MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session May 22, 1995 The Committee on Judiciary was called to order at 8:10 a.m., on Monday, May 22, 1995, Chairman Anderson presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth GUEST LEGISLATORS PRESENT: Senator Maurice Washington Senator Mark James STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Ben Graham, Clark County District Attorney's Office SENATE BILL 90 - Makes various changes to provisions governing the destruction and admissibility into evidence of certain business records. Chairman Anderson noted S.B. 90 went to a subcommittee consisting of Assemblymen Sandoval and Buckley and requested their report. Mr. Sandoval stated there was an issue raised in the subcommittee as to the effect of S.B. 90 on the "best evidence rule." However, upon further research and discussion, the subcommittee determined there would be no effect on the best evidence rule and therefore recommended passage of the bill. ASSEMBLYMAN SANDOVAL MOVED TO DO PASS S.B. 90. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN CARPENTER, MANENDO, GOLDWATER, HUMKE, AND PERKINS WERE NOT PRESENT FOR THE VOTE. Chairman Anderson appointed S.B. 90 to Mr. Schneider for floor assignment. SENATE BILL 416 (FIRST REPRINT) - Makes various changes regarding sentencing of persons convicted of felonies. Dennis Neilander, Senior Research Analyst, provided the committee with a handout of a side-by-side comparison of S.B. 416 and Assembly Bill 317. Said handout is attached hereto as (Exhibit B). Mr. Neilander explained the chairmen asked him to compare several bills to find the areas in common that needed to be addressed in relation to S.B. 416. The three areas where the bills have common elements are 1) habitual offender; 2) modifying the sentence down after parole revocation; and 3) commutation of the sentence by the pardon's board. Chairman Anderson recognized Senator Washington was present as spokesman of S.B. 416 and asked if it was the intent of the bill to allow the commuting of a sentence by the parole and probation board. Senator Washington, District 2 stated no that was not their intent. Mr. Neilander began by going through portions of his handout (Exhibit C) stating the primary differences regarding the habitual criminal issue surround which crimes trigger the status of habitual offender in the new category. In S.B. 416, Section 180(2), there is a list of violent, sex-related crimes that, by statutory citation if committed a third time, triggers the habitual criminal status. However, in A.B. 317, rather than listing the crimes, it uses the broader language, "any felony involving the use or threatened use of force or violence. Another difference in the bills is that S.B. 416 retains the "little" habitual statute while A.B. 317 eliminates the "little" habitual statute. However, both bills retain what is now the "middle" habitual and the charging elements are the same in both bills. Ben Graham, Clark County District Attorney's Office, stated he did not believe the Senate Judiciary Committee intended to limit it to the specific offenses committed just within the state of Nevada so the type of crimes enumerated in S.B. 416, if committed in another state, should be considered. Further discussion was held regarding the habitual statutes in A.B. 317, S.B. 416, the current law, together with the commission of felonies in other states. Mr. Perkins asked how law enforcement would deal with crimes committed in other states that are similar but the elements of the crime are not specifically the same as the statutes in Nevada. Mr. Graham replied he would have to take a look at the existing criminal statutes to see exactly how it is worded. He elaborated further that when there is a "laundry list" of specific offenses it eliminates any argument. However, as in A.B. 317, where you just have broad language, a prosecutor could make an argument as to the legislative intent of that language. Mr. Neilander stated the language Mr. Graham was referring to was contained in the handout material (Exhibit D), page 73, right column, lines 41-45, current habitual criminal statute. Mr. Neilander concluded the committee would need to decide if they wish to retain the broader language rather than the laundry list. Mr. Perkins stated he preferred the broader language. Ms. Steel inquired if the language of "included but not limited to" could be prefaced before the laundry list. Mr. Neilander replied that language would open up the list to include any crime and the committee should be mindful it is mandatory charging by the district attorney. Senator Washington commented it was the intent of the Senate Judiciary Committee in crafting S.B. 416 to make it narrow and defined in order to target a specific group of habitual criminals. Ms. Ohrenschall asked exactly what crimes were in this list. Chairman Anderson referred Ms. Ohrenschall to the matrix provided to her by Senator James on May 17, 1995. Senator Washington added the Sentencing Commission designed in A.B. 317 would allow for additional crimes to be added to the habitual "laundry list" if necessary in the future. Ms. Buckley stated she would like to see the enumerated language and also add the suggested broadened language at the end of the "laundry list" so essentially they would be getting the best of both worlds. Mr. Neilander restated the suggestion would be the list set forth in S.B. 416 and then the phrase from A.B. 317 "or any felony involving the use or threatened use of force or violence" would be placed thereafter. Mr. Neilander stated this suggestion would most likely eliminate any conflict between the two bills; however when you create a specific list and then add an exception to the list you create an opportunity for argument as to what was the intent. Ben Graham, Clark County District Attorney's Office, stated Mr. Neilander clearly stated the issue of creating an argument as to intent. In addition, he pointed out to the committee there is already in existence a habitual criminal statute. Mr. Graham asked if Mr. Neilander could read the list of crimes so the committee could see all the crimes already considered in the list. Mr. Neilander recited: murder, attempt to commit murder, procuring the execution of an innocent person by perjury, solicitation to commit murder, first and second degree murder, first and second degree kidnaping, aiding or abetting kidnaping, rape, robbery, administering poison with the intent to kill, battery with intent to commit sexual assault, fighting a duel resulting in death, involuntary servitude, child abuse, child pornography, promoting child pornography, necrophilia, transportation of explosives, use of explosives, arson, racketeering, escaped felons, drugs causing death of a person, felony driving under the influence causing substantial bodily harm or death. Mr. Graham declared it was important to note S.B. 416 already changes the habitual criminal statutes to require mandatory charging by the prosecution which is not favored by district attorneys so they would prefer to keep the narrow definition of crimes enumerated in S.B. 416. Chairman Anderson noted the current habitual criminal statutes are infrequently used by district attorneys. The narrow list disallows district attorneys to plea bargain to those crimes in the laundry list. The committee continued to discuss at length the ramifications of using the outlined, narrow list of S.B. 416 or the broader language set forth in A.B. 317. Mr. Neilander reiterated the sponsor of S.B. 416, Senator Mark James, has indicated he feels strongly in maintaining the enumerated list in the bill partly because that habitual list came out of the interim study chaired by Senator Ernest Adler. However, Senator James is not as adamant about the other two areas of the bill the committee will be addressing today. Mr. Perkins asked why the crimes of mayhem, lewdness with a minor under 14 years of age, and aggravated stalking were not included in the "laundry list" contained in the bill. Senator Washington stated there was testimony and discussion in the Senate regarding lewdness with a minor and mayhem but apparently there is already an existing statute for aggravated stalking. However, he did not recall exactly what the discussions were and if this committee wished to include those crimes he did not believe Senator James would object. Chairman Anderson provided choices for the committee regarding the habitual section of S.B. 416. Mr. Humke stated Section 180 of S.B. 416 has been very well thought out. Therefore, if they began mixing and matching the provision with language from A.B. 317 there may be a fiscal impact so he would leave that section alone in order to get the bill, along with A.B. 31 to the money committees. Chairman Anderson agreed Section 180 of S.B. 416 should remain as is. ASSEMBLYMAN PERKINS MOVED TO ADOPT SECTION 180 TO S.B. 416 BY AMENDING TO ADD LEWDNESS WITH A MINOR TO THE LAUNDRY LIST OF SPECIFIED CRIMES. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. Mr. Humke called for the question which passed. THE MOTION CARRIED. ASSEMBLYMEN MANENDO and MONAGHAN WERE NOT PRESENT AT THE TIME OF VOTE. Chairman Anderson announced discussion would be held later regarding the "little" habitual criminal issue in conjunction with Ms. Ohrenschall's bill. Mr. Neilander pointed out the next area of concern was whether or not the pardon's board can commute a sentence of life or death contained in the second part of the handout (Exhibit B). Mr. Neilander explained in detail material contained in the handout as it relates to commuted sentences concluding that S.B. 416 is retroactive and A.B. 317 is prospective. Ms. Buckley asked Mr. Neilander since S.B. 416 applies to first degree murder cases only, is there a conflict? Mr. Neilander replied there are other statutes that carry a "life without" sentence other than first degree murder so A.B. 317 is broader in its scope as to what crimes would be prohibited from being subject to a pardon sentence. Ms. Buckley went on to ask if they attempt to adopt both sections of the bills then it would only be retroactive in cases of first degree murder. Mr. Neilander stated yes that would be correct. Further, the ex post facto issue came up in this bill and the committee asked him to discuss it with Legislative Counsel. The legal opinion in that regard stated there are no cases directly on point. Additional discussion was held regarding previous testimony and research regarding the ex post facto issue in S.B. 416 as well as how that issue was handled with regard to A.B. 317. Mr. Carpenter and Mr. Sandoval stated they preferred the language on this topic in S.B. 416. ASSEMBLYMAN BUCKLEY MOVED TO ADOPT THE LANGUAGE IN SECTION 29 OF A.B. 317 TO SECTION 231 OF S.B. 416 SINCE S.B. 416 ONLY DEALS WITH THE COMMUTATION OF MURDER CASES. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. Senator Washington asked if there would be an increase in the fiscal impact if Section 231 is broadened as provided by Ms. Buckley's motion. Mr. Neilander stated the number of persons pardoned is relatively few. Secondly, S.B. 416 is a concurrent referral to Ways and Means. In addition, the prison population projections were done by Mr. Austin of NNCCD based on murder only and not the other crimes contained in the added language from Section 29 of A.B. 317 so he was not sure what fiscal impact there would be. Chairman Anderson stated at least in this biennium there is no fiscal impact on S.B. 416. Mr. Graham stated they were very comfortable with what the committee was doing with S.B. 416 but wanted to make sure he understood that all other life withouts would truly be life without so at the end of 20 years there would be no possibility of a commutation. He added the district attorneys believe life without for first degree murder is very appropriate but to possibly leave some discretion after 20 years for some of the other offenders. Ms. Buckley commented the provisions regarding commutation were already passed in A.B. 317 so her motion in S.B. 416 was to make sure that the original provision allowed it to be retroactive to clearly set forth that the non-commutation provisions would not be retroactive. Mr. Carpenter remarked he was uncertain his seconding of the motion was what he understood it to be. He wants the language in S.B. 416 to be retroactive with regard to the particular section being discussed. Ms. Buckley privately explained the retroactive language to Mr. Carpenter. Chairman Anderson brought the motion back to the floor for a vote. THE MOTION CARRIED. ASSEMBLYMAN CARPENTER WAS NOT PRESENT FOR THE VOTE. Chairman Anderson announced the committee would move to discuss the modified sentencing provisions. Mr. Neilander explained in the last page of the handout (Exhibit B) a comparison is made between the pertinent provisions of A.B. 317 and S.B. 416 whereby the judge can modify an original sentence for a person found to be in violation of parole and probation. A.B. 317 included the notification of the victim if the parole and probation department is going to make a recommendation if the sentence were to be modified however S.B. 416 does not contain that language. Mr. Neilander recited previous testimony concerning these sections. Ms. Buckley recalled MADD was very concerned about this section and discussed their concerns adding what her understanding of the intent of the modified sentence was intended for. Ms. Buckley suggested perhaps the section could be modified providing one option available to the court would be to impose any part of the original sentence. That way, the judge can impose the original sentence or sentence the offender to any part thereof. Ben Graham, Clark County District Attorney's Office, stated Ms. Buckley's suggestion was a "play on words" so why not delete the entire provision from the bill. Senator James, the primary sponsor of S.B. 416, concurred the provision could be deleted entirely stating the language was originally included pursuant to his discussions with the Governor's staff during drafting of the bill. ASSEMBLYMAN HUMKE MOVED TO DELETE SECTION 214 OF S.B. 416 THAT DEALS WITH MODIFICATION OF A SENTENCE. ASSEMBLYMAN BATTEN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. Chairman Anderson, in moving to the next provisions to be discussed, stated the section involving surety bonds was the area of most concern to him in that this language may disproportionately affect a portion of our society, namely the poor. In addition, it seems to create the opportunity for the bail bondsmen to step in front of parole and probation and take over regarding the category "D" and "E" offenders without having a court order to do so. Also, the bonding companies are going to be expected to provide treatment programs and send money on to the state. Senator James responded to Chairman Anderson's concerns stating the surety bonds is an optional provision. Further, it is a creative, free enterprise approach to dealing with the burgeoning probationary population we currently have. Senator James stated they have put into the bill all types of provisions that the bonding company will be liable to try to restrict it as much as possible to insure a responsible program is developed. Senator James elaborated further on the philosophy behind the surety bond provision in S.B. 416. Chairman Anderson retorted he did not see the surety bond provision as an essential element to S.B. 416 but rather it should be in a subject matter all its own. Mr. Humke remarked he understood Chairman Anderson's concerns regarding surety bonds; however, he sees it as allowing a person to scratch together whatever resources they have to continue to participate in their own liberty. So if there is a requirement to put some money together for a bond most people will find it worthwhile as it leads to intensive supervision, counseling programs, and drug and alcohol treatment. It is an "experiment" worth getting into which will address diversion alternatives which ultimately leads to acquiring more prison beds for the violent, repeat offenders. Chairman Anderson reiterated he still finds the surety bond provision of the bill a major stumbling block. Ms. Buckley concurred she would like to see this provision deleted from the bill. Mr. Batten added he found the provision to be permissive and it is an alternative. In addition, his previous experience indicates if a person pays for a bond they usually have more incentive to complete the diversion program. In addition, by privatizing the matter, it will reduce the fiscal note tremendously so he would like to see the provision remain in the bill. Mr. Carpenter asked Senator James if there were any similar programs in existence in other states. Senator James replied yes many states are using surety bonds. Although he could not recall the number or exact states utilizing surety bonds, there were a number of them. The philosophy stems from the American Legislative Exchange Counsel (ALEC). ALEC is interested in seeing non-government, non- taxpayer funded solutions being made a part of the process and becoming a free enterprise. An indigent person would still have the option of state supervised probation for the particular category offenses in that the surety bond provision would not take anything away from people without resources it just expands the availability of probation for these category crimes. Mr. Carpenter stated he would like to see the surety bond provision remain in the bill. Ms. Steel concurred she would prefer to see the provision remain in the bill as is will keep parole costs down and benefit the citizens of the state of Nevada. Further, if any revisiting were necessary of this provision in S.B. 416 she would prefer to revisit it after having been in place for two years rather than revisit the entire concept in two years. Ms. Monaghan echoed Ms. Steel's comments. Ms. Buckley noted the sentiment of the committee was to retain the surety bond provision in the bill so she would like to see "non-indigent person" placed therein. ASSEMBLYMAN BUCKLEY MOVED TO ADOPT SECTION 197 TO S.B. 416 BY INCLUDING AT LINE 40 OF SECTION 197, ON PAGE 80 THAT WHENEVER A "NON-INDIGENT PERSON" HAS BEEN FOUND GUILTY . . . ASSEMBLYMAN GOLDWATER SECONDED THE MOTION. Mr. Perkins and Mr. Anderson reiterated their earlier comments regarding surety bonds, having both served on the A.C.R. 71 Study during the interim. Senator James stated he discussed the indigent individual as relates to Section 197 of S.B. 416 with James Jackson, Nevada State Public Defender who raised the same issue in the Senate Judiciary Committee. Thereafter, Mr. Jackson developed some language that perhaps could resolve the issue. Mr. Sandoval provided a copy of the proposed language as prepared by Mr. Jackson. Mr. Jackson outlined the specific amendment to Section 197 attached hereto as (Exhibit C). Beginning on page 80 of the bill, the following language would be inserted: "A defendant's inability to afford to pay for and post such a surety bond shall not be reason to deny a program of probation to a defendant that is otherwise eligible for probation pursuant to NRS 176.185." Senator James stated he supports that amendment. Ms. Buckley withdrew her previous motion and restated the same using Mr. Jackson's amended language. The seconder, Mr. Goldwater, agreed to the amended language as well. Chairman Anderson brought the motion to the floor for a vote. THE MOTION CARRIED. ASSEMBLYMAN SANDOVAL WAS NOT PRESENT FOR THE VOTE. * * * * * B.D.R. 43-1811 Revises provisions governing testing of driver for presence of alcohol or controlled substance in his blood or breath. ASSEMBLYMAN HUMKE MOVED FOR COMMITTEE INTRODUCTION OF B.D.R. 43-1811. ASSEMBLYMAN BATTEN SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN SANDOVAL WAS NOT PRESENT FOR THE VOTE. * * * * * B.D.R. 41-2017 Extends permissible locations for greyhound racing. ASSEMBLYMAN HUMKE MOVED FOR COMMITTEE INTRODUCTION OF B.D.R. 41-2017. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. Mr. Batten asked if the greyhound racing would be covered under the Gaming Control Board and Mr. Humke answered yes it would be. Chairman Anderson brought the motion back to the floor for a vote. THE MOTION CARRIED. ASSEMBLYMAN SANDOVAL WAS NOT PRESENT FOR THE VOTE. Chairman Anderson announced a break at 10:15 a.m. and the committee reconvened at 10:37 a.m. B.D.R. 9-1861 Relating to public utilities providing for the perfection and for notice of security interests in the property of public utilities separately from the Uniform Commercial Code. ASSEMBLYMAN HUMKE MOVED FOR COMMITTEE INTRODUCTION OF B.D.R. 9-1861. ASSEMBLYMAN STEEL SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN BATTEN, PERKINS, SANDOVAL, BUCKLEY, AND STROTH WERE NOT PRESENT FOR THE VOTE. (It should be noted for the record Assemblyman Sandoval was testifying on a bill in another committee during a portion of the meeting and was unable to vote) In returning to S.B. 416, Mr. Neilander stated the only issue remaining was the "little" habitual provision which has already been discussed. However, Mr. Neilander explained how this provision relates to Ms. Ohrenschall's bill, Assembly Bill 570, dealing with the elderly and disabled. Ms. Ohrenschall stated her bill also provides for a different penalty, namely minimum 20 to life with and she believes A.B. 570 should stand on its own. Discussion ensued between Mr. Carpenter and Mr. Graham regarding the category "D" and "E" felonies outlined in S.B. 416; concerns relating to crimes against minors; probation; and the Sentencing Commission set forth in A.B. 317. Chairman Anderson stated they would await voting until the vice-chairmen were present and continued the hearing into the scheduled work session. ASSEMBLY BILL 1 - Requires district attorney to include count of habitual criminality if defendant has sufficient convictions. Chairman Anderson asked Mr. Neilander if A.B. 1 would be moot with the passage of S.B. 416. Mr. Neilander stated yes it is included in both A.B. 317 and S.B. 416. Chairman Anderson asked Mr. Humke to approach the maker of A.B. 1 to request the bill be withdrawn. ASSEMBLY BILL 201 - Requires date for first hearing to consider release of offender on parole to be set when offender is sentenced for crime. Mr. Neilander stated A.B. 201 was not included in S.B. 416 and it can stand alone. The bill requires the judge to notify, at the time of sentencing, what the actual sentence will be. The bill compliments S.B. 416 in that way. Chairman Anderson pointed out his notes reflect there were some questions relative to effective dates and possible time frame problems. Mr. Neilander did not believe there would be any problem with the effective date. Mr. Humke noted the effective date for A.B. 317 and S.B. 416 was October 1, 1995 so he did not see a problem either. ASSEMBLYMAN HUMKE MOVED TO DO PASS A.B. 201. ASSEMBLYMAN STEEL SECONDED THE MOTION. Ms. Stroth, the primary sponsor of A.B. 201, stated Senator James informed her that all of A.B. 201 was addressed in S.B. 416 so perhaps A.B. 201 was not necessary after all. Chairman Anderson clarified the research indicates otherwise and although A.B. 201 does not conflict with S.B. 416 in any way, there are items in A.B. 201 not contained in S.B. 416. Mr. Goldwater recalled testimony and his notes that indicate the notification should be changed from the parole board to the prison board since they do the calculations for release. Mr. Humke stated it would be far more appropriate for the parole board to make the notification even if they have to obtain the information from the Department of Prisons. Chairman Anderson announced they would obtain clarification on the bill for the committee and consider the motion at a later date. ASSEMBLY BILL 339 - Revises provisions governing good time credits and eligibility for parole for certain offenders. Mr. Neilander stated A.B. 339 provides a 50% rule, meaning an offender would have to serve 50% of their sentence prior to eligibility. S.B. 416 has a very detailed structure which essentially is based on a 40% rule whereby the minimum term cannot exceed 40% of the maximum term. Additionally, Assembly Bill 442 has an 85% rule along with a host of provisions already covered in other bills. Chairman Anderson stated he would approach the maker of A.B. 339 to see if he would like to have the bill withdrawn as in all probability in light of the S.B. 416 we would be going with the 40% rule so perhaps that would be acceptable. Mr. Humke announced, as a courtesy, he would check with the makers of A.B. 1 and A.B. 442 to see if they would be willing to withdraw their bills. There being no further business before the committee, the hearing adjourned at 11:03 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary May 22, 1995 Page