MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session April 17, 1995 The Committee on Judiciary was called to order at 6:10 p.m., on Monday, April 17, 1995, Chairman Humke presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. 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: Margaret Springgate, Governor Miller's Office Dan Prince, Chief, State of Nevada Juvenile Division Planning, Evaluation, Program Development Ann Andreini, Governor Miller's Office Chairman Humke opened the work session meeting with a quorum present. ASSEMBLY JOINT RESOLUTION 24 - Proposes to amend Nevada constitution to provide for election of chief justice by justices of supreme court. ASSEMBLYMAN SANDOVAL MOVED TO DO PASS A.J.R. 24. ASSEMBLYMAN STEEL SECONDED THE MOTION. In discussion, Ms. Steel asked what the fiscal impact would be to place the resolution on the ballot. Mr. Anderson replied there was no cost to the state. Ballot questions are paid by the counties. Chairman Humke added the resolution would have to be passed in exact form in the next legislative session. Ms. Buckley stated she was not convinced by testimony that this measure was even necessary and she too was concerned with the cost for the ballot measure. Mr. Carpenter commented the term of the office of chief justice is four years; however, the terms the justices are seated is for six years so how would that actually occur? Mr. Carpenter added the way he would like to see it is the justice interested in being chief justice could file for that office and then the people would elect him to that position. Mr. Anderson stated he believes it is rare two justices are running at the same time for chief justice; however, it may occur more in the future. Mr. Anderson supports the resolution. Ms. Steel stated she was convinced by the testimony that there are some justices who are not interested in the administrative processes and therefore would rather not be chief justices. She concluded stating she supports the proposed legislation. Chairman Humke brought the motion back to the floor for vote. THE MOTION CARRIED. ASSEMBLYMEN BUCKLEY, OHRENSCHALL, AND SCHNEIDER VOTED NO. ASSEMBLYMAN BATTEN WAS NOT PRESENT. Chairman Humke appointed Mr. Batten for floor assignment of A.J.R. 24. ASSEMBLY JOINT RESOLUTION 17 - Proposes to amend Nevada constitution to allow legislature to designate places in county other than county seat for holding terms of district court. Mr. Neilander distributed amendments proposed by Assemblyman Neighbors, the primary sponsor of A.J.R. 17. Mr. Neilander explained one of the amendments would essentially eliminate references to "terms" since the courts no longer sit in terms. Both amendments create the ability of the county commissioners to determine where the additional location would be outside of the county seat. Mr. Carpenter stated he supports the bill but feels it would be more worthwhile to allow more than one location. ASSEMBLYMAN CARPENTER MOVED TO AMEND & DO PASS A.J.R. 17 TO ALLOW THE TERMS OF THE COURTS BE HELD AT ADDITIONAL LOCATIONS AS DESIGNATED BY THE COUNTY COMMISSIONERS. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. Mr. Anderson expressed his disconcert with the movement of the responsibility for designating court locations away from the legislative body. However, he declared he favors more than one location. Mr. Sandoval asked Mr. Neilander if the issue of more than one location was brought forth at the time of drafting. Mr. Neilander stated he had no additional information from the bill drafter or from any hearings. Chairman Humke stated he recalled this resolution from last session but did not recall any particular areas of concern. Ms. Monaghan asked in particular which amendments were being considered by the committee and included in the motion made by Mr. Carpenter. Chairman Humke clarified language, "may be held at such additional locations in the county if they are designated by the county commissioner." Mr. Neilander stated such language could be drafted if that were the intent of the committee. Ms. Buckley asked about the language regarding "county division" wondering if there was any way of keeping legislative control in allowing such additional locations. Mr. Neilander stated the language would have to specify county commissioners or legislature but not both. Ms. Buckley asked if the state could have enabling powers to set up the locations. Mr. Carpenter stated the county commissioners could accomplish the designation well. Ms. Steel suggested the county commissioners could designate the locations and the legislature could approve the locations. Ms. Buckley agreed that was what she was getting at and Mr. Neilander also brought that idea to her attention. Mr. Neilander outlined the amendments to A.J.R. 17 and the motion was brought back to the floor for a vote. THE MOTION CARRIED. MR. BATTEN WAS NOT PRESENT. Chairman Humke noted the primary sponsor of the bill was Assemblyman Neighbors and floor assignment would appropriately go to him with Mr. Carpenter acting as an alternate. ASSEMBLY BILL 109 - Authorizes issuance of protective order for victim of person charged with crime of harassment or stalking who is acquitted by reason of insanity. Mr. Neilander explained this bill was considered with other stalking bills so in that regard there may be a nonsubstantive conflict amendment in the future. Mr. Neilander further explained the legislative conflict procedure adding most conflicts (99%) are nonsubstantive and the other 1% are substantive which would require immediate attention. ASSEMBLYMAN BUCKLEY MOVED TO DO PASS A.B. 109. ASSEMBLYMAN STEEL SECONDED THE MOTION. Mr. Sandoval stated he was aware of a bill currently in the Senate to eliminate the insanity defense and wondered if the committee should discuss it now or if the conflict procedure would address it. Mr. Neilander outlined more information regarding the conflict procedure. Chairman Humke brought the motion back to the floor for a vote. THE MOTION CARRIED. Chairman Humke assigned the floor presentation of A.B. 109 to Ms. Stroth. ASSEMBLY BILL 317 - Makes various changes related to juvenile courts, sentencing, crimes and punishments. Chairman Humke advised the committee of discussions both chairmen have had regarding previous sections of A.B. 317 relating to the age reduction from 16 to 14 for automatic certification of juveniles to adult court. Chairman Humke advised the committee they would be revisiting the applicable sections of the bill. Chairman Humke announced he asked Dan Prince, State of Nevada Division of Youth Services, Program Development, to be present at the meeting to answer any questions. Mr. Neilander stated the applicable provisions of the bill relative to automatic certification are contained in Sections 1, 2, and 5. The original bill proposes to automatically certify those juveniles convicted of the newly-enumerated crimes for persons 16 years of age or older. The committee, however, voted to lower that to 14 years of age. Chairman Humke clarified Sheriff Kirkland, Washoe County Sheriff, suggested the change from age 16 to age 14. Ms. Ohrenschall asked if there was any conflict with applicable federal legislation with the age 14 and was there anyone who could testify in that regard. Mr. Carpenter stated as far as he was concerned age 14 was fine. Dan Prince, State of Nevada Division of Youth Service, Program Development, upon Chairman Humke's inquiry, stated he did not know what the numbers would be as to the amount of juveniles they would be dealing with. He stated there were no federal conflicts as far as he could see. Their concerns surround the language involving juveniles held in adult jails but age is not a factor. Chairman Humke asked if they were to pass the bill with automatic certification at age 14 for the enumerated list of crimes, would that mean age 14 is considered an adult and is not subject to federal law. Mr. Prince stated that was correct provided you consider changing the language from "charged with" to "convicted of" because the time frame between being charged and convicted would be in conflict of the federal act. The wording "charged with" would provide compliance with the federal act. Mr. Perkins remarked his reflection on their reducing the age from 16 to 14 appears to be a radical departure from previous public policy. Perhaps the committee has become too zealous in their approach to be tough on crime. Mr. Goldwater commented on treatment of juveniles 14 years of age. Mr. Prince stated his suggestion to the committee to keep the "charged of" language in the bill stems from the mixing of juveniles with adults and what that effect may have in complying with the federal act together with the funds the state now receives. In addition, the committee has voted to adopt sections relating to mixing juveniles with "nonviolent" adults as opposed to any adults which would put the statute out of compliance with the act. Mr. Prince suggested juveniles be held in juvenile detention facilities in order to remain in compliance of the act. Upon Ms. Ohrenschall's inquiry, Mr. Prince read Section 223(a)(14) of the Federal Juvenile Justice Act: Beginning after a five year period following December 8, 1980, no juvenile shall be detained or confined in any jail or lock-up for adults except that the administrator shall through 1993, promulgate regulations which make exceptions with regard to the detention of juveniles accused of non-status offenses that is delinquent acts only who are awaiting an initial court appearance pursuant to an enforceable state law requiring such appearances within 24 hours after being taken into custody, excluding weekends and holidays, provided such exceptions are limited to areas which: a) are outside a standard metropolitan statistical area; and b) have no existing acceptable alternative placement available; and c) are in compliance with paragraph XIII. In other words, if you are going to remain in compliance with the federal act, you cannot have any juveniles, except under those very limited circumstances, held in adult jails. Mr. Prince added the committees' amendment to change the time frame in other sections of A.B. 317 from 24 hours to 48 hours would be in violation of the federal act. Mr. Perkins asked if the enumerated offenses were used, regardless of age, would the juvenile be handled as a juvenile until they are convicted of the crime. Mr. Prince clarified this provision is contained in Section 6 of the bill. Mr. Anderson reflected on Juvenile Judge Charles McGee's comments wherein he prefers the age of 16 years versus 14 years. Further, Mr. Anderson expressed concern if a child convicted of one of the