MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session April 24, 1995 The Committee on Judiciary was called to order at 9:35 a.m., on Monday, April 24, 1995, Chairman Anderson presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth GUEST LEGISLATORS PRESENT: Assemblywoman Christina Giunchigliani STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Honorable Charles M. McGee, Second Judicial District Court Joni Kaiser, Committee to Aid Abused Women Sue Meuscke, Nevada Network Against Domestic Violence Diane Loper, Nevada Women's Lobby Bobbie Gang, Nevada Women's Lobby Lieutenant Phil Galeoto, Reno Police Department Gary Stagliano, Nevada State Welfare Sheila Smith, Deputy Attorney General Myla Florence, Nevada State Welfare Mark Knobel, Attorney at Law, Chairman, State Bar of Nevada Committee on Probates and Trusts Chuck Short, Court Administrator, Eighth Judicial District Court Chairman Anderson announced there would be some business matters to conclude prior to getting to the agenda. He informed the committee distribution of a letter from the Attorney General's office pertaining to Assembly Bill 378 and Assembly Bill 395 had been provided to them for review. That letter is attached hereto as (Exhibit C). B.D.R. 43-1738 Limits access to police reports of accidents involving motor vehicles from the Nevada Trial Lawyers Association. ASSEMBLYMAN HUMKE MOVED FOR COMMITTEE INTRODUCTION OF B.D.R. 43-1738 ASSEMBLYMAN GOLDWATER SECONDED THE MOTION. THE MOTION CARRIED. * * * * * Chairman Anderson announced a request for a bill draft which amends Chapters 244 and 466 of the Nevada Revised Statutes requested by James Ritchie which allows counties of populations greater than 500,000 to license greyhound racing in the county outside of incorporated cities. ASSEMBLYMAN HUMKE MOVED FOR A REQUEST OF BILL DRAFT. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. THE MOTION CARRIED. * * * * * Chairman Anderson announced he had a request for a bill draft request from the Furman Group requiring an act to provide civil immunities to persons who operate or use certain sport shooting ranges and to regulate the application to states. ASSEMBLYMAN HUMKE MOVED FOR A REQUEST OF BILL DRAFT. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLY BILL 395 - Creates rebuttable presumption that upon dissolution of marriage, sole or joint custody of child by perpetrator of domestic violence or by former spouse convicted of sexual assault is not in best interest of child. Assemblyman Thomas Batten, District 27, the primary sponsor of the bill, introduced the intent behind A.B. 395. Mr. Batten stated A.B. 395 deals with the best interest of the child wherein if a parent is convicted of domestic violence a rebuttable presumption is created that the sole or joint custody of the child is not in the best interest of the child. A judge would issue findings of fact and additionally set forth visitation arrangements. Mr. Batten introduced an amendment to the bill (Exhibit D) propounded by Judge Scott Jordan and Judge Charles McGee, juvenile judges in Washoe County. The amendment would add subsection 7 to the bill. He added the proposed amendment protects the victim in a situation where both parties are engaged in acts of domestic violence. The courts would make a determination of who was the primary physical aggressor and who was acting in self-defense. Mr. Batten concluded that Judge Gaston and Judge Marren of Clark County both support A.B. 395 and if teleconferencing would have taken place on this bill these judges would have appeared to testify. Also, Mr. Batten informed the committee he spoke with Patricia Lynch, Reno City Attorney's Office, who expressed her support for the bill. Chairman Anderson noted for the record that A.B. 395 was held for teleconferencing on Tuesday, April 18, 1995 and that room was not available for hearing today. Honorable Charles M. McGee, Second Judicial District Court Judge, testified in support of A.B. 395. Judge McGee stated all studies show at least 50-75% of the cases of domestic violence are not isolated acts but rather a lifestyle of a perpetrator exerting his control over his victim. He added the family courts in Nevada speak out unanimously in favor of legislation which strips the presumptive right of joint custody of a perpetrator of domestic violence. Judge McGee requested at line 10 on page 2, after the word "court", the following words be placed "after an evidentiary hearing." He stated this would be necessary because of the thousands of cases where people apply for a temporary protection order against domestic violence and the order is issued ex parte. However, the alleged perpetrator can request an evidentiary hearing. The same due process should apply in this legislation. Mr. Humke asked if the rebuttable presumption in subsection 5 was too severe when considering a perpetrator of domestic violence can change their ways through counseling. Legally, the person so presumed is