MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session March 8, 1995 The Committee on Judiciary was called to order at 8:30 a.m., on Wednesday, March 8, 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 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: Nancy Tiffany, Parole and Probation Phil Galeoto, Reno Police Department Ben Graham, Clark County District Attorney's Office Rick Cypher, Nevada Division of Investigation Chairman Humke opened the meeting by addressing Mr. Neilander's Work Session Document (Exhibit C) attached hereto. Mr. Neilander stated Assembly Bill 3 and Assembly Bill 108 deal with the same subject matter. The proponent of A.B. 3 is Las Vegas Metro and proponent of A.B. 108 is Assemblyman Stroth. Since A.B. 108 has A.B. 3 in it, the Chairman directed the work session to proceed with A.B. 108. ASSEMBLY BILL 108 - Increases penalty for stealing certain firearms and for possessing certain stolen firearms. Mr. Neilander explained the ramifications of the bill along with the proposed amendments set forth in the Work Session Document by the National Rifle and Pistol Association. ASSEMBLYMAN PERKINS MOVED TO DO PASS A.B. 108. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. Chairman Humke stated it was the Chairs' intent to hold Assembly Bill 3 for use later as a possible vehicle. Chairman Humke assigned A.B. 108 to Ms. Stroth to handle on the floor. SENATE BILL 41 (SECOND REPRINT) - Revises provisions relating to disposition of confiscated weapons by law enforcement agencies. Mr. Neilander summarized the contents regarding S.B. 41 from the Work Session Document. Specifically, he outlined the Senate's intent regarding the bill and the interim study concerns regarding public auctions and the direction of the officers to do certain things with the weapons. Mr. Anderson indicated he had problems with the additional language regarding the city or county inclusion which he felt may present a conflict with the Las Vegas Metro as it relates to identification of weapons or use within their forensic libraries. He surmised he wished to amend S.B. 41 at line 1, deleting "from another officer" . . . to line 2, after the word "destroy." Mr. Neilander stated the language was consistent with current law and it was still discretionary. Mr. Perkins clarified there has to be a governing agency in there. The police department does not conduct the public auction. Mr. Neilander stated testimony during the interim indicated the typical action the agency takes with confiscated weapons is 1) destroy it; 2) retain it; or 3) transfer it. Ms. Buckley believed the original intent of the bill was to delete the ability to sell confiscated weapons at public auctions and the purpose for the amendment was to allow the police department to donate antique weapons to museums, trade, or keep them. She concluded the committee should delete paragraph 3 in its entirety so public auctions would not be held resulting in the possibility of those weapons ending up back on the streets. A discussion was held regarding the registration of confiscated weapons if purchased at public auction. Mr. Perkins enlightened the committee with his understanding that a licensed gun dealer is involved in the gun transfer. There are only a few entities in the state that provide for the registration of concealable firearms so the possibility of these weapons being unregistered is high. There are no exact figures of how many guns transferred this way end up back on the streets in criminal elements but it is a general concern. The department in which he works usually destroys the weapons, donates the antiques, or transfers a weapon to another agency. Mr. Perkins added perhaps the rural counties would be interested in public auctions as a budget supplement however in southern Nevada public auctions have not been utilized and they prefer to destroy or transfer. Mr. Batten added the law enforcement agencies do not want the weapons to be put up for public auction but would like to be able to sell the weapons to other law enforcement agencies at their price. Ms. Buckley suggested an amendment including the amendments set forth in the Work Session Document (Exhibit C), also page 2, lines 1-5, and deleting the entire section 3 on page 2, lines 5-12. ASSEMBLYMAN BUCKLEY MOVED TO AMEND & DO PASS S.B. 41. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. In discussing the amendments, clarifications were made by Mr. Goldwater and Ms. Stroth. Ms. Steel introduced her concern over whether the weapons are actually being destroyed by these agencies. Mr. Batten, Mr. Perkins, and Ms. Buckley addressed Ms. Steel's concern in the destruction of weapons stating law enforcement is in charge of public safety and that is their main concern. Also, law enforcement feels comfortable with the agencies they contract to destroy the weapons. Mr. Anderson noted his agreement to the amendments. THE MOTION CARRIED TO AMEND & DO PASS S.B. 41. * * * * * ASSEMBLY BILL 106 - Provides for forfeiture of good-time credit on account of frivolous civil action. Mr. Neilander briefly outlined the bill and previous testimony on the bill. He also recognized the amendments shown in (Exhibit D) hereto which set forth language patterned after NRCP Rule 11 regarding sanctions to attorneys or pro se litigants for frivolous filings. Ms. Buckley, having worked with the Attorney General's (AG) office on the amendments, explained the amendments in further detail. The AG believes these