MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session March 6, 1995 The Committee on Judiciary was called to order at 9:32 a.m., on Monday, March 6, 1995, Chairman Humke 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 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 COMMITTEE MEMBERS EXCUSED: Ms. Barbara Buckley, Vice Chairman GUEST LEGISLATORS PRESENT: Senator Mark James STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Susan Meuschke, Director, Nevada Network Against Domestic Violence Ben Graham, Deputy, Clark County District Attorney Frances Doherty, Nevada Attorney General's Office Barbara Pinkston, private citizen Bill Cavagnaro, Lieutenant, Las Vegas Metropolitan Police Department Alice Smally, National Association of Social Workers Bobbie Gang, Nevada Womens Lobby Valerie J. Cooney, President, Nevada Trial Lawyers Association Chairman Humke announced Bill Draft Requests (BDR) for committee introduction. BDR 3-455 - Removes references to county jail in penalty related to domestic violence. ASSEMBLYMAN ANDERSON MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT. ASSEMBLYMAN MONAGHAN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. BDR 11-796 - Provides for disposition of certain pension or retirement benefits upon dissolution of marriage. ASSEMBLYMAN ANDERSON MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. Chairman Humke informed the committee of a request for bill draft which states "deletes obsolete language in sections and provides for more uniform care for domestic animals." ASSEMBLYMAN ANDERSON MOVED FOR COMMITTEE INTRODUCTION OF THE REQUEST FOR BILL DRAFT. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. Chairman Humke introduced into the record a letter received by Honorable Justice Cliff Young, suggesting amendments concerning circumstances when a first degree murder charge would be determined aggravated, specifically in NRS 200.033(8) regarding the meaning of "depravity of mind." Justice Young would like those three words deleted. A copy of his letter dated February 10, 1995, is attached hereto as (Exhibit C). ASSEMBLYMAN ANDERSON MOVED FOR COMMITTEE INTRODUCTION OF THE REQUEST FOR BILL DRAFT. ASSEMBLYMAN MONAGHAN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. SENATE BILL 114 - Makes various changes to provisions prohibiting harassment and stalking. The primary sponsor of the bill, Senator Mark James, District 8, stated S.B. 114 is a bill designed as a result of meetings during the interim with several groups concerning the stalking issue. First, Senator James addressed the issuance of restraining orders pursuant to the stalking laws. S.B. 114 sets forth 1) a procedure for obtaining the order, 2) provides for a hearing that could be held for issuing an order, and 3) provides for an appeal or review that may be needed after issuing the order. Senator James stated the bill drafters "borrowed" the language from the statutes already addressing the issuance of temporary restraining orders in domestic violence cases. S.B. 114 would allow the issuance of a temporary order but the person against whom the order is issued could apply for review of the order in a hearing before the court. The temporary order is good for 30 days. The hearing allows the judge to hear evidence to substantiate reasonable cause to believe the activity is occurring and if so, the judge can extend the order for a period of one year. These orders are designed to preserve the status quo until the criminal proceedings and/or civil proceedings can run their course. Secondly, another problem addressed during the interim was that most stalking incidents occur during the pendency of a marriage dissolution proceeding or a child custody action where the parties are not married. That issue was recognized by enhancing the penalty to make the restraining orders more enforceable. So, if you commit the crime of stalking during the pendency of one of these proceedings, you will be charged the same as an aggravated stalking, which is a felony. Normally, in just a stalking charge, the first offense is a misdemeanor, the second occasion is a gross misdemeanor, and aggravated stalking is a felony. However, S.B. 114 would provide that the individual who committed stalking during the pendency of one of the above proceedings would be charged initially with aggravated stalking, a felony. Finally, S.B. 114 makes it a gross misdemeanor to violate a temporary order and a felony for violating an extended order. This is because a temporary order can be issued without a hearing at all. However, in an extended order there has been a hearing and the person has been told to stay away and they have had opportunity to present their evidence to the judge. Mr. Anderson addressed Section 4, lines 20-22 on page two regarding the heightened offense when occurred during the "pendency of an action" setting forth the scenario of a father checking into the best interest of his child by sitting in his car outside the family home. Would this individual be facing a felony conviction if this action was misconstrued as stalking? Senator James asserted S.B. 114 would make the law better regarding the issuance of restraining orders by having hearings to determine if stalking exists. If the court feels there is reasonable probability stalking has occurred then it is appropriate to get the court involved at