proposed revisions (Exhibit I). Ms. Goldsmith and I took the bill we authored across the State and invited interested people to participate, provide input, have meetings and telephone conferences, share E‑mails, and involve the judiciary to the extent anybody was interested. We made changes through the Assembly process and are asking for a couple more changes.
In sections 62, 72, and 107 of the proposed amendment to A.B. 365 (Exhibit I), we are asking the existing language, shown in strike out, be deleted and the italicized information put in through the committee’s work process. These are minor, not substantive changes, which will make people involved in the communication process more secure in the position of the statute. This collaborative effort has been quite time-consuming and I commend everyone who has taken interest in this very important section of NRS. It has been an eye-opening experience to learn the judiciary and attorneys in the State practice differently. We hope in the near future to begin having more open communication which will benefit everybody. I hope you peruse A.B. 365 and realize 30 years is too long to let a bill sit. Society is more sophisticated now and I ask you to pass A.B. 365.
Senator Care:
This bill falls under the purview of “trust me.” When I first read A.B. 365, I thought it was a model act, or modeled after some uniform act that somebody proposed. However, it may not be that at all. As you pointed out, in the course of conversations with the bench and practitioners throughout the State, perhaps it is a product of many concerns on which people have been keeping laundry lists over the years and now there is an opportunity to codify those concerns. It would give me a greater level of comfort if you would elaborate on who worked on the bill because at this late date in the Legislative Session we must rely on the individuals who put A.B. 365 together.
Ms. Henry:
This effort began about 3 years ago and we hoped to bring it forward during the last Legislative Session. Along with some of the probate changes, things became separated, and the bill did not get introduced. It began with approximately six attorneys and Eighth Judicial District Court Judge William O. Voy, working on the changes. Over the course of time, Ms. Goldsmith and I completed our sections, but nobody else had done their part. We saw the writing on the wall and continued work knowing we would have a good product to introduce.
Judge Voy, the prior presiding guardianship judge in Clark County, took an active role in the effort. He knows, not only from his private practice days, but also being the actual presiding guardianship judge, this needs to be done. I submitted a letter from Judge Voy (Exhibit J) in support of A.B. 365.
Judge Robert W. Lueck, the presiding guardianship judge in Clark County, completely agrees with the A.B. 365 overhaul and has no issues with it. I submitted a letter from Judge Lueck in support of the bill (Exhibit K). Judge Gerald W. Hardcastle, the minor guardianship judge in Clark County, was present in the Assembly Committee on Judiciary hearing. He had one issue, but it was addressed and he is happy with the statutes.
Judge Jordan wrote me in October or November 2002, expressing thanks for the time I expended. He indicated I was the first person who ever did a much needed, substantive overhaul in this chapter of NRS. The judge expressed some concerns, however, after multiple e-mail roundtable discussions and telephone conferences, which included all the attorneys across the State who expressed interest, as well as some public agencies. He said the majority would prevail and he would deal with his one issue.
Family Court Domestic Master Carol Cooke, Second Judicial District, has no problems with A.B. 365 and believes the changes are needed. I understand she was recently appointed to preside over minor guardianship cases.
Laura Miles, an attorney representing rural interests, was helpful in tempering the language to ensure that areas not Americans with Disabilities Act‑accessible and individuals who do not have the ability to get to doctors will not be hindered or hurt by some of the language taken for granted in Clark County and, perhaps, Washoe County.
Sheri Cane Vogel, administrator of the Senior Citizens Law Project for the City of Las Vegas, agrees with the changes, although she does not actually practice in guardianship.
Ernest K. Nielsen, who represents one of the pro bono groups in Washoe County, agrees with us, although you may hear a couple of comments from him. We have been working with him and he said he could live with it. Mr. Nielsen suggested some changes, probably next Legislative Session, in the supporting chapter of chapter 159 of NRS.
Others who participated in the project are Kim Spoon and Kathleen Buchanan, public guardians in the State of Nevada. Wendy Rutter, just appointed Lincoln County Public guardian, wrote a letter to the Assembly Committee on Judiciary indicating she would fax a letter to this committee. Her attorney, Phil Dunlevy, a district attorney in Lincoln County, agreed the bill is needed and also wrote a letter in support of A.B. 365.
Assembly Bill 365 emerged out of the Assembly Committee on Judiciary with only a few changes.
Sally Ram, Chief of Elder Rights for the Aging Services Division, participated in roundtable discussions and supports A.B. 365.