disadvantaged in obtaining joint custody ever again. Judge McGee stated in many cases after approximately one year after the divorce or end of a relationship, the control the perpetrator attempts to exert over his victim dissipates and they become better parents. He agrees, this individual should not suffer a lifelong disability because of this legislation but also believes the law as it currently stands takes care of that instance. Custody orders are inherently modifiable by the courts at any time simply by proof of the preponderance of evidence that there has been a changed circumstance. The perpetrator can show the court his rehabilitation as a changed circumstance in order to return to joint custody. Mr. Humke stressed it seemed to be a very high standard required of the litigant to meet to seek a change of custody. Mr. Humke expressed his disconcert with the repeal of the tender years doctrine through the Arnold case noting not all of the judiciary recognizes the Arnold case. Judge McGee replied Chapter 125 of the Nevada Revised Statutes could be modified in determining which parent should be the primary physical custodian taking into account which parent has been the primary caretaker of the children rather than applying the tender years doctrine. Mr. Carpenter asked if the language in the bill "an act" should be "acts" of domestic violence. He agreed if there was a "history" of domestic violence this legislation would be applicable. However, in the isolated incident of one act, perhaps this legislation would be inapplicable. Judge McGee stated he would not be opposed to language specifying "history of acts of domestic violence" or "repeated acts of domestic violence." Judge McGee reminded the committee the bill as currently written gives the judge the right to overcome the presumption and accord joint custody to a perpetrator if there has been only a single act of domestic violence. In addition, the facts would be set forth in the judge's findings. Judge McGee added that typically when the legislature creates a presumption it requires the trial court judge to have written findings. Further discussion was held regarding the judge's discretion in presumptive findings. Ms. Steel asked if they could use the language "convicted" of domestic violence. Judge McGee strongly opposed this suggestion because many perpetrators escape criminal conviction so the civil adjudication is a sufficient threshold to invoke this legislation. Further discussion was held regarding the definition of domestic violence. Ms. Monaghan asked how the court would determine the "primary physical aggressor" pursuant to subsection 7 of the bill. Upon Ms. Monaghan's inquiry, Judge McGee agreed sometimes this means the lesser of the two evils is awarded custody of the child. Mr. Sandoval asked with regard to the evidentiary hearing, what would be the burden of proof. Judge McGee replied the statute would make it a civil standard of a preponderance of the proof. If you included civil adjudications, it would be raised to a clear and convincing evidence standard. Judge McGee declared he was against applying the sanctions of this statute against persons criminally convicted of assault. Upon Mr. Sandoval's inquiry, Judge McGee stated he would prefer a clear and convincing standard over the preponderance of proof standard. Judge McGee added this was his personal opinion only in that "you want to make sure you have the right bad guy before you take his rights to custody away from him." Joni Kaiser, Executive Director, Committee to Aid Abused Women, testified in favor of A.B. 395. She stated in 1993-94 fiscal year, they had 11,545 client contacts within Washoe County. Many of these involve child custody disputes so she would urge the committee to pass A.B. 395. Ms. Kaiser commented on Ms. Monaghan's earlier question stating "primary physical aggressor" is already defined in the Nevada Revised Statutes. Ms. Kaiser's prepared testimony is attached hereto as (Exhibit E). Chairman Anderson recalled Judge McGee to testify. Upon Mr. Carpenter's inquiry, Judge McGee stated A.B. 395 is not limited to the initial custody decision and could modify a current custody order, including a custodial caretaker. Ms. Steel asked if the same judge would be utilized to determine the rebuttable presumption presented later on. Judge McGee stated not always; as a judge may be disqualified or the judge's calendar may not be open to hear the case. So the judge who heard the domestic violence case may not be the judge who hears the custody case. Judge McGee clarified because of res judicata you cannot retry the domestic violence issue. Ms. Steel noted there may be some problems in the rebuttal provision then. Judge McGee clarified the rebutting would be the changed circumstance--the perpetrator has been rehabilitated. Susan Meuschke, Nevada Network Against Domestic Violence, testified in support of A.B. 395. She asked the committee to consider the fact that the