enumerated charges, is imprisoned for 20 to 40 years and then is placed back out on the street, society would be placed in danger. Ms. Buckley supports the idea of revisiting the age of automatic certification and believes automatic certification should apply to those juveniles between the age of 16 and 18 years and remain at the judge's discretion for juveniles age 14 years. Mr. Carpenter reiterated, considering the enumerated crimes, he still feels comfortable with the age 14. Ms. Steel opposed Mr. Anderson's comments in that a judge most likely will not sentence a youth to 40 years in prison. Also, she stated her understanding of the certification process requires two trials; one to determine to certify up, and two the trial on the charges. The enumerated crimes are so egregious why incur the extra expense of two trials. The judge would still have the discretion to certify down. For these reasons, she was persuaded to go with the age of 14 years but understands the arguments brought forth regarding changing the age back to 16 years. Ms. Buckley stated the Rose Commission Report has a recommendation provided by the District Attorneys Association and the Justices of the Peace which would combine the certification hearing with the preliminary hearing so some of those concerns would be addressed eliminating the expense of two hearings. Mr. Prince concluded by reminding the committee the monies presently received by the state through compliance with the Juvenile Justice Act total approximately $700,000.00. The majority of that money is passed through to the counties for juvenile justice programing. With recent cutbacks in programs, etc., those funds are presently the only monies, outside the county's own budget, available. Chairman Humke added a significant amount of those funds are passed through to the rural counties. Upon Ms. Ohrenschall's inquiry, Mr. Prince clarified $600,000 is a federal appropriation and there is a new title, Title V of the Juvenile Justice Act, which is a separate program involving $100,000 this year available to Nevada, to be passed through the counties. However, the state must be in compliance with the Juvenile Justice Act in order to qualify for those funds. ASSEMBLYMAN PERKINS MOVED TO AMEND SECTIONS 1, 2, AND 5, OF A.B. 317 TO CHANGE THE AGE FROM 14 TO 16. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. In discussion, Ms. Buckley stated she would provide the language from the Rose Commission regarding the combination of the certification and preliminary hearings. Mr. Carpenter stated he will vote no to change the age from 14 back to 16 years of age as he would like to discuss it with Sheriff Kirkland from Washoe County first and then he may change his vote on the floor. Chairman Humke brought the motion back to the floor. THE MOTION CARRIED. ASSEMBLYMEN CARPENTER AND MONAGHAN VOTED NO. Mr. Neilander expounded on Mr. Prince's comments regarding proposed amendments passed through committee pertaining to the use of language "violent" in holding juveniles with adults and the provision concerning 24 hours rather than 48 hours as these areas if passed as amended, would put the state out of compliance with the federal act. Mr. Prince explained the federal act does not make any distinction between violent or non-violent offenders so the inclusion of that language would not be in compliance. Further, with regard to the 6-hour provision, this refers to processing only and the remaining time limits, in order to be in compliance with the federal act, should be 24 hours. Ms. Steel asked if states have to comply with federal acts and what happens if they do not comply. Mr. Prince informed the committee the states, if they want to receive funding, must be in compliance with the act. However, there have been cases against a couple of jurisdictions which were successfully litigated specifically relating to jail detention of juveniles. Mr. Carpenter asked what if an entity could not comply with the 6-hour or 24-hour requirement? Mr. Prince stated he was unaware of any jurisdiction in the state that has any problem in meeting that time limit. Mr. Carpenter asked if there was anywhere in the state where juveniles are held in a jail. Mr. Prince stated yes in Douglas County, Nye County, Eureka County, and Mineral County and they are held in those facilities separated from adults until transports occur. Further discussion was held on detention of juveniles between Mr. Carpenter and Mr. Prince. ASSEMBLYMAN ANDERSON MOVED TO AMEND SECTION 6 OF A.B. 317 TO ALLOW FOR 24 HOURS, RETURN TO 6 HOURS AT LINE 7 OF PAGE 6, AND WITHDRAW "VIOLENT" AT PAGE 5, LINES 43-44. ASSEMBLYMAN SANDOVAL SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN BATTEN VOTED NO. With regard to Sections 27 and 28 of A.B. 317 addressing residential confinement, Margaret Springgate, Governor Miller's office, provided limited testimony regarding proposed amendments to those sections. Those amendments were provided to the committee and are attached hereto as (Exhibit B). Robert Bayer, State of Nevada, Director of Prisons, presented a Memorandum pursuant to his discussions with MADD and the Department of Parole and Probation. The Memorandum is attached hereto as (Exhibit C). He stated the above groups are also in agreement with the amendments proposed today by Ms. Springgate. Mr. Goldwater asked since Mr. Bayer's job includes setting up the eligibility requirements for residential confinement, do those regulations or rules include persons with disabilities? Mr. Goldwater asked if, for example, there was a program to get an inmate with AIDS out of prison into residential confinement. Further discussion was held regarding the eligibility requirements for residential confinement as it relates to employment of the applicant. Upon Mr. Carpenter's inquiry, Mr. Bayer stated the ability to pay for all or part of the cost of residential confinement can be done in a variety of ways and no it is not their intent to have it available for rich prisoners. The purpose is they should pay their own way rather than be a burden on the public. Ms. Buckley asked if a person is incarcerated and has no connections with the outside world and are indigent, how do they get a job. Mr. Bayer stated they have a furlough program in place which helps and additionally, the prisons assist in every way they can to help locate jobs for inmates. Ms. Buckley asked if they have to secure a job before they are eligible for the residential confinement program. Mr. Bayer stated his understanding was the individual would have to have some sort of a program prior to release into residential confinement. In addition, they work closely with Parole and Probation since they do the ultimate screening. Chairman Humke added there are certain organizations which have a mission to employ inmates and actually interview offenders for potential employment. Mr. Bayer stated that was true and also if the Life Skills Program were to be implemented, that will be a tremendous resource, along with an expansion of boot camps. Upon Mr. Goldwater's inquiry, Mr. Bayer stated a prisoner is still technically in prison when they are in a residential confinement program. A discussion was held regarding whether an inmate is entitled to receive disability such as Supplemental Security Income and Medicaid benefits while incarcerated. Mr. Anderson stated they passed legislation last session that inmates would not be entitled to SIIS benefits while incarcerated. Ms. Steel asked when a prisoner is enrolled in a residential confinement program, is the state of Nevada still responsible for their care and medical expenses and if so, she would like to make it so the state was not responsible for their injuries while in home supervision. Mr. Bayer was not certain but he did not believe the state was responsible. Nancy Tiffany, Juvenile Probation Department, was asked to come forward and comment on the above subject matter. Ms. Tiffany stated regarding the 305 program, the persons in residential confinement are responsible for their own medical needs. The relevant provision is NRS 209.429. Mr. Neilander stated the committee may want to consider including that provision in these sections. Chairman Humke added his thoughts that most inmates were indigent and it would just be shifting the burden of these inmates' medical expenses from the state to the county hospitals. Further discussion was held regarding the responsibility of inmates in residential confinement. Ms. Steel stated if the inmate in residential confinement participant is employed and has insurance through his employment that should be the primary coverage and the county/state should be secondary. Mr. Perkins stated the risk of harm while in residential confinement is less than while incarcerated. Finally, Mr. Neilander pointed out to the committee the language regarding NRS 209.429 was already included in the bill on page 20. ASSEMBLYMAN CARPENTER MOVED TO ADOPT SECTIONS 27 & 28 OF A.B. 317 INCLUDING AMENDMENTS CONTAINED IN EXHIBITS C & D HERETO. ASSEMBLYMAN PERKINS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. Chairman Humke stated he had some misgivings and reserved his right to revisit this perhaps on the floor. He added something needs to be done as the parole situation is being handled by prisons. Further, Mr. Bayer has assured the co- chairmen if this does not work to the satisfaction of the legislature it will be revisited. Chairman Humke added we are not using parole. Fiscal Analysts have informed him residential confinement provisions mean a net difference of 140 beds of the course of the biennium. The answer is--if you do not do this we will need to find another 140 beds. The parole board has approved, at a 5% parole rate, persons with a 1-year sentence. Chairman Humke concluded stating there is something wrong with our system. Moving to other sections in the bill, Mr. Neilander stated the remaining sections are fairly non-controversial. He stated section 22 sets forth the court may modify the original sentence imposed. This recommendation was as a result of the Springer Report issued in 1985 and has been pursued again now. It essentially gives the court another option. ASSEMBLYMAN PERKINS MOVED TO ADOPT SECTION 22 TO A.B. 317. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. Mr. Carpenter asked if MADD's concerns have been addressed in this section. Mr. Anderson asked if the judge who set the original sentence would be used in this instance. Mr. Neilander stated yes, pursuant to the testimony. Mr. Anderson stated MADD's concerns were that one judge would impose a sentence and then, pursuant to this section of the bill, another judge could come along and modify it. Mr. Neilander called attention to page 16, lines 44-48 of A.B. 317, which addresses the jurisdiction of the court. Judy Jacoboni, MADD representative, stated they do oppose the provisions in section 22 of the bill as it seems to reward the probationer by allowing a modification of the sentence imposed which may be less than the original sentence. In addition, there is no provision for victim input at the second hearing. Further, she did not recall any judge's representative associations testifying on this issue before the committee. Ms. Steel stated she agreed with the concerns set forth by MADD. Margaret Springgate stated they met with many judges regarding section 22 of the bill and they were all very supportive of the provision. Also, as stated in the Springer Report, judges will sentence someone with a heavy sentence knowing they were going to put that person on probation and to use it as a heavy hammer then if there is technical violation the judge can impose the hammer. Upon Ms. Ohrenschall's inquiry, Ms. Jacoboni stated they would change the section to include victim input at the new sentencing hearing. Mr. Anderson stated his understanding of the provision is that the judge cannot reduce the time nor create additional time and it would still be the statutory minimum at the new sentencing hearing. Ann Andreini, Governor Miller's office clarified the provisions in section 22 does not allow the judge to decrease the sentence below the statutory minimum. However, if the statutory minimum is three years and the judge has sentenced the defendant to six years, placed on a suspended prison sentence and placed him on probation, then there is a probation violation, under current law, the judge has no choice but to place that defendant in prison for the full six year period. The provision in A.B. 317 allows the judge to reduce it down to the three year statutory minimum. Ms. Andreini stated their office would have no objection to the MADD suggestion to allow victim input at the second sentencing proceeding. Ms. Steel suggested a parceling out of prison at the second hearing along with probation since they have already committed a violation. Ms. Buckley called for the question which passed unanimously. Chairman Humke brought the motion back to the floor for a vote with the inclusion of the MADD amendment to include victim imput at the second hearing. THE MOTION CARRIED. ASSEMBLYMAN STEEL VOTED NO. Mr. Neilander stated Sections 29, 30, and 31 regarding the parole board's ability to commute a life without or death sentence are the remaining sections to address regarding A.B. 317. He stated it has been suggested the date of July 1, 1995 on page 21 be removed so the statute would apply retroactively. He informed the committee legal counsel stated there is no case on point that deals with that issue. Further, testimony reveals it is not ex post facto and there is no due process. Mr. Neilander further discussed options of the committee regarding these sections. Upon Mr. Perkins' inquiry, Mr. Neilander stated his recollection of testimony is there has been a total of 18 commuted sentences in the last 50 years. Mr. Bayer, prison director, stated he believed there have been 6 commuted sentences since 1987. ASSEMBLYMAN BUCKLEY MOVED TO ADOPT SECTION 29 WITH NO AMENDMENTS. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. Ms. Buckley stated that law enforcement, Governor, and district attorneys studied this section and this is what they recommended. The committee may have to revisit it again when the Senate version comes over but she believes it to be a good recommendation. Chairman Humke brought the motion back to the floor for a vote. THE MOTION CARRIED UNANIMOUSLY. Mr. Neilander explained with regard to Section 30 there has been a suggestion to expand the definition of victim. Chairman Humke asked if the expansion would be along the lines of the amended language the committee has already passed in A.B. 186. Ms. Stroth clarified the language and changes made to Assemblyman Hettrick's bill. ASSEMBLYMAN STROTH MOVED TO AMEND SECTION 30 OF A.B. 317 TO INCLUDE THE EXPANDED DEFINITION OF VICTIM AS PREVIOUSLY OUTLINED. ASSEMBLYMAN MANENDO SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. Mr. Neilander stated Section 32 deals with the time lapse between parole hearings. ASSEMBLYMAN ANDERSON MOVED TO ADOPT SECTION 32 TO A.B. 317 AS PRESENTED. ASSEMBLYMAN SANDOVAL SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. Mr. Neilander stated the only issue remaining was the effective date of the act. A suggestion has been made that the act become effective upon passage and approval. ASSEMBLYMAN BUCKLEY MOVED TO MAKE THE EFFECTIVE DATE OF A.B. 317 UPON PASSAGE AND APPROVAL. ASSEMBLYMAN MANENDO SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * ASSEMBLYMAN SANDOVAL MOVED TO AMEND & DO PASS A.B. 317. ASSEMBLYMAN ANDERSON SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. There being no further business before the committee the meeting was adjourned at 8:33 p.m. RESPECTFULLY SUBMITTED: ______________________________ Joi Davis, Committee Secretary APPROVED BY: _________________________________________ Assemblyman Bernie Anderson, Chairman _________________________________________ Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary April 17, 1995 Page