MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session April 26, 1995 The Committee on Judiciary was called to order at 8:05 a.m., on Wednesday, April 26, 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 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Victoria Riley, Director, Nevada Trial Lawyers Association Heidi Struve, private citizen Ben Graham, Clark County District Attorneys Office John Slansky, Department of Prisons Susan Meuschke, Nevada Network Against Domestic Violence Brian Nix, Victims of Crime Program George Crown, Victims of Crime Program Gina Crown, Victims of Crime Program ASSEMBLY BILL 451 - Prohibits harboring children who run away from home. Victoria Riley, Executive Director, Nevada Trial Lawyers Association (NTLA), advised the committee they sponsored A.B. 451 at the request of Judge Gaston of Las Vegas. Unfortunately, Judge Gaston was not able to testify on behalf of the bill today; however, a written submission from NTLA in support of A.B. 451 was provided to the committee and is attached hereto as (Exhibit C). The committee took a short time to review the written submission. The written submission, in addition to defining the intent of the bill, clarifies the bill has been fine-tuned from the original form of the bill which was too broad when introduced in the last legislative session. There being no primary sponsor of the bill present to testify, Ms. Buckley asked Mr. Perkins if law enforcement noted any current problems in the area of harboring children and if there were other statutes utilized in charging such parents. Mr. Perkins stated he recalled the lengthy floor debates regarding this bill last session that ended in the bill dying on the floor. Further, he noted there are some problems in dealing with the location and returning of runaway juveniles. He concluded by stating there is a statute currently on the books dealing with contributing to the delinquency of a minor that may be broad enough to capture the type of activity set forth in A.B. 451. However, that statute is not utilized often in the law enforcement community because it is difficult to prove that the adults caring for the child knew he was a runaway. Chairman Anderson also noted the debates regarding this bill from last session and was hoping Judge Gaston would have been present to testify on behalf of A.B. 451. Heidi Struve, a student at the University of Nevada, Reno, stated she volunteered at the Suicide Prevention and Call Center for three years. Ms. Struve informed the committee she opposes A.B. 451 because the time limit of eight hours is too little to declare sheltering a runaway illegal. Recalling her volunteer work, Ms. Struve declared most often a runaway is escaping a situation of verbal abuse or physical abuse especially in families using substances. Ms. Struve testified about her experience working at the Suicide Prevention Center and dealing with many of the scared teens who were afraid to return home. If A.B. 451 were to pass, many adults would be hesitant to allow a teen to stay at their home and then that youth would be subject to the harshness of the streets. She concluded by stating the eight hour provision in A.B. 451 should be increased to 24 hours and possibly include some language that would allow notice of the child's safety to the parents of the runaway. She also expressed her concern for the communities that do not have runaway shelters. Ms. Struve's prepared testimony is attached hereto as (Exhibit D). Chairman Anderson acknowledged Ben Graham, Clark County District Attorneys Association, and asked him to come forward to testify. Mr. Graham, recalling Ms. Monaghan's earlier comments, stated he has seen a handful of these types of problems but has no statistics as to the need for this legislation. Mr. Graham concluded that he may be able to provide the committee with some information on this subject from the juvenile department. Mr. Perkins added his concern, as a matter of public policy, about the definition of a runaway being a person away from home not less than 8 hours as set forth in section 2 of the bill. He pointed out the committee will need to look very strongly at this provision. Upon Ms. Monaghan's inquiry, Dennis Neilander, Research Analyst, provided the committee with copies of the statutes surrounding contributing to the delinquency of a minor contained in NRS 201.110 and statutes regarding runaways under NRS 201.090 regarding the delinquent child, child in need of supervision, and neglected child as defined in Chapter 62 of the Nevada Revised Statutes. He added the term "runaway" is not currently defined in the statute. Upon Mr. Carpenter's