that stage, especially in a divorce or custody proceeding. Mr. Batten stated he had a bill dealing with stalking and domestic violence and wondered if Senator James would be open to suggestion to moving the first offense of stalking in S.B. 114 to a gross misdemeanor rather than a misdemeanor. Mr. Batten explained in his bill there is an electronic monitoring device involved but the only way it can be utilized is with a gross misdemeanor conviction. Senator James felt this suggestion was worthy of debate but would defer to testimony of law enforcement and prosecutors regarding that measure. Mr. Perkins declared his concern of the enhancement of the stalking offense to a felony when taking place during the pendency of an action for dissolution of marriage versus a couple cohabitating without marriage and how those couples would be treated differently by this law simply because a marriage exists. Senator James stated the reasons behind the enhancement of penalties in the statute relates to notice and culpability. Further, the testimony held during the interim showed this to be the biggest problem area. Mr. Perkins asked if S.B. 114 would make it a felony if someone violates a protective order if the protective order was issued in the case of misdemeanor stalking. Senator James stated yes; however, this is all done after the court's finding that the crime has occurred. The criminal case can be pending severally and further, a person can never have been convicted of the crime of stalking yet they could have committed the crime of violating the order. This is because they have been given clear notice to stay away. Mr. Humke asked if Section 2 of the bill that defines "two day notice" was new language or if this language was currently in the TPO sections in the domestic violence statutes. Senator James was not certain if the language was exact but reiterated it has been patterned after those statutes. Mr. Anderson expressed his concern for the step process of penalties in S.B. 114. Senator James explained it was a misdemeanor to commit the crime of stalking, a gross misdemeanor for a subsequent offense of stalking, then it is a felony to commit aggravated stalking. S.B. 114 would make it a felony to commit stalking during the pendency of a dissolution of marriage proceeding or custody proceeding, a gross misdemeanor to violate a temporary order, and a felony to violate an extended order. The genesis of the bill is stalking is a serious offense. He further commented there needs to be a felony level of crime to this in order for it to get the kind of attention it needs to prevent domestic violence. Chairman Humke offered stalking was still a new crime and, through his conversations with law enforcement, there are some problems in the statutes. Further, he pointed out passing S.B. 114 means an individual who has a civil action pending with perhaps a TPO in effect could also possibly face a felony criminal action for stalking based on events which may actually relate to best interests of the child in a divorce or custody action. He inquired about the sanctions available to these parties through the District Court by just moving for a Temporary Restraining Order in the civil matter and if there is a violation of the order by either party, they can move for an Order to Show Cause. Senator James stated his philosophy is the case of one parent checking into the well-being of their child during the pendency of an action is not what is addressed in S.B. 114. S.B. 114 addresses the serious stalking incidents which require heightened penalties so law enforcement can become involved at an early stage. Senator James concluded S.B. 114 is an important measure. It addresses the seriousness of domestic violence and makes the stalking laws more effective. Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence testified in support of S.B. 114. Ms. Meuschke declared statistics show during the dissolution of marriage the levels of violence tend to increase and the result is more severe violence and/or death. Laws need to be in place specifically addressing this problem during the pendency of an action. Frances Doherty, Deputy Attorney General, asserted the Attorney General (AG) supports S.B. 114 and how it addresses the issuance of orders, the methods of objecting to those orders by the defendant, and the heightened level of aggravated stalking for cases involving divorce and child custody proceedings. Ms. Doherty elucidated the victim of a stalker is seeking her right to divorce or custody through the court system and stalking behavior directly interferes with that person's right to access the court system. Commonly, women will drop the proceeding before it is finalized out of fear of her safety or the safety of her children as a result of stalking behavior. The threats of fear accompanied with stalking often result in the victim not accessing the court system at all. The heightened level of penalties accompanying S.B. 114 are strongly supported by the AG. A general discussion was held among committee members regarding the heightened penalties in S.B. 114 relating to the pendency of an action for dissolution of marriage and child custody. The problems noted include 1) possible language addressing the common law couple with or without children; 2) possible clarification on what constitutes the "pendency of an