MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session April 25, 1995 The Committee on Judiciary was called to order at 8:05 a.m., on Tuesday, April 25, 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 COMMITTEE MEMBERS EXCUSED: None GUEST LEGISLATORS PRESENT: Lieutenant Governor and President of the Senate Lonnie L. Hammargren STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Ms. Nancy Becker, Clark County District Court Mr. Mike Havemann, Court Administrator, City of Las Vegas Municipal Court Mr. Chuck Short, Clark County District Court Mr. Al Cook, City of Las Vegas Municipal Court Mr. Ben Graham, Nevada District Attorneys Association Mr. James Jackson, Nevada State Public Defender Mr. David Gibson, Clark County Public Defender ASSEMBLY BILL NO. 319 - Provides for appointment of public defender in juvenile delinquency cases. Mr. Ben Graham, Nevada District Attorneys Association, testified in many cases when a young person gets into difficulty with the law enforcement community, matters are held informally when no legal representation although available is utilized. Generally it is on a counseling basis for informal type action. When adjudication may result in incarceration, an attorney is available to that person. Public defenders are contracted in Clark and Washoe Counties. The State Public Defenders Office represents the rural areas to provide representation of indigent young people. What this bill does is emphasize that if an attorney is warranted by the judge, first consideration should be given the public defender who is on contract to provide those services. Reimbursement could be sought from the parent or the responsible party for the cost of the public defender in several counties, mainly in the rural areas, where a court would bypass the established public defender for no reason that was apparent nor obvious conflict. A third party would be appointed. The feeling was they were taking care of their fellow private practitioners. When the public defender is bypassed, it costs the taxpayers and county additional salaries they do not feel is warranted. Mr. Anderson asked if attorneys on a regular basis perform a percentage of pro bono work throughout the state, was it part of the problem. Mr. Graham responded the pro bono project deals more with representing indigents in areas other than criminal and juvenile law. There are some volunteers in the juvenile department dealing with CASA. There is a desire by some to require free legal services in some areas where it is felt to be inappropriate. This is to cover situations where there are established procedures for representing juveniles and the court simply bypasses those and appoints their buddy without any specific reasons. Mr. James Jackson, Nevada State Public Defender, agreed with Mr. Graham's comments. If any attorney wants to come forward and offer services pro bono, this would not interfere with that. Mr. Jackson indicated support for A.B. 319. Having served as a juvenile master in Carson City, his reading of the statutes in NRS 62 always allowed an assessment to be made to parents for the cost of indigent defense services. In many ways A.B. 319 helps to clarify that some and addresses the problem, although he has not observed it that much as Mr. Graham has indicated. Mr. Jackson is a great believer that if somebody pays nothing for something, it typically has that value to them. The services provided by his office and across the state are good and are valuable. There is nothing wrong with attaching some value to those services to defendants. He has never seen a situation where the cost of those indigent defense services assessed to parents or to adults has been out of line nor has it been indicative of what they would have had to pay in the private sector or to the private bar. This bill is one that is fair. If we had a positive fiscal impact, there would be some recovery to the counties and judicial districts for the costs of these services. There is a benefit to be gained in that also. Mr. Sandoval inquired in cases where the parent or child could not pay for services would there be an objection to the requirement of community service to defray the public defender cost. Mr. Jackson advised there are people who truly do not have the money they can spare to pay for those services. The question was posed to him if this was a due process or equal protection type of question. He did not see it as that. It is a quid pro quo. If you do not have the cash, you give some service. He saw it as a fair trade out. He saw it as a trade out that some parents or children may very well wish to take as opposed to having to take time and money away from the family. Mr. Graham commented he would be reluctant to attach something like that to this particular bill. Frequently, individuals are at the borderline as to whether or not they are entitled to an attorney or a private attorney of their own. The court will request that the affected party at least partially reimburse the county. To set up a community service type project to reimburse the county for possibly administration costs, if it is the desire of the committee, he would like to see that made in a separate bill to be addressed for not only juveniles, but adult offenders as well. Mr. Jackson noted if a separate bill is desired, Chapters 180 and 260 deal with public defenders. There are specific provisions within both of those chapters with respect to the costs of the services and manner of assessment. Both of those chapters