MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session March 31, 1995 The Committee on Judiciary was called to order at 8:03 a.m., on Friday, March 31, 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 GUEST LEGISLATORS PRESENT: None STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Mr. Gary H. Wolff, Lobbyist, Nevada Highway Patrol Association (NHPA) Mr. George Pyne, Public Employees Retirement System (PERS) Mr. Robert Fowler, Chairman, Law Enforcement Council, Service Employees International Union, AFL-CIO, CLC, Local 1864 (SEIU-1864) Ms. Valerie S. Cooney, President, Nevada Trial Lawyers Association (NTLA) Mr. Leonard Pugh, Washoe County Juvenile Services Mr. Bob Gagnier, State of Nevada Employees Association (SNEA) Ms. Dana Bilyeu, Public Employees Retirement System (PERS) Mr. Gregory A. Salter, Attorney General's Office (PERS) Mr. Dennis J. Healy, Esq., Law Offices of Walter R. Tarantino (NHPA) Ms. Laura Wallace, Public Employees Retirement System (PERS) Ms. Margaret Springgate, Governor Miller's Office ASSEMBLY BILL NO. 292 - Provides for disposition of certain pension or retirement benefits upon dissolution of marriage. Mr. Dennis J. Healy, Esq., Law Offices of Walter R. Tarantino (NHPA), accompanied by Mr. Gary H. Wolff, Lobbyist, Nevada Highway Patrol Association (NHPA), testified in support of A.B. 292. A great inequity has arisen when a state employee, especially in law enforcement, experiences a divorce. A judgment may be rendered even though the employee is not yet retired to pay the ex-spouse based on their expected retirement benefits. Mr. Healy read into the record a letter of March 30, 1995, from Muriel R. Skelly, Esq., family law lawyer, attached as (Exhibit C). Ms. Steel remarked Mr. Healy suggested that first eligible is really not in effect at this time. Her understanding the reason they chose first eligible is because some of the employees would work until they die just to keep from paying the ex-spouse. Mr. Healy stated the person's choice to work and retirement percentages were set before Fondi and Gemma were decided. Although eligible to retire at age 50, it has been shown percentage wise that troopers do not retire until age 58. The work value and the desire to carry on far outweighs trying to keep someone from getting a particular benefit. Mr. Gary H. Wolff, Lobbyist, Nevada Highway Patrol Association (NHPA), advised there is a provision to disallow someone from working until they are 100 years old. In most of the cases 75% is the maximum benefits per year ($22,500) that can be attained under PERS, attached as (Exhibit D). Even if one elected to work beyond that, this bill guarantees earlier divisions. Ms. Steel confirmed if once a person received retirement benefits, it would commence and not come out of a worker's paycheck. Mr. Wolff stated this bill is about fairness for everyone. Present law provides spousal support in those cases where spousal support should be granted. Mr. Goldwater asked if we are dictating in state law how the retirement benefits will be paid under the social security act. Mr. Wolff replied absolutely not. It simply says if you have an entitlement, e.g., $1,000 social security due to you at age 65, it should be projected as an asset in the same way that PERS is projected. Since troopers are not entitled to social security, the court must take into consideration that the other spouse will get social security and make the appropriate offset. It reduces the amount the PERS member would have to pay. If both parties received $1,000 per month, one from PERS and one from social security, it is equal division; but, if the PERS $1,000 benefit is divided in half for the ex-spouse, an inequity is created. Mr. Robert Fowler, Chairman, Law Enforcement Council, Service Employees International Union, AFL-CIO, CLC, Local 1864 (SEIU-1864), testified in strong support of A.B. 292. They represent a large number of state employees who are covered under the PERS pension plan, attached as (Exhibit E). Ms. Valerie S. Cooney, President, Nevada Trial Lawyers Association (NTLA), accompanied by Ms. Beverly Salhanick, Esq. of Las Vegas, a member of domestic relations committee and the board of NTLA, testified in opposition to A.B. 292. Ms. Salhanick advised this bill disrupts the community property scheme. In Nevada everything earned or obtained by the parties of a marriage with limited exceptions has become community property. A pension as part of the earnings of spouses is community property. The pension, in recent times, has often become the most valuable asset of a marriage. It also has a potential for growth and maintains the security of the family once a party retires. The effect of this bill, for a nonworking spouse