action" meaning would the statute cease to be effective at the time of entry of Decree of Divorce or would the court retain jurisdiction for a certain time after dissolution. Ms. Doherty concluded her testimony stating she did not believe S.B. 114 precludes the normal activity involved in a parent/child relationship in a pending action but rather the bill addressed severe domestic violence instances common in dissolution or custody proceedings. She did not feel there would be an abuse of process in issuing stalking orders absent proof to the judge the crime had been committed. The power and control the stalker has over his victim needs to be thwarted by the courts so the victim can fully access the court system during the pendency of a proceeding. Mr. Perkins pointed out in his experience in law enforcement, the stalking statutes are not easily interpreted and need to be more clearly written. Barbara Pinkston, a private citizen testified she has had five protective orders under the domestic violence section and they have all been violated. She is not married but has a 15-month old daughter. She currently has a pending case in Las Vegas under the new stalking laws. She hopes she will be protected under the statute because she has never received protection under the domestic violence statutes. She has moved to Reno recently for her safety and the safety of her daughter because her life has been threatened. Her termination of parental rights petition has been denied. There are currently three criminal cases pending regarding the defendant. She hopes the committee seriously considers S.B. 114. Chairman Humke stated perhaps Ms. Pinkston could be available to speak with the committee members privately in consideration of her personal safety. Lieutenant William H. Cavagnaro, Las Vegas Metropolitan Police Department testified in support of S.B. 114. He stressed they strongly support the portion dealing with the pendency of a divorce because 70% of their cases are directly related to divorce or custody situations. Also, the officer on the street would be allowed to take more of a definitive action when the crime of stalking has occurred. Chairman Humke announced to the committee they have received a letter from Richard Wright, Attorney at Law, (Exhibit D). Mr. Wright was unable to testify in person today but wished to express his opposition to S.B. 114. Alicia Smally, National Association of Social Workers, explained they deal with victims of domestic violence and are in favor of seeing any strengthening of the law surrounding stalking crimes. Bobbie Gang, Nevada Women's Lobby, provided a handout to the committee, attached hereto as (Exhibit E) and strongly urged passage of S.B. 114. Valerie Cooney, President, Nevada Trial Lawyers, and practicing attorney in Carson City declared her support for passage of S.B. 114. She commented NTLA worked with Senator James in developing some of the provisions in S.B. 114 and they are available to the committee to comment on any issues or concerns they may have. She addressed Mr. Perkins' concerns regarding the status of parties in that the bill, as written, appears to mean the judge would be precluded from entering an order of aggravated assault if the parties were not married. She concurred the committee may want to amend the provision to include relationships dealing with cohabitation. Further discussion as to when a proceeding for divorce or custody is concluded was held. If the committee decides to make the stalking provision applicable to after the entry of Decree of Divorce or an order establishing custody, then the bill should specifically state as such. Mr. Anderson wondered if the stalker would even know the heightened penalty exists and whether the knowledge of that fact would make a difference in their behavior. Acknowledging behavior changes cannot be made through legislation, Ms. Cooney noted attorneys could surely advise and counsel their clients early on in litigation that the statutes exist and they will be subject to these penalties with this crime. A discussion about the history of violence being existent or non-existent in stalking cases ensued. Mr. Anderson clarified his understanding the provision allowing either the victim or the stalker their day in court was absent from the previous statute and this provision is now included in S.B. 114. Ben Graham, Clark County District Attorney's Office, told the committee they support passage of S.B. 114. The most significant item they see is the bill provides a due process system whereby a person served with an order can have it reviewed. The last stalking bills created problems through his office so S.B. 114 will provide a mechanism in place to address those problems. Mr. Graham concluded he did not see the need to include language addressing all couples who live together because those couples would have relief under the standard stalking laws. They support passage of the bill exactly as presented today. 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. Susan Meuschke stated she supported A.B. 109 and rather than testifying personally, she would submit her support in writing. No further business having come before the committee the meeting adjourned at 11:03 a.m. RESPECTFULLY SUBMITTED: ___________________________________ Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary March 6, 1995 Page