MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session May 23, 1995 The Committee on Judiciary was called to order at 8:00 a.m., on Tuesday, May 23, 1995, Chairman Humke 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. 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: Mr. Thomas Batten GUEST LEGISLATORS PRESENT: Assemblywoman Jan Evans, District No. 30 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: District Attorney Belinda Quilici, Pershing County Retired Judge Larry Hyde Mr. Roger Voger Mr. Ben Graham, Clark County District Attorney's Office/Nevada District Attorneys Association The Honorable Michael E. Fondi, District Judge, Carson City Lieutenant Phillip Galeoto, Reno Police Department James Jackson, Nevada State Public Defender Mr. Richard Morgan, Nevada Trial Lawyers Association BILL DRAFT INTRODUCTION: ASSEMBLYMAN ANDERSON MOVED FOR BILL DRAFT INTRODUCTION OF BDR 5-463. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED. (ASSEMBLYMAN MONAGHAN VOTED NO. ASSEMBLYMAN BATTEN WAS NOT PRESENT.) ASSEMBLY BILL NO. 606 - Revises provisions governing criminal and civil liability for crimes motivated by certain characteristics of victim. The Honorable Michael E. Fondi, District Judge, Carson City, testified at the invitation of Assemblywoman Evans in support of A.B. 606. Judge Fondi advised ordinarily judges do not get involved in legislation pertaining to hate crimes because it is a legislative prerogative. Judge Fondi commented the bill recognizes a problem that exists throughout the country dealing primarily with hate crimes. They are crimes which are abhorrent and there never seems to be an adequate punishment. Judge Fondi advised this bill provides a punishment which is more than what would ordinarily be provided for the simple commission of the offense. It adds an additional term of not to exceed 25% of the term of imprisonment prescribed by statute for the crime. It basically allows an additional penalty if there is proof the crime is motivated by perceived race, color, national origin, physical and mental disability or sexual orientation of the victim. Judge Fondi noted this is listed as an aggravated circumstance for murder and he cannot think of a more appropriate circumstance to add to the aggravation criteria in first degree murder. Judge Fondi was concerned about Section 5 which provides civil penalties for commission of acts which fall within the definition of this statute, particularly the laundry list of crimes. Fondi pointed out NRS 200.366, sexual assault crime, was omitted; however, it is included in Section 1 of A.B. 606. Another possible concern of Judge Fondi was how it might coordinate with the provisions of S.B. 416. Judge Fondi had the opportunity of reviewing S.B. 416 and was satisfied there was no inconsistency and A.B. 606 would complement it. Mr. Sandoval referred to Section 5 and asked if a person already possesses a civil right of action for violation of those crimes, and is it something that would be redundant. Judge Fondi replied he did not think it would be redundant. Certainly you have a cause of action for violations of tort acts that coordinate, for instance, assault and battery. Judge Fondi stated the additional language is by a perpetrator who is motivated by the injured person's actual or perceived race, color, etc. Then it provides for punitive damages if it is demonstrated as a motivating factor. Judge Fondi advised for that reason it is not redundant in his opinion. In reference to punitive damages Mr. Sandoval inquired if it would change the standard of proof for punitive damages. Judge Fondi remarked it was an interesting question, because he was bewildered as to what the standard of proof is for punitive damages due to recent Supreme Court decisions that provide what he considered inconsistent criteria. Judge Fondi commented when a case is seen that warrants it, it is obvious and one must go along with the language in that light. Ms. Monaghan questioned how motivation would be proved. Judge Fondi advised it was difficult to be precise; but, like in many criminal acts, i.e., conspiracy, there are proof of agreements or conspiracies to commit criminal acts primarily by circumstantial evidence. Very seldom is there a written contract or an outright statement that says, I am going to commit this crime against you because you are black, a woman, or whatever reason. Judge Fondi stated he cannot establish a laundry list of what criteria to use other than whatever proof offered would have to be beyond a reasonable doubt. Judge Fondi advised circumstantial evidence is considered sufficient in order to establish that, i.e., membership in a hate organization who espouses beliefs that certain crimes ought to be committed against people because of their race, color, or sexual orientation. Judge Fondi stated a variety of evidentiary problems that must be met to establish this. Judge Fondi is satisfied the present rules of evidence are sufficient to handle that particular part of the problem. Mr. Carpenter inquired if the civil action would be filed before or after the criminal action. Either way, Judge Fondi responded oftentimes with civil action different statutes of limitation depend on when the crime was committed, when the case was brought to trial in the criminal realm. There are time lines that have to be met in that area. If there is any delay, Judge Fondi advised a civil action could be commenced before the criminal action in order to preserve the statute of