MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session May 12, 1995 The Committee on Judiciary was called to order at 8:05 a.m., on Friday, May 12, 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: John Gibbons, Real Estate Division Laurel Stadler, Mothers Against Drunk Driving Anne Cathcart, Deputy Attorney General Ben Graham, Clark County District Attorney's Office ASSEMBLY BILL 544 - Allows heirs of decedent to recover punitive damages in action for wrongful death. Chairman Anderson informed the proponent of A.B. 544, Nevada Trial Lawyers Association, requested A.B. 544 be withdrawn. ASSEMBLY BILL 469 - Allows certain relatives of victim of murder to witness execution of death penalty. Dennis Neilander, Research Analyst, explained there is a brief summary of the bill in the work session document provided to the committee along with a conceptual amendment prepared by Ms. Stroth, the primary sponsor of A.B. 469. Said work session document is attached hereto as (Exhibit C). Ms. Stroth explained there were some problems working out the details of an amendment to A.B. 469 with Robert Bayer, Director of the Department of Prisons. Mr. Bayer wanted to have the discretion to turn down a representative of a family member of a murder victim. Ms. Stroth explained she brought Mr. Bayer's concern to a couple victims representatives and they felt it may be alright for him to have some discretion. However, in discussing the matter with committee members, this idea was not favored. Ms. Stroth stated the bill was re-written in relation to the terms of the director of prisons notifying the family members who have been asked to be notified and inviting them to have a representative or representatives present at the execution upon their written request. She stated his concern was addressed by having discretion to eliminate a family member by deleting "nor more than nine . . ." on line 13 thereby leaving the director of prisons the discretion. Ms. Stroth explained they also added psychiatrists to the list of persons present at an execution. This addressed Mr. Bayer's concerns for a victim who may be somewhat unstable. The county coroner was also included to the list of persons as that coincides with Senate Bill 391. Ms. Stroth declared she moved away slightly from the original intent of the bill; however, she acknowledged the amendments set forth a good compromise. Mrs. Monaghan asked if the psychiatrist is required to be there and if liability was an issue. Ms. Stroth stated she was not certain about either question but she believed it would be the staff psychiatrist who attends so their liability would most likely fall under the normal course of business. Ms. Steel suggested the bill should read "any coroner" rather than "county coroner." Ms. Stroth responded this would be immaterial to her since that was Mr. Bayer's request to remain in compliance with a bill currently in the Senate. Chairman Anderson delayed taking action on A.B. 469 in order to provide Mr. Perkins with additional time to review the bill and its amendments. ASSEMBLY JOINT RESOLUTION 34 - Urges Congress to pass Violent Criminal Incarceration Act of 1995. Assemblyman Thomas Batten introduced Ann Cathcart, Deputy Attorney General, the proponent of A.J.R. 34, and stated the resolution deals with Title III of House Resolution 667 entitled Stop Turning Out Prisoners Act (STOP). This act limits the use of population caps in prison condition litigation. Mr. Batten stated this is accomplished in two ways: 1) Relief in prison condition suits may extend no further than necessary to remove the conditions causing the deprivation of federal rights; and 2) the plaintiff has to prove that overcrowding is the primary cause of the deprivation of his federal rights. Mr. Batten added the STOP Act reduces the amount of attorney's fees available in prison condition cases and no fees will be awarded to cover the costs of litigating unsuccessful claims raised in a Complaint. Lastly, all special masters used in prison condition cases must be United States Magistrates. Ann Cathcart testified the bill has passed the House of Representatives with the Nevada representatives voting favorably. Presently, the bill is in committee in the Senate and it is likely the bill will undergo a number of changes. Ms. Cathcart stated the National Association Attorneys General (NAAG) is monitoring the bill and assisting in recommendations. Ms. Cathcart provided a summary by NAAG regarding the STOP Act. The summary is attached hereto as (Exhibit D). Ms. Cathcart stated the summary outlines potential problem areas in addition to setting out the favorable aspects of the bill. Ms. Cathcart stated the reason the bill has passed through the House of Representatives is that all states have had disastrous experiences with litigation affecting prisons and consent decree situations. She stated the consent decree process is very costly and lengthy. Ms. Buckley agreed a number of components of the bill are very good. However, she has a concern regarding the prospective relief section. The bill allows for automatic termination of relief in two years regardless if the conditions were cured or not. She stated this was wrong. Ms. Buckley commented perhaps at lines 16- 22 it could be changed to state that the Nevada Legislature urges Congress to enact reforms to cure these problems. In that way, it will not indicate the Legislature is endorsing the portion of the bill which needs improvement. Ms. Cathcart stated their office supports the concept of the bill and acknowledges there are problems within the bill itself. Ms. Cathcart elaborated that a problem throughout the country occurring is courts are imposing expensive requirements upon prisons without finding that a constitutional right has been violated. That is another area A.J.R. 34 is attempting to correct. Mr. Humke stated this federal legislation attempts to shift the balance to the state and away from the inmates in lawsuits. Mr. Humke declared he has had discussions with prison officials about the poor policy of entering into consent decrees. Further, he asked if the AG has recommended the Department of Prisons enter into consent decrees in the past five years and, if so, what current recommendation is there to enter into consent decrees. Ms. Cathcart stated to the best of her knowledge, since 1988 there have been no recommendations to enter into any consent decrees. In fact, the atmosphere in this regard is to the contrary. She added there is one current class action involving the Ely State Prison which may have the potential for a consent decree but it would be unusual for that to be considered. Mr. Humke declared he believes the cases should be litigated to the fullest and if the federal courts wish to take over the operation of our prisons then let them do so after a full trial. Chairman Anderson asked, in light of the amount of court sanctions in the present system, if A.J.R. 34 passes Congress in the present form, would the amount of court orders increase? Ms. Cathcart stated she did not believe there would be a number of court orders. She added if there is an unconstitutional issue present, it should be remedied and it is in the best interest of the Department of Prisons to remedy anything unconstitutional otherwise more litigation will occur. Mr. Batten concluded it would have to be proven that there was a constitutional violation before any steps were taken. He thereafter relayed a story about a judge in Arizona who ordered the law library at the prison remain open 24 hours per day. Although that was not a constitutional violation, it placed an additional burden and unfunded mandate on that Department of Prisons in Arizona. Therefore, if it is not a constitutional problem, the judges should not be mandating anything. SENATE BILL 139 - Expands aggravated circumstances under which death penalty may be imposed for murder. Mr. Neilander explained S.B. 139 expands aggravated circumstances when the death penalty can be imposed by including certain peace officers. It clarifies which employees are to be included under the section of aggravated circumstances. Also, it provides that the murder of persons by reason of race, color, religion, origin, or sexual orientation constitutes an aggravating circumstance. Mr. Neilander concluded there have been no amendments presented to the bill. ASSEMBLYMAN OHRENSCHALL MOVED TO DO PASS S.B. 139. ASSEMBLYMAN GOLDWATER SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN STROTH WAS NOT PRESENT FOR THE VOTE. Chairman Anderson assigned S.B. 139 for floor presentation to Mr. Manendo. ASSEMBLY BILL 319 - Provides for appointment of public defender in juvenile delinquency cases. Mr. Neilander stated A.B. 319 was the third item on the Work Session document (Exhibit C) hereto, along with enclosures therein entitled Conceptual Amendments to A.B. 319. He stated the amendments were prepared by Ms. Ohrenschall in consultation with the proponents of the bill. The bill provides for the appointment of a public defender in certain juvenile proceedings. Questions raised during testimony on the bill were 1) what happens if the parents are not indigent and they refuse to appoint counsel because the existing version of the bill deletes that provision and 2) addressing the issue of costs for community service. Mr. Neilander deferred to Ms. Ohrenschall for explanation of the amendments. Ms. Ohrenschall stated she worked on amendments with Mr. Graham, Clark County District Attorney's Office, that in lieu of the deleted language on lines 13-15 the brackets would be removed and language would be added to make it clear regarding the appointment of an attorney for trial. Additionally, at line 22, after the word "pay" if a parent/guardian was unable to pay all the cost relating to the representation, the court may order the person to perform supervised work for the benefit of the community in lieu of paying the cost of representation. Ms. Ohrenschall added the amendments provide an element of fairness to the parents. Mr. Sandoval informed the committee, with regard to the second portion of the conceptual amendment, that he conducted research on his own regarding community service for indigent persons. He stated the community service in this bill is as a result of a civil debt and, based on case law in other jurisdictions, his research indicates it is unconstitutional to require someone to perform community service if it is related to a civil debt. Mr. Sandoval pointed out because of this research he would not recommend the amendment proceed because it is unconstitutional. Mr. Sandoval reminded previous bills before the committee dealing with community service provisions were as a result of criminal debts. Upon Mr. Anderson's inquiry, Mr. Sandoval stated if a person refuses to perform the community service as ordered, the judge would not be able to put him in jail for failure to do so. Mr. Neilander pointed out that pursuant to the juvenile statutes, specifically Chapter 62, parents are still responsible for their childrens' acts and it is the parent who is ordered community service. Ben Graham, Clark County District Attorney's Office, stated he worked with Ms. Ohrenschall on amendments to A.B. 319 pursuant to the request of the committee. Mr. Graham stated it was his thought that the community service provision would be workable; however, he has not researched this concept as completely as Mr. Sandoval. Mr. Sandoval stated he is all for ordering community service; however, in the nature of a civil judgment there is a constitutional issue. Mr. Graham stated they were not wedded to the reimbursement portion of the bill. Mr. Graham stated frequently a public defender's client is ordered to partially reimburse the county for the cost of the public defender. James Jackson, Nevada State Public Defender, stated he has done some research on the whole issue of the court's ordering reimbursement. Under Chapter 62 of the Nevada Revised Statutes the courts appoint attorneys in the same manner of Chapter 7. However, in reviewing Chapter 7, it is unclear if the courts can order "in kind" reimbursement. It states, " . . . if at a later time the court determines the person has the ability to pay . . ." Mr. Jackson stated Mr. Sandoval is most likely correct in his research of this area. It no doubt is available in the criminal arena but the issue poses more problems in the civil arena. Further discussion was held regarding incarcerating someone for failure to pay a civil or criminal judgment and reimbursement by way of "in kind" services such as community service. Ms. Buckley commented with all the legislation before them this session ordering community service for juveniles and parents alike relating to a number of bills already, maybe this one could be let go. Mr. Carpenter asked about some specific language regarding appointment of an attorney in the bill and in the amendment stating there appeared to be a conflict. Mr. Humke clarified the language in one section pertains to the appointment of an attorney for a juvenile and the other section pertains to the appointment for the adult parent. Chairman Anderson asserted the amendments set forth by Ms. Ohrenschall should stand. Mr. Humke stated the second portion of the amendment provides problems. A problem exists by requiring community service of the parent, guardian, or custodian in that there would be a cost involved in supervising the community service. Ms. Ohrenschall stated the second portion of the amendment was drafted specifically by Mr. Sandoval in an attempt to make parents responsible. However, after discussion, she agreed there are many problems in this portion of the amendment and she would recommend that portion of the amendment be deleted. Mr. Sandoval stated he too was comfortable in deleting that portion of the amendment dealing with community service. Chairman Anderson clarified the committee would not be proceeding with the amendment at line 22. The committee discussed in greater detail the differences between Section 2 and Section 3 of the bill relating to the appointment of attorneys for the child and adult. ASSEMBLYMAN OHRENSCHALL MOVED TO AMEND & DO PASS A.B. 319 INCLUDING THE AMENDMENTS OUTLINED IN THE WORK SESSION DOCUMENT AT LINE 13-15. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ASSEMBLY BILL 427 - Requires notification of certain persons before release of offender convicted of specified crimes related to children. Mr. Neilander outlined the bill for the committee and stated the subcommittee on this bill held an additional hearing. A.B. 427 is Ms. Ohrenschall's bill wherein if the offender expires his term without being released on parole, then the warden is required to notify the expanded list of victims of the crime. He stated the subcommittee had discussions which would have required the court to maintain a list and notify certain victims; however, the subcommittee chose to recommend a Do Pass without the amendment due to a possible fiscal impact which may prove damaging to other portions of the bill. Mr. Perkins, Chairman of the subcommittee, stated Mr. Neilander accurately described discussions held during subcommittee, and in working with the prime sponsor of A.B. 427, it was agreed to remain with the original version of the bill. ASSEMBLYMAN PERKINS MOVED TO DO PASS A.B. 427. ASSEMBLYMAN HUMKE SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN STROTH AND SCHNEIDER WERE NOT PRESENT FOR THE VOTE. SENATE BILL 192 - Makes various changes related to provisions pertaining to sexual deviants. Mr. Neilander explained the subcommittee on S.B. 192 received many handouts regarding caselaw in other states focusing on these types of laws and the notification that would go along with S.B. 192. In addition, the subcommittee received testimony from the Attorney General's Office regarding current cases pending in this jurisdiction. The subcommittee concluded the bill as drafted went a long way to accomplish what it was intended to do and recommended a Do Pass. Ms. Buckley interjected, as a member of the subcommittee, she recalled a technical amendment regarding the statute being wrong. Mr. Neilander clarified that originally there appeared to be a technical error; however, further analysis revealed the problem was covered in the bill. The area of concern was at page 6, line 21. Mr. Carpenter asked if the subcommittee heard any testimony about the cost of lifetime supervision. Chairman Anderson replied he had asked for the Governor's office to prepare a new cost factor for that particular bill. However, he has yet to receive any documentation in that regard. Mr. Neilander stated, in the subcommittee, there was some discussion about the fiscal note and the prime sponsor of the bill provided additional information which indicated that the initial fiscal note was exaggerated and subsequent information was revised to show a lower amount. However, the fiscal note did not show any fiscal impact until 12 years from the date of enactment. Mr. Carpenter remarked that chemical castration has been utilized in several states since 1966 and research shows that it as a very good alternative and he would like to see that in Nevada law. Mr. Perkins, as Chairman of the subcommittee on S.B. 192 and the other sex crime bills, stated the fiscal impact of the bill was not within the purview of the subcommittee's focus. Further, it was not the prime sponsor's request to have the bill go to Ways and Means as it did not go to Senate Finance because it did not impact this biennium. Mr. Perkins added this was not a prudent type of action because then people would be making bills with effective dates three or four years out in order to avoid fiscal notes. Mr. Perkins pointed out that he has spent two years investigating sex crimes and the research he has seen indicates that chemical castration is not effective in that it would only reach a small portion of pedophiles. Further discussion was held regarding chemical castration. ASSEMBLYMAN STROTH MOVED TO DO PASS S.B. 192 AND REREFER TO WAYS AND MEANS. ASSEMBLYMAN PERKINS SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN BATTEN WAS NOT PRESENT FOR THE VOTE. Chairman Anderson announced a break at 9:30 a.m. and the committee reconvened at 9:55 a.m. ASSEMBLY BILL 405 - Revises provisions prohibiting sexual exploitation of children. Mr. Neilander informed the committee that the subcommittee on A.B. 405 held two hearings. At the first hearing, Assemblyman Close presented an amendment and the subcommittee reviewed that amendment in detail. However, there were problems with the language in the amendment. Thereafter, Assemblyman Close worked with Las Vegas Metro to revise an additional amendment. Mr. Neilander directed the committee to the Work Session document (Exhibit C) entitled "proposed amendments to A.B. 405" which takes up three pages. In addition, there is an amendment to A.B. 405 proposed by Ms. Buckley. Mr. Perkins, chairman of the subcommittee on A.B. 405, noted the recommendation of Amend & Do Pass was made with some reluctance. Mr. Perkins stated one of the proposed amendments was to Section 4 to get at the definitions of various electronic media used in child pornography. There was also an amendment to Section 4 to add a paragraph 4 and that was the area of most concern for the subcommittee--defining sexual portrayal in an attempt to deal with the "Wet-n-Wild" situation in Las Vegas. Mr. Perkins stated lewd and lascivious is already terminology used throughout the statutes however it creates an ambiguous definition. In continuing with the amendments to A.B. 405, Mr. Perkins stated the next change was at Section 5, page two, line 12 which deals with the sexual portrayal by first time offenders and the charges applied thereto. Lastly, there were some technical changes to the bill along with reinstating language concerning emancipated minors. Mr. Perkins stated Ms. Buckley's amendment deals with the "prurient interests." Mr. Perkins stated he was comfortable with Ms. Buckley's amendments. However, recognizing Assemblyman Close's lengthy discussions with the Las Vegas Metropolitan Police Department, and the amendments brought forth by them, the subcommittee made the recommendation to Amend & Do Pass with those amendments. Mr. Perkins concluded there were still some concerns that the difference between the family photo on the bear-skin rug and the Wet-n-Wild photographs had not been entirely accomplished in this bill. Chairman Anderson complimented the subcommittee for their arduous work in dealing with the four difficult bills before them, particularly A.B. 405. Further, he stated he was concerned with Section 4 of the bill and the amendments and recommendations thereto, specifically, the language "clothed or not." Mr. Perkins stated A.B. 405 was the most difficult bill in the subcommittee in balancing the exploitation of children and still insure that constitutional problems would not arise thereby eliminating the innocent family photograph. He concluded he is comfortable with the Buckley amendment of "prurient interests." Mr. Perkins added the Wet-n-Wild photos focused on the buttocks and genital areas with no background scenery which Mr. Close argued indicated pornography. Mrs. Monaghan stated, as a member of the subcommittee, she agreed with the recommendation to Amend & Do Pass, but after further review of the matter she felt Ms. Buckley's amendment captured the necessary items of the bill. Further discussion was held regarding amendments to the bill, specifically "pruriant interests" and possibly deleting the "of others" at the end of that sentence. Chairman Anderson asked Lieutenant Bill Cavenaugh, Las Vegas Metropolitan Police Department and Lieutenant Phil Galeoto, Reno Police Department to comment on the "Buckley" amendments to A.B. 405. Specifically, he asked them if the amendments would provide them with the necessary tools to carry out their job and does it provide for sufficient protection. After reviewing the proposed amendments, Mr. Cavenaugh stated the amendment would work fine for them. He stated the "prurient interest" language is fine and provides for making the proper differentiation. Mr. Galeoto stated like Mr. Perkins he has experience in investigating child pornography and sex crimes and the bill works for them. Mr. Neilander spoke to the technical aspect of A.B. 405. He stated "sexual portrayal" is defined in page one of the bill. If Ms. Buckley's "prurient interest" amendment is the standard the committee chooses to utilize, then it would be inserted into the definition of "sexual portrayal" throughout the bill. This could resolve the technical problem between the two sections of the bill. Ms. Steel asked if it would make a difference in Ms. Buckley's amendment if the word "himself" was added so it would read "prurient interests of himself and/or others" Ms. Buckley stated "prurient interests of others" was attempting not to refer to the intent of the individual person but rather the pornography standard adopted by the U.S. Supreme Court which is an objective, community-wide standard. Further, adding "himself" would make the amendment softer on child pornographers because they could argue a subjective standard. Mr. Neilander stated the committee could leave it at "prurient interests" and delete "of others" so it would read ". . . in a manner that appeals to prurient interests." Mr. Carpenter commented the bill should be amended in the simplest fashion and in a way not to bring about a constitutional question. He added Assemblyman Close should get the credit but he would feel comfortable with the "Buckley" amendment. Chairman Anderson acknowledged Mr. Humke to state the motion. Mr. Humke stated he asked Chairman Anderson if he could make the motion because he carried a bill similar to A.B. 405 in three previous sessions. He added the importance of making "mere possession" a felony on first offense is that it is a tool needed by law enforcement. ASSEMBLYMAN HUMKE MOVED TO AMEND & DO PASS USING THE AMENDMENTS OUTLINED ABOVE REGARDING "PRURIENT INTERESTS" IN THE DEFINITIONAL SECTIONS. Mr. Neilander clarified the motion would take the last page of the "Buckley" amendment in the Work Session document (Exhibit C) hereto with the changes of deleting the words "the" and "of others" and insert that as the standard on page one for sexual portrayal. Also, it stand alone as a new section at the end of the bill which would authorize a penalty for sexual portrayal. In addition, the remainder of the "Close" amendments would be part of Mr. Humke's motion, including the amendment increasing the penalty for mere possession from a gross misdemeanor to a felony. Chairman Anderson brought the motion back to the floor. ASSEMBLYMAN SANDOVAL SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN STROTH WAS NOT PRESENT FOR THE VOTE. Chairman Anderson brought A.B. 469 back for committee discussion. Mr. Perkins indicated he had an opportunity to review the amendments and his concerns have been partially relieved. ASSEMBLYMAN CARPENTER MOVED TO AMEND & DO PASS A.B. 469 WITH THE AMENDMENTS PRESENTED TO THE COMMITTEE. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN STROTH WAS NOT PRESENT FOR THE VOTE. B.D.R. 14-791 Limits exclusion of persons from criminal proceedings. ASSEMBLYMAN HUMKE MOVED FOR COMMITTEE INTRODUCTION OF B.D.R. 14-791. ASSEMBLYMAN GOLDWATER SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN STROTH AND PERKINS WERE NOT PRESENT FOR THE VOTE. Chairman Anderson asked if there was enough time to discuss Assembly Bill 292 considering the floor session was to begin at 10:45 a.m. Mr. Neilander stated there would not be enough time. However, he asked the committee to review Valerie Cooney's amendment to A.B. 292 contained in the Work Session document (Exhibit C) hereto prior to the next work session. Chairman Anderson thanked all the subcommittees for their diligence in preparing reports for the work session. There being no further business before the committee, the meeting was adjourned at 10:37 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary May 12, 1995 Page