MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session April 7, 1995 The Committee on Judiciary was called to order at 8:13 a.m., on Friday, April 7, 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 Chairman Humke called the committee to order and asked if Mr. Anderson would explain his bill draft request. Mr. Anderson stated he was requesting a bill draft request which would require the district attorney to file formal charges against defendant within 48 hours following arrest. ASSEMBLYMAN ANDERSON MOVED FOR COMMITTEE INTRODUCTION OF THE REQUEST FOR BILL DRAFT. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN BATTEN VOTED NO. ASSEMBLY BILL 293 - Removes references to county jail in penalty related to domestic violence. Mr. Neilander explained the bill was supported by the Nevada Judge's Association. Further, the bill proposes to clear up a technical problem regarding the language of city jails as there are times an offender may be detained in a county jail. ASSEMBLYMAN BUCKLEY MOVED TO DO PASS A.B. 293 ASSEMBLYMAN STEEL SECONDED THE MOTION. Ms. Monaghan asked if there was a difference in adding "city and county" or just deleting the language in its entirety. Mr. Neilander confirmed the testimony from previous meetings indicates there is no difference. Mr. Carpenter expressed his concern if deleting the language of "city and county" would be too broad. Mr. Neilander stated he would double check with the bill drafter but the committee could move forward with the motion on the floor. THE MOTION CARRIED UNANIMOUSLY. Chairman Humke assigned A.B. 293 for floor introduction to Mr. Schneider. ASSEMBLY BILL 305 - Revises provisions governing liability for certain persons in connection with donated food and other grocery products. Mr. Neilander explained the expansion surrounding A.B. 305 provides immunity from suit for all the classes of persons who may donate food by including a number of definitions. ASSEMBLYMAN CARPENTER MOVED TO DO PASS A.B. 305. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. Chairman Humke assigned A.B. 305 for floor introduction to Mr. Goldwater as alternate to Assemblyman de Braga. Chairman Humke noted Ms. Buckley's concerns on A.B. 305 from previous testimony; however, Ms. Buckley informed the committee in discussing her concerns with the sponsor of the bill and further reading of A.B. 305, her concerns have been met. ASSEMBLY BILL 297 - Requires juvenile court to order counseling for child and parents and to impose civil penalty on parents under certain circumstances upon adjudication of child as delinquent. ASSEMBLY BILL 317 - Makes various changes related to juvenile courts, sentencing, crimes and punishments. Mr. Neilander noted the next area to review regarding A.B. 317 was Sections 8 and 10 which deal with the same subject matter in Mr. Goldwater's bill, A.B. 297. Mr. Carpenter suggested A.B. 297 be placed into Section 8 of A.B. 317. Ms. Buckley suggested they proceed with A.B. 297 and make the language consistent with Section 8 of A.B. 317. Upon Mr. Anderson's inquiry, Mr. Neilander clarified the amendments to A.B. 297 which might be in conjunction with A.B. 317 or may be in conflict to A.B. 317. Mr. Neilander went on to state A.B. 297 provides mandatory counseling and a mandatory civil penalty. Mr. Goldwater has suggested it be changed to allow discretion to order counseling or a civil penalty. A.B. 317 already contains a counseling provision along those lines. Also, Mr. Goldwater's amendment would eliminate the age threshold which is consistent with A.B. 317. The component of Mr. Goldwater's bill regarding civil penalties is not a part of A.B. 317 which is the area of inconsistency between the two bills. Mr. Anderson asked if there would be any cost increase to the state by amending the civil penalty section of Mr. Goldwater's bill into A.B. 317. Mr. Neilander stated he did not believe so as long as it is discretionary. Mr. Goldwater stated another difference between A.B. 297 and A.B. 317 was the fine in A.B. 297 is assessed after the second offense. Mr. Anderson expressed his desire to move with the bills separately noting additionally A.B. 317 would have to pass through the concurrent Ways and Means committee. Mr. Goldwater inquired about the difference between delinquent acts and status offenses. He stated his intent in A.B. 297 was to insure the judge would have the ability to fine upon a status offense. Mr. Sandoval, recalling testimony on A.B. 297 the day before, wondered if there was a constitutional issue. Mr. Neilander stated the constitution requires criminal fines go into funds for education. A.B. 297 provides for a civil penalty so in that way it is distinguished