The efforts on A.B. 365 have not been secret and everybody wanting to be involved was encouraged to do so. I think you will agree this law is antiquated and now is the time to change it. There are many issues to be considered when planning for Medicaid, trusts, and exploitation. State government, attorneys, judiciary, counties, and even the federal government, due to the Medicaid component, need these changes to adequately protect people under guardianships, such as the elderly, mentally ill, people with some types of disabilities, and minors.
There are cases in which children have been exploited, many times by their own parents who have taken their money. Two girls, whose mother died giving birth to the second, would have each been worth $600,000, but because of their father’s actions, they each walked away with $300,000. A public guardian was appointed after the court did random samplings of cases out of compliance with the law. There had not been an accounting or annual report of the guardian in many years. The guardian was given a citation to appear before the court and it was discovered the money that was supposed to be in a blocked account was no longer there. The bank had released it to the father and over the course of approximately 14 years he purchased a condominium, vehicles, a house, expensive vacations, nice clothes, and items that had no value, with his daughter’s money. After the public guardian of the estate and the girls’ lawyer investigated the case, they found if their investments had been maintained, they would have had $600,000 each.
Those are the kinds of things on which the law needs to be solidified. The gray areas should be cleared up and a cessation of relying on other NRS chapters is needed. The time is now.
Senator Care:
In regard to a court in a foreign jurisdiction, what is the need for sections 2 and 3 of A.B. 365, and how would it work? Should a parent or an interested party be aware of a proceeding in another state, he or she would travel there and intervene. The court in another jurisdiction does not necessarily have to give credence to an order from a court in Nevada.
Ms. Henry:
That is correct. Sections 2 and 3 of A.B. 365 were imported from the Uniform Child Custody Jurisdiction Act. The court does not have the ability to have ex parte communication without a hearing with another jurisdiction regarding a case. Everybody is entitled to be part of it should they assert their presence in the courtroom. This gives the judicial officer in Nevada the ability to call another state when a person who is being put under guardianship has not lived very long in Nevada jurisdiction. Incompetent adults are sometimes kidnapped by a family member and taken to court in another jurisdiction to obtain a temporary guardianship while the petition on their hearing is pending in another state. The court may not realize the incompetent person is unable to take care of his or her own needs and may need medical attention. Consequently, the court will give a temporary guardianship only to discover at the hearing the person only lived in that jurisdiction a short time and is a resident of another state. When discovered, the court is allowed to call the officer, the judge, or the hearing master, to inform them a case is pending and the ward is in that jurisdiction. At that point, a decision must be made to send the ward back, or proceed in the last jurisdiction. The questions must be asked: who has the best contact, who has the best information, and where is jurisdiction?
Senator Care:
I always thought judges, to some extent, do that sort of thing anyway. I know they do it on the federal level.
Ms. Henry:
It is not to be done at the State level. I have attempted to have a conference with judges in other jurisdictions who refused my calls in regard to an active case because it is ex parte communication. The judge is the overseer and could have a problem with the judiciary ethics board of the administrative office of the court. There are different bodies with the ability to reprehend a judge. In that event, judges are afraid to answer calls even when it is in the best interest of people who need a competent person to make decisions for them. Therefore, A.B. 365 would allow courts in Nevada to adopt the Uniform Custody Child Jurisdiction Act under guardianships which would allow the court telephone conferences with another jurisdiction to determine the proper location of a hearing.
Dara Goldsmith, Attorney:
I would like to point out that A.B. 365 is a comprehensive effort of attorneys throughout the State. There have been approximately 20 attorneys, members of the judiciary, and professional and private fiduciaries who assisted in developing this document. Nevada is a state with large metropolitan areas, as well as rural areas, and the needs and requirements are different through the State. That being the case, when Commissioner Henry and I drafted the bill, we were cognizant of the issues and tried to create something that would work for everybody. We though of it in terms of a living document in which there may be local rule additions. We may return next Legislative Session seeking changes in NRS Chapter 253, which are the public guardian/public administrator statutes, and considering licensing for guardians to protect our residents and other individuals throughout the State.
We are surprised the statutes under which we work have operated for 34 years in the fashion they were drafted. The Constitution could not hold all the necessary items within its purview and amendments were necessary, therefore, it is also necessary to add some additional laws. With that in mind, we attempted to draft a document with which everyone could live.