amendments will help if A.B. 106 was challenged later on in court proceedings. Further, the inclusion of subsection 3 would assist as the mechanism is already in place for property forfeitures. Mr. Schneider stated although the committee would most likely adopt the amendments proposed by the AG and expounded upon by Ms. Buckley, he felt strongly the time has come to stand up to the Supreme Court and bring in other states declaring that prisoners do not have a right to sue at all. Mr. Schneider stated these frivolous filings by inmates is a problem throughout the United States. These are felons and they have lost their right to vote, why should they have access to the courts except for the cause to which they were sentenced? Mr. Schneider suggested an interim study in an attempt to get tough on this issue and make a statement. Mr. Manendo and Ms. Steel strongly echoed Mr. Schneider's comments. Ms. Buckley clarified the amendments alluded to were prepared by the AG. She believes these amendments provide a step to address the problem of frivolous filings of inmate claims and we should not forget there are meritorious claims based on legitimate issues. Mr. Batten asserted he had another amendment to include for committee consideration which deals with bringing forfeiture actions. Chairman Humke stated more discussion would be had before bringing that amendment to the committee. Mr. Anderson maintained he felt the bill as written, with the amendments, was a proper piece of legislation. He further pointed out we have a responsibility to prisoners that goes clear back to the English common law. Society has a responsibility to make sure a person found guilty is not subject to greater abuse than the penalty. That protection has always been a part of our court systems and needs to remain in place. Mr. Anderson expressed his concern for the philosophy expressed earlier by some committee members and reminded members that prisoners are human beings and we need to respect their human dignity as well. Mr. Sandoval pointed out that judges rarely impose sanctions under Rule 11 of NRCP. Patterning this language after those rules may tie the courts' hands disabling them from imposing sanctions. Also, he asserted the inclusion of subsection 3 may open up a new chapter of due process for the prisoner. He concluded by stating he supports the bill in its present form, without the amendments. Further discussion about the bill, the proposed amendments, and the philosophy of the treatment of prisoners was presented by the committee. Ms. Steel and Ms. Monaghan asserted their support for A.B. 106 in the present form, with no amendments. Mr. Goldwater mentioned his support of the amendments to A.B. 106 set forth in (Exhibit D). Ms. Buckley clarified the amendments came from the AG and they are the ones most familiar with the filing of frivolous lawsuits by inmates. The AG is also the proponent of the bill and these are the amendments they are suggesting. Ms. Buckley further clarified the intent of the AG in addressing the amendments to A.B. 106. Mr. Batten stated he felt the committee had two options, one, support the amendments to insure there are some teeth to reduce frivolous lawsuits or two, draft legislation entitled "Hug A Thug". We need to do something now to send a message. Ms. Ohrenschall spoke in favor of the bill as it exists, without any amendments. She further stated she would not support Mr. Batten's amendment about forfeiture of property because often the families of the prisoners may argue they have an equitable title to the property. ASSEMBLYMAN OHRENSCHALL MOVED TO DO PASS A.B. 106. ASSEMBLYMAN MONAGHAN SECONDED THE MOTION. In further discussion of A.B. 106, Mr. Anderson spoke against the motion because the Department of Prisons and the AG, who are the persons most affected by the bill, are the ones who have made the amendments. Mr. Carpenter, Mr. Perkins, Ms. Buckley, and Mr. Batten noted they agree with the amendments to the bill. Mr. Carpenter suggested the committee amend Ms. Ohrenschall's motion by adding number five and six of the amendments. ASSEMBLYMAN CARPENTER MOVED TO AMEND MS. OHRENSCHALL'S MOTION TO DO PASS A.B. 106. ASSEMBLYMAN BATTEN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. In discussing the proposed amendments to the Motion to Do Pass A.B. 106, Mr. Anderson asserted amendment to Subsection three from the AG's proposals should properly be deleted; however, he stated numbers one, two and three of Section 3(d) should also be included in the Amendments, not just five and six. ASSEMBLYMAN ANDERSON MOVED TO AMEND THE MOTION TO INCLUDE LANGUAGE IN ONE, TWO AND THREE. ASSEMBLYMAN PERKINS SECONDED THE MOTION. Further discussion was held regarding the motion on the floor with additional clarification from Mr. Anderson. Chairman Humke offered that Rule 11 sanctions are very infrequently utilized by the courts, especially against pro per litigants, so to pattern the amendments after that Rule may not help at all. Additionally, he mentioned greater specificity of the language is not going to cause the courts to meet out the sanctions in greater numbers. ASSEMBLYMAN ANDERSON'S MOTION ON THE FLOOR TO AMEND THE MOTION PREVIOUSLY MADE TO AMEND & DO PASS FAILED. MR. SANDOVAL, MS. STEEL, MS. OHRENSCHALL, MS. MONAGHAN, MR. MANENDO, MR. CARPENTER, AND CHAIRMAN HUMKE VOTED NO. Chairman Humke explained the Motion remaining on the floor was to pass the bill with amendments of five and six of the AG's proposed amendments. The Motion to amend and do pass A.B. 106 as previously moved by Ms. Ohrenschall was brought back to the floor for vote. THE MOTION CARRIED TO AMEND & DO PASS A.B. 106. MR. BATTEN, MS. BUCKLEY, MR. ANDERSON, AND MR. PERKINS VOTED NO. Ms. Stroth agreed with Mr. Anderson's earlier comments regarding protection of our prisoners from abuse. However, she queried if we had more responsibility to those in our society who have broken laws than the men who serve our country in the military. We do not allow these kinds of lawsuits from military men because their first amendment rights have been superseded by the Uniform Code of Military Justice. Perhaps the committee should make a resolution to ask our United States Congress to look into establishing a Uniform Code of Penal Justice in order to better serve the interests of society--which perhaps have been forgotten. The committee adjourned for a break at 10:05 a.m. and reconvened at 10:20 a.m. ASSEMBLY BILL 110 - Revises provisions concerning exclusion of witnesses from certain proceedings. Mr. Neilander called attention to the Work Session Document outlining A.B. 110 as it deals with the exclusionary rule. The outcome of testimony held in Las Vegas resulted in the possibility of adding language to the bill for "significant others" or reduce third degree of consanguinity to the second degree. A definition of third degree of consanguinity was offered by Mr. Anderson. Mr. Neilander declared the term "third degree of consanguinity" is used throughout other parts of the Nevada Revised Statutes. Ms. Stroth stated her original intent of the bill was not entirely expressed in the bill as she did not intend to exclude a step parent, in-laws, a fianc‚, or others who are not blood-related and wondered how the wording could be changed to include those persons. Mr. Neilander stated he compared the issue of defining these other situational relationships with the language used in the right to die statutes in an attempt to come up with some ideas but those efforts failed. Other states have tried to define these relationships also and the states that have are experiencing significant problems. He further asserted the judge would still have the discretion to allow certain witnesses into the courtroom whether they were related or not, pointing out lines 14-15 of the bill. Further discussion ensued between Ms. Stroth, Ms. Steel, Ms. Buckley regarding their interest in including these other relationships in the proposed legislation. Chairman Humke requested clarification of the term, "affinity" and how that would affect the bill. Mr. Neilander stated he would obtain that definition but believed it was a modifier of consanguinity. Chairman Humke declared it would be a major policy departure for this legislature to begin using the terminology, "significant others" throughout the Nevada Revised Statutes and he strongly opposes that language. Ms. Monaghan commented if line 13, page 1, "and" was replaced with "or" would that open up the bill broad enough to include the variety of relationships discussed without specifically making a list of the types of relationships that exist. Chairman Humke expounded on the exclusionary rule and the "or" would deal with other witnesses who may not be excluded in the first place. Mr. Perkins stressed if the exclusion of witnesses was made solely for the purpose of identification why does it matter whether the person is related or unrelated. Some attorneys will, unfortunately, provide a laundry list of subpoenas anyway. Ms. Stroth suggested it does not matter whether the person is a relative or not and the whole thing could be cleared up by deleting the language after "who" beginning at line 12, page 1, to "who" on line 13, page 1. This language would also apply to subsection 2, of section 2, on page 2. Chairman Humke agreed. Mr. Anderson agreed with Ms. Stroth but requested to hear from the District Attorney's office to see what the ramifications of this change would be. Ben Graham, Clark County District Attorney's Office, concurred there did not appear to be any problem with the change proposed by Ms. Stroth to A.B. 110. ASSEMBLYMAN STROTH MOVED TO AMEND & DO PASS A.B. 110. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. Chairman Humke requested a bill draft he received from a constituent dealing with NRS 134.1060 including a slight expansion to permit the law of intestate succession to expand to grandnieces and grandnephews. ASSEMBLYMAN ANDERSON MOVED FOR REQUEST FOR A BILL DRAFT. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. * * * * * * * BDR 14-1719 Authorizes dissemination of records of criminal history to certain agencies which provide protective services to children. ASSEMBLYMAN HUMKE MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT. ASSEMBLYMAN BATTEN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. * * * * * * Mr. Anderson introduced a request for bill draft which would require the District Attorney to file formal charges against a defendant within 48 hours following the arrest, changing statutes 171.178. ASSEMBLYMAN BUCKLEY MOVED FOR COMMITTEE INTRODUCTION OF THE REQUEST FOR A BILL DRAFT. ASSEMBLYMAN SCHNEIDER SECONDED THE MOTION. THE MOTION FAILED. MR. BATTEN, MR. CARPENTER, MR. MANENDO, MR. PERKINS, MR. GOLDWATER, MRS. MONAGHAN, MR. SANDOVAL VOTED NO. No further business coming before the committee, Chairman Humke adjourned the meeting at 10:50 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary March 8, 1995 Page