from the criminal fine. Mr. Neilander stated he would discuss it further with LCB and report back to the committee. Further, Mr. Sandoval expressed his desire to change the language in A.B. 297 from "either" regarding civil penalty and public service to "and/or" at the discretion of the judge expanding his concern was directed at the parent who would just pay money to make it go away so perhaps public service would be beneficial. Mr. Goldwater stated he was amenable to that amendment. Lastly, Mr. Sandoval inquired about possible jail time for violation of a contempt order precipitated from non-payment. Mr. Neilander stated the contempt is based on the failure to pay rather than the prior activity so therefore it is civil in nature. Chairman Humke inquired about where the civil penalty would go--would it defray the counseling cost or would it go into the local courts such as traffic fines? Mr. Neilander asserted no mention from testimony or the sponsor of the bill has been brought forth on that subject. He further stated the same question is not set forth in A.B. 317. Chairman Humke pointed out if the statute says "fine" the law states fines go to the permanent school fund for the state. Municipalities and counties have passed by ordinance companion statutes containing the same language and therefore they can keep the fine money, subject to administrative assessment. However, civil penalties or assessment could be used for other means. If the court has the discretion to assess the civil fine, it would then be able to defray the cost of counseling and escape and constitutional challenge. Mr. Goldwater suggested the bill could be amended to apply those funds to defray the cost of counseling. Mr. Neilander explained currently under the juvenile code, NRS 62.223, administrative assessments would go to the county treasurer to be used for the counties juvenile courts or for juvenile offenders. He stated one option could be to impose an administrative assessment rather than a civil penalty and then it would be distributed like other fines under that statute. Ms. Steel asked why the civil penalty was not being directed to pay restitution to the victim. Mr. Goldwater stated restitution to the victim is handled in the Governor's bill and in other provisions of the statutes. Mr. Neilander called attention to line 15 of the bill which is the current juvenile provision on restitution. Ms. Buckley expounded on a concern brought forth in testimony on A.B. 297 as pertains to subsection 2(b) now focuses on the parents paying the fines for their own actions. The testimony she recalled dealt with the possibility of hurting the parent who actually is concerned and has made attempts to control the actions of their child, unsuccessfully. Chairman Humke commented the case law in Nevada has prevailed that parents are responsible in total for everything their child does until the child reaches its majority. Further, they are responsible for the health, education, welfare, intentional and unintentional acts of that child. Mr. Goldwater stated the discretionary portion of the bill would address Ms. Buckley's concerns whereby the judge would be able to assess attempts of the responsible parent. Upon Mr. Anderson's inquiry, Margaret Springgate, from Governor Miller's office, stated one of the most important parts of A.B. 317 was the counseling involving the parents and guardians. She stated in that respect, paragraph (a) of A.B. 297 regarding counseling is highly supported by them. In addition, paragraph (b) of A.B. 297 they shared the same concerns as Ms. Buckley regarding changing the focus to the parents as opposed to the juvenile; however, by changing the language to "discretionary" it allows an additional tool for the judge and they are confident most judges would use it appropriately. She noted they would like to see the term "custodian" deleted in paragraph (b) of A.B. 297. Mr. Sandoval commented he would like to process A.B. 297 as it better addresses topic of parental accountability. In addition, he recalled testimony on A.B. 297 dealing with counseling possibly outside the scope and perhaps it was not necessary to have it so expansive. Mr. Neilander clarified court approved counseling versus court mandated counseling and the judge still has broad discretion to order whatever counseling he deems proper. Mr. Neilander confirmed the counseling provisions in A.B. 297 are consistent with current law. Ms. Springgate pointed out a slight difference between paragraph (e) of A.B. 317 and A.B. 297 in that A.B. 317 in addition to the ability to order counsel for the parent, guardian and child, also allows the court to order counseling for the brothers, sisters, and other persons living within the household. Mr. Goldwater emphasized he does not want a provision allowing the court to order counseling for siblings in his bill, A.B. 297. ASSEMBLYMAN GOLDWATER MOVED TO AMEND & DO PASS A.B. 297 BY CHANGING "SHALL" TO "MAY" AND DELETING "CUSTODIAN" IN APPROPRIATE PARAGRAPHS AS OUTLINED; MAKING THE AGE CONSISTENT WITH THE AGE OF MAJORITY; DESIGNATING "AND/OR" FOR FINES AND PUBLIC SERVICE AT LINES 32-33; and THE WORDING BE CHANGED TO "CIVIL ASSESSMENT". ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. In discussion, Mr. Anderson asked if the "and/or" provision allows the judge to order community service only if the parent cannot make the payment or can it be done at any other time. Mr. Neilander stated his understanding is it could be civil penalty, public service, or both. Ms. Ohrenschall asked about opening the bill to allow CHINS cases. Mr. Goldwater stated Mr. Neilander explained to him that any delinquent act covered CHINS cases. Further discussion was held regarding the meaning of status offenses and delinquent acts. Mr. Batten remarked lines 26 to 33 of A.B. 297 and for that matter the Governor's bill, A.B. 317, shifts the responsibility from the suspect to the parents and he cannot support the bill as is. He believes by the time a child reaches the age of 14 he should know the difference between right and wrong. After a call for the question was made, Chairman Humke brought the motion back to the floor for a vote. THE MOTION CARRIED. MR. BATTEN VOTED NO. Continuing the work session to A.B. 317, Section 8, Mr. Neilander stated this section adds to the current list of sanctions and options available to the juvenile courts the ability to order counseling, participation in restitution programs, community service, and the suspension of driver's license, and costs of proceedings. Mr. Carpenter asked about the language regarding suspension of the driver's license for not more than two years "if the court finds the conduct of the child poses a danger to the safety of the public." He queried about who determines if the child poses a danger to the public after he has gone through proceedings. Ann Andreini, member of the Governor's staff, responded to Mr. Carpenter by stating the inclusion of the driver's license provision in A.B. 317 was intended as a deterrent effect for other juveniles. In addition, the finding of whether a child is a danger to the public is made at the initial stages of the proceedings when a determination is made whether the child is to be detained or not. She stated the procedure of making the determination is not lengthy and the decision is then rendered by the judge. Mr. Carpenter and Ms. Monaghan expressed further concern regarding the finding of if a child poses a danger to the safety of the public. Ms. Andreini also stated the suspension of driver's license for up to two years was, in addition to being a deterrent to other juveniles, also intended as a punishment for the initial offense which caused danger to the safety of the public. Ms. Monaghan requested clarification about delinquent act and CHINS acts. Ms. Andreini stated a CHINS act is not a delinquent act. A delinquent act is a violation of a city or county ordinance. A status offense is violation of a law by virtue of the child's age. For example, curfew. Ms. Monaghan inquired as to the least offensive act which could result in having a juvenile's driver's license suspended. Mr. Anderson interjected by stating breaking a window could result in a delinquent act. Ms. Andreini concluded by stating the intention of the driver's suspension provision was to expand the tools of the court. Mr. Carpenter and Ms. Buckley both indicated the provision regarding the driver's license suspension would be better suited if the language regarding "potential danger to the safety of the public" were deleted. Ms. Steel suggested allowing the language to suspension of driver's license be referred to other statutory provisions only. Ms. Ohrenschall felt the suspension was appropriate since most of the acts juveniles commit involve vehicles and are committed during the scope of driving a vehicle. The committee adjourned for a break at 9:30 a.m. and reconvened at 9:55 a.m. with a quorum present. Mr. Neilander outlined with specificity the proposed amendments from the work document and today's testimony. ASSEMBLYMAN CARPENTER MOVED TO ADOPT THE PROPOSED AMENDMENTS TO SECTION 8 OF A.B. 317 AS SET FORTH BY MR. NEILANDER AND ADDITIONALLY DELETING LANGUAGE REFERENCING DANGER TO THE SAFETY OF THE PUBLIC AT LINES 23-24. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. Mr. Neilander re-stated subsection (h) at line 23 after the word "years", insert open bracket and then close the bracket after the word "public" on line 24. Ms. Monaghan reiterated her concern for making the language too broad regarding driver's license suspension. Mr. Anderson pointed out the language "may" allows the judge to impose driver's license suspension so it is only one of the tools the judge can choose from at sentencing but he does not have to impose that provision. Chairman Humke brought the motion back to the floor for a vote. THE MOTION CARRIED UNANIMOUSLY. Continuing to Section 10, Mr. Neilander stated a conflict exists in the suspension and revocation dates for revoking a juvenile's driver's license for using, possessing, selling, of controlling substances, or purchasing, consuming, or possession of alcoholic beverages of Section 10 in relation to Assembly Bill 94 currently in Ways and Means. Mr. Neilander provided options to the committee in dealing with the conflict. Mr. Carpenter asserted they should allow A.B. 317 to proceed as is and at the end of the session they can deal with the conflict if A.B. 94 passes. Mr. Anderson stated he agreed with Mr. Carpenter but had other concerns on how it would all be accomplished. Mr. Neilander asked the committee to review A.B. 94 and explained A.B. 94 bifurcates alcohol offenses and drug offenses by making them two separate sections treated differently. Alcohol offenses are treated with mandatory 90 days suspension whereas drug offenses are treated as a six-month discretionary suspension. Chairman Humke explained the legislative conflict procedures for the new members of the committee. ASSEMBLYMAN CARPENTER MOVED TO ADOPT SECTION 10 OF A.B. 317 AS PRESENTLY WRITTEN. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN ANDERSON, STEEL, AND SANDOVAL VOTED NO. Continuing to Section 12 of A.B. 317, Mr. Neilander stated this section would need to be amended to reflect the confidentiality provisions already adopted by the committee in Section 7 of A.B. 317 so virtually the amendments are technical in nature. ASSEMBLYMAN ANDERSON MOVED TO ADOPT SECTION 12 OF A.B. 317 REFERENCING SECTION 7 AND OTHER GRAMMATICAL CHANGES SUGGESTED IN THE WORK DOCUMENT. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. Continuing to Section 13 of A.B. 317, Mr. Neilander explained this section requires notification of the child of the provisions of Section 8 which the committee just discussed. Chairman Humke stated it was a fairly straight forward section providing due process. ASSEMBLYMAN PERKINS MOVED TO ADOPT SECTION 13 OF A.B. 317 AS OUTLINED. ASSEMBLYMAN MANENDO SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. In Section 14 of A.B. 317, Mr. Neilander stated this section begins the provisions of habitual criminal. Section 14 requires the district attorney to file notice as a habitually violent felon if the grand jury makes an indictment or charges that qualify for a habitually violent felon. Mr. Neilander explained "habitually violent felon" is a new category and further explained the proposed amendments to this section. Ms. Ohrenschall voiced her sentiment that when it comes to crimes that involve the attempt to defraud, there have been many cases of repeat offenders who have basically cheated unsuspecting people, especially seniors, out of their life savings, and she would like to see something mandating the district attorney to hold such people as habitual criminals rather than leaving that area discretionary. Mr. Neilander stated later provisions in A.B. 317 may address Ms. Ohrenschall's concern. Ms. Ohrenschall countered that she believed the later provisions did not in fact address her concerns directly and in fact it appears in later provisions of the bill to actually lessen the offense by raising it from 3 offenses to 5 offenses. Mr. Neilander stated perhaps it would be best suited for the committee to consider all the provisions regarding habitual criminality as a whole rather than voting on them each separately. Continuing on to Section 21 of A.B. 317, Mr. Neilander explained this section prohibits suspension of sentence. There has also been an amendment suggested to this section at lines 34 to 37 to change the time for filing probationary reports from 30 days to 45 days. Mr. Neilander continued to Section 24 of A.B. 317 which creates the new category of "violent habitual felon" which applies to anyone convicted of a felony involving the use of or threatened use of force or violence and has previously been two times convicted whether in this state or elsewhere of a similar felony. Further, they shall be punished by imprisonment for not less than 20 years. Mr. Neilander pointed out a problem with this language in that