limitations. Judge Fondi advised there is no guarantee one way or the other. Judge Fondi commented often times actions are seen that are collateral to a criminal action being filed. Judge Fondi noted usually civil actions do not come to trial before the criminal case as a general rule. There are different standards of proof in each case and it is assumed if sufficient evidence were had in a criminal case for conviction beyond a reasonable doubt for one of these types of offenses, it pretty well leaves out the case for civil action because the burden of proof is substantially less by a preponderance of evidence. Judge Fondi advised the criminal case makes the civil case. As a practical matter however, Judge Fondi remarked most of the people who commit these type of offenses do not really have the wherewithal to pay a damage judgment if one is attained; but, it is something you cannot have on the books because of that fact. Mr. Carpenter stated his question is along the lines of Mr. Sandoval's. Mr. Carpenter inquired if one could already bring a civil action. Judge Fondi replied certainly, but not because the action was commenced because of a perpetrator who is motived or injured by a person's actual or perceived race, color, religion, national origin, or etc. Judge Fondi commented this was the additional language that provides a cause for this particular civil offense as opposed to just for sexual assault, assault and battery, and any number of crimes listed in the laundry list. Mr. Carpenter asked if this language would add a greater amount of money or whatever could be recovered. In his opinion Judge Fondi advised it would add a new cause of action and permit if it were successful recovery of greater damages because it specifies actual damages and any punitive damages which the facts may warrant. Judge Fondi stated it gives an option to add punitive damages specifically by the language of the bill which an ordinary action for a tort that might fit or the collateral action of one of the criminal acts may not allow for. Obviously this is a much needed legislation, Mr. Anderson remarked due to the rise in hate crimes in the country. If all the Sons of Erin were marching down the street, Mr. Anderson was concerned about who would not fit into one of these categories. Judge Fondi responded he did not disagree; and, if indeed a crime is perpetrated against someone because they are Irish, it is as reprehensible as if perpetrated against him because they were Hispanic, Black, Italian, or Chinese. Judge Fondi commented different periods of history in this county subjected certain people of national origin were, in effect, persecuted because of their ethnic national origin. Unfortunately, Judge Fondi remarked it is part of the history of this country which it evolved from. Judge Fondi stated no person should be victimized because of their ethnic national origin. If, indeed, it could be proven it was the motivating factor that the Sons of Erin were going down the street and someone who was English did not like the fact of their special day on March 17 and threw a bomb in the midst of them to stop them from demonstrating, Judge Fondi advised that person should be prosecuted for a hate crime. Not to defend the Sons of Erin, Mr. Anderson commented, given the 40% threshold under consideration in S.B. 416, it would then raise all of these crimes to 65% of prison time if it is an additional 25%. Judge Fondi concurred. Mr. Anderson noted it has a potential for severe impact. Mr. Anderson expressed his concern for low standard of actual or perceived more than the reasons. Judge Fondi noted one of the things that S.B. 416 does not do is it does not repeal NRS 193.169, extra punishments for people using guns, crimes against elderly, nor amend provisions of that statute. Judge Fondi advised it says that this aggravating circumstance cannot be added on if, in fact, the person commits the offense using a weapon or against an elderly person. Judge Fondi stated the sentences cannot be stacked up; one or the other must be used. Judge Fondi advised that statute is still on the books, and it is good legislation. In reference to gangs Mr. Manendo asked how it would be determined whether the motivating crime be drugs, turf, or a different race. Judge Fondi advised it would be a question of fact for a jury whether or not they think it is something that has been proven beyond a reasonable doubt and part of the fact finding process. Judge Fondi stated it gets back into the question asked by Mrs. Monaghan about rules of evidence. Mr. Manendo commented it is a combination of things and how would they make the determination. Judge Fondi advised it is the prosecutor's responsibility to provide sufficient evidence or proof if they want to meet that particular element of the offense charged. In reference to underlying cause of action Ms. Steel inquired if it meant the assault and battery complaint which would be followed by another allegation of assault and battery because of the characteristics. Judge Fondi advised it would be like a second cause of action. Along the same evidentiary questions, Ms. Buckley asked how to allow protected first amendment activity to be used as evidence in the murder. Judge Fondi advised beliefs are protected; but, actions in furtherance of those beliefs which are criminal in nature certainly are not. Judge Fondi advised this is the crucial issue in a case. Ms. Stroth wondered if gender was ever included in this list in legislation