MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session February 2, 1995 The Committee on Judiciary was called to order at 8:35 a.m., on Thursday, February 2, 1995, Chairman Anderson presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Lt. Stan R. Olsen, Las Vegas Metropolitan Police Department Richard L. Meyers, Director Personnel Bureau, Las Vegas Metro Louis Ling, Nevada Deputy Attorney General Kevin W. MacDonald, Executive Secretary, Nevada Board of Pharmacy F. T. MacDonald, State of Nevada Labor Commissioner Frank Barker, Deputy Chief, Technical Services, Las Vegas Metro Ben Graham, Nevada District Attorney's Association Dr. Earl Nissen, private citizen John W. Riggs, Sr., National State Rifle and Pistol Association Richard Johnson, Nevada Association of Employers Michael Langton, Nevada Trial Lawyers Association David Sarnowski, Nevada Chief Deputy Attorney, Criminal Division Ray Bacon, Nevada Manufacturers Association Pat Justice, Clark County Deputy Public Defender Gaylyn Spriggs, Rayrock Mine Chairman Anderson informed the committee members the Ohio case referred to in committee on Wednesday, February 1, 1995, and the Statute of Limitation chart reduction from Nevada Trial Lawyers was contained in their file folders. Chairman Anderson advised the committee they should have received Agendas and information regarding the adjournment in Las Vegas. Chairman Anderson asked Lieutenant Stan Olsen from the Las Vegas Metropolitan Police Department to come forward to discuss the ride-a-long program that will be offered the committee members during the adjournment in Las Vegas, February 6-17, 1995. Mr. Olsen welcomed the committee members to take advantage of the ride-a-long program and recommended the swing shift, starting at 3:00-4:00 p.m., considering their schedule. Also, they will be asked to sign a release if they partake. Most of the officers enjoy the ride-a-long so the committee should be encouraged to attend and they can make a preference as to the district they would like to ride. ASSEMBLY BILL 3 - Increases penalty for possession of stolen firearm. Chairman Anderson stated there was an error in drafting A.B. 3 and the amendments have already been made. Mr. Dennis Neilander explained Kim Morgan, the Assembly Bill Draft Advisor, noted that what came out actually weakened the penalty due to confusion between the bill drafter and the requester. The proposal before the committee at this time is intended to comport with the way the bill should have been drafted originally. Chairman Anderson read the amendments into the record as follows: Amend section 1, page 1, line 26, by deleting "6" and inserting "10", and Amend section 1, page 1, line 27 by deleting $5,000" and inserting $10,000." Amendment No. 5 is attached hereto as (Exhibit C). Chairman Anderson opened testimony by calling forward Mr. Ben Graham, Nevada District Attorney's Association and Mr. Frank Barker, Las Vegas Metropolitan Police Department. Mr. Barker shared with the committee the intent of A.B. 3 being a part of the bills attacking violent crime and helping the department deal with it. A.B. 3 increases the penalty in certain cases on thefts of firearms that in the past were misdemeanors but would now bring all firearms to the felony level. In addition, those offenders should be more severely punished without some of the past burdens of proof necessary relating to stolen firearms. Mr. Barker acknowledged other bills being introduced along the same lines as A.B. 3, specifically a bill by Assemblyman Stroth that it goes further in establishing elements of proof and in fact he prefers her bill over the one he has requested. He stated that in the prosecution of stolen property cases they have to establish the value of the stolen firearm by taking it to an appraiser. Thereafter, they have to decide if it is a misdemeanor or felony. If it is over $250 in value, under the current law, they have to supply testimony of the appraiser in court, which causes the state money. This bill would make it more efficient and less costly by putting firearms in the same category as stolen vehicles--a felony. It would simplify the jobs in the police department, it would help get the firearms off the street, it would help them deal with some people prior to violent crimes being committed with these firearms. Mr. Graham provided testimony about the impact of A.B. 3 as it relates to the Clark County District Attorney's office. Mr. Graham acknowledged the fear that would be among most everyone-- that an innocent person may be subjected to prosecution if they have a firearm in their possession that they did not know was stolen. He explained that in order to be prosecuted you would have to show that the person possessing the stolen item "knew or should have known" that it was stolen. Acknowledging this as a subjective standard, a discussion was held regarding the possible problems in identifying stolen items--how they were purchased, and where they were purchased. He felt the further removed you are from a theft the less likely a person would know it was stolen. Mr. Graham felt the concept of A.B. 3 was also a person could be killed just as easily with a $5 gun bought at a "Saturday Night Special" or a $650 gun--yet the penalty would be different based on current law. He also stated you cannot obtain good title from a thief. So if you purchase a gun and later go to register it and find out it is stolen, you may have to give it back. Mr. Barker related statistics that from April, 1994 to October, 1994, the Las Vegas Metro arrested and charged 32 people with possession of stolen firearms. That is the number of guns being picked up off