could be amended to include community service. Mr. Jackson offered to provide to Mr. Sandoval the specific citations. Mr. Graham stated it was not an ill conceived idea and should be explored. Mr. Sandoval advised in other statutes this has been done frequently. He would like to get the will of the committee to do it as proposed by Mr. Jackson. Mr. Anderson advised in fines, restitution, and graffiti in a couple of the other statutes that we have already accomplished that opportunity. There may be an opportunity to take a look at this. Mr. Carpenter commented this is the place in the statute to make a provision for community service. He directed a question to Mr. Graham and asked where in this bill does it make reference to where the judge should not appoint his buddy to represent a child. Mr. Graham replied the provision is indicated in Section 1 that the master of district court shall not appoint an attorney other than the public defender to represent the person charged. On ll.24-25 they shall issue findings as to why the attorney shall be appointed. It was felt this provision would handle what was requested for bill draft. On the second page, each attorney other than a public defender is entitled to specific compensation. Mr. Carpenter noted in the first section this is already the law. Mr. Graham clarified they did not ask that they not be allowed to appoint an attorney; but, simply if they do, they make specific findings as to why they were appointing that person. Mr. Jackson, Nevada Public Defender, commented it adds master which contemplates juvenile master or referee where some of the problems lie. It is a point of clarification that will address a concern by the rural constituents. It also specifically adds a delinquent act by petition. Ms. Steel understood Mr. Graham's explanation they were trying to make juvenile courts comply with this law; and, not that the district courts were abusing this system. Mr. Graham responded that was correct and it sets forth more accountability. With regard to community service, as long as it would remain discretionary with the court as in the ability to pay, he did not see any interference with the intent or the process. Mr. Humke noted the role of master was added. A long time ago he was a critic of the public defender's statutes because recoupment was not strong enough. By adding master we go in the other direction inasmuch as masters are not elected. As long as we elect judges in the state, there is a hammer over their head if they do not vigorously recoup funds. Mr. Graham answered from a practical standpoint masters are utilized not only in the rural communities but in the populated areas as well. They ultimately answer to their district court judge. If there are abuses, they are translated over to their supervisor who are the judges. It would close a possible loophole in not being able to recoup the expenses simply because they were appointed by masters as opposed to a district court judge. Mr. Humke stated it would appear that the acts of the master are imputed to the district court judge. He asked if every order is countersigned by a district court judge. Mr. Graham responded that ultimately the matters are reviewed and approved by the district court judge. Mr. Humke queried if the orders to appoint a public defender are countersigned also. Mr. Jackson, formerly a juvenile court master, stated every order by a juvenile master should be reviewed by a district court judge as provided in the enabling statutes in Chapter 62. The Honorable Nancy Becker, District Judge, Clark County District Court, advised orders are countersigned. The review of the orders tend to be rather cursory because of the volume of orders in the system. She stated there is no doubt it is a loophole. If the master does not order it, and the judge disagrees then the parties have to be brought back in to order it and then it goes back to the judge. It is better if the master orders the public defender at the very beginning. Mr. Humke requested clarification if the order being referred to was recoupment order. Judge Becker replied any of the orders whatever the punishment may be the master makes a recommendation to the judge. The judge has the discretion to send it back if they do not agree and hearings must be scheduled with the parties present to satisfy due process. Mr. Humke stressed his own displeasure at the fact that oftentimes only a cursory analysis of the financial situation of the defendant or the family in juvenile cases is done. Not a great enough effort is made for recoupment. Judge Becker replied he had point in that they need to look more to recoupment in the felony and gross misdemeanor areas than the juveniles. The juveniles do tend to look at it quite closely in terms of the ability of the family to pay and whether or not you want them to pay or to put the parent on a work program. If a parent is trying as hard as they can and they have a problem child, taking them away from their work is sometimes counterproductive to the rest of the family. Judge Becker advised the masters do take that into consideration. Because of the growing crime rate, we have not kept up with it in gross misdemeanors and felonies. Defendants, who may have ability to pay, are assessed fines and made a part of their probation to pay public defender fees. Some fees are being collected. Some are not. More judges are giving community service in cases of inability to pay fees on gross misdemeanors and felonies. Mr. Carpenter referred to Section 