is divestment of any retirement benefits their spouse may have thus causing them to live the rest of their lives in poverty. For that reason this bill is not fair. The bill also has additional technical problems. It takes a sledge hammer to kill a fly. If the Fondi and Gemma cases need further refinement, we can do the refinements. Let us not use a sledge hammer to do the refinements. It is unwieldy and impractical to divide the pension benefits later on, for example, if the children have grown, the parties no longer stay in touch with one another. Somehow they would have to find each other years later. The second problem, we have a court system, family courts particularly down south are clogged with cases with much more value. Some involve the welfare of children. We cannot overburden the courts and delay child custody issues. The example of an insurance policy being used as security for a pension distribution was raised. It is not currently common practice and it is not only used for pensions, it is used to guarantee child and spousal support or a distribution of equity in an asset. Another fine point of this bill which may raise concern is the transfer to an estate. Whether or not this legislature can make the determination may cause conflict with federal uniform reciprocal enforcement support act (U.R.E.S.A.) laws. Finally, another issue is in a military pension scheme where a person would vest in pension after 20 years. Under former law, the military couple would dissolve their marriage prior to vesting. The entire pension would end up going to the military member, who would then remarry and the nonmilitary spouse would receive benefits. By setting specific dates and times it may encourage this type of fraud. It denies the nonmilitary spouse who does not have a pension with no means of support. The intent of this bill is to grossly modify the community property scheme. It has worked well in nine states in the west for many years. Ms. Salhanick urged the committee to consider the immense disruptive effect this bill will have on community property. Mr. Humke inquired how the flaws in Fondi and Gemma Supreme Court cases be cured if not through a bill such as this. Ms. Salhanick replied the bill does not need to be so drastic. It can be rewritten to modify the cases to reflect a different scheme. Other states cash out a pension to the spouse with the option of going to if, as, and when that is appropriate depending on the circumstances of the parties. Typically, this is not realistic as most people do not have $25,000 on hand. The issue of clogging the courts to obtain jurisdiction is separate. Mr. Humke asked Ms. Salhanick if her clients felt the pension issue was unimportant. Ms. Salhanick replied they all feel it is important. When she has to weigh in her practice whether she will rush a case of pension issue or child custody issue, she will have to prioritize the child first. Mr. Humke stated the family courts expedite those cases with holding emergency child custody hearings. Ms. Salhanick replied in the affirmative upon request, but they do have limited hours and they are taxed. Judges down south work long, hard hours and do not always have the time and space to accommodate the caseload now. Turning next to the hypothetical military retirement case Ms. Salhanick alluded to earlier, Mr. Humke asked if it was handled through federal law. Ms. Salhanick advised that particular situation has been handled through federal law. The risk is this statute would contain some of the same problems that have been previously rectified by federal law in that military pension problem. In other words this bill would recreate those problems that have existed 10 or 15 years earlier. Mr. Humke asked Ms. Salhanick if she would recommend military pensions be excluded from this bill. She replied it is not just with military pensions because pensions with PERS, etc., the same circumstances would happen as with the military nonworking spouse. It wipes out any interest the ex-spouse may have had. Mr. Humke asked Ms. Salhanick if she would assist the committee in formulating amendments to strengthen the bill. She replied she was more than willing to assist. Chairman Anderson advised it was the intent to refer A.B. 292 to a subcommittee. Ms. Steel inquired if more judicial discretion was desired for the pension plan, for example, where one spouse ends up with more retirement benefits than the other. Ms. Salhanick replied yes and no. On the one hand if this is an asset, it is divided equally according to statute. Then we cannot give the courts the discretion as we would be going back to the previous scheme of equitable distribution. Ms. Cooney advised this bill poses difficulty for many