MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session April 13, 1995 The Committee on Judiciary was called to order at 7:10 a.m., on Thursday, April 13, 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 Mrs. Dianne Steel Ms. Jeannine Stroth GUEST LEGISLATORS PRESENT: Senator Mark A. James, District No. 8 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Mr. David Anton Mr. Larry Osborne, Carson City Chamber of Commerce OTHERS PRESENT: (Continued) Mr. Charlie Joerg, Nevada Resident Agents Association Mr. Kirk Schumacher, Esq., CT Corporation Mr. Al Kramer, Treasurer, Carson City Treasurer's Office Mr. Steve Stucker Mr. Brent Buscay Mr. Robert Seligman, Nevada Resident Agents Association Mr. Phil Stout, NAIB Ms. Lucille Lusk, Nevada Concerned Citizens Mrs. Patricia Robson, 2nd Vice President, Ruth Fyfe P.T.A., Las Vegas, NV Mr. Lee Robson, Las Vegas, NV Mr. Kevin Higgins, Attorney General's Office Mr. Thomas Cook Mr. Dan Jenks Ms. Ann Wilson Andreini, Executive Assistant, Governor's Office Ms. Margaret Springgate, Governor's Office Lieutenant William H. Cavagnaro, Legislative Liaison, Las Vegas Metropolitan Police Department Mr. David Horton, Lobbyist, Alternative Therapy Support Group Committee To Restore The Constitution Mr. Robert Bayer, Director, Nevada Department of Prisons SENATE BILL NO. 120 - Limits civil liability of county school districts, local law enforcement agencies and certain other persons with regard to volunteer crossing guards for schools. Mrs. Patricia Robson, 2nd Vice President, Ruth Fyfe P.T.A., Las Vegas, NV, testified in support of S.B. 120. Mrs. Robson, a mother of five, explained three years ago a crossing guard was taken away from an area; and, the children had to literally fight some days to cross the street through the cars to get to school. Last year on June 1, a student was hit by a car. The student has a pin in his leg and will have it there until he stops growing. It was heart breaking to see this accident happen on the last day of school. Senate Bill 120 proposed by Senator James promises to allow school districts and police to establish training programs for volunteer crossing guard programs throughout the state with reduced liability, attached as (Exhibit C). Mrs. Steel inquired why the first print of the bill's provision of crossing guard training was deleted in the second print. Mrs. Robson advised the school district was responsible for the training in the first print. It would be better if law enforcement was responsible because they provide the paid crossing guards. Chairman Anderson advised two hearings will be held on this bill. WORK SESSION: ASSEMBLY BILL NO. 393 - Makes various changes related to possession of firearms by children and increases penalty for sale of certain firearms to children. Mr. Dennis Neilander, Research Analyst, advised three sets of amendments were suggested. One has to do with the definition of a loaded firearm. The other has to do with delinquent child and type of crimes committed that could be classified as delinquent. Finally, a two-part amendment to deal with the rural areas on how this bill will apply to juveniles. Mr. Neilander made reference to p. 5, ll. 47-48. Amendment suggested was to delete subsection c. Same language needs to be adjusted at p. 9, ll. 11-12, to clarify the definition of a loaded firearm. Second amendment, p. 7, l. 19, juvenile master of Reno previously testified at the end of sentence, there needs to be a qualifier which states, "this subsection commits a delinquent act if the act is a felony that would have been a felony if committed by an adult." Later on it goes to the issue of certification dealt with at length in this committee. Finally, Mr. Carpenter expressed concern with the way the bill may effect juveniles in the rural areas. In particular, those that may hunt varmits and do not need a license to hunt varmits. Mr. Neilander explained the proposed amendment. He referenced S.B. 42 to look at model language that could be utilized in the amendment. It reads as follows: "Unless he is in an area designated by the city or county ordinance as a non-populated area." Mr. Neilander referenced p. 9, l. 4, A.B. 393, subsection 8 of Section 12, "Within an area designated by a county or municipal ordinance as a populated area." Mr. Neilander suggested the non-populated language be inserted on p. 8, l. 33, as new subsection g. Ms. Buckley requested clarification on p. 7, l. 19, regarding a felony if committed by an adult. Mr. Neilander recalled testimony if that was not there, it would create a problem for certification of juveniles to district court later in the statute. Ms. Margaret Springgate, Governor's Office, advised the problem with adding that language is that what we are saying here is the delinquent act. The possession of a firearm by a juvenile. This is not a felony if committed by an adult because this is prescribing conduct for juveniles. Ms. Springgate was not sure what Ms. Edmundson, Washoe County District Attorney's Office, intended. The ability of the district attorney to certify these juveniles to adult court if they were 14 years and older due to their conduct or use of a firearm was desired. To state the delinquent act is not charged unless it is a felony if committed by an adult does not make sense here. Mr. Neilander recalled in A.B. 317 the certification provisions do address deadly weapons. If the juvenile was using the deadly weapon in the commission of some act, they would fall within the certification provisions already adopted in A.B. 317. The question comes to mere possession and whether or not if the juvenile is committing the offense of mere possession but no other offense. Is it an offense that should be certified up? Chairman Anderson asked if the companion bill, A.B. 317, has this coverage already built into it; therefore, even though it may not be in this section with the firearm bill, that predicated on the passage of the other legislation. Mr. Neilander advised it is included in the enumerated crimes that involve a deadly weapon. If the question is mere possession, then it does not. The bill does not certify for mere possession. Ms. Springgate advised in drafting the bill, the provisions making it a felony for the child was not included because it did not make logical sense. They kept out the felony language and put it as a delinquent act. Ms. Buckley advised this section was not a certification section and suggested the language be deleted. Mr. Neilander referenced Section 21, this is the existing law with regard to who may hunt and whether or not the child has to be accompanied by a parent. The qualifying language is except as otherwise provided in subsection 5. After this, if the committee chooses, it will state subsection 5 or 6 of NRS 202.300. It is creating an exception for this other provision. In referring back to p. 7, l. 47, "the child who is 14 years or older who has in his possession a valid license to hunt may handle or have in his possession or under his control without being accompanied by a parent or guardian." Under Chapter 502 of NRS the varmint hunting does not require a license. Mr. Neilander suggested at p. 7, l. 47, inserting "or who is engaged in a hunting activity pursuant to Chapter 502 that does not require a license." Ms. Springgate stated this bill is significantly different from S.B. 42. Section 12 prohibited possession of firearm unless minor is with a parent. By including the aforementioned language, the provisions will be gutted on the activities. Because now you are stating, we do not care what kind of activity you are engaged in. If you are in a non-populated area it is going to be okay. This is taking away the tools intended for law enforcement to use in drive by shootings. The committee is mixing up putting the areas into the activities that they tried to designate as being lawful by including that kind of language. Mr. Carpenter commented his perception of the amendment working was the county commissioners enacting an ordinance in a non-populated area has to be outside of the city limits. They would not enact an ordinance that would effect the populated area where many residences are. Mr. Carpenter requested clarification on p. 8 regarding firearm capable of being concealed upon the person if the child has a written permission. He asked if the note has to be on his person or filed with law enforcement. Ms. Springgate envisioned the juvenile having in his wallet a note from his parents. Ms. Springgate advised the statute definition of the firearm was on p. 8. It is any firearm having the barrel length of less than twelve inches. Mr. Schneider asked if there was a law to have a permit for a concealed weapon. Ms. Springgate advised a permit is required to carry a concealed weapon. This is dealing with firearms capable of being concealed. Right now a 15 year old can walk down the street with a pistol provided it is not under his coat. The youth needs a note from his parents to have possession of the pistol. To carry a concealed weapon, he would still need a concealed weapon permit. Ms. Ann Wilson Andreini, Executive Assistant, Governor's Office, a former deputy district attorney, advised when a gun is considered as a concealed weapon. In Washoe County juveniles were charged with carrying concealed weapons under untucked shirts. Mr. Schneider expressed concern regarding gang member's parents providing a note later after an incident. It was agreed conceivably a parent could potentially get their child out of trouble by producing a note later. This is one of the reasons provisions were written in the bill to mandate parental responsibility for their child's actions while carrying a weapon. With regard to the amendment on p. 7, l. 47, Ms. Buckley proposed a separate paragraph referring to unpopulated areas and varmint hunting alleviate the concern of gang members' having notes from their mothers. Ms. Andreini responded one of the reasons for including the hunting provision was in order to carry a firearm completion of a hunter's safety course is required. She expressed concern about the varmint exemption. In order to fall within that provision it is required it must be in an unpopulated area. Mr. Neilander proposed combined non-populated with the hunting varmint on p. 8. It could state it is lawful to hunt without a license pursuant to Chapter 502 in a non-populated area. He suggested on p. 8, subsection 6, inserting, "except as otherwise provided in subsection 6." Mr. Carpenter commented this bill is a radical departure of what the citizens of Nevada have been accustomed to. He understood and agreed with the intent of the bill. Unless there is public education on the intent, there may be a backlash. When parents have to give their child a note to carry a revolver, it will hit home. Ms. Springgate advised the reason the provision for written permission was included on a concealable firearm is because it was current federal law. It is not a radical departure from the law, as it is federal law currently. Mr. Carpenter noted the lack of public awareness on federal laws. The public wants less law. We enact more to solve a problem. It is always a difficult issue because laws cannot be discriminatory in applying to a targeted group, i.e., gang members. Mr. Humke referenced p. 8, l. 8, written permission provision. If it is federal law why not let the federal authorities enforce their law? Is the provision in the bill because there is a federal blackmail situation of cutting off state funds? If neither of those are the case, why is there a need to replicate federal law? Chairman Anderson noted this section was proposed by the National Rifle Association (NRA). This legislation has the potential for being the model NRA may introduce to other western states. Ms. Springgate affirmed the provision was included in the bill at the request of the NRA for educational purposes. She indicated she would research to determine if it was a federal law. Chairman Anderson later requested the information for a work session. Mr. Humke remarked if this is the best they could do with federal law in a past Congress, maybe that law is ripe for change. If it is replicating a provision they are stuck with at the federal level, why do we need it? ASSEMBLYMAN SCHNEIDER MOVED TO AMEND AND DO PASS A.B. 393 WITH AMENDMENTS OUTLINED BY MR. NEILANDER. Mr. Schneider noted his concern with p. 8, l. 7. Nevada is the number one urban state in the U.S. In the last 20 years many changes have occurred. Even though we would like to consider ourselves a nice rural western state, we are a very urban state now. We have two big cities and big city problems. This bill needs to be processed. In two years the bill can be analyzed to determine the effects. ASSEMBLYMAN GOLDWATER SECONDED THE MOTION. Mr. Neilander clarified the suggested amendments: p. 7, felony language in Section 12, be deleted. p. 8, incorporate allowance of a person to hunt varmints without a license in a non-populated area. p. 8, l. 27, enumerated list become new "(d) a person engaged in a lawful hunting activity pursuant to Chapter 502 that does not require a license in a non-populated area as designed by the board of county commissioners or the city council." pp. 5 & 9 revises definition of loaded firearm by deleting reference to the magazine since it is already covered in the cartridge language. p. 13, l. 42, insert "or 6" after "subsection 5." Lieutenant William H. Cavagnaro, Legislative Liaison, Las Vegas Metropolitan Police Department, advised a firearm is loaded if the round is in the magazine. Mr. Humke concluded it is a major change to hunting law in this state. This represents another degradation because of the gang bangers. The hunting constituency is not going to be happy with this. Lieutenant Cavagnaro advised the hunting law is different because if you are in the field with a loaded rifle they have different requirements than if it is not loaded. In a hunting situation, one would want a round ready in the magazine. It would have a serious effect in enforcing this against the people law enforcement needs to use it against. Ms. Andreini clarified Ms. Sue Edmondson's previous testimony in recommending on p. 7, l. 19, commitment of a delinquent act. Ms. Andreini proposed adding, "commits a delinquent act and the presiding judge may require detention or impose penalties commensurate with those imposed when a juvenile has been found to have committed a delinquent act that would have been a felony if committed by an adult." Mr. Neilander commented it goes to the issue detention which was not part of the original bill regarding what authority is there to detain a child for a delinquent act that would have been a felony if committed by an adult. Mrs. Monaghan noted from prior testimony it is not a felony if committed by an adult. Ms. Andreini confirmed it is not. What Ms. Edmondson was requesting the judge be allowed to treat it as if it were because it allows the judge to detain the child or impose different penalties. Presiding Chairman Ms. Buckley suggested deleting reference to impose penalties which ensure that judges could detain them if warranted. Makers of the motion concurred with this proposal. With regard to a firearm is loaded if the round is in the magazine, Mr. Humke cited pp, 5 and 9, l. 11, subsection c, proposed changing language to concealable weapons would not have an effect in hunting situations. Mr. Perkins in reviewing Section 12.8, advised it would not effect hunting because it relates to an urban area. Presiding Chairman Ms. Buckley stated the committee was prepared to vote on the motion to amend and do pass. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. ASSEMBLY BILL NO. 321 - Prohibits commercial resident agent from engaging in certain activities without obtaining license from secretary of state. Chairman Anderson read a letter from Secretary of State Dean Heller explaining reason why he was unable to attend the hearing; however, his office will act as a resource. Chairman Anderson requested secretary to distribute copies to committee of Case No. 92-00517-A, LAUGHLIN ASSOCIATES, INC., v. EVERETT N. MEALEY, attached as (Exhibit D). Mr. David Horton, resident agent and Lobbyist, Alternative Therapy Support Group Committee To Restore The Constitution, testified against A.B. 321. He stated any of the problems beset by the persons concerned with pushing this bill will not be addressed by the bill. In order to understand it is necessary to review what a resident agent does. There is basically one thing he does every year. This is he takes the list of officers and directors that he receives from the secretary of state and forwards it to the corporation with his bill. The second, he accepts service of process and forwards the summons and complaint to the corporation. This is all the resident agent does. Mischief addressed by this bill is not done by resident agents. Nevada will lose resident agent business to Wyoming. Mr. Larry Osborne, resident agent, Carson City Chamber of Commerce, testified against A.B. 321. Mr. Osborne advised they have several resident agents among 850 members of the chamber. As Mr. Horton advised, the duties of a resident agent are not being addressed in some of the parts of this bill. Basically, the baby is being thrown out with the bath water on this one. Resident agents serve a very useful and profitable service for Nevada. He urged the bill be killed. Mr. Charlie Joerg, Government Relations, Nevada Resident Agents Association (NRAA), testified against A.B. 321. Mr. Robert Seligman, Executive Director, Nevada Resident Agents Association, testified in opposition to A.B. 321, attached as (Exhibits E and F). The bill is punitive against an entire industry and detrimental to the economy of Nevada. Presently, there is approximately $103 million dollars deposited in Nevada banks. Wyoming has passed the best business law in the county; and, Nevada will suffer a loss of filing fees if this bill is enacted. Resident agents do not make business decisions, sign checks, or give business advice. Mr. Goldwater questioned Mr. Seligman as to what in this bill discourages resident agents to file in Nevada. Bonding requirements are not as high as other states. Mr. Seligman advised provisions of $1,000 fee in addition to $100 for every employee, reporting requirements to an entire level of bureaucracy for enforcement. Concern was expressed where funds would come from to fund the policing agency. It constrains almost in a punitive manner resident agents. They would find it more attractive to do business elsewhere. Mr. Kirk Schumacher, Esq., Woodburn and Wedge Law Firm, CT Corporation, testified in opposition to A.B. 321. Instead of focusing on resident agents, the focus appears to be commodity, securities, and telemarketing fraud. The bond requirement is unreal and unobtainable. A serious concern was expressed on the limitation on free speech promotional activities. CT Corporation sells itself nationwide as a national resident agent. It would be very burdensome to pre-clear promotional materials with only one state. Nevada is the only state attempting to regulate this type of activity. The fee base will harm the smaller corporations. Mr. Schumacher advised his law firm maintains records, registered office of the corporation and forward service of process to the corporation. In the event the bill is assigned to a subcommittee, his office would be willing to develop amendments. Mr. Al Kramer, Treasurer, Carson City Treasurer's Office, testified in opposition to A.B. 321. He cautioned a considerable amount of business license revenue from resident agent type businesses are at risk. If this revenue is lost, the city would have to go to other businesses to recover it. Businesses they are licensing require no resources of Carson City to accommodate them. Mr. Kramer urged caution in going forward. Chairman Anderson inquired if the foregoing was by virtue of the fact the secretary of state's primary location is in Carson City or is it because of the physical location of the high number of resident agents who make up their principal offices representative in Carson City. Mr. Kramer advised the percent of business license revenue for Clark County is significantly less than for Carson City. Chairman Anderson replied because the capitol is located in Carson City, it is not the only factor in Carson's revenue. Every major city in Nevada has resident agents. Mr. Phil Stout, Nevada Association of Independent Businesses (NAIB), testified in opposition to A.B. 321, attached as (Exhibit G). Ms. Lucille Lusk, Nevada Concerned Citizens, testified in opposition to A.B. 321. It seemed this bill is almost a super business activity tax with requirement for $100 fee for each employee. The definition is too broad to include anyone who even obtains and distributes information through any medium including the telephone, etc. She asked the committee to be cautious in imposing regulations that are unnecessary. Chairman Anderson announced remarks and exhibits in support of A.B. 321 by Luke Perry dated April 4, 1995, will be included as part of the record, attached as (Exhibit H). A.B. 321 subcommittee of Chairman Anderson and Ms. Stroth was appointed to develop amendments. Chairman Anderson announced Mrs. Monaghan replaced Mr. Humke on A.B. 396, A.B. 405, and A.B. 427 subcommittee. WORK SESSION: ASSEMBLY BILL NO. 317 - Makes various changes related to juvenile courts, sentencing, crimes and punishments. Sec. 17: The commission on sentencing: Mr. Neilander, research analyst, advised during the last work session the committee voted to reconstitute the sentencing commission, addressed the method of selection, changed membership to make an on-going legislative committee with support from other interested parties. Sec. 18: Duties of sentencing commission: Mr. Neilander noted a technical change on p. 15, l. 10, to change the phrase "guidelines" to "changes in the sentencing structure." Sec. 19: Mr. Neilander advised the duties of Department of Prisons is described. Sec. 20: Mr. Neilander advised the department of administration shall annually contract for projection of prison populations and statistical data. P. 16, l. 7 was included in definition of institution for Department of Prisons for clarification. ASSEMBLYMAN PERKINS MOVED TO AMEND AND DO PASS SECTIONS 18, 19, AND 20 OF A.B. 317. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. Mr. Neilander advised Sec. 21-26 have already been acted upon previously. Sec. 27: Mr. Neilander advised director of Department of Prisons is authorized to place certain offenders in a program of residential confinement. The department is required to adopt regulations addressing eligibility, excluding certain violent, sex related crimes, etc. Mr. Neilander reviewed a number of proposed amendments. Wooster High School American government class accompanied by teacher Barbara Flasher, who were observing government in action, was introduced by Mr. Humke. Mr. Carpenter inquired if MADD was opposed to Sec. 27 in its entirety. Mr. Neilander advised they were. MADD provided proposed amendments. Mr. Humke related Ms. Tiffany's concern of Parole and Probation Department whether or not offenders would be required to have employment or completion of treatment program prior to release. Mr. Neilander advised Sec. 28 of the bill would delete the existing requirements that a person being released from the 305 Program have employment. Concern was expressed regarding that portion. Mr. Neilander advised Sec. 27 does not have an employment requirement. Mr. Robert Bayer, Director, Nevada Department of Prisons, proposed amendment to p. 19, ll. 20-21, providing Parole & Probation in statute equal representation in determining who is released. It gives them the flexibility to look at each individual to determine the needs. Ms. Buckley related MADD concerns regarding inclusion in standards rather than statutes. Since the 305 Program requirements are working well. She suggested creating another similar program for alternative sentencing. Rehabilitation may not be needed for someone released to residential confinement when they are not in the 305 Program. Mr. Bayer recollected amendments were developed for NRS 484.3792 and NRS 484.3795 by adding section g. It clearly indicates that those in the 305 Program would not be eligible for this program, so it leaves it intact with all of its original provisions. Mr. Neilander advised this was at the bottom of the work document on p. 19. Ms. Buckley questioned Mr. Neilander if Sec. 27 revised the current 305 Program framework. Mr. Neilander responded the specific reference to 305 Program would be at Sec. 28 of the bill. It would amend NRS 209.429 and the employment requirement is included there. Mr. Sandoval mentioned he would like to see progress toward educational or vocational training in order to reduce recidivism after release from prison. Ms. Stroth asked if the Governor's proposed changes on l. 38 were incorporated. Mr. Neilander advised l. 38 would read, "has been more than one time conviction of a felony in this state or of a crime that would be a felony if committed in another state not including a violation of NRS 484.3792 or NRS 484.3795." Mr. Carpenter stressed this is a very important section of the bill. He was concerned that it is not receiving justice because of a time restraint. It has been a long time since testimony was heard and recommended it be scheduled when time is available to fully concentrate on the issue. Chairman Anderson agreed and proposed the following procedure with Co- Chairman's permission: Sentencing commission has been decided. Residential confinement areas are now being considered. This will be scheduled for Monday evening work session at 6 p.m. Chairman Anderson reminded the committee will not meet as a committee on Monday morning; but, instead it is scheduled as a subcommittee meeting at 9:30 a.m. There being no further business, the meeting was adjourned at 10:55 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary April 13, 1995 Page