3, parents, guardian, and custodian may be represented by an attorney in all phases of the proceedings. He asked if parents are entitled to court appointed counsel. Mr. Graham advised the only time that occurs is when it appears that the parent may be subject to some type of criminal prosecution as well. Mr. Carpenter asked if the findings in that situation are in regard to the parents and not the child. Mr. Graham replied a parent, guardian, or custodian must make the written finding. The earlier provisions require a finding with regard to the child which is in Section 1. They must set forth the reasons for disqualifying the public defender. Mr. Carpenter reasoned the bill is aimed at the juvenile master for appointing counsel other than the public defender. Mr. Graham advised they are trying to cover the bases. The instance where this bill was generated from was a court rather than a master. In order to cover the larger number of cases the master was added to make sure that this does not happen again in the rural and populated areas. Ms. Ohrenschall asked what happens when you have a child who is entitled to an attorney because of the nature of the charges. The parents are not indigent and under the new proposed language, they do not request the appointment of the public defender. Would the juvenile master take it upon himself to appoint one any way or is the request necessary? Mr. Graham stated it was his understanding if the parent is able to pay an attorney they would bring one with them to court. A public defender is available in most of the proceedings where it appears the child is going to be charged with an offense that may result in conviction of a crime. The court frequently on its own motion appoints the public defender. Ms. Ohrenschall questioned if the parent of a child who is entitled to an attorney was not indigent but was unwilling to request an attorney. Mr. Graham responded the parent could be assessed reasonable attorney's fee. The collection process evaded him at this time. Mr. David Gibson, Clark County Public Defender's Office, testified the concern his office had with the language proposed be stricken at ll.13-15. It touches on what Ms. Ohrenschall referenced. It appears to take away the juvenile's right to an attorney unless his parents ask for one. There are a couple of problems that are going to arise: 1) If the parents do not request an attorney for the child, then the child probably would not get an attorney. Unfortunately, many times the victims involved when a child does something wrong are his own parents. 2) The desire of the legislature and the community to enhance juvenile treatment under the criminal statutes, similar problems with DUI cases where enhancements are figured in where you have now juveniles who are being introduced into the criminal justice system who do not have counsel. Suddenly, at age 15, 16, 17, someone is going to say this is a career criminal. When, in fact, at the early stages where they were first introduced in the system, they had no counsel and you are going to be able to go forward with what was intended with the enhancements. Mr. Gibson proposed at l. 13 insertion of "if the child is indigent." They do not want all that language stricken because the child has the right to an attorney. Miranda would have to be changed when making children aware of their rights when they are being spoken to by the police, they have a right to an attorney if their parents ask for one. He did not think there was authority to do this. Ms. Ohrenschall asked if it would satisfy his concern to leave in the drafted language that appeared with the reprint and inserting, "and if the child is indigent." Mr. Gibson agreed. Chairman Anderson advised the previous suggestion may require a set of circumstances to be constructed. Research staff would have to be conferred with to determine if it would require that the child be both without an attorney and indigent if the parents decided not to request an attorney. It is not the intent to require both sets of circumstances take place. Mr. Gibson confirmed he only wanted if the parents decided not to retain an attorney for their child and not add if the child is indigent. There are two separate questions. Mr. Gibson stated that children normally by nature are indigent as far as their own ability to hire counsel. If the child is indigent and the parents do not request counsel, it would not come up to muster with constitutional rights. Mr. Humke suggested that all children are not indigent when you consider the fact that they have labor they can contribute through community service. He did not believe the fiction that juveniles are automatically indigent by virtue of their minority especially if changes can be made to include requirements for community service labor on their behalf. Mr. Gibson agreed. The problem is when you talk about the definition of indigent. When you go to an attorney for counsel and offer to mow his lawn or wash windows in return for professional services, there are some that will say it would be fine. However, the majority of attorneys would refuse. In reality, attorneys request money for payment. To address the well founded concern about adding a different category, Ms. Ohrenschall proposed changing "and" to an "or." Chairman Anderson advised this bill will be referred to a subcommittee consisting of a committee of one, Ms. Ohrenschall. She was directed to take into consideration the direction from the committee in terms of developing options for community service and concerns about parents not wishing to retain counsel. ASSEMBLY BILL NO. 364 - Increases amount of administrative assessments for misdemeanors to cover cost of providing court facilities. Mr. Ben Graham advised (Exhibit C) was previously distributed to the committee. Mr. Mike Havemann, Court Administrator, City of Las Vegas Municipal Court, testified in support of A.B. 364, attached as (Exhibit D). The Honorable Nancy Becker, Clark County District Court, testified in support of A.B. 364. Judge Becker chaired the justice center task force for long range planning instead of piecemeal planning. She was very concerned about public safety and convenience to the public. They can accommodate the Supreme Court without building an additional building. For nine months advance planning has taken place in terms of additional courtrooms, offices for public defender and district attorney's office, child care center within the facility for the people. The next step is to locate financial funding in the planning process. A $10 facility improvement fee would be a significant factor. Experienced courthouse construction people would then be consulted for a micro space plan study. This will provide the data needed to determine construction phases, financial analysis. Neither the county nor the city can pay the totality of the costs. Judge Becker urged the committee to adopt the amendments. Discussions were held with membership of the Nevada Judges Association. As long as it is discretionary, where both the judges in a jurisdiction and local funding agency confer and approve a project, then a fee is assessed to fund the project. Chairman Anderson asked what percentage of new construction funds are set aside for the courts? Judge Becker replied both the county and city have to use their tax dollars for all of the capital needs. At the moment neither the county or the city can contribute a great deal of money toward it. They have contributed personnel and time by doing the macro space study. The county has fire stations on line. Most of the tax dollars do not go to infrastructure of this size. The majority of the tax dollars go to operating costs and smaller infrastructure. One reason for requesting the $10 fee was to get to the next phase of hiring the experts in the planning phase. Once the data is obtained, county, city and judges will determine how much funds will come out of city and county funds and if a general bond is needed for supplement. Chairman Anderson summarized ideally the fee would generate 100%. Judge Becker speculated it being at least 50%, possibly 100%. Chairman Anderson noted for the record the President of the Senate, Lieutenant Governor Hammargren, was in attendance. Mr. Sandoval asked if funds that are generated out of this bill could be applied for the construction costs associated with the new Washoe County courthouse. Judge Becker replied the fee could be assessed and used to defray part of the costs. Mr. Goldwater asked if there was also a gas leak at the Clark County Court House. Judge Becker advised the courthouse has some significant health problems. Mr. Goldwater requested clarification if the allocation of is funds based on the actual collections or is the allocation of the fund based on levy. Judge Becker advised it would be based on the collections. All cost projections are based upon the collective units. Mr. Charles Short, Court Administrator, Clark County, advised the Clark County Courthouse has been remodeled approximately four times in the last 50 years. It was constructed in 1958. There is a myriad of life-safety type problems in addition to operational problems. It has been determined there are mole spores generated over a period of time on the court case files that may cause some of the illnesses reported at the courthouse. Due to the limited space, they have done more with less and have risked the health of personnel with overcrowded offices creating high carbon dioxide levels resulting in fainting. In regard to p. 2 of the original bill and p. 4 of amended version, Mrs. Monaghan asked if monthly reports of revenue credited to an expenditure are requested. Judge Becker advised the reports are received. Mrs. Monaghan noted a two year provision for any money remaining in the special revenue fund. In the amended version this amount is changed to five years. Judge Becker advised that suggestion was made by Assemblyman Hettrick. In the rural areas they would need a longer time period to store up money before they could make an allocation. Mr. Perkins asked how much money the $10 fee will raise in a year's time. Mr. Havemann estimated in Clark County $1.3 million dollars per annum. Mr. Perkins noted as a former member of the Ways and Means Committee the lack of administrative fee collection was a concern. Judge Becker advised Las Vegas Municipal and District Court do collect administrative assessments unless someone is indigent. Indigents are assigned community service in lieu of payment. Other areas of the state have a problem in collection. The decline in total number of assessments was significantly impacted by the legislature changing the proof of insurance law. Mr. Manendo inquired when was the last time these fines have been increased. Mr. Havemann advised they increased their fines a year and a half ago. Due to changing the proof of insurance law, 32% of all fines relate specifically to the insurance act. The judiciary of municipal court examines fine and forfeiture levels to make determination