MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session April 5, 1995 The Committee on Judiciary was called to order at 8:09 a.m., on Wednesday, April 5, 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: Ben Graham, Clark County District Attorneys Office Margaret Springgate, Governor Miller's Office Ande Engleman, Nevada Press Association Presiding Chairman Sandoval announced the following three documents for committee review pertaining to Assembly Bill 317: Facsimile dated March 28, 1995 from Larry Hyde, American Civil Liberties Union; Letter dated April 3, 1995 from Richard A. Gammick, Washoe County District Attorney; and Letter dated March 27, 1995 from Eva Collenberger, Families of Murder Victims attached hereto as cumulative (Exhibit C). ASSEMBLY BILL 317 - Makes various changes related to juvenile courts, sentencing, crimes and punishments. The work session continued on A.B. 317 from March 31, 1995. Dennis Neilander, Research Analyst outlined the proposed amendments from the hand-written notes on a copy of the bill which is contained in the minutes of March 31, 1995 as (Exhibit F) thereto. Mr. Neilander stated he had received no comments from the committee members regarding the amendment he distributed on Senate Bill 41, the bill about confiscated weapons so he would assume there were none. Noting the committee had already reviewed and approved the amendments regarding A.B. 317 Sections 1, 2, 3, and 5, Mr. Neilander began his comments with Section 4 of A.B. 317. Mr. Anderson requested Ben Graham, Clark County District Attorney's Office and Margaret Springgate, from the Governor's Office, be available at the table with Mr. Neilander. Presiding Chairman Sandoval acknowledged this request stating they would be utilized as resources rather than to present testimony on the bill. SECTION 4: Mr. Neilander explained Section 4, as outlined in the bill, authorizes persons 18-21 who are charged with non-violent offenses and have no prior convictions, to petition the court to be certified down to juvenile status. It also provides a mechanism to certify persons between the ages of 16-18 who would be treated as adults because of the changes in Sections 1, 2, and 3 of the bill so that age would have to be changed from age 16 to 14. Mr. Neilander explained the proposed amendments to Section 4 would be 1) to jettison the entire scheme of certifying down those persons between 18-21; 2) delete the reference to misdemeanor at line 28; and 3) add at line 43 the crimes enumerated in other sections; and 4) change age 16 to age 14 at line 34 to be consistent with previous sections. A discussion was held regarding the amendments as outlined by Mr. Neilander with Mr. Carpenter and Ms. Steel agreeing to delete the portion for certifying the offender between 18-21 years of age down. Mr. Anderson expressed his concerns on certifying down the person who chronologically is 18 or 19 years of age but has a mental capacity of 12 years of age. Mr. Neilander explained with respect to misdemeanors the adult court has the ability to do most of the same things the juvenile court does. Mr. Graham added if a felony has been committed, they would be treated in the adult courts. Margaret Springgate added the issue of mental capacity is addressed in other areas of the Nevada Revised Statutes. Ms. Steel strongly commented it was reaching too far to start considering the situations that are one-tenth of one percent of ever happening and let 99.9% of those persons out to address a small percentage. Taking away the certifying down provisions for an individual between 18-21 years does not affect sentencing because the judge can still consider mitigating circumstances. Mr. Carpenter stated he believes the adult courts have more resources to address these juvenile offenders by providing house arrest, etc. Mr. Anderson also expressed his concern for housing more juveniles in prison and creating more of an over-crowding situation. He concluded his comments by stating they need to craft a piece of legislation that is truthful to the public, affordable, and treats juveniles in a fair and equitable manner. Further discussion was held regarding the philosophies of allowing certifying down. Mr. Neilander summarized what the proposed changes would be to Section 4. SECTION 6: Mr. Neilander continued by outlining the proposed amendments to Section 6 of A.B. 317 which deals with adding "violent" before the word "crime" at lines 43-44, and changing the time frames in Section 6 from 6 hours to either 24, 48, or 72 hours. Ms. Buckley stated she believed 72 hours was too long for a juvenile to be detained, perhaps in an adult facility, when he could be innocent of the charges. Mr. Carpenter agreed and thought 48 hours was