the street. Approximately 65% of these are charged with misdemeanors because the value the weapon is appraised at is less than $250.00. A.B. 3 would enable them to charge the person with a felony and deliver the message that this is a serious crime. Chairman Anderson asked if the language in section 1, subsection 4, line 24, "regardless of its value" is what broadens the scope of the statute. Mr. Barker stated yes. Ms. Buckley agreed the goal of getting stolen firearms off the street and having increased penalties was a good idea; however, how would this affect the prison system and reserving that space for the violent offenders? Mr. Barker felt that with his earlier statistics it would be roughly 20 more people charged with a crime and the prison time would depend on many factors. There certainly would be an impact but it is their position that those people possessing these firearms should be taken off the street. Mr. Graham added that his review of these cases show that these people are most often new offenders that just finally got caught. The most serious impact then would be into the parole and probation department rather than a repeat offender situation. Mr. Perkins relayed his experience during his campaign was that people do not feel safe in their own homes partly because of the growing juvenile gang crime in southern Nevada. He has had gang members tell him they will specifically seek out a certain weapon because they know if they are caught with it, absent another crime, it is only a misdemeanor. He believes this bill would go a long way in removing the guns from the street and that guns of lesser value will kill you just like a gun of a higher value. He added that if someone is in possession of a stolen firearm and has not used it yet they are often just in a holding pattern until such a violent crime occurs and then they have become involved in the type of crimes that have such an impact on our communities. Chairman Anderson informed the committee that A.B. 3 would most likely be reagendized to be heard with Ms. Stroth's bill A.B. 108 so this would not be the only testimony on the subject. Mr. Sandoval asked Mr. Graham if they were using a standard definition of firearm. Mr. Graham stated it is already in a statute so it did not have to be defined each time. Mr. Sandoval referred to A.B. 123 wherein that bill refers to 18 U.S.C. 921 and wondered if that was consistent with their definition. Mr. Sandoval's concern was inconsistency in the definitions of a firearm. Mr. Neilander interjected that it addressed a federal definition whereas A.B. 3 amends Chapter 205 which includes a state definition that is referred to throughout the Nevada Revised Statutes (NRS). Ms. Buckley read into the record the definition of "firearm" from NRS Chapter 202. Ms. Steel asked about the district attorney having to prove if a weapon was stolen or not stolen and wondered how heavy a burden that was. Mr. Graham did not respond directly. Mr. Barker concluded by stating if someone were to come in to register a weapon and it is found to be stolen, the firearm is kept and the weapon is impounded. Normally, people are not charged because they feel if they are honest enough to come in and register it they are not generally the people they are worried about. Mr. Carpenter wondered if that same person came in to register the firearm and it is determined it is stolen and then impounded, does he get the gun back later on or is it lost entirely. Mr. Graham stated it would go back to the original owner who reported it stolen in the first place. Mr. John W. Riggs, Sr., from the Nevada State Rifle and Pistol Association spoke in support of A.B. 3 with one amendment changing the word "shall" to "may" on line 25 on A.B. 3 and line 19 on A.B. 108. Mr. Riggs read from his prepared statement (Exhibit D) which supports A.B. 3 providing the wording is changed as mentioned so the courts have more latitude in the instance of an innocent individual having a stolen weapon unknown to him. Mr. Dave Sarnowski, Deputy Attorney General, Criminal Division, spoke in support of A.B. 3 and they concur that the word "firearm" should be defined in order to eliminate any legal challenges. He also requested the bill, when effective, only apply to crimes committed after the effective date so there are no ex post facto claims defendants. He will provide the committee with more statistics before A.B. 108 is heard. Mr. Sarnowski stated that the "shall" language is consistent with all other criminal statutes and it does not absolutely mandate that a person found in possession of a stolen firearm must be in prison but rather a large amount of the offenders may be subject to supervision by the parole and probation. However, if an ex-felon is found in possession of a stolen firearm they may be charged with two separate charges: ex-felon in charge of a firearm; and possession of a stolen weapon and at that point you have upted the anie on this individual. He believes the "shall" language should remain. Chairman Anderson stated that A.B. 3 would be reagendized for Las Vegas along with hearing A.B. 108 at the same time. There being no further testimony on A.B. 3, the Chairman moved the committee to discuss the next agendized item. ASSEMBLY BILL 40 - Revises provisions that prohibit employers from taking certain adverse actions against employees who serve as witnesses. Mr. Louis Ling, Deputy Attorney General for Boards and Commissions, Mr. Keith MacDonald, Executive Secretary, Nevada State Board of Pharmacy, and Mr. Frank MacDonald, State of Nevada Labor Commissioner came forward to testify. Mr. Ling represents the Labor Commissioner's office