There have been a multitude of issues over the years that were not contemplated in 1969 when the last major overhaul on these statutes was done. At that time, guardianship issues were generally heard by a probate judge. Therefore, the judge applied the same laws saying, “I have this over here in the probate code,” and, in fact, the guardianship code refers to the probate code quite frequently. There are specific references in chapters 143, 155, and 159 of NRS; however, guardianship statutes have not “kept up with the Joneses.” There have been changes to the probate code not specifically enumerated in the guardianship code that have not been applicable. It has been hit-or-miss throughout the State and judges have either applied probate code or considered the practices of other jurisdictions. In any event, the changes and modifications are definitely necessary.
Regarding Senator Care’s model rule concern, last Legislative Session we began with a bill which was a comprehensive rewrite of the probate code and incorporated the provisions modifying the changes to make them applicable for incompetent people or minors who need those requirements. There are many pro pers throughout the State; therefore, in this age of technology, many people do not hire an attorney, they go on-line, copy documents, and accomplish these things without incurring additional fees. It becomes complicated for a pro se litigant without the knowledge to review numerous applicable NRS chapters. We attempted to make it user-friendly because we want people to be able to represent themselves and ensure their rights are adequately protected.
Some of the highlights addressed in A.B. 365 include allowing a temporary guardian to remain in place pending publication or other necessary actions to place the general petition on calendar. Currently, a temporary guardian can only remain in place for a maximum of 40 days. In rural communities, due to the traveling schedules of judges, people are unable to get into court quickly. Because we apply the rules for service of process through Rule No. 4 of the Nevada Rules of Civil Procedure, publication may not be completed prior to temporary expiration. Therefore, a person appointed a temporary guardian would no longer have the power when the clock stops. What do you do in that case? Do you run back to court and do it again? The statute is unclear. We want to clarify the court has discretion to extend guardianship rather than leaving people in peril pending petition on the general appointment. In addition, we do not want to rush the appointment because family members cannot be located and there is not enough time to adequately publish to them and ensure their constitutional rights are protected.
We added noticing of guardianship to minor siblings. There was an unfortunate situation in which two brothers lived with their mother and a half brother lived with their father. The mother and father both died and the half brother was put under a guardianship and adopted. The two brothers were never made aware of it and lost their half brother. This statute would require siblings of guardianship proceedings be notified because there could be ramifications to the family. Even though the minor sibling may not understand the documents, it is essential to provide the information to the legal guardian. We want to keep families together and not destroy those bonds. Unfortunately, in that situation, based upon the rules and sealing of adoption files, the brothers will never see their half brother again.
It is also important to allow the guardianship court to hear matters involving all the ward’s assets. Revocable trusts avoid probate and guardianship. Should anything happen to me, my mother is a nurse and would be quite competent to handle my health care decisions. My father, on the other hand, is an astute businessman and could handle my finances very well. Should they have a falling out, my father, who is in charge of my money, might not agree with my mother’s health care decisions on my behalf. Currently, guardians are responsible for all income placed on an Internal Revenue Service (IRS) 1040 form. In a revocable trust, if property is garnering rent, the guardian is responsible for paying income tax on the ward’s personal tax return. Guardians are held responsible for assets held in revocable trusts over which they have no control. That is a concern. It is also a concern because it affects Medicaid eligibility in the State.
Many counties have issues with regard to funding and financing and not all have county guarantee programs that can pay for care. If a person is ineligible for Medicaid, the county pays the bill and loses the matching dollars from the federal government. We want to be sure Nevada does not lose federal money. Allowing the guardianship court the ability to see all the assets readily available to the ward would diminish problems.
At the present time, in an unpublished opinion, the Nevada Supreme Court stated it would not hear matters in a guardianship until final order of the court. Should a child be victimized or exploited by a guardian, and he or she goes to court, under present statute a judgment cannot be appealed or denied for 40 years or until the person dies. Is that justice? It is the present opinion of the Nevada Supreme Court. The appellate provision needs to be specifically put into the guardianship statutes. Previously we relied upon chapter 155 of NRS which provided provisions for appeal, but were not specifically incorporated into the guardianship statutes. However, judges at the district court level felt they were applicable because the two code sections grew from one. We were advised by the Nevada Supreme Court this is no longer the case. Therefore, in order to ensure justice will continue throughout the State, it is important the provisions be included.