regarding appropriate bail levels every 18-24 months. Judge Becker advised a fine is considered punishment. Assessments are intended to deal with infrastructure that is difficult to pay for out of other tax revenues. The fines generated do not equal profits. The fines generated still runs in the red. The Las Vegas general fund has to supplement the operations of the municipal court. The justice court in Las Vegas Township breaks even. District court is supplemented by the county with $16 million dollars. Chairman Anderson made reference to p. 3, l. 45 would currently put 51% of the dollars to local district court administration, 49% comes back to the state on p. 4, l. 10. State programs generated are Peace Officers Standards and Training (POST), highway patrol, victims of crime, etc. This area of programs has grown over the last two sessions. It is always a bone of contention although not currently as to who is going to get the 51% portion. Judge Becker advised one of the reasons to separate the two is because they are two different issues. They want to make the court fee a completely separate provision so it does not get mixed in with the other administrative assessments dealing with capital costs, i.e, fixtures or training. Ten percent of those go locally. The remainder of it goes into the state general fund and then 51% of that goes to fund the Supreme Court and 49% goes to fund the other programs. Mr. Humke requested clarification of proposed amendment: 1) any population cutoff involved in this, and 2) is this a simple authorization act by the legislature authorizing a county commission and a city council to take the action to create the fine? Judge Becker affirmed that is true. There is no population cap because they wanted anyone in the state who wanted to do it and upon request of the judges, then the city or county commissioners would create the fine. It is an enabling act. The local jurisdictions are going to have to analyze their own needs and determine whether or not to do this. Mr. Humke noted most importantly for legislators, it only authorizes. It does not create the additional $10 assessment. Judge Becker concurred. Mr. Short briefly commented this is the first time court administrators and judges from across the state have worked together for one purpose. This is a great opportunity for all collectively. ASSEMBLYMAN GOLDWATER MOVED TO AMEND AND DO PASS A.B. 364. ASSEMBLYMAN HUMKE SECONDED THE MOTION. THE MOTION CARRIED. With the very substantial amendment, Mr. Humke advised it does clarify it is not a part of the administrative assessment scheme in this state. There is no need for the bill to go to Ways and Means; however, at the time when we looked at the bill we knew it was a Ways and Means bill because it appeared that it did alter the basic administrative assessment scheme. We will inform the chair of Ways and Means of the amendment which no longer required their attention. Chairman Anderson requested committee introduction of: BDR 3-1467 - Makes various changes to provisions relating to actions for medical malpractice. Mr. Goldwater disclosed he will not be voting on this because he worked for a group of primary care doctors and will abstain on all issues relating to medical malpractice. Ms. Buckley also disclosed she was an attorney and understands this bill governs attorney's fees as well. She stated she will not be affected any differently than any other attorney in the state of Nevada, and, therefore she will be voting. Chairman Anderson presumed other members of the bar on the committee: Ms. Ohrenschall, Mr. Humke, Mr. Sandoval, and Ms. Steel are similarly covered by the disclosure. Ms. Ohrenschall disclosed she currently is not in active private practice, so she advised there is no conflict. ASSEMBLYMAN STROTH MOVED FOR COMMITTEE INTRODUCTION OF BDR 3-1467. ASSEMBLYMAN BATTEN SECONDED THE MOTION. THE MOTION CARRIED. (ASSEMBLYMAN GOLDWATER ABSTAINED.) Chairman Anderson requested committee members to review amendment handouts. It was Chairman Anderson's intention to take those amendments to the floor today or tomorrow. ASSEMBLY JOINT RESOLUTION NO. 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 advised the substance of the amendment previously approved was to allow county commissioners to establish location outside the county seat. It would have to be subsequently approved by the legislature. At the time there was a question as to whether it has that dual authority going on in the constitution. It would be a departure from the existing way that the constitution is structured. There is better approach which would be to pass the bill as is and set up the ability of the county commissioners to designate a separate place by statute rather than putting it in the constitution. In this manner it can always be amended as required. ASSEMBLYMAN CARPENTER MOVED TO RESCIND AMEND AND DO PASS OF A.J.R. 17. ASSEMBLYMAN HUMKE SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN CARPENTER MOVED TO DO PASS A.J.R. 17. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED. Chairman Anderson informed there was a simple amendment to p. 1, l. 16 on A.B. 110 on its first reprint submitted from the Senate. Mr. Neilander referred to A.B. 110, second reprint, p. 1, l. 17, it clarifies the language already in the statute. The Co-Chairmen agreed it is not a substantive change. There being no further business before the committee, the meeting adjourned at 9:45 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary April 25, 1995 Page