around the country. Judge Fondi advised civil rights legislation includes gender; and, this is almost a mini-civil rights criminal act for Nevada and maybe it should be added. Chairman Humke confirmed he noticed gender was missing; but, it calls for tremendous fiscal impact based on his knowledge of crime in this state. Chairman Humke advised Mr. Neilander will provide a copy of S.B. 139 to Judge Fondi. Chairman Humke requested Mrs. Evans to approach the table. Chairman Humke advised staff found a conflict with S.B. 139 which already passed both houses and was signed by the Governor. Chairman Humke reference p. 2, ll. 21-23 of S.B. 139, there is a different definition for this aggravating circumstance as compared to the one contained in A.B. 606. The differences would include A.B. 606 has the words, "motivated by" and also puts the focus on the person who was the perpetrator and in S.B. 139 the focus is on the victim. A.B. 606 also adds the sexual orientation of the victim as an additional aggravating circumstance. Chairman Humke advised sexual orientation is in both bills. Chairman Humke requested Judge Fondi's expertise in resolving this conflict. Judge Fondi advised some of the language is repetitious and some not, "motivated by" as opposed to "because of the actual or perceived race, color," is different light on the action. If A.B. 606 is adopted, Judge Fondi advised it would obviously change Section 11 of NRS 200.033. Judge Fondi recommended physical or mental disabilities be added. Chairman Humke suggested contacting Judge Fondi later as to his thoughts. Judge Fondi will think it through. In conclusion Judge Fondi stated overall this is a positive piece of legislation and Nevada should recognize hate crimes are taking place in our communities and there should be a punishment provided for them. Judge Fondi remarked people ought to be brought to justice when they commit a crime for this reason. Assemblywoman Jan Evans, District 30, added her appreciation to the committee for hearing Judge Fondi first because of his tight schedule. Ms. Evans' testimony is attached as (Exhibit C) and stated hate crimes are committed by a single individual acting alone and also perpetrated by groups, i.e., KKK, Nazis, skinheads, white supremacists, groups with irrational beliefs which have grown out of prejudice and ignorance. In 1993 FBI statistics Ms. Evans cited nearly 8,000 U.S. incidents of hate motivated intimidation, vandalism, assault and murder. Unfortunately, these numbers fail to give a full accounting of hate crimes as Ms. Evans noted tend to be greatly unreported. Racial bias was the most frequent motivation, accounting for 62% of the incidents, followed by 18% for religious bias, Ms. Evans informed. The most common racial targets were African Americans while Jews were the most frequent religious targets, Ms. Evans noted. In recent years there has been a growing trend of crime and violence based on sexual orientation of the victim, Ms. Evans advised. In addition to penalty enhancement primarily discussed with Judge Fondi, Ms. Evans informed this bill also establishes a program to collect, compile, and analyze data about crimes that show evidence of hate or prejudice. Although congress passed the hate crimes statistics act of 1990, the FBI shows fewer than 20% of law enforcement agencies nationwide submitting data; and Ms. Evans advised this information is sorely needed. Ms. Evans stated A.B. 606 was researched and written by citizens in Washoe County who were dismayed and outraged by the senseless murder and victimization of people throughout the state over the past few years. On their behalf Ms. Evans is pleased to present this legislation. Ms. Evans advised she is accompanied by retired Judge Larry Hyde, one of the authors, who will review the bill and discuss its components. Retired Judge Larry Hyde testified in support of A.B. 606, attached as (Exhibit D). Judge Hyde pointed out criminal offenses require proof of intent, i.e., assault with intent to kill; and it is a common question. Judge Hyde stated hate statements can be proof of intent. As to civil liability set forth in Section 5, Judge Hyde emphasized this section provides for recovery of attorney's fees which is not common practice and is an additional benefit to a person who is a victim of a hate crime. Mr. Goldwater commented we have enhanced penalties against crimes against senior citizens, minors, and for hate crimes. Mr. Goldwater requested Judge Hyde's response to how this hybrid of enhancement of penalties is enveloping almost every nook and cranny of our society. Judge Hyde reiterated A.B. 606 needs to be filled because enhanced penalties apply only to a list of misdemeanors. Judge Hyde advised A.B. 606 adds to a list of characteristics and adds these felonies, an entire area not previously covered. Judge Hyde recognized as did Judge Fondi the omission of NRS 200.366 in Section 5; it should have been included. Also, Judge Hyde advised this bill gives discretion to apply the enhanced penalties up to 25% and does not do it by mandate. Judge Hyde stated he is basically opposed to mandatory sentencing requirements and minimums and A.B. 606 does not have that aspect. Mr. Anderson referenced Mr. Manendo's earlier question that comes to one of the major concerns of the bill. One of Mr. Anderson's concerns was how to handle the gang violence situations where it is racial groups in common fighting over turf as opposed to using an enhanced penalty. Judge Hyde responded if