and the Pharmacy Board. Mr. Ling stated that his office sponsored A.B. 40. The Labor Commissioner's main function is representing the interest of employees. Their cases are always employees vs. employers. As their attorney, Mr. Ling has dealt with much frustration protecting his witnesses from retaliatory actions from the employers they are making a complaint against. He has had clients that are terrified to testify because of fear of retaliatory action. In trying to help them, he located Nevada Revised Statute (NRS) 50.700 which only applies to court testimony so no protection was available to the employees for the administrative proceeding. That was his original intent. The Legislative Counsel Bureau (LCB) added on the second part of the bill which defines retaliatory action. Together with the LCB writer they developed a list of everything an employer has ever done against an employee in a retaliatory matter. Mr. Ling relayed recent cases he has handled regarding retaliatory actions, specifically prevailing wage claims. He also set forth the example of a pharmaceutical technician who received retaliatory treatment from the pharmacist she turned in for a criminal act. That case will be coming up for hearing in the next couple months. Mr. Ling stated the Attorney General (AG) strongly supports A.B. 40. Ms. Steel asked what the impact of this bill was on the employer who has an employee in a sensitive position with a trumped-up charge. She found the hardship this could possibly pose on the employer. Mr. Frank MacDonald answered that this would be used as an investigative tool. Guilt is not assumed immediately but only after a full investigation. Ms. Steel asked how long an investigation generally was. Mr. Frank MacDonald said it could be from one day to several months. Ms. Steel expressed her concern for the employer who is waiting for the conclusion of an investigation and yet has an employee who may be sabotaging their business at the same time. Mr. Goldwater queried that if the purpose of the appeal was simply to expand it from court proceedings to administrative proceedings as well, why was there an inclusion of the definition of what retaliatory action is. Mr. Ling stated his original intent was to add about two words to the bill and during the course of this bill the LCB bill drafter added the remaining language. Her thought behind that was to define what they cannot do rather than leave that definition vague or unclear. He supports this concept so the employer, too, knows what conduct he ought not engage in. Mr. Carpenter stated he agreed with the concept that a person should be able to testify and not lose his job. However, as an employer, he resents the definitions of what an employer cannot do which turns it around so the employee is basically running the employer's business. Mr. Carpenter felt that much of the added language defining retaliation was taking away the employer's rights to run his own business and he strongly disagrees with that language. Chairman Anderson requested clarification on line 10, section 1, the discussion of "Administrative proceedings" and wondered if this applied to just employers who hold professional status and licensing type businesses. Mr. Ling stated the bill would apply to any administrative proceedings. Mr. Manendo relayed a campaign story regarding a woman who had a concern about attending a hearing and voting on her lunch hour and was harassed for these acts. Mr. Humke asked if Chapter 50 applied to any employer in the state. Mr. Ling stated that was correct. So it is sufficiently broad that it effects all employers in the State of Nevada. Mr. Humke also expressed his concern as being possibly offensive to the employer as occurs on page 2, subsection 3(d) of lines 19-20 "the refusal to assign meaningful work . . . or the assignment of excessive work." Does that mean if an employer who has a dispute with his employee over not being permitted to testify or having some action taken as a result, that the employer would not be able to say "just stay home, I'll pay your wage." Is that a correct assessment? Mr. Ling stated that was so because of "turkey farming", i.e., putting someone out in a meaningless job until they quit. Astonished, Mr. Humke asked what the harm was in that scenario. Mr. Ling stated he was not too concerned with protecting subsection 3 of A.B. 3 in that it was added on by LCB and the committee can get rid of that language if it will make the bill survive. The level of protection is what needs to remain but without the defining terms you add a level of uncertainty to the civil action. Otherwise, we will be fighting over the very definition of what is retaliatory action. Mr. Humke agreed with curing the vagueness problem as to the definition. Mr. Humke also wondered what state did the bill drafter copy this concept from noting Mr. Ling's previous allusion to the LCB bill drafter copying another state's law. Mr. Ling said he did not know but he would find out for Mr. Humke. Also, Mr. Humke requested a list of possible administrative forums that might be included if the original intention of the bill (adding administrative proceedings) was considered. Mr. Frank MacDonald discussed the protection of witnesses rather than addressing the question posed by Mr. Humke. Mr. Ling interjected by providing a list of administrative agencies these hearings may include: The Public Service Commission, State Industrial Insurance Systems, Department of Motor Vehicles, The Labor Commissioner, all licensing boards, anybody who has to rely on the administrative process to resolve a dispute. Ms. Buckley outlined her observation of both sides of the issue and felt that section three could be modified to exclude some of the vague provisions to assure that legitimate business reasons are a cause for taking action and protecting both the employer and employee. Ms. Monaghan stated she understood where the sponsor of the bill initially wanted to go with the bill but it appears to have now swung the pendulum the other way and we need a better balance. She also inquired about a possible time frame to be placed in the language of the bill. Mr. Ling stated the original statute did not have a time frame either and the burden of proof was on the employee. He was not sure if a time frame was a problem with the bill. Ms. Ohrenschall wondered what statistics, if any, were available on what added litigation would be apparent from this bill. Mr. Ling stated he did not have any statistical data in that regard. Mr. Sandoval asked Mr. Ling if his original intent was to simply add "administrative" to "judicial" to expand the scope of the present statute to administrative proceedings. Mr. Sandoval also wondered if they eliminated everything else, including subsection three, if that would accomplish what his intent was. Mr. Ling said yes it would. Mr. Goldwater asked if the burden of proof was more difficult on the employer or the employee. Mr. Ling suspected, not having the actual personal knowledge, that it would be more difficult for the employee to prove his case. Chairman Anderson asked if the current statute only prohibits termination of the employee. Mr. Ling stated the reprisal of retaliatory conduct language is not in the original act. He further stated the current bill does not include anything from page 1, lines 16 to the end of page 2 from A.B. 3l and he would hope that they would keep retaliatory action but not define it if that is what the committee chooses. Mr. Perkins stated he was an employee advocate for eight years and he felt there was too much in the proposed language, specifically subsection 3 of the bill, that any employer would agree to. Perhaps they can narrow down the language that needs to stay. Mr. Perkins also had the concern for the employer and perhaps some added language could be included regarding the employee who was found to have made a false claim and was subject to retaliatory action. Mr. Neilander clarified for the committee that he was not a bill drafter but the two concepts the committee is dealing with are 1) to add the language "administrative proceedings"; and 2) adding retaliatory conduct. The bill drafter was probably not comfortable adding that phrase without some sort of definition. Keep in mind that you cannot add a phrase such as "retaliatory conduct" without defining it. Typically that is not done. In opposition to A.B. 40 the following persons began their testimony: Mr. Richard Meyer and Mr. Stan Olsen from the Las Vegas Metropolitan Police Department. Mr. Olsen stated the Metropolitan Police Department opposed A.B. 40 in its current wording for a couple reasons: 1) the police department has many internal administrative proceedings where nobody is placed under oath and therefore if an employee lies, they cannot be charged with perjury and the department feels they should be able to take action against that employee who lies in order to assist another employee; 2) the department needs to have the ability to move an employee after fabricated testimony particularly in sensitive positions. Mr. Meyer stated the department does not object to the concept of the bill; however, in its current wording it appears to be an absolute prohibition from taking any disciplinary action against an employer regardless of what the testimony is. He further stated the department has hundreds of people each year who testify in court and administrative proceedings. If someone perjures themselves in district court, they are dealt with legally; however, in an administrative proceeding they would be prohibited from doing anything under the current proposed language of this bill. Dr. Earl Nissen testified in support of A.B. 40 and read from prepared text attached hereto as (Exhibit E). Dr. Nissen also stated that some specifics were necessary to identify some of the actions of employers set forth in subsection three of A.B. 40 and without those specifics it would go back to the employer feeling he has the right to do whatever he determines is fair. He felt that the employee should have the right to participate in due process proceedings as well. Mr. Michael Langton, Attorney at Law, speaking on behalf of the Nevada Trial Lawyers Association (NTLA) stated that NTLA supports A.B. 40. He felt most employers are good employers. He did not feel the statute had been a problem so far and through research he has not found a case that has gone before the Supreme Court for litigation of this nature. The current statute only addresses discharge. Most employers would not fire somebody because they testified in some fashion. Rather, an employer would reassign someone, give them a different shift, give them a different rate of pay, especially if they are not protected by a collective bargaining agreement or a public employer document, then the employer has the right to do whatever he so chooses. Mr. Langton went on to state wiith the proposed changes set forth in A.B. 40 that person could at least address what they believe is reprisal. The burden of proof is always with the employee. The employer always has the right to run his business in the way he sees fit. At the same time, the employee would have to prove that the action taken against them was as a result of the testimony they gave--as seen on page two of the proposed bill, "because