abuser has ignored the best interest of the child by harming the other parent. Further, children often become the tool in continuing control of the former spouse or partner by the perpetrator. Ms. Meuschke stated the United States Congress in 1990 passed a resolution that: "expresses the sense of the Congress that evidence of spouse abuse creates a statutory presumption that it is detrimental to the child to be placed in the custody of an abusive parent." She declared eight states have added this legislation to their domestic violence laws. Ms. Meuschke concluded by asking the committee to pass A.B. 395. Ms. Meuschke's prepared testimony is attached hereto as (Exhibit F). Upon Chairman Anderson's inquiry, Ms. Meuschke and Ms. Kaiser stated they had no objection to the amendments set forth by Judge McGee regarding A.B. 395. Diane Loper, Nevada Women's Lobby, informed the committee A.B. 395 was originally drafted by Sue Wagner in a previous session. Ms. Loper stated it is sometimes very difficult for a victim to leave a situation involving domestic violence because of the control by the perpetrator. Ms. Loper stated she also acts as an advocate at the Reno City Attorney's office and is in constant contact with battered women. A great concern of these women is losing their children. They are often misled that if they leave the relationship, they run the risk of losing their children or be placed in a more violent situation. Children involved in domestic violence households will act out violent situations. She added nearly half of the men who abuse their female partners also abuse their children. Ms. Loper related some of the disturbances that occur to children as a result of domestic violence. Ms. Loper provided for committee distribution a handout entitled "Children in Violent Homes" attached hereto as (Exhibit G). Ms. Loper stated she had not seen the amendments proposed by Judge McGee today but having heard some testimony in that regard did not anticipate any problem with those being included in the bill. Bobbie Gang, National Association of Social Workers, Nevada Women's Lobby, stated they support A.B. 395. Lieutenant Phil Galeoto, Reno Police Department stated they support A.B. 395 particularly with the amendments brought forth by the judges. He acknowledged the problems in the area of domestic violence and the need across the country to move statutes to best interest of the child rather than preference to either parent. Mr. Galeoto informed the committee he has sat on many committees in the past few years and the common thread in many involves domestic violence. Chairman Anderson closed the hearing on A.B. 395. Chairman Anderson, noting a bill was outstanding floor assignment, appointed Assembly Bill 277 to Ms. Monaghan. Mr. Neilander provided the committee with various amendments to bills which would be ready for the floor on Tuesday, April 25, 1995. Chairman Anderson announced the committee would not be taking a motion on A.B. 395 as the research analyst will review the proposed amendments and draft something for a work session. ASSEMBLY BILL 445 - Adopts Uniform Probate Code Assemblywoman, Christina Giunchigliani, District 9, the primary sponsor of the bill, introduced the legislation by stating the genesis of the bill was derived from her discussions with past Senator Matthew Callister surrounding issues of seniors with wills not having to be probated. Her understanding of the bill is that the issue of uniformity warrants some discussion. Acknowledging the volume of the bill, Ms. Giunchigliani stated the committee may want to look at just certain portions or study the entire act. Ms. Giunchigliani informed the committee that 16 states have adopted the Uniform Probate Code (UPC). She provided handouts pertaining to the UPC and states' adoption of the same. These handouts are attached hereto as (Exhibit H). Nevada has already adopted four areas of the UPC: column 5 (simultaneous death issue), column 6 (identifies enactment testamentary additions to trusts; durable power of attorney, and the enactment of the article 5 coverage. She stated there is disagreement regarding the UPC adoption among attorneys practicing in probate law throughout the state. She provided a letter from attorneys Ririe & Kurth of Las Vegas, stating their position regarding adoption of the UPC. The letter, dated March 16, 1995, is attached hereto as (Exhibit I). Ms. Giunchigliani continued explaining the history behind the UPC and the intent in bringing this legislation. The main focus and intent, of course, is to bring uniformity to the states. She concluded by stating she personally believes the UPC will greatly assist seniors by eliminating certain probate actions for estates under a certain sum. Myla Florence, Administrator, Nevada State Welfare Division came forward to testify and introduced Gary Stagliano, Chief of Investigations and Recovery, and Sheila Smith, Deputy Attorney General. Ms. Florence stated A.B. 445 is a