In my 12 years practicing in the guardianship area, I handled approximately 400 cases and presently have an active file of 200 cases, primarily in Clark County. I am impressed that my colleagues, as well as the judiciary, have been able to work with an antiquated code for such a long time. Many have become very creative. The only way to operate within the existing rules under the guardianship code is to “MacGyver it.” Angus MacGyver, of the television show “MacGyver,” could take a rubber band and a rock and create a fuel device to get home, or fix his car with things ordinarily believed to be trash. The existing code is not trash, but antiquated. Nevada is fortunate to have judges and attorneys who can “MacGyver it,” but sometimes it is not possible. The statute needs to be more user-friendly. I ask you to pass A.B. 365.
Senator Wiener:
There is a definition of “exploitation” in a prior Assembly bill. Is the definition consistent with that in A.B. 365?
Mr. Wilkinson:
Yes, the definition of “exploitation” is consistent in both bills.
Ms. Goldsmith:
There are provisions in the guardianship code with regard to exploitation, as well as the provision to which you referred in NRS 41.1395. The difference between the two, and often we need to use both, is under NRS 41.1395, the person who has been exploited, or their representative, carries the burden of proof. Nevada Revised Statutes 41.1395 specifically allows recovery of attorney fees. It is a bit different than what is in chapter 159 of NRS, which allows that action to be specifically brought into guardianship court. Under NRS 41.1395, it can either be brought in an existing guardianship file, or separately in a civil matter. The other difference is the burden of proof under NRS chapter 159, which is incorporated from NRS 143.110.-143.120 in the probate code. After the initial showing, the burden of proof is on the alleged exploiter. There are reasons for using different statutes on recovering attorney fees, who has the burden of proof, and what court is hearing it. They are consistent. We have stayed abreast on the changes that we are looking at in NRS 41.1395, and they operate well.
Kathleen Buchanan:
I will read my written prepared testimony (Exhibit L).
Senator Wiener:
What would happen should market conditions reverse to where it would be in the best interest of the ward to involve a financial advisor in order to make more prudent decisions based on unforeseen things when the person made the original investment? Is that kind of flexibility built in to A.B. 365?
Ms. Goldsmith:
Senator Care introduced a bill with regard to adoption of the prudent investor rule. The prudent investor rule would be applicable if adopted in the State and would set parameters with which guardians would have to live. In the prudent investor rule, a guardian is the fiduciary and would be put in that position. Should A.B. 365 not pass, specifically the section dealing with the ability to request the court to give authority to manage investments, and should the prudent investor rule be adopted, the two entities would be in violation because the guardianship code would be followed which would not follow the rules of the prudent investor. Fiduciaries are held to the standard and there should be laws in place that allow fiduciary guardians to comply with the prudent investor rule. It is an important bill and we were excited at its introduction this session. Guardians can be held liable for poor decisions. Most guardians will employ competent legal counsel and financial consulting services should they not have the capability to do it themselves.
Senator Wiener:
I would like to confirm, at the present time, a person must liquidate assets. Would the prudent investor rule be in conflict because an investor might not make a prudent investment decision to liquidate when he or she could make a substantial investment on behalf of the person whose assets he or she is protecting?
Ms. Goldsmith:
Hypothetically speaking, let us say a person had a well-diversified portfolio and had bought a stock at a low cost. A prudent investor would say, “Your basis in that stock is 9 and it is trading a little higher than that currently. Looking at the facts and circumstances and whether we need a capital loss, we either want to sell, or do not want to sell.” Under current guardianship law, the guardian cannot make that decision. A person could be sitting on American Airlines stock, with their bankruptcy issues, and thinking he or she would be better off holding on to the stock, or selling it. The person would be in a situation in which he or she would have to sell everything. It causes problems with individual retirement accounts and things of that nature. Everything must be changed to cash. The only things authorized by the guardianship code, aside from railroad bonds, must be federally insured items such as treasuries, certificates of deposit, and cash. A AAA bond is not an appropriate investment, therefore, a AAA bond purchased 7 or 8 years ago, paying 18 percent out of a county in California, must be sold and the money put in a bank to earn 1 percent. It is not prudent, but required under the present system.
Kim Spoon:
Commissioner Henry indicated I am a public guardian. I want to set the record straight that I am a private guardian. I worked with the Washoe County public guardian’s office for 6 years, but for the last 4 years I have worked as a private guardian.