inquiry, Mr. Graham stated the offenses set forth in A.B. 451 could probably fit under current laws such as the areas referenced by Mr. Neilander above. However, Judge Gaston may have had the intent in bringing this legislation to more finely narrow and define the law in this area. Ms. Steel agreed with Mr. Perkins earlier comments that the proof level of "intend to assist" would be difficult. She would have a problem passing this legislation if it was not going to be utilized. Mr. Graham concurred it would be difficult to prove. Upon Mr. Manendo's comments, a discussion was held regarding the language of "known or should have known" as pertaining to the person harboring a runaway child and problems that could arise with this terminology. ASSEMBLY BILL 469 - Allows certain relatives of victim of murder to witness execution of death penalty. Assemblywoman Jeannine Stroth, District 5, the primary sponsor of A.B. 469, stated her intent in bringing this legislation was to allow the victims of crime to witness the execution of the perpetrator. Although currently they may be allowed to be present at the time of execution, they can be excluded by the director of prisons. She asserted she has conversed with Robert Bayer, the director of prisons, and he has requested some amendments to the bill. Ms. Stroth asked, with the committees' permission, if she could meet with Mr. Bayer to discuss these amendments then bring those suggestions back to the committee. Ms. Stroth provided the committee with (Exhibit E), a memorandum of the Legislative Counsel Bureau dated April 24, 1995. Apparently, the viewing area for executions has a maximum capacity of 24. However, Mr. Bayer has informed her that they currently have a case with 26 victims so this is an area they may want to amend. Ms. Stroth added Mr. Bayer would also like to address the age provision at line 14 of A.B. 469. John Slansky, Department of Prisons, testified they support Ms. Stroth's request to get together and amend the bill and consider it at a later time. Mr. Slansky stated it is tough to get 24 people in the viewing center of the chamber. The dimensions of the witness room are 19' 1" x 12' 9". Also, there is 8' 4" from the rear wall to the rails in front of the execution chamber so getting 24 persons in the viewing area is very difficult. Upon Mr. Anderson's inquiry, Mr. Slansky stated the selection of witnesses for an execution is different in every case. The press and prosecuting attorneys have been invited in the past. Mr. Slansky informed it is the director of prisons that makes the determination as to who will be invited to the execution. Mr. Anderson asked if the director has specific guidelines to follow or can invite anyone he wants. Mr. Slansky stated there are no guidelines but directors are generally very judicious with their invitations. Mr. Slansky stated the last execution he attended was in 1979 and the witness room was at full capacity. Mr. Humke asked if a different location could be utilized for the execution. Mr. Slansky stated the execution could take place anywhere but their concern would be the security issue. Currently, the two "last night cells" located behind the chamber are extraordinarily secure. They are concerned with the possibility of the individual acting out violently just before execution. The "last night cells" are located only a few steps from the old gas chamber which is where the executions are now held. They are capable of performing executions elsewhere but it is not his opinion this would be advisable based on security considerations. Upon Mr. Carpenter's inquiry, Mr. Slansky stated the next execution is scheduled for May 22, 1995. Chairman Anderson stated the committee would allow Ms. Stroth to work out the amendments with the Department of Prisons and return those recommendations to the committee in a timely fashion. ASSEMBLY BILL 467 - Revises provisions governing aid to certain victims of crime. While waiting for the primary sponsor of the bill to arrive and introduce A.B. 467, Chairman Anderson proceeded to other persons signing in against the bill. Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence, offered an amendment to A.B. 467. Her reading of the bill denotes some changes being made to the Victim Compensation Program currently administered by the state. She stated at line 26, page one of the bill, the statute currently states the program "must" not compensate relatives and/or people living together in a continuing relationship; however, on page two, lines 15-28 of A.B. 467 it states "may" compensate these same individuals provided they meet certain criteria. Ms. Meuschke stated she would like to see these portions of the bill deleted. Upon Mr. Anderson's clarification, Ms. Meuschke acknowledged this would be changing existing law rather than proposed legislation. Mr. Carpenter stated he could not support Ms. Meuschke's amendments. Ms. Meuschke added the provisions mentioned most often affect victims of domestic violence. The reality is victims of domestic violence are regularly denied compensation through the victim fund. Further discussion was held about the Victim Compensation Program and denial of claims by the examiner so as not to benefit the perpetrator. Ms. Meuschke concluded her understanding of the Victim Compensation Program was to provide funds to assist all victims to move on with their lives. Chairman Anderson stated they would be hearing additional testimony on A.B. 467 to allow the committee to fully understand the mechanics of the funding formula of the Victim Compensation Program. Chairman Anderson closed the hearing on A.B. 467 and the committee went into a work session. B.D.R. 15-470 Revises provisions governing penalty and penalty hearing for first degree murder. ASSEMBLYMAN HUMKE MOVED FOR COMMITTEE INTRODUCTION OF B.D.R. 15-470. ASSEMBLYMAN STEEL SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN BATTEN AND STROTH WERE NOT PRESENT FOR THE VOTE. * * * * * B.D.R. 38-631 Makes various changes regarding protection of children from abuse, neglect and abduction. ASSEMBLYMAN GOLDWATER MOVED FOR COMMITTEE INTRODUCTION OF B.D.R. 38-631. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN BATTEN AND STROTH WERE NOT PRESENT FOR THE VOTE. * * * * * ASSEMBLY BILL 131 - Provides for regulation of inter-casino linked systems related to gaming. Mr. Humke, as chairman of the subcommittee on A.B. 131, reported there was an amendment to A.B. 131 which has been distributed to the committee as Amendment No. 270. The amendment is quite lengthy and technical but has been approved by William Bible, Chairman of the Gaming Control Board, and by many of the more significant licensees in this state and their attorneys. The bill and the amendment allows for the creation of megabucks for the game of Keno, and some table games. Mr. Humke concluded by stating the subcommittee on A.B. 131 recommends Amendment No. 270 to A.B. 131. ASSEMBLYMAN HUMKE MOVED TO AMEND & DO PASS A.B. 131 ASSEMBLYMAN MONAGHAN SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN BATTEN WAS NOT PRESENT FOR THE VOTE. Chairman Anderson appointed A.B. 131 to Mr. Humke for floor assignment. 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. Mr. Sandoval noted the four amendments considered by the committee to A.B. 395 as follows: 1) the inclusion of "after an evidentiary hearing" at line 9, page 2; 2) at line 11, page 2 take out "act" and insert "history of"; 3) the inclusion of language "clear and convincing evidence" added where the bill drafter finds necessary; and 4) the inclusion of subsection 7 which was set forth by Judges McGee and Jordan of Washoe County, adding to be consistent the word "acts" contained in that portion of the amendment should contain the "history of" language. ASSEMBLYMAN SANDOVAL MOVED TO AMEND & DO PASS A.B. 395. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. Ms. Buckley asked if the clear and convincing standard was still necessary since they are adding an evidentiary hearing and language regarding a history of domestic violence. Mr. Sandoval responded the clear and convincing standard is an important safeguard because determining the custody of a child should contain the highest standard available. Mr. Humke concurred with Mr. Sandoval and expounded further regarding the tender years doctrine which has since been repealed. Mr. Sandoval also noted for the committee that it was Judge McGee's testimony and preference to use the clear and convincing standard of proof rather than the preponderance standard. Ms. Steel echoed the comments made by Mr. Sandoval and Mr. Humke. Chairman Anderson brought the motion back to the floor for a vote. THE MOTION CARRIED. ASSEMBLYMAN BATTEN WAS NOT PRESENT FOR THE VOTE. Chairman Anderson appointed Mr. Batten, as primary sponsor of the bill, floor assignment of A.B. 395. * * * * * SENATE BILL 171 (FIRST REPRINT) - Authorizes courts to award as costs to prevailing party costs of certain computerized services. ASSEMBLYMAN HUMKE MOVED TO AMEND & DO PASS S.B. 171 (FIRST REPRINT) BY RETURNING TO THE ORIGINAL VERSION OF S.B. 171. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. In discussion, Mr. Humke stated the original version of the bill restricting the costly and expensive procedure of research tools to the rural areas without access to law libraries was more productive and reasonable. Mr. Carpenter asked if a need for a population figure was required in the bill where "rural" was mentioned. Mr. Neilander stated if you do not define the term "rural" essentially the judge would be the one to decide what is rural or not when he does the bill of costs. Ms. Steel commented the misuse of the statute could be just as egregious in a rural community as it can in a populated community. In addition, some rural communities have access to populated law firm material and therefore she will be voting no on the motion. Mr. Humke stated there are areas in the state which may be considered rural but do have access to law libraries. An example of such areas would be Carson City and Douglas County which both have adequate access to the Nevada Supreme Court Law Library. Mr. Humke stated he wished to amend his motion to include a population figure the size of Elko county and populations smaller thereto. A discussion about population figures in the rural counties was held. Mr. Humke suggested rather than setting a population figure, perhaps setting out the court districts would be better suited to this bill. Mr. Humke clarified that the following districts be excluded from the purview of S.B. 171: First (Carson/Storey), Second (Washoe), Eighth (Clark), and Ninth (Douglas). Chairman Anderson informed the committee the motion on the floor brought by Mr. Humke would include the above exclusion of district courts. The seconder of the motion, Ms. Buckley, concurred. The motion was brought back to the floor for a vote. THE MOTION CARRIED. ASSEMBLYMAN STEEL VOTED NO. ASSEMBLYMAN STROTH WAS NOT PRESENT FOR THE VOTE. * * * * * Chairman Anderson appointed S.B. 171 to Mr. Carpenter for floor assignment. Chairman Anderson announced there were now witnesses available to testify on behalf of A.B. 467 and they apparently have traveled some distance to present testimony in support of A.B. 467. Therefore he will take that testimony only in relation to A.B. 467 after the committee concludes its work session. ASSEMBLY BILL 445 - Adopts Uniform Probate Code. Chairman Anderson recalled for the committee that the State Bar requested a study of the Uniform Probate Code and the probate laws of the state of Nevada be conducted over the biennium before acting on A.B. 445. ASSEMBLYMAN HUMKE MOVED TO INDEFINITELY POSTPONE A.B. 445. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. Chairman Anderson informed the committee it was the co-chairmen's intent to write a letter to the State Bar to assure a study of the Uniform Probate Code and the area of probate laws in Nevada take place. Ms. Buckley asked that the letter contain a specific directive for the State Bar committee to look at the sections relating to summary administration in relation to small estate matters being handled without a lawyer. Chairman Anderson asked Mr. Neilander to prepare a draft letter to the State Bar Committee as suggested. Chairman Anderson brought the motion back to the floor for a vote. THE MOTION CARRIED UNANIMOUSLY. * * * * * ASSEMBLY BILL 165 - Provides criminal penalty under certain circumstances for providing minor access to firearm. ASSEMBLYMAN MONAGHAN MOVED TO INDEFINITELY POSTPONE A.B. 165. ASSEMBLYMAN HUMKE SECONDED THE MOTION. Mr. Perkins stated he believed the bill needed some work but does have some merit. Mr. Humke stated if the proponent of the bill, Assemblyman Wendell Williams, and Mr. Perkins wanted to work out some of the problems with the bill he would be happy to withdraw his second to the motion. Ms. Monaghan stated she would withdraw the motion. Mr. Batten asked if perhaps a small subcommittee could be formed on A.B. 165. Chairman Anderson assigned A.B. 165 to a subcommittee chaired by Mr. Batten and Mr. Perkins acting as an additional subcommittee member. Informally, Chairman Anderson asked if the committee wished to discuss Assembly Bill 353 at this time or at a later work session. The committee decided to bring A.B. 353 to a work session in the future. Chairman Anderson announced a break at 9:45 a.m. and the committee reconvened at 10:05 a.m with a quorum present. Chairman Anderson re-opened the hearing on A.B. 467 in order to accommodate witnesses traveling from Reno to testify having arrived late due to an apparent scheduling misunderstanding. Noting the administration was the primary sponsor of A.B. 467, Chairman Anderson asked Mr. Brian Nix to come forward to testify. Brian Nix, coordinator of the Victim Crime Program which is under the Department of Administration Board of Examiners, testified the administration will be requesting some minor changes to the bill and he