practicing attorneys. The overall concern is a problem in wording. As a result, it would disenfranchise certain nonmember individuals whether it be under PERS or a similar plan. There is an enormous problem in distribution of pensions in this state. This committee should address those problems that arose under the Fondi and Gemma decisions. She is somewhat familiar with the Fondi case, as she is the current spouse of Judge Fondi. She practices in the area of family law, and her clients are school district personnel. Concern was expressed in protecting client's interest in retirement plans. This bill needs to be studied. Fondi and Gemma decisions need to be addressed, and copies are available to committee for review. There needs to be uniformity among the courts in this state with regard to division of those interests. Finality in divorce is needed. Often times the continued interest in a pension plan requires that the parties end up in litigation ten or fifteen years down the road. It is a complicated and time-consuming system and needs to be addressed. On page 2, l. 20, of A.B. 292 Ms. Ohrenschall pointed out language, "the courts determination must be reasonable giving consideration to the equities of the circumstances." In some degree, she asked if it would take us back to the equitable distribution scheme. The response was absolutely. If equal distribution is not working and equitable distribution was not right either, Mr. Humke noted the Supreme Court has not shed a lot of light in terms of a final solution to these problems. Ms. Cooney remarked, with deference to our Supreme Court, they tend to cloud issues rather than clear them up. Further, she did not mean to give the impression that equal division is not working. Equal division is where the courts should start in their distribution of community property assets. From there it can take into consideration a variety of factors. Perhaps it will end up with what is characterized as an equitable distribution as opposed to an equal one. If the court can strive to make as equal a division of the various retirement pension plans and assets in existence, it would be the optimum result. Mr. Humke asked if Ms. Cooney was suggesting to start with an equal statutory standard that leads to a sliding scale, perhaps ending up with an equitable distribution. Chairman Anderson suggested to refer this matter to a subcommittee for consideration. Ms. Cooney and Ms. Salhanick would be most happy to assist the subcommittee in work sessions. Mr. George Pyne, Executive Officer, Public Employees Retirement System of Nevada (PERS), advised his staff would be more than willing to serve as a resource for the subcommittee. Chairman Anderson appointed the following to A.B. 292 subcommittee: Ms. Barbara E. Buckley, Chairman Mr. David E. Humke Mr. David Goldwater Ms. Dianne Steel The subcommittee was asked to complete its recommendation within the next two weeks. ASSEMBLY CONCURRENT RESOLUTION NO. 2 - Urges peace officers to identify and arrest, and courts to impose prompt, meaningful and consistent sanctions upon, juveniles who violate laws related to alcohol and drugs. Mr. Dennis Neilander, Research Analyst, advised A.C.R. 2 was a concurrent resolution which originated from the A.C.R. 71 Interim Study Committee of drug and alcohol abuse among criminal offenders. In the Senate the resolution was amended and the committee is being asked to consider the proposed amendment to A.C.R. 2. He referred to the second reprint and pointed out the amendments. It adds education in school districts to the resolution in addition to peace officers. Chairman Anderson, as Chairman of the A.C.R. 71 Interim Study Committee, found no objection to the proposed amendment. Mr. Perkins expressed concern that the resolution urged not only the identification but the enforcement action against juveniles who violate these laws. In regard to the additional language involving school districts, the school district is not the entity responsible for the enforcement of the drug and alcohol laws. Mr. Perkins did not wish to make the implication that the school districts be responsible for enforcement. ASSEMBLYMAN CARPENTER MOVED TO CONCUR WITH THE SENATE'S RECOMMENDATION TO A.C.R. 2. ASSEMBLYMAN PERKINS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. ASSEMBLY BILL NO. 317 - Makes various changes related to juvenile courts, sentencing, crimes and punishments. Mr. Dennis Neilander, Research Analyst, distributed proposed amendments submitted by the Governor's office to A.B. 317. It provides that proceedings are open to the public unless the judge determines that it would be in the best interest of the child or the general public to close the proceedings. This is irrespective of age. In addition, two amendments submitted by District Attorney Gammick by letter through the Governor's Office were referred to. It provides any related crime arising out of the same facts or occurrences as to those crimes listed above. It has to do with automatic certifications. If they were related to crimes in the enumerated list, those would also be includable. A suggested amendment to section 25, p. 18, l. 3, involves evidence that may be admitted with respect to habitual criminals. A statement of purpose of hearing on prior convictions is to review evidence regarding the existence and degree of any prior convictions and not for the purpose of allowing collateral attack on the validity of any such convictions. Mr. Neilander stated Sections 1-5 of A.B. 317, attached as (Exhibit F), concern when a juvenile will be treated and sentenced as an adult within the adult system. Section 5 was discussed first because it deals with the issue of at what age may a juvenile be treated as an adult within the discretion of the court. Ms. Monaghan suggested deleting the age threshold. Mr. Neilander advised Judge Gibbons recommended putting the focus on the offense rather than the age. Ms. Monaghan pointed out that the statute may have to be continually amended if the older people are convincing the youth to engage in crime because they can get away with it due to their age. Ms. Steel concurred with Ms. Monaghan. If you set an age there are children out there who know how to get around the laws by having the younger children do their dirty work, it is the crime we are looking at not the age. Especially in the section where it is discretionary with the judge for any felony, it would be a good place to have no age limit at all. Chairman Anderson asked Mr. Neilander if the age requirement were deleted, would it not only eliminate the floor, but it would also eliminate the ceiling so that conceivably one would be able to effect up to 21 years of age. Mr. Neilander advised this issue could be addressed in Section 1 of the bill which provides the definition of adult for purposes of juvenile court jurisdiction. If you do not amend that section then the cap existing definition of an adult would be 18 years. It would provide anyone within would be the jurisdiction of the juvenile court regardless of age. The cap would have to remain in Section 1. Chairman Anderson questioned that with an age certain is the court in reality being told it must treat certain offenders because of the nature of the age and crime as compared to those above that age in a separate fashion without regard to age. Mr. Neilander stated a distinction would be made between the two, depending on Sections 1-4 of the bill. Chairman Anderson summarized that without the age cap, it would be left entirely to judicial discretion for any offender under 18 years based upon the nature of events only. Mr. Goldwater recalled testimony that at a certain age children do not have the ability to differentiate societal values as to what is right and wrong. He asked what the age definition in the bill is saying. Mr. Neilander responded there was testimony that there are certain maturity levels. The question of whether or not a juvenile understands right or wrong addresses at what age can a juvenile form criminal intent. Mr. Goldwater stated this would be his concern of totally eliminating the age threshold, i.e., an eight year old could be put into prison. Ms. Steel did not believe our judges would put an eight year old in an adult prison. The judges look at the crime committed and factors. We may want to list the factors the judge should consider, i.e., age, circumstances of offense, before certification up or down. Mr. Humke commented in the rural portions of this state, judiciary members have communities with few resources. There could be a temptation to certify very youthful offenders to adult court because of the perception of greater resources available in the adult system. The boundary between state services and local services is juvenile court. Generally when a child is committed to state custody for placement in an institution is when state funding is utilized. Prior to commitment, it is local funding and responsibility. In the adult system it can be similarly mixed. Approximately eight to ten years ago, a law was passed that set a floor age of 12 by which a youthful offender could be committed to the Nevada Youth Training Center (NYTC), Elko. Mr. Humke speculated that perhaps under Mr. Goldwater's scenario an eight year old could be certified to the adult system. The child could not go to the NYTC as an adult or as a juvenile. They would have to find some other placement for him. Chairman Anderson reminded the