Ernest K. Nielsen, Lobbyist, Washoe Storey Conservation District:
I am with the Washoe County Senior Law Project that provides free legal services to Washoe County low-income seniors. Part of our practice is to represent wards in guardianship cases, which gives us somewhat of a unique perspective with respect to A.B. 365. We may be the only testifying group focused solely on representation of wards. We support A.B. 365 and thank practitioners around the State who contributed to making it a better bill.
We generally endorse the three proposed amendments, but would like to see the language of section 107 of A.B. 365 go a bit further. We are especially concerned about payment of attorney fees from wards’ estates. Most of the wards we represent are poor. We understand the financial engine for guardianship practices are borne by the ward’s estates, however, most that we represent have no assets, or very few assets, and very little income. Thus, we worry about payment from their meager estates and how it may jeopardize the ability of guardians to provide them sustained, proper care.
Frequently it is appropriate to keep people in the least restrictive environment of their homes rather than nursing homes. It is more expensive to keep people in their homes and generally where the meager assets are applied. Obviously, going to a nursing home is less costly to the guardian, but more costly to taxpayers.
The question regarding the amendment to section 107 of A.B. 365 is, what is the extent of the power of the discretion and approval of the court? We vigorously wish discretion and approval include the ability to deny, reduce or delay payment of attorney fees based on the financial status of the ward. We proposed to our colleagues more specific language, taken from paragraph 2 of NRS 253.230, but understand it would draw opposition. Instead, we are trusting our colleagues that the term “discretion and approval” in the proposed amendment to section 107 of A.B. 365 gives power to the court for discretion to deny, reduce, or delay the payment of attorney fees based on the financial status of the ward.
We understand it is bolstered by the fact an attorney who represents the guardian has a duty to pursue the best interest of the ward. We would like some word from the committee to basically confirm the discretion and approval language encompasses the ability of the court to deny, delay, or reduce attorney fees from the ward’s estate based on financial ability. In that event, we would be satisfied with A.B. 365.
Lora E. Myles, Lobbyist, Carson and Rural Elder Law Program (Care Law):
I run the Carson and Rural Elder Law Program covering guardianships and other legal services for seniors in the 15 rural counties. We wholeheartedly approve of A.B. 365. It addresses several issues that have come up before the courts with guardianships in the rural counties. I think the bill is very much needed.
Ms. Henry:
I am the judicial officer in Clark County who reviews attorney bills. I routinely itemize bills to decide whether or not the attorney is value billing, the services warrant the rate charged, and whether or not paralegal services warrant that rate. I exercise discretion. I am concerned that should the word “discretion” be removed and enumerated factors put in, expenses would increase and pro per family members would not understand and want to discuss the nature ofliquidity. I would not have the ability to consider extra factors and my discretion to decide whether or not attorney fees are warranted would be limited. It would increase the cost of litigation with the pro per community and tie the hands of the judiciary.
There is a big difference between the activities of Clark County judges and other judges around the State and we hope to work on a consensus over the next 2 years. I respect Mr. Nielsen’s perspective and understand his concerns, but I feel my hands would be tied and I would be unable to appropriately exercise my judicial duties. As a commissioner, I walk a very strange line as a member of the judiciary. I sit in court and deal with people and attorneys who are not well versed in guardianship and do not know about Medicaid planning, counting guarantees, or available social services.
At times I almost act as an advocate as a member of the judiciary to prepay bills and fees to get individuals to the level where they are not required to come to court every year due to a summary administration provision. If a person’s assets are below $5000, he or she is in summary administration and there is no yearly requirement to return to court. On the other hand, should their assets be left at $5500 the following year, their attorney is involved and they must spend $1000 to return to court. With the discretion to approve a few more fees, I could prevent the court visit and save their money.
An attorney cannot get out of a guardianship case without a specific court order. Other provisions of law mandate filing a Rule 46 withdrawal when the attorney’s services are complete. Guardianship services are never done until the guardianship is terminated by order of the court or death of the ward.
Please do not tie my hands. Give me the discretion. Trust the judiciary. Attorneys need to educate the judiciary as to the meaning of discretion. There is case law on how to evaluate attorney services in these cases. I know what the law says, I can exercise discretion, I do it every day. Yesterday I had a stacked guardianship calendar, took five attorneys’ bills and slaughtered them because I did not agree with them. I am the gatekeeper. I protect the ward, but also pay those who render services to make the ward’s life better. Please leave A.B. 365 as is and let members of the judiciary and bar discuss the differences and the manner of practice across the State to arrive at a consensus. Please give the judiciary some credit.