will take that up with the Legislative Counsel Bureau (LCB). Mr. Nix stated A.B. 467 addresses areas which needed clarification and sets forth an expansion of their ability to pay certain types of benefits through the Victims of Crime Program. To his knowledge, this is the only program that provides actual compensation to victims of violent injuries. They do not provide compensation for property damages. Mr. Nix provided the committee with the Victims of Crime Program First Annual Report and a graph of expenditures from 1991 to 1995. These handouts are attached hereto as (Exhibit F). Mr. Nix stated the report will provide the committee with an idea of the services the program provides and the persons they assist. He informed the committee that all of the funds coming into the program are derived from fines, forfeitures, restitution, or recovery from third party action lawsuits. The program does not receive any federal or state funds. Mr. Nix declared the program has approximately $800,000 in savings accrued from various sources. Some of the ways they have been able to save funds is by clarifying who is entitled to benefits. They do not pay claims to victims who have in some manner initiated their own damages. In addition, they pay their bills according to fee schedules as a cost control measure. They now come before the legislature asking to expand the definition of eligible recipients. For instance, they would like to increase the amount of funeral expenses they are allowed to pay from $1,000 to $2,500 for obvious reasons. They would also like to see the cap on extremely violent instances increased from $15,000 to $25,000 because this is just a small percentage of their cases. Mr. Nix noted another area where they were asking for a change in the bill was located at page 2, line 6. The intent behind this provision was to be able to provide assistance to hit-and-run pedestrian victims. Presently, they cannot pay benefits in motor vehicle related situations unless the driver was under the influence of alcohol or if they used the vehicle as a weapon. However, in hit-and-run situations currently they cannot assist these victims. He would like the committee to note they do not want to pay or investigate on all hit-and-run accidents when insurance is available. Therefore, the provision contained on page two needs to be more narrowly defined as it is currently too broad. Lastly, Mr. Nix stated the other area in the bill that needed possible changes was contained on page 2, lines 10 and 37. This section deals with the residency requirement. Presently, there is no definition for residency requirement. This section of the bill would require a six week residence requirement. This request is due to the high number of visitors and transients to this state. In the past, they have been ordered to pay benefits when it was clear the individual was not a resident of the state. However, since there was no definition of a resident, compensation was made. They have requested the liberal standard of six weeks. Mr. Nix stated they would like to make an amendment to that provision with the LCB to amend it to "six weeks or upon adequate proof of residency." Mr. Goldwater asked if A.B. 467 would address those incidents of crimes in the workplace. Mr. Nix replied the victim may be eligible but there would be an off-set from any funds they receive from workers' compensation benefits which is usually up to 66% of your maximum wage. Upon Mr. Goldwater's further inquiry, Mr. Nix answered they can pay up to $3,500 per claim on psychological counseling. Chairman Anderson explained to Mr. Nix earlier testimony on the bill dealt with provisions in the existing statute, beginning on page 1, line 26, to page 2, line 1 and page 2, lines 15-28 and the request to have those areas removed. Mr. Nix stated he was familiar with the concerns about the above-mentioned provisions of the bill in that they deal with victims of domestic violence. Mr. Nix explained he would have no problem providing assistance to those victims involved in domestic violence instances provided the victim assists in the prosecution in the domestic violence case. However, he would like to study this area more because the perpetrator may benefit from the compensation to the victim and that would go against other provisions contained in A.B. 467. Mr. Carpenter asked how the $800,000 in savings was derived. Mr. Nix explained the savings have not been as a result of less claims because claims increase each year. Rather, they have implemented a variety of measures within the program to define and clarify what benefits they pay and who they pay benefits to. One large area