committee two fourteen year olds were viewed on the southern Nevada Prison tour. Mr. Perkins stated during his law enforcement career operating under a floor of 16 years, it is a radical departure to drop the age to 14 even though circumstances may warrant. The committee needs to be concerned about how far that floor drops and how many additional people may end up in places where there are no facilities for them. Having dealt with many juvenile offenders in trying to gauge their maturity, criminal intent, and criminal level at different ages, Mr. Perkins stated 14 years is a very prudent measure. It is of concern we would take someone younger than 14 years and cast them into a system where they would receive no benefit or rehabilitation. We think of our juvenile system as a rehabilitative system and need to continue in that regard. Mr. Perkins cautioned in making radical changes to the law. Ms. Buckley agreed it could be a valid concern. Law enforcement recommended the age threshold be 14 years. If further modifications are needed, it can be done in the next session. Mr. Manendo inquired if there are any statistics regarding children under 14 years who commit felonies. Mr. Neilander recalled testimony of 30-45 youth if the age was lowered to 14 years providing for automatic certification as an adult. Ms. Stroth noted there were 17,000 juvenile prosecutions last year of which 6,000 were felonies as testified by Clark County District Attorney Stu Bell. Ms. Steel expressed concern that we not have older children going after younger and younger children to commit crimes. It would be a radical approach to set no floor after hearing the discussion. Chairman Anderson suggested a felony be created for someone who utilizes someone under 14 years in the commission of a felony crime. Ms. Steel stated to make it an offense because the 18 year old may not have done anything except coerce the youngster, so the 18 year old has no offense to enhance. It is just the coercion. Mr. Perkins advised there are currently statutes for adults who use juveniles in commission of a crime. The concept was perhaps an additional crime for someone over the age of 14 since that is the floor for certification. Those persons between the ages of 14-17 who use someone under 14 years is not in the current statutes. It would make for easier cases to prove in juvenile court because they are delinquent acts instead of crimes. Ms. Ohrenschall suggested taking the contributory delinquency statutes and adding as an additional category where discretionary and mandatory certifications would apply for 14-17 year olds. Ms. Monaghan asked if coercion would be difficult to prove. Mr. Perkins replied any burden of proof exists on the prosecution to prove the crime, but the burdens are much less difficult when dealing with juveniles. After explanation, Ms. Monaghan indicated she would have no problem and embraces that idea. Mr. Humke agreed with Mr. Perkins on the prosecution and judicial end. The standards are relaxed in juvenile court. There is opportunity for evidentiary hearing but to prove and show the standard is relaxed because there is no conviction or provision for a jury. As an alternative, the statute requires a finding of delinquency by the judge. It is tempered by an amendment in this bill including the provision for a public defender for juveniles. Most juveniles presently do not get public defenders and private counsel. Chairman Anderson commented that if juvenile court judges are given discretion the guarantee of an open or closed meeting is not going to be guaranteed. Mr. Carpenter requested Mr. Neilander to clarify amendment on page 5 regarding misdemeanor and gross misdemeanor. Mr. Neilander explained it provides if a juvenile has been certified as an adult, the district court's jurisdiction is on-going. If a juvenile commits a subsequent offense, the juvenile is still under the jurisdiction of the adult court. In addition if the charges are dismissed, if the child is found guilty of a misdemeanor or gross misdemeanor, jurisdiction would not continue to be in the adult court automatically for subsequent offenses. Mr. Carpenter asked if the juvenile would plea bargain to a misdemeanor or gross misdemeanor in order not to be certified as an adult. Mr. Carpenter remarked it may defeat the purpose of the first part of the bill. Mr. Neilander advised it would take the juvenile out of the continuing jurisdiction of the adult court. Mr. Carpenter stated he personally could not support that. Chairman Anderson surmised if a juvenile over 14 years who is convicted of a felony committed a subsequent traffic violation, would the juvenile still be subject to adult court? Mr. Neilander advised traffic is excluded from the jurisdiction of juvenile court. If a misdemeanor was committed, then the juvenile would be subject to adult court. Mr. Neilander advised with the proposed amendment the juvenile would not be subject to adult court system. Ms. Buckley recalled the amendment was offered because testimony showed in some cases juveniles would be overcharged. The result of a misdemeanor or gross misdemeanor may be the appropriate charge. The amendment would ensure the subsequent offenses especially if minor would at least begin in juvenile court. It could be certified back to adult court if a serious crime. Her concerns are alleviated because law enforcement recommended proposed amendment. Mr. Neilander advised Mr. David Gibson of the Clark County Public Defender's Office offered this amendment. Mr. Carpenter requested Mr. Neilander to clarify if juvenile under jurisdiction of district court could be certified back to juvenile court. Mr. Neilander advised the court could be petitioned to certify back down. Mr. Carpenter was concerned the deterrent factor may not be as strong as it otherwise would be if held in district court. It was the intention of the Chair to put the question to the committee as to the proposed age questions in Section 5, ll. 28, 33, as presented in (Exhibit F): ASSEMBLYMAN CARPENTER MOVED TO AMEND NRS 62.080, SECTION 5, LL. 28 AND 33, OF A.B. 317 TO READ 14 YEARS OF AGE INSTEAD OF 16 YEARS. ASSEMBLYMAN GOLDWATER SECONDED THE MOTION Under discussion Ms. Monaghan suggested the creation of the coercion offense for juveniles 14-17 years of age. Chairman Anderson advised it could be put in a separate motion. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. ASSEMBLYMAN CARPENTER MOVED NOT TO AMEND SECTION 5, NRS 62.080.3, PAGE 5, L. 2, ADDING "OR THE CASE RESULTS IN A MISDEMEANOR OR GROSS MISDEMEANOR. ASSEMBLYMAN STEEL SECONDED THE MOTION. Under discussion Mr. Humke requested confirmation if it would mean once a juvenile is certified as an adult, even though not attaining the age of 18, they would remain in adult court. Chairman Anderson advised it would appear so. Ms. Margaret Springgate of the Governor's Office advised the status of current law if a juvenile has been certified to adult court, the juvenile remains in adult court for subsequent violations. Under this amendment, if a juvenile is certified as an adult and the charge results in the conviction of a misdemeanor or gross misdemeanor as opposed to a felony charge, then if the child commits an additional offense, the jurisdiction does not stay with the adult court. The juvenile starts off again in juvenile court. Mr. Goldwater inquired if someone was charged in adult court, they are remanded to the adult court system. They are held in the Clark County Detention Center and not the juvenile detention center. Ms. Springgate replied that was correct. Mr. Sandoval remarked the amendment seemed contrary to getting tough on juveniles. It was pointed out this amendment came from Mr. David Gibson of the Clark County Public Defender's Office and not the Governor's Office. Ms. Steel mentioned that early treatment for addiction problems and rehabilitation of juveniles is the intent. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. Mr. Neilander referred to (Exhibit F), Section 1, NRS 62.020, allowing children 16- 18 years of age to be treated automatically as an adult in commission of offenses enumerated in ll. 9-17. There has been a suggestion to lower age 16 to 14. It was also suggested to define deadly weapon, although this committee requested a separate bill draft for that purpose. Technical cleanup language on ll. 5-8 to provide, "or a person 16 years of age or older who", insert "is not subject to the jurisdiction of juvenile court who has been charged with and or convicted as an adult," deleting, "of and sentenced." ASSEMBLYMAN STEEL MOVED TO AMEND SECTION 1, AS PRESENTED IN THE WORK DOCUMENT (EXHIBIT F), WITH THE PROPOSED CHANGES OF AGE AND TECHNICAL LANGUAGES IN ADDITION TO TODAY'S HANDOUT REFERENCE TO SECTION 2, P. 2. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. Under discussion Ms. Buckley inquired who offered the proposed changes to age on l. 7. Mr. Neilander advised it was Chief Kirkland as well as others. In changing age in Section 5, the court has the discretion to certify up serious cases. In Section 1 we are referring to who starts out first in district court. The proposed amendment states individuals who are 14 and older who have been convicted automatically start out in the adult court. Mr. Neilander advised Section 1 is the definition of adult and it relates to Sections 2 and 4. If a person were charged with one of those enumerated offenses and they were between 14-18, they would go into the adult system immediately. Chairman Anderson asked if this change was consistent with Judge McGee's observation that we are creating a presumption that a child be treated as an adult. Mr. Neilander stated it is even stronger than a presumption. They are in there from the onset of the offense. Mr. Neilander clarified the motion to amend Section 1 of (Exhibit F) was to insert the clarifying language on ll. 5-8 that delete reference to "sentenced"; change on l. 7 the age threshold from 16 to 14; add at ll. 17-18, any related crime arising out of the same facts or occurrences as the crimes as enumerated above; and p. 2, l. 12, manslaughter, or violation of Chapter 484 or 706 of NRS that results in the death of a person. Mr. Goldwater referred to p. 2, l. 12, and asked if the word manslaughter would be deleted and replaced with merely a violation of Chapter 484 or 706 of NRS that results in the death of a person. Mr. Neilander advised this was correct. Mr. Perkins cautioned on lowering age threshold in Section 1.(b) and (c), with the use of a deadly weapon, as it is a very broad category. Ms. Steel remarked the offenses of assault and battery with a deadly weapon are appropriately placed in this section to certify juveniles to adult court where they can receive rehabilitative treatment. Ms. Buckley advised she could not support taking out assault and battery with the use of the deadly weapon for the reasons Ms. Steel expressed. She is also concerned that the net might be drawn too wide. She recalled from a previous bill that instead of deadly weapon the term firearm was used with battery so that we would not be getting youth using baseball bats in the net. We wanted to keep 16 year olds definitely in the net. She asked Mr. Perkins if he had a suggested amendment to alleviate his concerns. Mr. Perkins defined an assault is just an attempted battery. If one of the juveniles took a swing at another juvenile with a bat and missed, no harm, no foul. It is still an assault with a deadly weapon, and the person can be tried as an adult. ASSEMBLYMAN PERKINS MOVED TO AMEND THE ORIGINAL MOTION WITH THE AMENDMENT TO BE (B) AND (C), INSTEAD OF THE WORDS DEADLY WEAPON TO REPLACE WITH FIREARMS, AND LEAVE AGE AT 16 AND OVER AS A CERTIFIABLE OFFENSE. ASSEMBLYMAN GOLDWATER SECONDED THE MOTION. Chairman Anderson clarified the proposed Perkins' amendment would create three statuses of juveniles. One, that would be 14-18 years, including kidnaping, mayhem, robbery, sexual assault, attempt to commit any offenses listed in paragraphs all the way down. Then there would be a secondary line that would be just for 16-18 year olds that could include the enumerated offenses with a deadly weapon. Mr. Perkins asked permission of the Chair and seconder of the motion to withdraw the secondary tier of his first motion because it is already covered in the statute. Mr. Goldwater concurred. It is use of a firearm in assault and battery offenses. Ms. Ohrenschall mentioned that knives can also cause very serious injury too. Mr. Perkins advised in those situations the statutes of attempted murder would come into play. Firearm is the weapon of choice right now striking the most fear in our communities, we should exclude the baseball bats, BB guns, so we do not broaden the net that far. Chairman Anderson requested Mr. Neilander to clarify if the definition of deadly weapon was narrowly defined. Mr. Neilander said with respect to enhancing penalties only. Chairman Anderson commented the court has held to the broader definition also when applying it because they know they are on firmer ground. Mr. Neilander advised he thought that was accurate and cited several cases which narrowed it for enhancement purposes. Mr. Neilander did not want to venture a guess whether automatic certification falls within the same logic as an enhancement argument. Mr. Sandoval inquired if it is left as is, the juvenile commits a crime with one of the defined deadly weapons, although automatically certified to the adult court, still has the ability to seek decertification back to juvenile court. Mr. Neilander concurred. For purposes of compromise, Ms. Buckley suggested under subsection (g) to include language, such as for purposes of this section, deadly weapon means a firearm, a knife, and insert the supreme court definition or any instrument which primary purpose was to inflict harm which would exclude bats and cars. Ms. Ohrenschall recognized Ms. Buckley's suggestion has merit. It is a lot easier for a young person to use a knife than it is to obtain a firearm. In defense of the motion the practical application is there are a lot of young people who get into fights in school. In no way do they belong in any part of the