Chairman Amodei:
Mr. Wilkinson, there is a request to obtain the unpublished Nevada Supreme Court opinion referenced in the testimony for the committee’s review.
The hearing is closed on A.B. 365 and opened on A.B. 448.
ASSEMBLY BILL 448: Clarifies provisions governing arrest involving violation of order for protection against domestic violence. (BDR 3-448)
Ms. Hart:
For the past 5 years, my work as a deputy attorney general focused on Statewide projects and issues concerning domestic violence. I am here to present A.B. 448, a bill that makes a small, but important, clarification to Nevada law regarding misdemeanor arrest for violations of protection orders against domestic violence. The attorney general’s office submitted this bill to clarify a law enforcement officer can make an arrest for violation of a protection order against domestic violence, whether or not the violation occurs in the officer’s presence, and if the officer has probable cause to believe the adverse party violated a protection order.
This bill is based on feedback from law enforcement officers during the Statewide Law Enforcement Protocols and Training Project, otherwise known as LEPT. Briefly, the LEPT is funded by the world domestic violence enforcement grant under the Office on Violence Against Women of the U.S. Department of Justice. The project is an ongoing collaborative effort between Peace Officers’ Standards and Training (P.O.S.T.) and the attorney general’s office to train officers to increase enforcement of domestic violence protection orders. The current protection orders law, at NRS 33.070, states an arrest for violation of a protection order must be made if there is probable cause to believe a violation occurred. The existing language can be seen in section 1 of A.B. 448. Reference to probable cause in the current provision implies the violation need not be in the officer’s presence and current practice among officers is, for the most part, consistent with that. This bill simply clarifies and codifies what is generally understood and practiced.
This change was made in NRS 33.070 because Nevada law, concerning workplace harassment orders, which is also NRS 33.320 passed last session, already provides arrests may be made based on probable cause a violation occurred, whether or not it occurred in the officer’s presence. Therefore, A.B. 448 simply makes those two arrest provisions in chapter 33 of NRS consistent for those related orders.
I have distributed a highlighted copy of two pages from A.B. No. 170 of the 69th Session (Exhibit M), which was an omnibus domestic violence bill passed in 1997. On page 2 (Exhibit M), section 14 of A.B. No. 170 of the 69th Session, you will see in 1985, NRS 33.070 was first enacted and this is the only amendment. It replaces language that says the officer must witness the violation with probable cause. It is clear when looking at legislative history, in removing witnessing and replacing it with probable cause, the intention was it need not occur in the officers’ presences. All we are asking is the law state clearly that is what it means.
Larry Stout, the training consultant for the LEPT, accompanied me to this hearing. We also planned to have Veronica Frenkel, Statewide domestic violence ombudsman, however, she was unable to attend. I submitted her letter (Exhibit N) which provides more background on the law enforcement training project. On Ms. Frenkel’s behalf, I want to say the project is an ongoing collaborative effort to train officers. It has been a great consultative process by which we receive feedback from law enforcement and then give back some needed tools to improve their efforts. Assembly Bill 448 will accomplish it by clarifying the law.
Larry Stout, Project Consultant, Law Enforcement Protocol and Training Project, Office of the Attorney General:
The LEPT is an ongoing collaborative effort between P.O.S.T. and the attorney general’s office to train law enforcement officers with respect to enforcement of domestic violence protection orders around the State. I am also a retired Nevada law enforcement officer, spent 10 years as the executive director of Nevada P.O.S.T., and have had experience training law enforcement officers in the State.
I emphasize, A.B. 448 is a direct result of input received from the law enforcement community by the project. In spring of 2001, a phase of the project began with the objective of drafting a model policy or protocol for enforcement of domestic violence protection orders in the State. To begin, a project team comprised of professionals, not only from the law enforcement community, but the judiciary, prosecutor’s offices, and advocacy organizations around the State, was created. This project team drafted a model policy that was sent out to the law enforcement community throughout the State, all prosecutors, and advocacy agencies. These entities reviewed the policy and five advisory group meetings were held around the State and representatives came from various organizations to provide input regarding the model policy. The response was gratifying and there were a number of “light bulb” responses from the law enforcement community. From that, we drafted a final policy which was endorsed by the Nevada Sheriff’s and Chief’s Association in September 2001.