reasonable. Mr. Anderson too felt 48 hours was probably the most equitable time frame. Discussion was held regarding the 24 hour provision for holding juveniles with adults. Presiding Chairman Sandoval agreed the time needed to be as short as possible while still considering the reality of accomplishing the necessary paperwork. Further discussion was held regarding the inclusion of Saturdays, Sundays, and holidays. Ms. Buckley stated she supported 24 hours on line 7, but make it 48 hours where they are being held with juveniles. Mr. Neilander clarified the amendments for the committee. ASSEMBLYMAN BUCKLEY MOVED TO AMEND SECTION 6 OF A.B. 317 TO ADD "VIOLENT" BEFORE "CRIME" AT LINES 43 & 44 AND MODIFY THE HOUR REQUIREMENT AT LINES 4 AND 7 TO 24 HOURS, AND AT LINE 10 TO 48 HOURS. ASSEMBLYMAN STEEL SECONDED THE MOTION. In discussion, Mr. Batten stated his disagreement with the proposed motion to amend line 7 to 24 hours in that 24 hours is impractical. It would create an undue burden for the criminal justice system and it should be 48 hours. Ms. Monaghan pointed out the amendment deals with populations of over 100,000 or more. She believes the time frame crunch would come into play more likely with a smaller population. Mr. Carpenter stated 48 hours should apply to all jurisdictions. Further discussion was held regarding the difference of 24 hours versus 48 hours in Section 6, line 7. Ms. Buckley withdrew her motion with permission from seconder. ASSEMBLYMAN BUCKLEY MOVED TO AMEND SECTION 6 OF A.B. 317 TO ADD "VIOLENT" BEFORE "CRIME" AT LINES 43 & 44 AND MODIFY HOUR REQUIREMENT AT LINES 4, 7, AND 10 TO 48 HOURS. ASSEMBLYMAN BATTEN SECONDED THE MOTION. Ms. Monaghan asked if line 3 was being included in Ms. Buckley's motion. Ms. Buckley stated it was not included because there was no testimony in this regard so the premise is "if it isn't broke, don't fix it." Mr. Anderson inquired if line 22 needed to be addressed. Ms. Buckley stated for the same reason she did not include line 22. Mr. Neilander clarified when the amendment came back it would probably show b) and c) deleted since there is no longer a distinction between the population threshold. SECTION 7: Mr. Neilander stated this section deals with confidentiality. The bill, as written, provides that the juvenile court judge has the discretion to open juvenile court proceedings to the general public. The judge may also open proceedings to the victim or the victim's family even if the case is not open to the general public. The suggested amendments include: 1) Governor's amendment which makes the hearing open unless closed by the judge; or 2) Create an age threshold allowing the hearings to be open for those 16 and over who have committed a felony; or 3) In harmony with Assembly Bill 324 which amends the same section of the statute for persons over the age of 12 the proceedings would be open without the discretion to close it. A concern was raised if this should be open only in respect to delinquency proceedings; and 4) An amendment proposed by the Nevada Press Association (NPA) which adds a requirement that the court would have to provide notice to all interested parties, including members of the press, if a hearing is to be closed. The amendment provided by NPA is attached hereto as (Exhibit D). Mr. Carpenter stated he would like to adopt number 1) and 4) above. Ms. Steel stated she would like to see all hearings start open and be closed at the discretion of the judge considering the interest of the child and the public equally. Upon Mr. Goldwater's inquiry, Mr. Neilander stated he could see if there was any case law addressing the confidentiality issue. Ms. Monaghan asked why the NPA amendment was even necessary--why should the court have to provide the press with special notice? She also stated they should stay consistent with the age threshold at 14 years of age. Mr. Anderson agreed with Ms. Monaghan relating to the NPA amendment. Upon Mr. Anderson's inquiry, Ms. Springgate stated the determination of whether to have a hearing open or closed is made by the juvenile judge or referee as the case would not be in district court. The process would be made by way of motion of the attorney for the juvenile, or by way of the judge's own motion. Mr. Sandoval asked if the judge or referee would have to make written findings as to why he made the hearing open or closed. Ms. Springgate stated there is no requirement for that under the proposed amendment. Ms. Buckley stated she supported the Governor's amendment but had two concerns: 1) her preference is to allow the victims to attend a hearing no matter what; and 2) what is the Governor's position on the NPA amendment and how would the notice be accomplished? Ms. Springgate stated the Governor's