MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session February 15, 1995 The Committee on Judiciary was called to order at 8:00 a.m., on Wednesday, February 15, 1995, Chairman Sandoval presiding in Room 4412 of the Grant Sawyer State Office Building, Nevada Legislature, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman (Presiding) 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 Mrs. Dianne Steel Ms. Jeannine Stroth COMMITTEE MEMBERS ABSENT: Mr. David E. Humke, Chairman (excused) GUEST LEGISLATORS PRESENT: None STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary Barbara Moss, Committee Secretary OTHERS PRESENT: Howard Skolnik, Assistant Director, Department of Prisons Anne Cathcart, Deputy Attorney General Maurice Mannion, private citizen Bob Fay, Operations Director for Stop All Stalking Suzann Denton-Prattles, Legislative Co-Chair, Nevada Chapter of National Association of Social Workers Ben Graham, Deputy District Attorney, Clark County Barbara Schell, Deputy District Attorney, Clark County, and Victim Witness Program Coordinator Eva Collenberger, private citizen, Families of Murder Victims Melissa Caldwell, private citizen Beth Petschauer, private citizen Thom Reilly, Deputy Attorney General, Child and Family Services Lynn Ing, Deputy Attorney General, Child and Family Services ASSEMBLY BILL 106 - Provides for forfeiture of good-time credit on account of frivolous civil action. Howard Skolnik, Assistant Director, Department of Prisons, began his testimony by discussing the effect of frivolous lawsuits on the department. Approximately 5% of their administrative time is spent in response to lawsuits of no substantial merit. Examples of the types of issues they are involved with include the famous peanut butter suit where an inmate sued the Department of Prisons because he was provided with creamy instead of crunchy peanut butter. The court accepted that lawsuit. Also, there is the sleep-disruption lawsuit--an inmate who complained about the "skin count" which is performed each evening at 9:30 p.m., and that disrupted his sleep. The court accepted that lawsuit. Another example is the epileptic seizure suit wherein they provided an inmate jeans that were too tight which forced him to have epileptic seizures. The court accepted that lawsuit. However, perhaps the best example of a frivolous lawsuit came out of the Ely facility where they operate a drapery factory. Inmates in that operation who were fired filed suit against the private company that did the marketing stating that they lost wages yet at no time were they ever employees of that company. To date, that company has spent over $7,000 in legal fees defending themselves in this lawsuit. The inmates sent copies of the lawsuit to the Department of Justice which resulted in an investigation at the federal level which the taxpayers have paid for. A similar lawsuit has erupted in the State of Massachusetts. The Department of Prisons loses on the average $8,000 per month because customers are concerned about being able to do business with them without being named in a lawsuit. The inmates sent a copy of the lawsuit to all the customers. These cases are expensive, time-consuming, and very frustrating. The Department of Prisons is seeking some relief and therefore have sponsored A.B. 106. Mr. Carpenter asked which courts have accepted these lawsuits. Mr. Skolnik stated the court is the Federal Court in our district. Ms. Anne Cathcart, Senior Deputy Attorney General (AG) clarified that the lawsuits are accepted in the United States (U.S.) District Court. Ms. Cathcart works in the litigation division of the Attorney General's office and represents the Department of Prisons. The U.S. District Court receives many, many complaints from inmates. These complaints are screened initially and some percentage of them are rejected and/or dismissed because there is no claim stated. The rate of rejection is low because if the inmate is turned down at this court then they appeal to the Ninth Circuit Court of Appeals in San Francisco and that court will often remand the claim back to the U.S. District Court and then they have to accept it for filing. Mr. Anderson asked if A.B. 106 were to pass, would it cut off their access to the Federal Court system? Ms. Cathcart stated her understanding of A.B. 106 does not eliminate the inmate's access to any court. Chairman Sandoval asked if the bill would apply to cases brought before the state and federal system. Ms. Cathcart stated yes; however, inmates' civil rights lawsuits are brought through the Federal Court System. Chairman Sandoval asked if there was a constitutional argument for an inmate with a property rights in the good-time credits and those credits are taken away, would that create another lawsuit? Ms. Cathcart stated she has not addressed that issue with the Legislative Counsel Bureau (LCB) so she does not know what their opinion is in that regard. Ms. Cathcart stated the AG office handles 450 to 500 inmate civil rights lawsuits every year. The Department of Prisons estimates the number of inmates in our system in five years (absent any legislation passed this session) would increase to 10,000 inmates. The Department of Prisons has a grievance procedure in effect which is being changed and improved in order to better handle inmate grievances. The U.S. District Court and the Attorney General's office have worked together in the past year on early case evaluation hearings. To date, over 80 inmate lawsuits have gone through that process which has resulted in a 50% reduction in the number of claims and defendants. Unfortunately, a lawsuit is still being processed. At