Other outcomes of advisory group meetings were input from law enforcement about probable cause arrest for domestic violence protection orders. They said the academies train them to make probable cause, warrantless arrests, on domestic violence protection orders. It is their common practice to do so. Nevada Revised Statutes 33.020 enables law enforcement to go to a workplace on a domestic violence protection order and make a probable cause arrest. However, NRS 33.070 does not say that. Why not? That is how A.B. 448 came about and the attorney general’s office presented it as one of its bills for this session.
I ask you to support and pass A.B. 448. It clarifies the issue for law enforcement throughout the State, makes their job easier, and makes it consistent with the rest of the statutes.
Senator Care:
On the one hand, A.B. 448 spells out already existing law and a warrant is not needed to do this. Am I supposed to read between the lines that, in some cases, arrests are not made because law enforcement determines there are more important things to do? I need to hear testimony from law enforcement and prosecutors. We are discussing protocols and models, however, I do not know whether there is something more to this. I have difficulty putting in a law that is already a law. If the argument is law enforcement does not understand the law and it needs to be in statute, I guess I need to hear from law enforcement. If it is a problem with particular departments, I would like to know that as well.
Ms. Hart:
It arose out of the project which was very consultative in nature and involved advisory group meetings throughout the State with law enforcement officers. Many officers understand they have had the ability under existing law, but last session the workplace harassment order was passed, which created a difference in the language of the statute. We want to remove any doubt there is any difference between the two forms of orders and how one can arrest on them. It was integrated into training on an ongoing basis and we continue to update the knowledge.
Chairman Amodei:
I am concerned about the language “may make an arrest,” and the analysis says this is done currently. For the record, it would be good to have statements of actual operational law enforcement people. Clearly, we are talking about whether or not law enforcement will be doing it anyway, or subjecting themselves to potential claims based on those sorts of things. Although I do not have a problem with the concept, I think it would be helpful to have the operations people on record saying whatever they see fit to say in the circumstances.
Robert Roshak, Sergeant, Las Vegas Metropolitan Police Department:
We are currently doing what A.B. 448 is attempting to change and see no reason to add this to it.
Senator Care:
How are officers who have been on the force for 5, 10, or 15 years trained on new procedures?
Sgt. Roshak:
There are different ways to communicate new procedures. Once the Legislative Session is over and statutes are changed, a publication is distributed. We are also required by P.O.S.T. to have 24 hours of training, including in‑service training, which covers a myriad of law enforcement areas officers can take as elective training to keep up to date. Any significant changes invoke mandatory training to bring everyone up to speed.
Senator Care:
I know law enforcement is busy, particularly in a county with a fast-growing population with more crime. How does an officer on the street treat violation of a protective order? Is there a potential to set it aside to handle what is perceived more important, or is every effort made to effect an arrest when there has been a violation? Is it done on a case-by-case basis?
Sgt. Roshak:
In some ways it is done on a case-by-case basis, depending upon the information provided to the officers. Should they be given substantial information on the location of the suspect and he or she can be placed under arrest, it is done. In other instances, the victim may not know the location of the suspect. In that event, we gather what information we can and forward it to the respective unit investigating those cases.
Mr. Nadeau:
For the most part, we do it now. If the language helps clear up confusion with some officers on making probable cause arrests, it should be added. We take domestic violence, temporary restraining orders, extended orders, and those kinds of violations very seriously and make arrests. In some cases, we must follow through immediately because of the violent nature of these types of situations. They are a priority when there is a violation.
Ms. Erickson:
The general rule is police officers cannot arrest on misdemeanors that occur outside their presence. Therefore, if this legislation would clear up the question of whether or not they can arrest without a warrant on a misdemeanor, it would certainly be helpful. On gross misdemeanors and felonies, they can arrest based simply on probable cause. Assembly Bill 448 would clarify the issue and give officers more authority regarding when and where they cannot arrest.
Ms. Kaiser:
I support A.B. 448. Anything that strengthens law enforcement response to arrest is appreciated. There have been many cases in which arrests have not been made. I think it will clarify the law and make it easier for law enforcement to do what they need to do. It will protect more victims and I urge your support for A.B. 448.
Senator Care:
It is unusual to have a bill asking to put something in law that is already in law. I have to assume there is a story behind it because these things do not just pop up without coming from somewhere. If it will help, the committee will pass A.B. 448, but I think we have every right to know the reason the bill came before us and how it got here.
Chairman Amodei:
The hearing is closed on A.B. 448.
There being no further business to come before the committee, the meeting is adjourned at 10:30 a.m.
RESPECTFULLY SUBMITTED:
Barbara Moss,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: