MINUTES OF THE

SENATE Committee on Judiciary

 

Seventy-First Session

February 27, 2001

 

 

The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:30 a.m., on Tuesday, February 27, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada.  The meeting was videoconferenced to the Grant Sawyer Office Building, Room 4401, Las Vegas, 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 A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

 

STAFF MEMBERS PRESENT:

 

Bradley A. Wilkinson, Committee Counsel

Allison Combs, Committee Policy Analyst

Carolyn Allfree, Committee Secretary

 

OTHERS PRESENT:

 

Robert E. Rose, Associate Justice, Nevada Supreme Court

A. William Maupin, Chief Justice, Nevada Supreme Court

Robert Crowell, Lobbyist, Nevada Judges Association

William Rogers, Judge, Dayton Township Justice Court

Kimberly Maxson Rushton, Legislative Liaison, Office of the Attorney General

Matthew Dushoff, Deputy Attorney General, Office of the Attorney General; President Elect, Nevada Coalition Against Sexual Violence

Terri Miller, Member, SESAME (Survivors of Educator Sexual Abuse and Misconduct Emerge)

Steve Williams, Lobbyist, Washoe County School District

Ben Graham, Lobbyist, Clark County District Attorney

Theresa Malone, Member, State Board of Education and State Board for Occupational Education, Department of Education

Keith Rheault, Deputy Superintendent for Instructional, Research, and Evaluative Services, Department of Education

 

Chairman James explained Bill Draft Request (BDR) 15‑1299 and requested a motion for its introduction.

 

BILL DRAFT REQUEST 15-1299:  Authorizes state agencies and local governments to adopt more stringent restrictions governing tobacco and products made from tobacco than restrictions imposed pursuant to state law under certain circumstances.  (Later introduced as Senate Bill 258.)

 

            SENATOR WIENER MOVED TO INTRODUCE BDR 15-1299.

 

            SENATOR WASHINGTON SECONDED THE MOTION.

 

            THE MOTION CARRIED.  (SENATORS MCGINNESS AND TITUS WERE            ABSENT FOR THE VOTE.)

 

*****

 

Chairman James opened the hearing on Senate Concurrent Resolution (S.C.R.) 11.

 

SENATE CONCURRENT RESOLUTION 11:  Endorses creation of business courts in Second and Eighth Judicial Districts through adoption of court rules developed by Business Court Task Force. (BDR R-253)

 

Robert E. Rose, Associate Justice, Nevada Supreme Court, stated that business courts now exist in Nevada in the Second and Eighth Judicial Districts.  They provide for the handling of business cases in a speedy and uniform manner and, although it is too early to judge the effectiveness of business courts, he said he believes they will have a positive effect on the entire court calendar.

 

A. William Maupin, Chief Justice, Nevada Supreme Court, said the district courts in Washoe and Clark Counties have been experimenting over the past 4 or 5 years with new case-management techniques in order to increase productivity and quality.  Specialization has worked very well, and introduction of the business court is seen as another way to improve case management and improve the efficiency of the court system overall, he said.

 

Chairman James asked Justice Rose to explain how the concept of the business court came about and how it is expected to progress.  He noted that it was conceived as an amendment to the Nevada Constitution.

 

Justice Rose explained that he had observed the business court in Delaware and talked with its chancellor.  The Delaware model looked promising but required amending the Nevada Constitution, which is a long process and does not allow great flexibility.  He thought the approach taken by the State of New York, which established its business court by court rule, was a better model for Nevada.  He asked the committee to allow him to form a business court task force to study the feasibility of forming a business court by court rule.  The task force studied all the business courts in the United States and reported its findings to the committee.

 

Forming the business court by court rule rather than by constitutional amendment allowed for flexibility to appoint judges and revise the jurisdictional requirements, as needed, Justice Rose explained.  Accordingly, rules in the Second and Eighth Judicial Districts were amended to include business courts.  The committee adopted the rules and established business courts in those districts.  Justice Rose pointed out that the process took 11 months, where it would have taken 4 or 5 years by constitutional amendment.

 

Chairman James asked if the judgeships would rotate.

 

Justice Rose responded that, to be constitutional, they must rotate in some fashion.  However, whoever is assigned to business court must be competent to handle business matters.  A constitutional amendment would be required to allow a judge to stay in business court in perpetuity.

 

Justice Maupin said an advantage of amending the Nevada Constitution is that lawyers specializing in business law might be attracted to run for the positions.  He noted that there would still be flexibility for people from general jurisdiction to assist in business court, if necessary.

 

Senator Porter asked whether the process provides litigants with an option for business court.

 

Justice Rose replied that a request must be made for transfer to the business court docket when a suit is filed.  Then the business court judge determines whether the case is appropriate for the business court, and that determination is not appealable.

 

Justice Maupin explained that a suit against a business for product liability is not subject to management by the business court, for example.

 

Chairman James commented that he hopes businesses incorporating in Nevada will feel confident that litigation will be handled with speed by knowledgeable people as a result of the establishment of the business courts.

 

Chairman James closed the hearing on S.C.R. 11 and opened the hearing on Senate Bill (S.B.) 182.

 

SENATE BILL 182:  Removes authority for private person to take arrested person before nearest magistrate following arrest. (BDR 14-527)

 

Robert Crowell, Lobbyist, Nevada Judges Association, spoke in support of S.B. 182.  He said the bill does not affect the right of a person to make a private arrest, and Judge William Rogers would explain it.

 

William Rogers, Judge, Dayton Township Justice Court, explained that the bill simply changes the method for private-person arrests.  Currently, a private person making an arrest without a warrant must take the arrested person to the nearest available magistrate.  The proposal being offered provides, instead, for the person making the arrest to deliver the arrested person to law enforcement.  Then law enforcement would take the arrested person before a magistrate.

 

Senator Wiener asked what prompted this now.

 

Judge Rogers said there has been some controversy involving the justice court and the district attorney’s office wherein the issue of private-person arrest came to the forefront.  Although it has not been a problem, they wanted to make a preemptive strike to prevent problems in the future, he said.

 

Senator Care stated, in looking at the statute, he found no case law annotations.  He asked what is happening in other jurisdictions.

 

Judge Rogers replied that, generally, law enforcement needs to be involved when a person is taken into custody.  If a person were dropped off at the judge’s house or at the court when it is in session, law enforcement would be called upon.  There are procedures that law enforcement is trained to carry out and magistrates do not have the ability or expertise to do, he said.

 

Chairman James noted that the law requires a peace officer making an arrest under a warrant to take the arrested person, without unnecessary delay, before a magistrate.  But there appeared to be no provision for follow-up if a private person were to make an arrest and take the arrested person to a peace officer, rather than a magistrate.

 

Mr. Crowell responded and said he thought this was dealt with in section 1, on line 6, of the bill where the words “by the peace officer” are added.

 

Chairman James pointed out that section 1 refers to a misdemeanor arrest.  He said they needed to add something to the bill to make it clear.

 

Judge Rogers said he thinks it is covered in subsection 3 of section 2.

 

Chairman James agreed.  But, he said, what is missing and ought to be clarified is a statutory mandate to the peace officer to take the person, without unreasonable delay, to a magistrate.

 

Senator McGinness asked Judge Rogers to explain the history of the language, “taking a person to the nearest magistrate.”

 

Judge Rogers replied that, historically, an arrested person was taken directly to a magistrate and justice was handed out right then.  He said issues are handled differently today because of significant rules and regulations and due process concerns.

 

Chairman James closed the hearing on S.B. 182 and opened the hearing on S.B. 183.