the current habitual statute provides for life sentence so this could be foreseen as a lesser punishment. If it is the committee's intent to make the sentence 20 years to life it should be so expressly stated. Mr. Neilander continued to Section 25, which provides procedural safeguards from the old statutes and are being placed here in the new provision. Mr. Neilander called the attention of the committee to the top of page 18 of A.B. 317 which sets forth the court "shall" impose sentence for the habitual felon and the new category, violent habitual felon. Proceeding to Section 26 of A.B. 317, Mr. Neilander indicated this section would recognize Ms. Ohrenschall's concerns regarding defrauding someone. Mr. Neilander explained this is also referred to as the "little" habitual statute and the existing law provides for three felonies or four crimes involving fraud or petty larceny and that would now be deleted. The "big" habitual language, however, would be retained, beginning at lines 30-38. This allows the fourth felony (3 priors plus 1); or previously five times convicted petty larceny or any misdemeanor or gross misdemeanor regarding the attempt to defraud. Ms. Ohrenschall vehemently expressed her dissatisfaction in the habitual criminality provisions of the bill as it affects fraud on our seniors. She would like to see it mandatory charging rather than discretionary charging. Mr. Neilander explained once again the provision would allow for discretionary charging for habitual criminality and mandatory for the habitually violent felon. Mr. Neilander stated one way to address some of her concerns would be to include language that it is discretionary "except if it involves fraud or attempt to defraud" not petty larceny. Mr. Goldwater declared he understood and agreed with Ms. Ohrenschall's comments but felt the intent of A.B. 317 and the committees' responsibility was to reserve the prison beds for most violent offenders. Mr. Perkins added his comments about crimes against the person versus crimes against the property due to the potential for great bodily harm and/or death. The provision under discussion now still allows for the discretion so if it is a fraud case against a senior citizen, the district attorney could charge it out as habitual. He did not believe removing that discretion would be applicable. Further discussion was held regarding bilking seniors in fraud cases and the district attorney's current use of the habituality penalties. It was concluded by the committee co-chairmen that Ms. Ohrenschall's concerns perhaps would be best suited in a separate bill draft request and, if she chose that route, they would be happy to attempt to expedite the bill request. Ms. Springgate added it was the intent of the bill to make the habitual violent felony charging mandatory on the district attorney and judges. Additionally, the Commission on Sentencing in Sections 17 of the bill may address Ms. Ohrenschall's concerns by providing a point system at sentencing after developing a scheme that outlines the savagery and sophistication of a crime and the type of person the crime is directed against. Ms. Springgate set forth examples of habitual criminals that should not be sentenced to life in prison and that is why it has been separated out. Mr. Graham stated crime against seniors has been brought up before and he would be happy to work with the committee in this area in drafting new legislation. Upon Mr. Sandoval's inquiry, Mr. Graham stated their office has a strong consumer approach to the schemes described in the committee's discussion (senior bilking) and they vigorously prosecute these cases. He stated they are basically "paper cases" and are difficult to prove. Further, he stated there is no enhancement for a victim over 65 like there is for robbery or the like. Mr. Neilander outlined the proposed amendments to the habitual criminality sections of A.B. 317 beginning on Section 14, add "Information" where appropriate, delete district attorney and insert "prosecuting attorney". To Section 24, change line 27 to state life with or without and a minimum parole would not be until 20 years had been served, prosecuting attorney insertion again, delete "but such a conviction must not be alluded to on trial" and insert "unless otherwise admissible." Continuing to page 18, line 12, purposes of impeachment, or "for other lawful purposes." ASSEMBLYMAN SANDOVAL MOVED TO ADOPT THE SECTIONS AS OUTLINED BY MR. NEILANDER TO A.B. 317. ASSEMBLYMAN PERKINS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. No further business coming before the committee, the meeting was 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 April 7, 1995 Page