the Attorney General's office they have six attorneys working fulltime providing services to the Department of Prisons, the majority of which is spent defending inmate lawsuits. An example of a frivolous claim is a case that does not involve a constitutional question or the claim has been fabricated because the inmate has no facts to provide the court but instead provides the court with conclusory allegations. Sometimes the defendant will chose to file suit against 20+ defendants such as, the Governor, Secretary of State, Hilary Clinton. This creates anxiety and stress to these defendants who are being named for no reason at all and then have to defend their job title. Ms. Cathcart acknowledged no matter what is done the lawsuits will continue to be filed. While incarcerated, inmates continue their criminal behavior in order to manipulate the system by "setting up" officers and caseworkers in order to obtain transfers to other facilities. Ms. Cathcart met with the inmates who filed the lawsuit in Ely in order to prepare and file a Joint Pre-Trial Order. She stated these particular inmates are "frequent filers" and their lawsuits are frivolous. The inmates find the entire process "fun" and they do not care it is costing many people a lot of money. This "frequent filer" is the biggest problem--filing five to 50 lawsuits per year. Ms. Cathcart stated there are no disincentives to the inmate filing a lawsuit, frivolous or otherwise. It does not cost them anything to file the lawsuit, they have free paper and pencils, free stamps and envelopes, and a law library at their disposal. There are no disincentives. The good-time credits are the only thing that would be a disincentive to these "recreational litigators." The Attorney General can make a motion or the court may, on its own motion, make a finding that an inmate has proceeded with litigation that was frivolous. This finding by the court is made after the inmate has been warned many times and his action could result in sanctions. If the judge so orders, the judge would send the claim back to the Department of Prisons and that inmate may be subject to disciplinary action. The Code of Penal Discipline is then utilized by the Department of Prisons under Code 48 which allows them to enforce disciplinary action within the guidelines set forth in the Code. A.B. 106 would make it clear that the Department of Prisons can make a referral to the Director for the possible taking away of good-time credits. No one is interested in discouraging meritorious lawsuits. Ms. Cathcart stated the AG is strongly in favor of A.B. 106 or whatever bill may be in place that would best accomplish the disincentives for inmates filing frivolous lawsuits. Presiding Chairman Sandoval acknowledged the presence of the teachers and students from Meadows School. Ms. Ohrenschall wondered if the AG would be making habitual attempts to the court to prevent the frivolous filer. Ms. Cathcart stated she believed the AG would begin cautiously and slowly so the inmate has been adequately and clearly warned of the consequences of his actions. She also indicated the AG would probably concentrate on the worst examples of frequent filers. Mr. Batten asked who paid for the attorneys representing the inmates. Ms. Cathcart stated most inmates do not have an attorney, there is no entitlement to an attorney, and rarely has the Federal Court appointed such attorneys. A very small percentage of inmates have secured counsel. Mr. Batten asked who paid for the inmate lawsuits. Ms. Cathcart stated generally the taxpayers are paying for it. The actual supplies used by the inmates are paid by the taxpayers of this state and the money is budgeted through the Department of Prisons because, under case law, state Department of Prisons are required to supply inmates with these items to enable them access to the court system. The brunt of the court resources are being paid by the taxpayers of the entire United States since most all of the filings are in the Federal Court. The Federal Court in our district has been experimenting with a "sliding fee scale" so if a prisoner is not entirely indigent then the prisoner may be charged anywhere from $2 to $5 as a filing fee but that is a small percentage of the cases. Mr. Batten stated he felt the only way to truly discourage these frivolous lawsuits would be to somehow have the inmate pay his costs or have family or relatives pay his costs. Would that be legal? Ms. Cathcart stated you could not impose the cost on a family member of an inmate. Ms. Cathcart explained if an inmate is sanctioned by the court, he may be ordered to pay $200 to $500 but that sum is usually not available on the inmate's account at the prison. In a very few cases, the judge has entered a Writ of Execution which allows the sheriff to take personal property from their cell, for example their television set. This was actually very effective but the courts are very reluctant to impose monetary sanctions against inmates. Ms. Buckley wondered if there has been an analysis of the frivolous filers and whether they are done by long-term inmates or rather short-term inmates. Ms. Cathcart stated she has not done a formal study but her experience shows the frivolous filers are usually done by inmates who have been around for five to ten years and will continue to be frivolous filers because they are going to be around a long time. In addition, she stated these filings sometimes give the inmates some sort of "status" in the prison system including privileges such as extra time in the law library. Ms. Buckley asked if the imposition of taking away good-time credits actually get to the inmates who care about losing good-time credits or are these frivolous filers going to be there for such a long period of time that the threat of losing good-time credits does not pose a threat to them. Ms. Cathcart stated there are always going to be a percentage of inmates who are not going to care but the majority of them will care very much regardless of their sentence. Mr. Skolnik added part of this issue is the status that it brings the inmate in the institution. If they lose the lawsuit and lose good-time credit, it would reduce their status. Ms. Buckley stated she was concerned about some of the language in A.B. 106. For example, the bringing of a lawsuit "without substantial justification." Substantial justification would then be the test. However, in Ms. Cathcart's testimony she indicated that the court "warns" the inmate that they have violated some area such as naming the wrong defendant or the suit has no merit. Considering the "traps" that can be present for lay people in our filing system by simply not following the proper rules of filing, what role would substantial justification play in this type of technicality? Ms. Buckley also wanted to insure the meritorious lawsuits are not discouraged. Mr. Anderson agreed with Ms. Buckley's concerns regarding the language "substantial justification" as appears on page one, line 10. He also stated his concern of the language on line 14 in section 1 of the bill, "Engaging in abuse of discovery" and asked for an example. Ms. Cathcart stated this would be the least likely area in which they would take any action because in the Federal Court system there is limited discovery. However, an example she drew from past experience was that when an inmate continues to file Motions to Compel or Motions for Sanctions because they claim the defendant has not responded to discovery when the court has already denied their previous motions yet the inmate continues to file motions for reconsideration. The other abuse would be Interrogatories or Request for Production of Documents sent to defendants through the mail asking for things that are not ordinarily provided for in discovery. Interrogatories are written questions. If an inmate has a lawsuit involving lack of physical exercise and then sends out Interrogatories to a defendant asking them to respond to questions such as how many children does he have, where do they go to school, has he engaged in sex with another officer, etc., that would be an abuse of discovery. Mr. Anderson stated he was under the impression that the last legislature dealt with the question of "jail house lawyers" that have monopolized the time in the law libraries. Has that allowed you to take away some of the privileges for those people? Ms. Cathcart stated she was not aware of anything like that in the last session. Mr. Anderson asked legal staff to research that for the committee. Mrs. Monaghan stated she requested a Bill Draft Request (BDR) along the same lines of A.B. 106 because during her campaign she talked with two correctional officers who had dealt with the abuse of discovery. The innuendos and the accusations contained in the documents prepared by inmates were outrageous. Her BDR is on hold because A.B. 106 covers the same material and she thanked the presenters for their comments. Mr. Carpenter asked about the items in the bill, specifically lines 10-14 on page one and wondered if the court ruled upon these on its own or if the Attorney General or Department of Prisons makes a recommendation. Is this criteria used for all frivolous lawsuits or just for inmates? Ms. Cathcart stated with regard to his first question the court would make its own finding or at the request of the Attorney General's office if the court believed such request was appropriate and justified. With regard to the language, she believed it comports with the guidelines used to determine sanctions under Rule 11 but not having that rule in front of her she could not conclude the language was identical. Ms. Cathcart stated she would work with Dennis Neilander to assure the language contained in this bill was correct. Mr. Carpenter asked if there were any other states that have this law. Ms. Cathcart stated she has received copies of statutes, specifically from Louisiana and Texas, that have adopted similar types of statutes; however, to her knowledge, none of the statutes have been tested in litigation. Ms. Ohrenschall echoed Ms. Buckley's concern about the intricacies of the system and accidentally naming the wrong person. In that regard, she asked if subsection 1 in section 1, "bringing or defending a claim without substantial justification" referred to a technical matter or would the thought of substantial justification refer to an actual cause of action alleged. Ms. Cathcart answered the AG has limited resources for pursuing the avenue of preventing frivolous litigation. The AG is not going to go after people who commit technical violations of court procedures or accidentally name the wrong defendant or add claims. This bill is designed toward the litigator who has been told time and time again that the claims they are making or the defendants they have included are wrong. The bill is not directed at the one-time civil rights plaintiff but rather the folks that have been doing this for years. Ms. Ohrenschall pointed out the words "substantial justification" appearing directly after the word "claim" makes reference to the claim rather than a technical issue. Ms. Cathcart acknowledged perhaps the inclusion of such language should be considered. Presiding Chairman Sandoval asked Ms. Cathcart to provide the committee with the statutes she referred to from Louisianna and Texas and any other states that have enacted statutes similar to A.B. 106. Mr. Schneider asked why the inmates have the right to sue at all. Mr. Schneider stated these are felons and they have lost their right to vote, why are they allowed to file lawsuits in prison? Ms. Cathcart said most people feel the same way as Mr. Schneider but under the Constitution and developed case law, inmates must be provided access to the court system. The rationale is, she believes, because these are the least-likely people in our society to be able to have avenues by which they can seek redress for wrongs done to them. She does not think there is anything the state can do to limit or restrict their access to the court system. Presiding Chairman Sandoval asked if there was any type of legislation or law in another state that was even tougher than proposed A.B. 106? Ms. Cathcart stated she was unaware of any but she informed the committee that she was on a committee called the Eighth Amendment Working Group through the National Association of Attorneys General and they have been working for the past year and one half by sharing legislation that would help to discourage the filing of frivolous lawsuits. Ms. Cathcart also informed the committee that the AG currently has a BDR that would require the exhaustion of administrative remedies but she was unaware of anything else out there with a stronger impact. Mr. Carpenter, swaying slightly from the subject before the committee, stated his understanding was there were 60 to 80 inmates on death row and that we have been unsuccessful in carrying out the execution of any of them when the State of Texas has been doing it right along--two to three a day. He asked what the difference was in their system and the system in our state. Ms. Cathcart stated she was not qualified to answer that question since those matters would be handled in the AG criminal division, the chief of that division being Dave Sarnowski. Mr. Manendo expressed his serious concern of the rights of the prisoners to file these lawsuits at the expense of the taxpayers. The inmates have rights to televisions and radios, etc., but they pay for those items by working at the facility or through family members. What is the difference between them paying for their own television, and paper and stamps to be used to write a letter home, versus pencils, paper and stamps and filing fees to file a lawsuit. Ms. Cathcart stated the legislature last session passed an amendment to a statute which enabled the Department of Prisons to recoup certain costs advanced to inmates. Although they advance funds to them for filing lawsuits, the Department of Prisons is entitled to get that money back if and when the inmate receives any funds in his inmate account. Unfortunately, in most circumstances, the inmate never receives any funds in their account to pay for those items. Someone from the Inmate Account, Department of Prisons, could provide an accounting of some sort as to how much is actually recouped. Mr. Manendo felt there were probably many inmates with televisions in their cells but never paid $5 toward their pencils, papers, and stamps used to file their frivolous lawsuit. He stated perhaps it was just another law that has been enacted but is not being enforced. Ms. Cathcart elaborated on why televisions are issued or allowed to be purchased in the prison system according to her understanding of the same. Ms. Stroth explained when someone is drafted in the armed services, they do not have any civil rights and cannot file charges if they do not like the food you are given or the time you have to awaken in the morning. It has something to do with the Code of Military Justice which supersedes civil rights in some way in the military. She asked if there might be some way we could do something similar in the prison systems bearing in mind they had violated the law to get there. Ms. Cathcart stated Frankie Sue Del Papa has been spearheading a national movement to enact reforms to the civil rights act with a hope in making changes to decrease the number of frivolous lawsuits. Further, there is legislation now pending in Washington. Ms. Cathcart stated if anyone was interested in this they should give Ms. Del Papa a telephone call as she would be interested in hearing their comments and appreciates their support. Mr. Batten asked if Nevada currently had a statute for forfeiture procedures in dealing with frivolous lawsuits that would deal with not only their television or radio in their room but the vehicles awaiting them at their homes, could we take their vehicle or whatever to secure payment for the lawsuit. Ms. Cathcart stated she believed the answer was yes. She also elaborated by stating the Federal Court sends a questionnaire to inmates who state they have no funds to file a lawsuit. Of course, the inmate responds to this questionnaire under the penalty of perjury. In order for the AG or the U.S. District Court to find out if these statements are true or not would take staff time and effort and resources that they simply do not have unless they had reason to believe the questionnaire was false. There being no further testimony in support of or against A.B. 106 the hearing was closed in that regard. ASSEMBLY BILL 109 - Authorizes issuance of protective order for victim of person charged with crime of harassment or stalking who is acquitted by reason of insanity. Presiding Chairman Sandoval asked if the proponent of the bill was present to testify. Ms. Stroth came forward to state A.B. 109 was requested by Barbara Schell, Victim Services for Clark County District Attorney, to enhance the current stalking laws. Barbara Schell, Director, Victim Witness Center for Clark County District Attorney's (DA) Office, spoke in support of A.B. 109. She stated during the course of her work at the DA's office she worked with a victim of this crime, Mr. Mannion, who will testify today. She relayed the defendant in that particular case was charged with one count of aggravated stalking, a felony, and a second count, coercion, a felony. This case was in our system for over one and a half years. This was a very difficult time for the victim because of the delay in the court system. The defendant entered a not guilty plea and many months went by waiting for a trial date--only to be vacated. When it was finally time for trial the defendant was found not guilty by reason of insanity by the judge at a bench trial. The defendant was sent to Lakes Crossing in Washoe County. He spent over three months at the Lakes Crossing facility undergoing psychiatric services and medication and then he returned to Clark County to go before the judge to be released from further care because he no longer posed a threat to society. The DA intended to request a protective order at the time of the hearing so the defendant would be kept away from the victim, Mr. Mannion. However, because the way the law was written the DA was not accorded this possibility. The DA requests an enhancement of the law so a protective order can be issued by the court when a defendant has been found not guilty by reason of insanity. Maurice Mannion, a private citizen, stated he was a victim of a stalker that was acquitted by reason of insanity. Mr. Mannion read a prepared statement (Exhibit C) which sets forth his personal experience as a victim of a stalker which began on June 15, 1993. Mr. Mannion is a licensed social worker. The person who stalked him did not know him or any of his family. From June 15, 1993 to August 6, 1993, the stalker harassed Mr. Mannion by making violent physical threats against his life over the telephone and in fact assaulted five of Mr. Mannion's friends. The defendant was arrested on August 6, 1993. Mr. Mannion stated the offender had a long criminal history and many mental health problems. Much of the court time was spent over the problem of the offender's mental health status. The offender changed his plea to not guilty by reason of insanity and the judge ordered an evaluation from Lakes Crossing in Sparks, Nevada for three months. It was very frightening for Mr. Mannion to learn he could not receive protection from the court by way of a protective order. He felt not only his safety, but the safety of his co-workers, his family, and the public was placed in jeopardy. He feels victims need as much protection the law can offer and supports the passage of A.B. 109. Mr. Perkins stated most likely at the time of the original bill drafting nobody considered the possibility of the disposition of acquittal by reason of insanity and perhaps it was an oversight at that time. He asked Ms. Schell if there were any other dispositions that could occur from the court that would also require a protective order but is not currently considered. Ms. Schell did not see any other instance rather than the insanity plea. Presiding Chairman Sandoval acknowledged and welcomed the gifted and talented 4th and 5th grade classes from the Wengert Elementary school. Mr. Carpenter noted, in general, judges often request their discretion not be taken away yet it seems in a situation as presented here they would be able to use that discretion and make such a protective order. He feels the language could be broadened to encompass any other disposition rather than just insanity in order to place that discretion with the judge. Ms. Schell stated that was true and as she stated before, she believes A.B. 109 is cleaning up the language from the original stalking bill introduced in the 67th session of the legislature. Mr. Carpenter asked if the insertion of language to broaden A.B. 109 could be added to allow more discretion to the judge. Dennis Neilander, Senior Research Analyst, LCB, stated his recollection of the testimony from the last session was the not guilty by reason of insanity issue just never came up. He further explained A.B. 109 was designed to provide for a protective order and then if that order is violated, under subsection 3, on page two, which is existing law, just the violation of that order makes it a gross misdemeanor. By putting the express authority for the judge to issue a protective order under these circumstances then any violation of that order becomes a gross misdemeanor and that would be an added feature that is not currently available under the judge's general authority to issue a protective order--this makes it unique to the stalking statute. Mr. Carpenter reiterated his concern this could come before the judiciary committee again because of a situation not covered in a stalking situation; hence, broaden the language now to cover everything in order to protect the public. Mr. Perkins commented if what we are putting into the statute is going to cause a gross misdemeanor crime, as explained by Mr. Neilander, for someone who is not of sound mind then we will be in a catch-22 because we will not be able to prosecute that person in the first place. In section 1, it appears a protective order can be issued irrespective of any court action just because somebody is being harassed and stalked and is in fear of their life. Mr. Anderson reminded Assemblymen Carpenter and Perkins the discussions in the 67th session included the compulsive behavior question of the person who is involved in this kind of action. Mr. Anderson stated the current law is broad and the language in A.B. 109 may be restricting the statute rather than broadening it and that concerns him. Mr. Anderson suggested perhaps a review of the discussions previously held about compulsive behavior would be necessary. Ms. Schell explained what happens when an offender is institutionalized the "compulsive behavior" disappears due to mandatory medication. However, the offender generally has a noncompliant nature and history and as soon as they are back in the community and someone is not giving them medication three times a day, they stop taking the medication and their actions become compulsive once again. Bob Fay, Operating Director, Stop All Stalkers, a volunteer organization in southern Nevada commended the committee on the previously-enacted bills on stalking that were passed in the sixty-seventh session because they have worked fantastically and relief has been given to many people. Mr. Fay provided data regarding his organization and statistical data regarding stalking (Exhibit D). He stated the judges, the legislators, law enforcement, the district attorney's office, and others have been very positive in implementing and enforcing the laws on stalking and to that he is grateful and appreciative. Mr. Fay stated there are no trends to be found in stalkers other than a high use of alcohol, speed, or crack in their past. This combination, apparently, allows a stalker to "cycle up" so they stay awake and then they strike. Mr. Fay stated he was in support of the passage of A.B. 109 and he likes the language; however, one caution he observes is that all stalkers are "whackos", as to the degree he does not know. In 97% of the cases, the stalking stops when a protective order is issued. Mr. Fay stated with regard to Mr. Carpenter's inquiry into broadening the language to include all provisions, he has seen juveniles currently are not considered in the stalking laws and that may pose future problems. Perhaps some language regarding stalking should be included in the juvenile laws currently being considered by the committee. Protective orders for juveniles would be extremely helpful on gang members. They are not being arrested, just warned that if they continue stalking it could mean one to six years. Presiding Chairman Sandoval thanked Mr. Fay for his comments and stated the committee would take them into consideration. Suzann Denton-Pratt, licensed clinical social worker, legislative co-chair for the Nevada Chapter of National Association of Social Workers, testified the nature of the job of a social worker is that people get angry with them. Ms. Denton-Pratt stated she has been trained in assaultive behavior and she has to live with assaultive behavior as a part of her job. Social workers are frequently harassed, assaulted, and stalked. "How to stay safe" seminars are always a part of their conventions. Ms. Denton-Pratt is in support of A.B. 109. ASSEMBLY BILL 110 - Revises provisions concerning exclusion of witnesses from certain proceedings. Ms. Stroth, the primary sponsor of this bill, relayed she was a mother of a murdered son and having worked alongside Families of Murdered Victims, she became acutely aware that oftentimes family members are excluded from the trial process. Many times family members are subpoenaed strictly for identification purposes only and the defense attorneys use those subpoenas as a way of keeping family members from the trial process. Ms. Stroth introduced Ben Graham to shed more light on the trial process. Ben Graham, Clark County District Attorney's Office, and the Nevada District Attorneys Association explained in a criminal trial you may hear the phrase "we invoke the exclusionary rule" which excludes witnesses from the courtroom. He further explained why the prosecution or defense may want a witness excluded and that it is frequently by both sides. However, a witness who has a vital interest in the trial and who most often is a victim, may be called to identify a picture of a family member or whatever, and that is the extent of their testimony. But, because they have been subpoenaed as a witnesses, they are excluded from the courtroom. A.B. 110 would allow that if a person's primary purpose for testifying is to identify the deceased, this alone would not automatically exclude them from the courtroom. Mr. Anderson asked about the third degree of consanguinity, being a second cousin, is where the court currently draws the line. He felt that was drawing a large line. Mr. Graham clarified if they are subpoenaed, they are excluded. Mr. Graham did not believe the line of consanguinity was a big issue with the sponsor of the bill, Ms. Stroth. Mr. Graham stated the only group of people A.B. 110 was addressing was family members. Ms. Steel stated she thought the whole idea was the "loved one" wants to be there but is being excluded from the purview of the jury by this tactic and A.B. 110 should be expanded to include others besides just family members, such as a fianc‚ or significant other. Ms. Schell stated someone who has had a significant relationship with the victim should not be excluded from the courtroom because the sole reason for their testimony is to identify their loved one in a photograph. The courtroom testimony is the only way they are able to obtain information of what took place. Secondhand information out in the hallway just is not the same. She feels if the sole reason for their testimony is just to identify the deceased then they should be allowed to remain in the courtroom for the remainder of the trial. Eva Collenberger, Executive Director, Families of Murder Victims, testified in support of A.B. 110 and stated they provide aid to victim families when the case goes through the court system and through the parole board. Most often it is the first time for these people going through the system and it is very frustrating and traumatic. The most frustrating situation is when they cannot be present in the courtroom. She stated in the State of Michigan they let family members give their testimony at the beginning of the trial and allow them to remain the rest of the trial. Steve Twist, from Arizona, informed her they do not exclude family members for any reason and they have not had any problems with this law since its implementation in 1990. One may wonder why the family members want to be in the courtroom to relive the horror. Two reasons are present. First, they have a need to know the details because during the investigation oftentimes they are kept in the dark so as not to jeopardize the investigation and being in the courtroom allows them that knowledge. She gave an example of one woman in her program who was told to sit outside the courtroom during the trial involving a loved one because she may have to testify. Later, during the course of the trial, the defendant pleaded guilty and she was not needed as a witness. She was unable to gain access to the courtroom to find out what happened in the case and this should not happen. Secondly, family members feel a need to be in the courtroom because they feel they owe it to the victim. This is the last thing they can do for their loved one. Additional prepared testimony of Ms. Collenberger is attached hereto as (Exhibit E). Not passing A.B. 110 will hinder the healing process of the families of victims. ASSEMBLY BILL 119 - Authorizes aunts and uncles to petition for right to visitation of certain children. Assemblyman Douglas Bache, District 11, sponsor of A.B. 119, explained that his constituent, Melissa Caldwell, will testify in detail about her personal situation in not getting visitation with her nephew. Currently, there is no mechanism within the law that allows her to visit her nephew. Melissa Caldwell, private citizen, Las Vegas, testified in support of A.B. 119 in that she was interested in seeking visitation with her nephew. Her brother has not sought legal action to see his son, nor have her parents sought legal action to see their grandson. Ms. Caldwell would like to have an opportunity to see her nephew but has no legal recourse to do so. Ms. Caldwell's prepared statement is attached hereto as (Exhibit F). Ms. Steel asked why Ms. Caldwell was denied access to her nephew. Ms. Caldwell stated that her brother was not married to the birth mother and his name is not on the birth certificate. Once the child was born, the birth mother and her parents refused to have anything to do with Ms. Caldwell's family for no known reason. She has sent packages and mail to her nephew but those items have been returned "refused." Ms. Steel asked if she ever had a significant relationship with her nephew. Ms. Caldwell explained that she has never seen her nephew. Mr. Goldwater asked if "aunts" and "uncles" were defined in the statute already. Mr. Neilander stated it was not. Mr. Goldwater wondered then if A.B. 119 would extend to nonbiological aunts and uncles. Mr. Neilander stated that A.B. 119 amends Chapter 125A which he did not believe defines those relationships. Mr. Anderson felt that if A.B. 119 were to pass it would not help Ms. Caldwell since she had no legal right in the instance. Since paternity has not been established with Ms. Caldwell's brother, the court would have a difficult time proving her claim and her rights. Beth Petschauer presented testimony in opposition to A.B. 119 and thanked Assemblyman Monaghan for her help. Ms. Petschauer read into the record her prepared statement as attached hereto as (Exhibit G). She would like to see A.B. 119 die in committee. Ms. Petschauer relayed her personal experience involving a lawsuit with her husband, filed against him from his deceased wife's parents to gain access to their granddaughter. Ms. Petschauer and her husband went through two and one-half years of litigation, psychological evaluations, and general upheaval in their daily lives as a result of the grandparents rights law previously enacted under NRS 125A.330. Ms. Petschauer further explained the delays and improprieties that took place during the case. At the conclusion of the case, the grandparents were awarded over 700 hours per year with her husband's child. This included "guaranteed" blocks of time during birthdays, dinners each month, weekend visitation, Thanksgiving, Grandparent's Day, Christmas, and summer vacation. The grandparents were not satisfied with this award of visitation and one year later the parties were back in court. This hearing concluded with an increase of hours of grandparent visitation to over 1,000 hours per year, including uninterrupted two weeks summer visitation. This is the present order in which they are functioning. Three out of four weekends out of the month these grandparents are involved in their lives. Also, this scenario does not take into consideration the other two sets of grandparents in the family. Further, because the child is under 14 years of age, pursuant to the statute, she has no say in the matter even though she has no desire to be around her grandfather because of his threats to her father, his poor hygiene, and his negative attitude. She believes that implementing A.B. 119 into the current statute, NRS 125A.330 would open the door into many more similar problems. She further discussed the term "reasonable visitation" used in NRS 125A.330 and how that language is widely interpreted. She also discussed the language "best interest of the child" as it relates to the parents' involvement in the child's life; yet, A.B. 119 and the grandparents rights law takes away the parents' rights to decide who they wish their child to associate with. For the past two years her husband, herself, and their daughter have been subjected to two psychological evaluations performed at their expense. The psychologists, after reviewing limited documents and spending three to four hours with each party, then determined what was the best interest of the child. She discussed the lack of rights of the grandparents and family members that do not fall under the categories outlined in NRS125A.330 and discussed the grandparents rights that do not file suit or live out of town, etc. Ms. Petschauer expressed her disagreement with the grandparents laws being contained with those laws on the books relating to custody when they should be placed in the laws regarding visitation. This poses an additional problem. If she and her husband wish to move, they have to show the court they are not moving to avoid these grandparents and they may be subject to kidnaping charges, per statute. A clear definition between custody and visitation should be made with the current laws. In addition, she feels that consolidation of the laws involving custody, visitation, support, adoption, etc., should occur as they are currently "scattered" throughout the statutes. Ms. Petschauer discussed the Nevada case of Bopp v. Lino involving grandparent's rights. Ms. Petschauer feels opening up the visitation laws for additional family members will only cause more problems and open more "pandora's boxes". Presiding Chairman Sandoval called to the attention of the committee and Ms. Petschauer a companion bill A.B. 177 which discusses the best interests of the child and visitation matters. Mr. Carpenter stated there was no question that the decisions they, as lawmakers, make on these matters are the toughest decisions to make. Mr. Carpenter further explained the case Ms. Petschauer referred to in her testimony was out of Elko and the judge actually gave visitation rights to the grandparents through this law. If the lower court's decision were to have remained, it could have easily stopped all adoption situations where relatives could observe upon the family. Mr. Carpenter acknowledged some problems would arise with the grandparents law but they were unable to fathom the extent of the turmoil this law could put on one family. He reiterated that the committee members do have to be concerned with what is best for the child. Mrs. Monaghan acknowledged Ms. Petschauer's testimony and agreed with the "Pandora's box" the committee will have to consider during this legislation. Ms. Petschauer stated it was not her intent to do away with all grandparent's rights but that A.B. 119 needs to consider the other grandparents too. Mr. Neilander answered Mr. Goldwater's earlier question regarding definitions of aunts and uncles. He stated NRS 125A is a version of the uniform law regarding custody and visitation. The Uniform Law Commissioners did not recommend aunts and uncles be included in the uniform act and that is why we do not see any reference to aunts and uncles since they did not recommend them initially so perhaps that is why there is no clear definition on the books. Thom Reilly, Deputy Administrator, Division of Child and Family Services, and Lynn Ing, Deputy Attorney General testified against A.B. 119. Their concerns around A.B. 119 center around adoption. Their definition of "family" is very inclusive and when children are removed from homes and put back into homes they look to the aunts and uncles as resources before they proceed to termination and adoption proceedings. At any given time they will have 100 children in need of homes. Their concern is children already have to face special needs and then have the added visitation of aunts and uncles per court order, those children will have trouble getting adopted. Mr. Reilly also expressed their concern within the court system. For example, in Family Court in Las Vegas there are six judges, there is going to be recommendation from one judge and then later they will receive a recommendation from another judge on the same case. Ms. Ing stated the concern they have with A.B. 119 deals with subsection 2 on page two of the bill draft. This deals with the parental rights of either or both of the natural parents having been terminated or relinquished and the child is placed in the custody of a public agency to be placed for adoption. The concern is the issue of aunts and uncles in addition to the other individuals that may come forth, including great grandparents, grandparents, and the siblings. Expanding to aunts and uncles would place an undue burden on her division to seek adoptive homes because the child also come with a large set of relatives. Meaningful relations with aunts and uncles are definitely considered by her division and especially in placing the child as these relatives become a resource. However, the aunts and uncles who "come out of the woodwork" create an undue burden on the division and create certain roadblocks to the adoption process. No further testimony coming before the committee, Presiding Chairman Sandoval adjourned the meeting at 11:50 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: ________________________________________ Assemblyman Bernie Anderson, Chairman ________________________________________ Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary February 15, 1995 Page