 

SENATE BILL 183:  Revises provisions governing sexual conduct between pupils and persons in position of authority at schools. (BDR 15-483)

Kimberly Maxson Rushton, Legislative Liaison, Office of the Attorney General, explained that S.B. 183 attempts to amend Nevada Revised Statutes (NRS) 201.540 to expand victims’ age to include 14- and 15-year-olds, and category of defendant to include all persons in positions of authority, including volunteers.  She introduced Matthew Dushoff and Terri Miller, who testified from Las Vegas.

 

Matthew Dushoff, Deputy Attorney General, Office of the Attorney General, and President-elect, Nevada Coalition Against Sexual Violence, said that during the past 8 months certain incidents occurred that have brought the need for specifically protecting 14- and 15-year-olds from educator sexual misconduct to the attention of the coalition.  He said sexual misconduct in the school setting, where educators are in a special position of authority and trust, is distinguished from ordinary sexual seduction covered under statutory seduction law that applies to anybody having sexual contact with somebody under the age of 16.  Children are particularly vulnerable in teacher-student relationship, he said.

 

Chairman James asked how the cases Mr. Dushoff referred to came to light.

 

Mr. Dushoff responded that one incident, which occurred in a parking lot in San Diego, was observed by a security guard and reported to law enforcement.  He said the case is being handled by the district attorney’s office, and they have the details.  Mr. Dushoff said he does not have the specific facts in the cases.  He knows the teachers involved have been charged with sexual assault and the prosecutions are going forward.

 

Mr. Dushoff testified that during the past few weeks incidents have occurred involving volunteers.  That is what the second part of the bill is about.  He said college interns, student teachers, parents, and other volunteers should be held to the same standard as others in positions of authority and trust, and this should be spelled out in the law.

 

Senator Wiener questioned why children under 14 were not included.

 

Mr. Dushoff said they felt there was a gap in the law with regard to children 14 and 15 years old.  He explained that children under 14 are covered under NRS 201.230, which provides that any type of sexual contact other than intercourse is punishable as a Category A felony, with 10 years to life in prison, and Bill Draft Request 15-482, to be introduced shortly, will increase the penalty for statutory sexual seduction involving intercourse with a child under 14 punishable as a Category A felony, with 15 years to life.

 

Senator Care suggested that the language in the statute did not cover the scope intended.  He said a college intern might be under the age of 21, and he wondered if the statute contemplates a volunteer under the age of 21.  In addition, he said he does not understand what a volunteer is.  Subsection 3 of section 2 lists a volunteer’s activities.  He said employment dates can be easily established, but a volunteer might deny he was working on a given date.

 

Mr. Dushoff said the volunteer section covers trips, and a volunteer under 18 would be included.  He said the intent was to include any person in a position of authority and trust, not just a teacher or employee.

 

Ms. Rushton said a person under the age of 21 would be charged with a gross misdemeanor under NRS 200.368.

 

Senator Care said that was his question.  Was the person under the age of 21 covered under an existing law or did he need to be included under this bill?

 

Ms. Rushton replied that he was covered under another law.  In addition, S.B. 183 included someone who is “deemed to be . . . in a position of authority.”  She said they were focusing on what a child perceives as a position of authority, whether a counselor, custodian or volunteer.

 

Senator Wiener suggested “without limitation” language might be appropriate under subsection 3 of section 2, in the event there is something not foreseen.

 

Senator McGinness recalled that two sessions ago when this statute was put into place many legislators thought educator sexual misconduct was a very limited problem; however, since the law has been in effect it has been used many times.

 

Chairman James agreed, and said something is very wrong out there, there are so many cases.  Stronger laws must be passed to provide the tools needed for prosecuting the cases once they emerge.

 

Terri Miller, Member, SESAME (Survivors of Educator Sexual Abuse and Misconduct Emerge), spoke in support of S.B. 183, saying it fine tunes NRS 201.540.  She said the perpetrators hand-pick vulnerable pupils to methodically groom them to gain their trust.  “In essence, they rape their mind and then they rape their body.”  She said she has talked to victims and heard their stories, and was “not overstating the fact that this crime destroys lives and sometimes ends them.”