office is concerned with the proposed amendment by the NPA because it states notice should be given to all interested parties and they are not sure if the press can be distinguished from the general public as an interested party. Also, the language about persons having a "direct" interest in the case could be construed many ways. Lastly, she too has a concern as to how the notice would be given and the statute would need to be clear as to what type of notice is adequate otherwise it will end up in litigation. Further discussion was held regarding the applicability of "notice" by the courts and open or closed hearings in CHINS cases. Ande Engleman provided comments that the amendment she presented was drafted by their lawyer, Evan Wallach, and the proposed language is standard in other laws and is not exceptional in any way. She stated "notice" is usually accomplished in these kinds of cases via telephone call from the court clerk's office. She stated there is no burden from the court since they (the press) are usually the ones checking in on particular cases. The committee adjourned for a break at 9:30 a.m. and reconvened at 9:45 a.m. Ms. Ohrenschall inquired about the specific notice to the press as outlined in their proposed amendment. She stated the language appeared ambiguous by taking a general comment and making it specific. Mr. Anderson expressed his concern was the public would not be well-served with the NPA amendment and there may be an undue burden on the court to be required to notice the press. Ms. Steel stated her understanding of the Governor's amendment was that if the judge decided to keep the hearing open or closed due to the interest of the child or the public, it was still the judge's discretion. Ms. Steel emphasized she did not want to make notice to the press a statutory requirement. The press is also considered the general public and they should be treated as such. Ms. Buckley agreed with Ms. Steel in that the judge should have the discretion to close the proceedings in CHINS cases. She reiterated she would like the last sentence eliminated regarding victims. With regard to the NPA amendment, Ms. Buckley commented the notice provision is unclear and she would support language requiring the court to make a list of the proceedings they intend to close and that list shall be available to the public upon request. Mr. Sandoval suggested the court could indicate which proceedings were open or closed on the docket they hang each day. Mr. Perkins added CHINS cases very rarely even have a hearing. Further discussion was held regarding how the notice could be accomplished as easily as possible for the courts. ASSEMBLYMAN CARPENTER MOVED TO ADOPT THE GOVERNOR'S AMENDMENT AND THE NPA AMENDMENT TO SECTION 7 OF A.B. 317. ASSEMBLYMAN PERKINS SECONDED THE MOTION. Margaret Springgate advised the committee the Governor's amendment would allow the judge to close all or part of the proceedings. Mr. Carpenter stated the issue of how the notice is accomplished does not need to be micro managed but he believes the courts can work it out themselves and it may even be accomplished differently within jurisdictions. It is important that notice be provided to the general public and the press as well. Ms. Steel was concerned there may be some delay in cases proceeding because someone complained notice was not provided to the press. Mr. Anderson stated his opposition to Mr. Carpenter's motion. Mr. Humke stated his opposition to the last portion of Mr. Carpenter's motion. Ms. Buckley stated she supported Mr. Carpenter's motion and she felt confident the bill drafters could draft some language that would address the concerns expressed today. Ms. Monaghan stated she does not support the NPA amendment. Mr. Schneider stated he would not support the NPA amendment. Upon Ms. Stroth's inquiry, Mr. Neilander explained the judge could make a proceedings closed to the public but open to the victim. Mr. Batten said he could not support the Governor's amendment. Further, he believes the press is extremely important in society and too many times proceedings are closed and the public is not invited or included. If the proceedings are open to the press it would help the public know what is going on. Mr. Neilander restated the motion on the floor which also included the language change of "prosecuting attorney" instead of "district attorney". ASSEMBLYMAN HUMKE CALLED FOR THE QUESTION. IT PASSED UNANIMOUSLY. * * * * * The motion returned to the floor for a vote. THE MOTION WAS DEFEATED. * * * * * ASSEMBLYMAN CARPENTER MOVED TO ADOPT THE GOVERNOR'S AMENDMENT TO SECTION 7 OF A.B. 317 AS SUBMITTED. ASSEMBLYMAN HUMKE SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN BATTEN VOTED NO. * * * * * Mr. Neilander