of change has occurred in defining contributory conduct. This has resulted in the denial of many claims. Also, they do not pay payments to a perpetrator of a bar room brawl or gang-related activity, or drug incidences resulting in an injury. Also, they have established a fee review schedule similar to a medical provider in an insurance relationship. Together, these measures have resulted in a savings of approximately $800,000.00. Upon Ms. Steel's inquiry, Mr. Nix testified they will secure statutory liens on third party recovery. However, they are the payer of last resort meaning they only pay when there is no insurance or other types of benefits available through some other type of program. In third party actions they will pay benefits since the lawsuit may take many years. Later, they may be reimbursed through a lien within the lawsuit. Mr. Humke asked if the term "extreme violence" at line 20, page 1, and lines 21-22 could be changed to "substantial bodily harm" which is derived from the criminal statutes. Mr. Nix stated he would have no objection to that language. The "extreme violence" term was used by the bill drafters. He added that whatever language comes out in the bill, they will also be asking the Board of Examiners to adopt that language. He stressed it is important that whatever language they use it must be defined so the Board, the public and the victims understand what it means. Mr. Nix explained the decision-making process of the Board of Examiners in greater detail. Upon Mr. Humke's inquiry, Mr. Nix stated he would not like to see the residency requirement upped to six months rather than six weeks. Currently, since there is no standard for residency, it is difficult to deny the claim. However, they do not want to limit access to people victimized in our state within the first month or so of moving here who truly have the intent to make Nevada their home. He added Nevada is the only state in the country that does not provide [victim] assistance to non-residents. Further, Nevada is the only state in the country that does not accept federal funds for the victim program. This is primarily because the ratio of visitors to our base population is unlike any other state in the country. He stated the administration believes the amount of money received from federal funds would be off-set by out-of-state claims. In other words, in order to accept federal funds, you must pay out-of-state claims. Chairman Anderson advised Mr. Nix to work on the proposed amendments they would like to see to the bill and then submit that to the committee rather than going directly through the LCB; however, he may wish to discuss that further with Mr. Neilander as to what the best avenue would be to accomplish their concerns. George Crown, Compensation Officer, Victims of Crimes Program, stated he did not have anything to add to the testimony Mr. Nix provided but if the committee had any technical questions, he would be happy to address the same. Chairman Anderson asked if Mr. Crown had an opportunity to discuss the concerns brought forth by Ms. Meuschke in earlier testimony on the bill. Mr. Crown stated he has met with Ms. Meuschke and is aware of her concerns; however, he deferred that reply to Ms. Gina Crown. Gina Crown, private citizen, and former Compensation Officer for Victims of Crime Program in northern Nevada, stated she was contacted by Ms. Meuschke regarding A.B. 467 and was asked to testify today on her behalf regarding domestic violence. Ms. Crown stated that in addition to the changes provided by Mr. Nix, they suggest additional language be removed from the statute which would increase the availability of benefits for victims of domestic violence as suggested by Ms. Meuschke. Ms. Crown expounded on her previous experience as a claims examiner. Ms. Crown's prepared testimony is attached hereto as (Exhibit G). Ms. Crown concluded by stating victims of domestic violence should have equal access to the Victim Crime Fund as do other Nevada residents. Chairman Anderson stated he would be interested in knowing what the off-set in the dollar amount would be in obtaining federal funds and paying out-of-state claims. Chairman Anderson announced A.B. 467 would be posted again for additional testimony. In addition, A.B. 467 will be placed in a subcommittee consisting of one, Ms. Stroth. Ms. Stroth stated she requested from LCB a report on why Nevada did not take federal funds for the victim fund. That report is provided hereto as (Exhibit H). There being no further testimony before the committee, the meeting was adjourned at 10:45 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary April 26, 1995 Page