complex piece of legislation and it would replace the current state probate law in its entirety. They believe parts of the bill have merit while other portions of the bill bring serious concerns. She explained A.B. 445 would repeal the statutes they are currently trying to amend to include: 1) expanding definition of "estate" to include property held in joint tenancy; 2) authority to impose real property liens; and 3) additional provisions for Welfare Division notification. The UPC does not address these items. Ms. Florence further discussed the 1993 Legislative implementation of the Medicaid Estate Recovery Program. Ms. Florence read directly from prepared testimony which is attached hereto as (Exhibit J). She concluded by stating they would be more than happy to work with the committee on any study or subcommittee that may be later defined. Sheila Smith reiterated many of Ms. Florence's comments and added she too would be happy to work with the committee on future studies of adopting the UPC. Upon Mr. Anderson's inquiry, she stressed the amendments they are requesting to the current probate laws are designed to enhance the Medical Estate Recovery Program. Mark Knobel, Attorney at Law, Chairman of the State Bar Committee Probate and Trust Division testified they oppose A.B. 445 for three reasons. One, the current law is working and there is no need to change the law. Two, the UPC is anything but uniform as only 16 states have adopted it. Three, a law of this magnitude deserves a study by the State Bar committee with a recommendation to the legislative committee. He stated any change necessary to the current probate law is minor compared to the magnitude of the UPC. Mr. Humke asked if the State Bar had plans to study this area of the law. Mr. Knobel stated he has received commitments from other members of the State Bar committee to study the UPC and make suggestions to change the current probate laws. Upon Mr. Humke's inquiry, Mr. Knobel stated the committee would most likely need the biennium to complete the study. Mr. Carpenter asked what specific areas of the UPC did he dislike. Mr. Knobel stated he has not had an opportunity to review the bill in its entirety but what he can recall specifically is 1) revocation of wills, section 81, page 13 is too complicated and may lead to excess litigation; 2) the sale of real property provision is lacking; 3) the apportionment of estate taxes among beneficiaries of the will does not make sense when the property passes outside the will; and 4) the beneficiary of a will can act as a witness of the will and the witnesses of the will may execute a declaration not in the presence of the testator--both of these could be problems leading to litigation. Mr. Carpenter acknowledged Mr. Knobel's comments regarding possible changes to the current probate law, and asked if that was something that needed to be addressed now or after the study by the State Bar. Mr. Knobel concluded by stating some of the current laws regarding summary administration may require a higher threshold regarding the amount of the estate and the amount allowed for transfers of real property by affidavit. Also, making the summary administration process easier may be an area for review. Chairman Anderson stated he supports uniform codes but would feel more comfortable with such a complex piece of legislation after reviewing a study prepared by the Committee on Probates and Trusts from the State Bar of Nevada. Chuck Short, Court Administrator, Eighth Judicial District Court, testified on behalf of District Judge Myron E. Leavitt who is recovering from a triple by-pass. He stated they specialize in the adjudication of probate matters under probate commissioner, Don Ashworth and Judge Leavitt. He stated Judge Leavitt and Mr. Ashworth are still analyzing A.B. 445 and what the impact may be if adopted. Mr. Short concluded by stating Judge Leavitt wanted the committee to know he does not oppose the legislation per se but it does make extensive changes to the probate laws and he feels they need more time to study and digest the 118-page bill. This study should take place over the biennium. Lastly, the Eighth Judicial District Court would be willing to work with the legislature and/or the State Bar committee to craft legislation that takes into account uniformity and the uniqueness of Nevada. Mr. Short provided his inter-office memorandum regarding his testimony which is attached hereto as (Exhibit K). Chairman Anderson notified the committee that the co-chairs received a letter from Justice Young and concurred by all members of the Nevada Supreme Court, asking that a bill draft be made to eliminate the ambiguity in NRS 17.115 and NRCP 68. ASSEMBLYMAN HUMKE MOVED FOR THE REQUEST FOR BILL DRAFT. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. No further business coming before the committee, the meeting was adjourned at 10:55 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary April 24, 1995 Page