there are several motivations for an offense, such as someone else's blood regardless of whose it is, the enjoyment of fighting. Judge Hyde stated if a victim is picked because of one of these characteristics, then it comes within this category. In the gang situation, if there are several motivations, the prosecutor's job is to determine whether there is ample evidence that one of the motivations was one of the characteristics listed here. If so, Judge Hyde commented the case is made. Other motivations may be shown in evidence as part of the proof that the offense occurred and is part of the proof that the defendant was guilty of the offense. Judge Hyde commented motive is not an element of crime but it is evidence in a criminal prosecution. Judge Hyde advised the other motivations would simply not be applicable if the primary motivation was hate and the prosecutor goes with that and the fact it was overturned would drop by the wayside. For the purpose of the enhanced penalty, Judge Hyde stated it would still be a factor in the proof of guilt. Mr. Anderson concluded even though it is not an element of crime that the district attorney is going to have to determine if it is a strong enough motivation to ask for the enhanced penalty. Judge Hyde stated that was correct. Therefore, Mr. Anderson added this is a trust of the district attorney's office in terms of whether he is going to make that notwithstanding whatever the opinion is in the Wisconsin case. Judge Hyde stated the district attorney will have to show that it was done willfully. In reference to S.B. 139, p. 2, subsection 1, ll. 20-23, Chairman Humke reiterated it has passed both houses and has been signed by the Governor. Judge Hyde commented there was no difference between the two bills except for the omission of physical or mental disability on one. Chairman Humke advised A.B. 606 also contains the words, "motivated by" and believed there is an illusion to the fact that the murderers' perspective is considered in A.B. 606 and in S.B. 139 there is not much language describing the murderer. Chairman Humke commented it generally described the victim with the potential conflict. Judge Hyde indicated he would like to have a chance to study it. Chairman Humke said the committee would await the wisdom of his consideration. Mr. Ben Graham, Nevada District Attorneys Association, testified in support of the concepts of A.B. 606 and Judge Fondi spelled it out as to how it might be utilized. From an attorney's standpoint Mr. Graham has some of the concerns Ms. Buckley mentioned. Mr. Graham stated he would not anticipate there would be a great many prosecutions utilizing this provision; however, it may be warranted on occasion. "Another arrow in the quiver," Mr. Graham stated which might be available. Mr. Graham pointed out the aggravating circumstance on p. 3 has been blended into S.B. 139. Mr. Graham indicated a matter of proof would be something that would not present itself, availability, but if it were there, it would be something that could be utilized. Mr. Carpenter asked Mr. Graham in his review of S.B. 416 if he has any conflict with the 40% enhancement and the reason it could not be increased to 50% was because of the good time credits. Mr. Carpenter asked how Mr. Graham thought it might work into the total picture. Mr. Graham indicated there have been no other adjustments of the enhancements for deadly weapon, senior citizens, so it would have to be figured in just as those enhancements are figured in as well. Mr. Graham stated the reason the 40% was mentioned, it got into the truth in sentencing aspect as well. If it was over 40%, Mr. Graham said there would be a meeting in the middle of the good time credits and other things that are available, so it would not be a true reflection of the sentence. To be honest, Mr. Graham said he did not know just how the enhancement process would work in light of S.B. 416 but it would work in this situation just as it does for the enhancement for a deadly weapon or a senior citizen. Mr. Carpenter inquired if it was discussed in the Senate hearings. Mr. Graham advised he did not recall any specific discussion about the effect of the enhancement penalties or how it plays into the structure. Mr. Carpenter stated the enhancement penalties need further study to make sure it would not come back to haunt. Chairman Humke advised the bill is concurrently referred to Ways and Means Committee and they can discuss the fiscal aspects. Mr. Carpenter advised he was referring to the actual sentencing aspect and how the enhancement penalties of it plays into the structure. Mr. Neilander, Research Staff, advised the issue of enhanced penalties as discussed in the Senate in regard to S.B. 416, at one time in the matrix it was included but was taken out because S.B. 416 includes the enhancement penalties as they are. Basically, Mr. Neilander stated all the enhancements in existence now double the underlying penalty, so the judge has the discretion within the penalty range for the given crime to choose the sentence. Mr. Neilander advised once the judge does that it would simply be doubled. Mr. Neilander commented S.B. 416 does not impact that. Again, Mr. Neilander reiterated the new sentencing scheme would be in place but when you have one of the crimes that is enhanced, it would simply double the penalty that the judge chooses. Under A.B. 606 rather than doubling the penalty it would increase it by 25%, Mr. Neilander advised. Mr. Carpenter concluded