 

Senator Porter asked what the conviction rate is with these cases.

 

Ms. Rushton said she thought all prosecutions had been successful, but she would have to confirm that.

 

Senator Care noted that, according to the bill, if a 27-year-old teacher seduces a 15-year-old student, the seduction constitutes a Category B felony.  He asked what happens if a 15-year-old drops out of school, perhaps in large measure because of an infatuation with a 27-year-old teacher, but the seduction does not take place until after the child has dropped out of school.

 

Mr. Dushoff replied that it would be covered if it were proven the relationship existed while the student was still in school.  Additionally, it would come under the ordinary sexual seduction laws.

 

Senator Care clarified that he was asking what would happen if the seduction did not take place until after the student had dropped out of school.

 

Ms. Rushton said that was covered under another statute as a Category C felony.  She said they could reconcile the statutes, but what they were attempting to do was draw attention to the relationship that occurs within a school setting.  Where someone is in a position of authority -- instructing, mentoring, counseling -- they wanted to make the penalty more stringent.  The authority and control is what leads to the seduction in this particular setting.

 

Senator Care said the point he was making was that a 15-year-old is not going to make the distinction, and the damage is the same.

 

Steve Williams, Lobbyist, Washoe County School District, spoke in favor of S.B. 183 and agreed with Senator Wiener regarding expanding the definition of volunteer.

 

Ben Graham, Lobbyist, Clark County District Attorney, said prosecutions have been successful in all the cases, under both the old law and the new law.

 

Senator McGinness asked Mr. Graham if he saw any loopholes in the current law, other than those this bill is trying to address.

 

Mr. Graham said he has not seen any loopholes or unintended consequences, and he thinks this bill is appropriate.

 

Theresa Malone, Member, State Board of Education and State Board for Occupational Education, referred to line 5 on page 2 of S.B. 183, and said she too is concerned about the issue of children under 14 and hopes it will be resolved.

 

Keith Rheault, Deputy Superintendent for Instructional, Research, and Evaluative Services, Department of Education, stated that the department is strongly behind S.B. 183.  He explained that the department has authority over licensed personnel only, and he submitted a summary of licenses revoked during the past 10 years (Exhibit C).  He said the most prevalent reason for revocation is sexually related crime with students.  He said the state board revokes the license after there is a conviction.  The name of the teacher whose license has been revoked is sent to a national clearinghouse to prevent the teacher from getting back into the classroom.  Mr. Rheault agreed that volunteers should be held to the same standard as licensed personnel and background checks should be made on them, also.

 

Senator Porter inquired about the first person charged under the act, whose name was not on the list.

 

Mr. Rheault explained that he was not on the list because he was employed by an exempt private school.  Under the exemption, the school is not required to have state licensure.  The teacher was guilty of the crime, but did not have a license to revoke.

 

Senator Porter asked if there was a way they could keep track of these people.

 

Mr. Rheault said it would be difficult to do unless private school teachers were required to be licensed.  In 1979, when the private school act was enacted, the two large Catholic high schools, and possibly one other private school, were exempted from the regulation.

 

Senator Porter asked if there was any kind of reporting system in place with the private schools.

 

Mr. Rheault said the schools would generally tell the Department of Education of someone who was arrested.  But, the Department of Education does not have the authority to do anything, he said.

 

Senator Care asked Bradley A. Wilkinson, Committee Counsel, and Allison Combs, Committee Policy Analyst, to review the suggested amendment concerning the words “without limitation.”  He asked Senator Care to work on language addressing his concerns about the school dropouts.

 

Chairman James closed the hearing on S.B. 183.  There being no further business, the meeting was adjourned at 10:00 a.m.

 

 

RESPECTFULLY SUBMITTED:

 

 

 

                          

Carolyn Allfree,

Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Senator Mark A. James, Chairman

 

 

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