the employee is a witness or prospective witness." Perhaps the word "truthful testimony" needs to be added. Oftentimes, the discipline is not because the employee testified, but rather because of "wrongful" testimony. Mr. Langton discussed his personal experience with individuals who contact him as a sole law practitioner. In almost every case it would go through the Alternative Dispute Resolution (ADR) and result in arbitration rather than a civil lawsuit in district court because of the limitation of $25,000 in ADR matters. He believes there should be clarity in the law but he did not believe there would be a lot of paranoia in the law as currently proposed. He agreed that some of the statements outlined in subsection three need to be eliminated or re-worded for clarity purposes. However, demotion and failure to promote should remain. Mr. Langton does not feel an excessive amount of litigation would result from this proposed legislation. He concluded that he felt the intent was to preserve justice in all forms. Mr. Carpenter felt that "fairness" is the main concern in this piece of legislation and the current proposed language takes the "fairness" over to the other side too far and he strongly disagrees with A.B. 40. As an employer, if we terminate an employee, we would be guilty of a misdemeanor. Then, the employee goes through a civil action and all the while is getting paid and receiving benefits and can get reinstated without loss of seniority, etc. He felt the current law takes care of everything. Mr. Langton reiterated that the current statute only allows "discharge" and the statute should include "retaliatory conduct". Retaliatory conduct should not be as ambiguous as the denial of adequate personnel but should include any kind of demotion, reduction in pay, denial of promotion, or suspension because they appeared to testify. The intent is not to protect a trumped-up charge made by an employee. He stated he did not believe it was fair that if his secretary went to testify he should reduce her wage from $12 per hour to $4.25-- that is currently not protected. Chairman Anderson announced A.B. 40 would go to subcommittee with Ms. Buckley chairing the subcommittee and the other members would be Mr. Carpenter, Mr. Humke and Mr. Perkins. Mr. Goldwater inquired again about the burden of proof. Mr. Langton stated it is a substantial burden of proof for the employee in these matters and the success rate is not good. Further, during one month he receives approximately 15-20 calls from employees for him to accept a case. He accepts approximately two cases per year. Employees may call because they are disgruntled because they did not get a promotion. Mr. Langton has to be convinced that the promotion is not being considered because they testified. Mr. Goldwater agreed that the committee needs to look at the fact that it is a substantial burden on the employee to prove their claims. Ms. Steel asked if Mr. Langton interpreted the word "witness" to also include a party to the lawsuit. Mr. Langton stated yes. Mr. Richard Johnson, Nevada Association of Employees and Mr. Ray Bacon, executive director of the Nevada Manufacturers Association, appeared to testify in opposition of A.B. 40. Mr. Bacon stated that initially the law was directed to the lower level employee and the current language would open it up to executive levels of employees as well. He relayed a specific case he recently was involved in and how that situation would cause severe problems with the expansion in the current proposed language. He believes the entire section three should be deleted in its entirety. Mr. Johnson felt the committee has picked up on what the problems in the proposed legislation are and he has those same concerns. He felt that just including "administrative proceedings" would be fine except that term should also be more defined. In addition he felt that employees covered under collective bargaining agreements should not be included under this bill as their labor agreement is meant to be the exclusive remedy for most everything. He felt the current proposed language was far too broad and vague. In his experience he felt it was easy for the employee to establish a prima facie case and all they would have to prove was that they testified and then these retaliatory actions happened to them. Then the burden of proof shifts to the employer. His experience has been that the employer is the one carrying the substantial burden of proof. Ms. Gaylyn Spriggs of Rayrock Mines testified that they have the same concerns mentioned in earlier testimony and they would like to be a part of the subcommittee on A.B. 40. She testified in opposition to A.B. 40 and provided her comments in this regard in her prepared text attached hereto as (Exhibit F). Ms. Patricia Justice of Clark County Public Defender's office briefly stated that she believed if you added "for his lawful testimony" after the word "employee" at page one, section one, line 11, it would take care of the concerns of Clark County Public Defender's office. Ms. Buckley asked what the intent was behind the proposed amendment. Ms. Justice stated she felt it would take care of the problems the Metropolitan Police Department has with people who might go in and help a co-worker by testifying untruthfully. It also applies to the individuals in administrative actions who are not placed under oath and therefore are not subject to the penalty of perjury violation. There being no further business to come before the committee, Chairman Anderson closed testimony and the meeting was adjourned at 10:30 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary February 2, 1995 Page