there would be no problem if A.B. 606 was passed as far as the sentencing was concerned. Mr. Neilander stated it would be the same as the existing enhancements under Chapter 193. Mr. Sandoval asked Mr. Graham the reason for his comment this provision would seldom be used was because it is hard to prove or does not happen that often. Mr. Graham indicated earlier testimony maintained circumstantial evidence would have to be relied upon. Generally, Mr. Graham said there is little direct evidence of intent. Mr. Graham stated additional evidence would be required to prove the offense was racially motivated, i.e., battery or murder. Mr. Graham mentioned the gross misdemeanor offense is not used frequently and used in a case by case basis. Mr. Graham did not see breaking the budget by increasing it 25% under these circumstances. Ms. Steel inquired why gender was left off the list, as some serial killers go after a specific sex of the victim and for no other reason. Mr. Graham indicated that was not addressed specifically and this is broad. Mr. Graham noted if it were broadened further it may dilute the intent and would be a decision the committee would have to make. Ms. Steel concluded there may be more cases on a gender bias than you would have on a mental or physical disability bias. Mr. Graham stated there was merit to that. Mr. Graham noted the sexual and racial orientation are seen and was not aware of gender bias. Mr. Goldwater commented the criminal justice aspect of enhancing more penalties for offenses and asked Mr. Graham if this was the right direction for criminal justice to encompass everyone. Mr. Graham stated in this session, we are catching up. Mr. Graham could remember in 1991 where simple things they wanted to do to juvenile law and there was no sentiment for it; it probably should have been done in 1989 or 1987. In 1995 areas that should have been updated or brought forward, Mr. Graham noted the net gets bigger and bigger. Mr. Graham remarked the bigger it gets, the more chances there are for abuses and we have to trust the system. The concept here is laudable and Mr. Graham did not see it would be used all that much. Mr. Carpenter asked in using the motivating factors of perceived race, color or national origin as an aggravating circumstances in murder, if they had been tested in Supreme Court. There are a number of lists throughout the state, and Mr. Graham did not recall to see if this was one listed on any reviewed. Mr. Graham cannot specifically verify it has survived any constitutional challenge. Chairman Humke referenced Section 5 of A.B. 606 and noted Mr. Sandoval's question regarding the standard of proof with regard to punitive damages. Chairman Humke asked Mr. Graham if this sets up a state statute of civil rights body of law as it creates a civil rights cause of action and is it an appropriate policy given the fact federal law provides for these causes of action. Mr. Graham advised it has been a lot of years since he engaged in civil practice and in his opinion it is a policy statement. Chairman Humke suggested it was more than a policy statement because it sets up a provision for attorney's fees in addition to punitive damages. Chairman Humke pointed out in battery cases a civil attorney would be derelict of duties not to bring a case which will increase the caseload. Lieutenant Phillip Galeoto, Reno Police Department, testified in strong support of A.B. 606. Lt. Galeoto advised the city of Reno, Washoe County, experienced an increase in hate crimes over six years ago. Lt. Galeoto said they get called out every two and one half weeks to investigate a murder in the middle of the night. Lt. Galeoto advised of one incident in 1988 they found a young black man shot in the middle of the street with unusual items of evidence. Attached as (Exhibit E) is correspondence from the Honorable Brent Adams, Second Judicial District Court, Washoe County, in regard to the case. Officers were shocked it was not a typical homicide but was a result of a human on human hunting trip that started in a party of young people of skinheads. The victim was targeted because of his race. Lt. Galeoto believed this statute will be utilized on a very limited basis because very few crimes will qualify. Recently, three murder cases have qualified as hate crimes, Lt. Galeoto stated. Due to inquiries about evidence and how to prove motivation, Lt. Galeoto related from his own personal experience the vast majority of cases involved more than one perpetrator and conspiracies. There generally is discussion beforehand and Lt. Galeoto advised when there are two or more perpetrators, one perpetrator will talk. Also, Lt. Galeoto advised sometimes the perpetrators are proud of their actions and make clear and specific statements about the act and proof is quite often there. Lt. Galeoto mentioned law enforcement across the United States, just as in gang investigation, are being forced to do a better job with this type of investigation. The number of hate crimes reported in the state is increasing and those numbers are small in relation to the total number of crime reports, Lt. Galeoto informed. The proof required in those cases is very specific and to be able to prove motivation, Lt. Galeoto advised was a very field of criminal activity and the policemen are going to be forced to be able to provide the evidence for the prosecutor to support the charge. Lt. Galeoto noted it will not have a significance of impact on the number of cases or fiscal impact. Lt. Galeoto advised it will have a significant impact on the victims. If this legislation had been in the statute, Mr. Carpenter asked what happened in the prosecution of the crimes Lt. Galeoto related. The final status in any of those three cases, Lt. Galeoto did not know. In the city of Reno 17-25 homicides a year are investigated. Lt. Galeoto commented that policemen are disheartened by term of confinement offenders receive and the 25% penalty will alleviate their concern. If it was an aggravating circumstance, Mr. Carpenter asked why not call for the death penalty. Lt. Galeoto advised most cases do not make it to the death penalty charging. Lt. Galeoto deferred to Mr. Graham. In response to why gender was not included in the proposed statute, Lt. Galeoto advised this statute was modeled after the federal statute which does not refer to gender. In regard to enhanced penalties Ms. Steel stated the perpetrators would plead to avoid the enhancement. Lt. Galeoto stated to plead, someone has to allow one to plead. In some of the cases of attempted homicide the circumstances are not going to justify the plea. Lt. Galeoto advised more of a potential to utilize the proposed statute in battery and sexual assault cases than the homicide cases. Lt. Galeoto advised in homicide cases the death penalty is the first consideration. On behalf of this committee, Mr. Anderson expressed deeply felt sympathy for loss of a fellow officer in the line of duty from his community. Lt. Galeoto thanked Mr. Anderson on behalf of Truckee Meadows officers and it is a difficult day not only for law enforcement but for the community. Ms. Buckley requested Nevada Public Defender James Jackson to respond to her concern of the statute might be utilized against rival gangs, black on black violence and getting away from those types that already articulated which indeed are special circumstances. Mr. Jackson replied it is the same concern he expressed to Mr. Graham when they reviewed this bill draft. Certainly, offenses based on hate or sexual orientation, race, sex, religion, etc., there should be no tolerance for. Mr. Jackson's concern is based on the application of this statute. Mr. Jackson remarked the farther things are diluted, the more challengeable they become. As a defense attorney, it is incumbent on him to point out the water could create more litigation and constitutional problems that may appear at first blush, especially when they are motivated by good thoughts and philosophies. In regard to Lt. Galeoto's three examples of homicides are clear examples of where this provision may be used. Mr. Jackson noted it comes to the cases that are more subtle which creates his concern, particularly in the death penalty eligible cases. For lack of a better description, a common murder where there is no indication as to why it occurred, Mr. Jackson stated this creates a "catch all" aggravator which could in some circumstances result in a constitutional challenge to the specialty that has to be given in death penalty cases. Mr. Jackson said it is a valid concern and one that bears reticent thought. Unfortunately, Mr. Jackson remarked when these types of laws are enacted there is no way to predict how it will come out over the years. Ms. Buckley commented this was very clearly not Assemblywoman Evans' intent. Ms. Buckley will confer with her later and discuss amendments to utilize to address the hate crimes but not pull into the net every time there might be a racial difference between the victim and perpetrator. Lt. Galeoto advised he is not aware of charging of a single gang hate crime in Reno. Policeman are trained to differentiate between cultural group's differences from hate crimes. Lt. Galeoto mentioned 17 hate crimes were filed statewide from 33 agencies, so far there has been no problem in regard to Ms. Buckley's concern. Since this bill will add 40 crimes Ms. Buckley expressed concern it may change. Mr. Carpenter asked if the civil was tied to the criminal aspect in the provisions of Section 5 of A.B. 606. Mr. Jackson advised there is a melding of the criminal and civil aspects but the analysis of given through Mr. Sandoval's questions to Judge Fondi is correct. Even now Mr. Jackson remarked there exists a potential for cause of action for any wilful conduct against one person to another. There is both criminal liability and civil liability today in our law. A.B. 606 allows for punitive damages and creates a distinct cause of action, Mr. Jackson restated. Mr. Dennis deBacco advised he managed criminal history records repository within the Department of Motor Vehicles and Public Safety. Mr. deBacco directed attention to Section 6, item 3, p. 4, where it indicates the department shall report its findings regarding these statistics in an annual report to the legislature. Within existing language in Chapter 179.075(6.d), Mr. deBacco called attention to the requirement of July 1 each year a printed annual report is compiled relating to uniform crime statistics. Mr. deBacco requested the provision relating to hate crimes made an element of that annual report rather than preparing multiple reports. Chairman Humke requested amendatory language be developed and submitted in writing for the committee's consideration. Mr. deBacco advised he had been gathering this type of data as a result of the hate crimes statistics act of 1990 since January, 1994. In the first twelve months, Mr. deBacco reported statewide there were 17 crimes in this category. A statewide