restated the motion previously on the floor regarding Section 4 of A.B. 317 which would delete the provision allowing certification down for persons 18-21years of age and keep the provisions at lines 32 through 34 of page three which allows certification down for persons between the age of 14-18 years and add the language in Sections 1,2, and 3 of the enumerated list for facts or occurrences arising out of those crimes. Also, page 4, line 20, insert the term "subject to" instead of "certify for". THE MOTION CARRIED UNANIMOUSLY. Mr. Neilander restated the motion previously on the floor regarding Section 6 of A.B. 317. THE MOTION CARRIED UNANIMOUSLY. Chairman Humke advised the committee Assemblyman Goldwater has a bill addressing the same subject matter contained in Sections 8 and 10 of A.B. 317. Therefore, discussion for those Sections will be addressed after Mr. Goldwater's bill has received testimony. SECTION 9: Mr. Neilander explained this Section has technical amendments which relate to bill drafting and therefore does not require committee discussion. SECTION 11: Mr. Neilander explained this Section requires the photographs of a child in custody be taken and retained in their file. The existing law prohibits that activity without the consent of the judge. Suggested amendments include deleting the age threshold regarding fingerprinting. Mr. Carpenter commented on the language in Section 11 which states the records must be destroyed. He asserts they should be able to keep those records on file in order to assist in solving other crimes. Ms. Steel stated she agreed with Mr. Carpenter. Ms. Monaghan stated the entity maintaining the records (photographs and fingerprints) should have the discretion of keeping or destroying the records. Ms. Buckley expressed her concern that if the photographs are not destroyed, would they show up later in some sort of a mug shot book? Mr. Neilander explained the language should be made clear that the photographs and fingerprints could be maintained in the child's file and not to be used in a mug shot book, if that is the intent of the committee and the bill drafters could supply language to that end. Further discussion was held regarding maintaining the records at the discretion of the record-keeping facility. Ms. Springgate advised the committee the reason for that particular language in the bill originally was because Sue Edmonson, juvenile prosecutor in Washoe County, explained to the Governor's office during the crafting of A.B. 317 that juvenile gang members will sometimes trade identities and claim they are someone and then there will be no record of them being before the court before. She explained it would be helpful to retain the photographs for that purpose and it was the Governor's intention to insure the photographs remained with the child's file and not in a mug book. Chairman Humke outlined the amendments and asked for a show of hands as to the committees' thoughts on the same. ASSEMBLYMAN OHRENSCHALL MOVED TO AMEND SECTION 11 OF A.B. 317 TO TAKE OUT THE AGE THRESHOLD AND ALLOW THE PHOTOGRAPHS REMAIN IN THE FILE PERTAINING TO THE CHILD AND SHALL NOT BE USED IN ANY COMPILATION OF A MUG BOOK. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. In discussion, Mr. Carpenter asked about maintaining the fingerprints and photographs at the discretion of the record-keeping facility. Chairman Humke noted this was Ms. Monaghan's concern. ASSEMBLYMAN MONAGHAN AMENDED THE MOTION TO AMEND SECTION 11 OF A.B. 317 TO REMOVE THE AGE THRESHOLD LANGUAGE; REMOVE LINES 16, 17 REGARDING DESTROYING THE NEGATIVES AND THAT APPEARS AGAIN AT LINE 21; AND ADD TO LINE 36 THAT THE PHOTOGRAPHS NOT BE USED IN A MUG SHOT. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. Mr. Neilander clarified the motion to amend would allow the fingerprint records and photographs to be destroyed and/or maintained at the discretion of the record keeping facility. Ms. Monaghan stated that was correct. Mr. Perkins asked if lines 18, 19, 20, and 21 would be deleted. Mr. Neilander stated he was clear with the committee's intent and the bill drafters may want to delete subsection 3 entirely and redraft a new subsection which allows for the discretion to either retain or destroy the records. Mr. Neilander restated the motion once again for the committee. THE MOTION TO AMEND SECTION 11 OF A.B. 317 CARRIED. Chairman Humke advised the committee the Chairmen may be agendizing some early morning or evening committee meetings. Further, he announced Leadership has declared Good Friday, April 14, 1995 as a non-legislative day. No further business having come before the committee the meeting adjourned at 10:45 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary April 5, 1995 Page