adult system. Overzealous prosecutors very often overcharge young people with assault and battery out of vehemence and revenge. For these reasons Mr. Goldwater supports the motion to amend because it limits the broad net. He encouraged the committee to vote for the Perkins amendment. Regarding the scenario Mr. Goldwater spoke of, Mr. Carpenter advised the protection is already in the system. By limiting this net with a description, the offenders may escape the net. It was Mr. Carpenter's belief that if you are assaulted or battered, the offender should be in this category. No matter what the weapon is, you are just as battered as with a gun, baseball bat, or sheep hook. Mr. Carpenter pointed out in becoming tougher on crime, the Governor, law enforcement, and district attorneys put a lot of thought into the bill. The bill should be left as is, and see if it works. If it needs further refinement, it can be addressed in the next session. Otherwise the intent of what we are trying to do may become lost. Ms. Steel turned the attention from the poor misguided youth who picked up a baseball bat and decided to commit an assault or battery. Focus on the victim who now does not have his front teeth any more or is maimed in some other way. Ms. Steel commented the definition of weapon cannot be limited any more. If they are going to be certified as an adult for using a knife, offenders will turn to some other weapon of choice, i.e., numchaku, brass knuckles, to keep from being certified as an adult. Ms. Steel concluded definition of deadly weapon should not be limited. Ms. Ohrenschall recalled the infamous murder of the widow of Archie Grant in southern Nevada ten to fifteen years ago. A group of youths did a series of batteries with baseball bats. Their attempt was to get little old ladies to hand over their purses. The third victim was the widow of someone famous, and she died. It was only a baseball bat, and they were juveniles. In support of his motion, Mr. Perkins advised it is important to understand the definition of assault with a deadly weapon means no harm was done. Battery with the use of a deadly weapon also has potential for no harm done. One can be struck or touch someone with a deadly weapon and no injury can occur and it is still battery with a deadly weapon. It is the unlawful use of force. Mr. Perkins is concerned no harm has to occur. He related an overzealous police officer who he supervised charged a battery with a deadly weapon because a 13-inch television set was dropped on a victim. This is how broad the net can be and the reason for his concern. For sure, the firearm should not be excluded. It is difficult to construct statutes so specific to catch each and every intent. For the foregoing reasons, Mr. Perkins proposed the aforementioned amendment. Mr. Humke commented the bill is rife with a lot of conflict. The Governor's bill started out at age 16 and did not object to Sheriff Kirkland and other law enforcement personnel's recommendation to lower the age to 14. By motion the committee has made a major policy shift by lowering the age from 16 to 14 years. As Mr. Sandoval pointed out, existing statute provides once effectively treated by adult court as a 14 year old for one of the enumerated offenses, then there can be motion to be certified back down to juvenile court. This is a safeguard for the 13- inch television as defined as a deadly weapon situation. An additional safeguard is the fact, in his opinion, for each of the enumerated offenses if treated in adult court, there is no question each offender would receive the services of a public defender. As a practical matter, the public defenders will make the motion to certify back to juvenile court in every case. If this motion goes forward, the judiciary will have to be trusted to judge on a case by case basis. Mr. Humke stated he did have trust in the judiciary to do this. The definition of a deadly weapon is already sufficiently murky. The committee has a commitment to clean it up. Mr. Humke favored the original Ms. Steel motion as is. Chairman Anderson concluded the issue has been sufficiently discussed and the committee is prepared to vote on the Perkins-Goldwater amendment only relative to the question of firearm. THE MOTION FAILED. (ASSEMBLYMEN PERKINS, MONAGHAN, GOLDWATER, SCHNEIDER, BUCKLEY, ANDERSON VOTED YES; ALL OTHERS VOTED NO.) Ms. Buckley called the question on previous motion at the call to the floor buzzer. Amendments to Sections 1, 2, and 3, as proposed in the work document (Exhibit F). THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. There being no further business, the meeting adjourned at 11:03 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary March 31, 1995 Page