effort in training agencies who submit data to the repository, Mr. deBacco advised in conjunction with U. S. Department of Justice and state. There has been a heightened awareness on how these crimes are coded and categorized to federal and state programs resulting in a slight increase. ASSEMBLY BILL NO. 553 - Revises provisions governing private practice by attorney who is appointed as special prosecutor for limited duration with limited jurisdiction. Nevada Public Defender James Jackson advised he conferred with Mr. Ben Graham to develop an amendment to alleviate his concern and withdrew his opposition. Mr. Jackson commented a special prosecutor was appointed to the Sonner case in Lovelock and was engaged in several misdemeanor trials in Douglas County. Mr. Jackson filed a challenge after reviewing the statutes to the special prosecutor being able to continue. The district court issued certain orders and a writ submitted to the Nevada Supreme Court. Mr. Jackson advised the special prosecutor withdrew completely from those cases and made the issue moot in that case. In 1991 and 1993 sessions there were attempts to clarify the law as to special prosecutors, Mr. Jackson advised. Mr. Jackson recognized the need for them. Mr. Jackson remarked it is not that he is in opposition to special prosecutors, but there was a problem in the statute and this bill addresses those concerns. Mr. Jackson's initial opposition was because of the ethical rules that apply to attorneys and not try to statutorily circumvent ethical, legal, and moral obligations placed on attorneys. Mr. Jackson advised Mr. Graham and Pershing County District Attorney Quilici will clarify his points. Mr. Ben Graham, Nevada District Attorneys Association, accompanied by Pershing County District Attorney Quilici, testified in support of A.B. 553. Mr. Graham gave a brief background of the bill. In the waning hours of 1993 a bill was processed to hopefully remove any question about the ability of a special prosecutor to be appointed to represent the state's interest in limited purposes for limited duration. Mr. Graham advised it was specifically to address a situation in Incline Village where an attorney who normally defends defendants in Washoe County was appointed as special prosecutor in Incline justice court. Mr. Graham informed there was testimony that frequently in Clark County and other areas special prosecutors would be appointed from time to time if the attorney general declined to prosecute or if the Clark County district attorney's office had a conflict. A special prosecutor would be appointed and every time it was a criminal defense attorney who basically practiced criminal law on a day to day basis but had no connection with this case, no connection with the victims from a defense standpoint and it really has not been a problem. Mr. Graham advised what happened in Lovelock is that an attorney was appointed and had several misdemeanor cases in another county. The Supreme Court ruled it was a conflict. Mr. Graham advised of an amendment to l. 16 to add, "legal and/or ethical" conflict of interest which was acceptable to Mr. Jackson. Pershing County District Attorney Belinda Quilici testified there were two bills in 1993, one of which was passed and this one did not. Ms. Quilici called attention to NRS 252.070 to allow the large counties to be able to appoint a special prosecutor. Also, NRS 252.200 which states if the district attorney's office has a conflict and the judge appoints a special prosecutor, there is no restrictions whatsoever on the special prosecutor. They could have a full defense caseload and as long as there is no conflict with the defendant, they can appoint a defense attorney to handle it. Ms. Quilici advised a limitation comes when a district attorney needs to appoint a special prosecutor for assistance in special circumstances. Ms. Quilici stated the AG's office often helps but sometimes they are extremely busy and are not able to provide the assistance. Ms. Quilici commented this amendment is needed so that when special prosecutors are required, they are not prevented from hiring someone who is in criminal law who is knowledgeable. Ms. Steel asked Ms. Quilici if legal and ethical conflict would have to both be proved. Mr. Graham advised "a legal or ethical" rather than "an" should be inserted. Chairman Humke pointed out there are numerous new members on the committee and is not sure they understand the intricacies of prosection of capital murder case and the rarity of their occurrence in the rural counties. Ms. Quilici informed the Pershing County District Attorney's Office staff consists of herself and one deputy to handle the workload of civil and criminal. Last year's murder of a highway patrolman, a death penalty case, Ms. Quilici informed there is an incredible amount of work and time that has to go into it because of special rules set up for death penalty cases. Ms. Quilici advised there is months and months of preparation in addition expertise is needed that they do not have, as it has been ten years since the last death penalty case. Ms. Quilici stressed someone is needed with that expertise and help with this type of prosecutorial experience in limiting mistakes. In addition by statute, Ms. Quilici advised one of the attorneys has to be death-penalty qualified. On the prosection side it is important to have expertise there too, Ms. Quilici stated. ASSEMBLYMAN ANDERSON MOVED TO AMEND AND DO PASS A.B. 553 WITH AMENDED LANGUAGE AS SUGGESTED AT ll. 16 TO DIRECT LEGAL OR ETHICAL. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. THE MOTION CARRIED. Mr. Carpenter was assigned to handle the bill on the floor. WORK SESSION: SENATE BILL NO. 416 - Makes various changes regarding sentencing of persons convicted of felonies. ASSEMBLYMAN ANDERSON MOVED TO AMEND AND DO PASS S.B. 416. ASSEMBLYMAN MANENDO SECONDED THE MOTION. Under discussion Mr. Neilander very briefly reviewed the amendments to Section 197 with regard to surety bonds which will provide that the defendant's inability to afford a bond shall not be a reason to deny a program of probation to a defendant who is otherwise eligible for probation. The second amendment is to take that provision that would require modification of the sentence by a judge to delete from the bill Section 214, ll. 44-47. Mr. Neilander advised with regard to commutation of sentence by the pardons board to combine Section 29 of A.B. 317 with Section 231 of S.B. 416 and the effect of that would be to have first degree murder cases be non-commutable retroactively and to have other life or death sentences non-commutable prospectively. Mr. Neilander advised the habitual criminal statutes are amended to include lewdness with a minor in the list of crimes that trigger the new habitual felon statute. For posterity Mr. Goldwater advised he will be voting for this bill but the concerns of the impact on the penal system were unknown and only hopes it will be a deterrent for crime, adequate punishment, proper diversion. Taking the prerogative of the chair, Chairman Humke disagreed to a certain extent and did not believe the testimony was it was a shot in the dark as to the impact on the judicial and corrections system in the state. Chairman Humke heard some good people wanting to consult with the National Council on Crime and Delinquency using their existing computer model which has been in force in this state for a number of years. Dr. James Austin used the computer model based on the provisions of this bill to show what the impact would be. Chairman Humke has a lot of respect for persons from corrections and parole and probation department. Chairman Humke was of the opinion it is responsible action and recalled when he was a freshmen and made an off-color remark about the rehabilitative aspect of the adult correction system. A constituent was very unhappy about that remark and Chairman Humke thought he was reflecting reality as most people perceive it. Chairman Humke recognized there are three aspects to our correctional system: (1) rehabilitation, (2) punishment on behalf of society, and (3) retribution on behalf of victims. Chairman Humke stated this bill provides for that as well. Mr. Goldwater commented an incredible job was done in reforming the system. When Mr. Goldwater asked the director of prisons if the resources are available to handle it, he responded they do not know how many more guards, beds, facilities will be needed. Mr. Goldwater hoped everyone is willing to dedicate the resources and deal with those problems. On Saturday Mr. Schneider read a news article regarding third grade class size reduction, it reported Senator Raggio as saying if it was a one shot, no problem. We can handle it this year and we cannot handle it into the future. Mr. Schneider stated S.B. 416 presents the problem and asked the fiscal impact five years from now. Mr. Anderson expressed a concern in another area of S.B. 416, but the essence is what is being dealt with here. Obviously, Mr. Anderson noted a sentencing commission will be authorized which will take a look at what the reality is and it will be revisited again and again. Mr. Anderson stated it will not be an issue that will go away. Mr. Anderson stated it is an important step forward and removes a major problem seen in the prison system of multitude of complexities in determining length of sentence. Senator James and his committee deserves a great deal of credit. THE MOTION CARRIED. (ASSEMBLYMEN BATTEN AND PERKINS WERE EXCUSED.) ASSEMBLY BILL NO. 570 - Revises provisions regarding habitual criminals. Mr. Neilander, Research Staff, reported two other bills under consideration as a package on truth in sentencing have not been addressed, A.B. 201 and A.B. 570. On A.B. 201 Mr. Neilander advised Mr. Sarnowski is working parole commissions and department of prisons for a resolution and not ready for committee report. On A.B. 570 which creates a habitual criminal statute for persons who commit fraud based crimes against the elderly or disabled requested by Ms. Ohrenschall. Partially in response to the fact that A.B. 317 is deleting the habitual provisions, although S.B. 416 retains those provisions. When A.B. 317 does eventually arrive in the Senate, this committee has already made a policy statement on habitual and the Senate will have to take that issue up. Mr. Neilander advised Ms. Ohrenschall's bill does stand a separate habitual criminal provision which would apply only to fraud based crimes against the elderly or disabled. ASSEMBLYMAN STEEL MOVED TO DO PASS A.B. 570. ASSEMBLYMAN ANDERSON SECONDED THE MOTION. Ms. Ohrenschall commented the bill is fifteen years overdue. THE MOTION CARRIED. (ASSEMBLYMEN BATTEN AND PERKINS WERE EXCUSED.) Mr. Neilander advised this concludes the package of truth in sentencing bills that were being considered by the committee. A.B. 1 and A.B. 442 are being held because there is a request from the sponsors to withdraw that are consumed within either A.B. 317, A.B. 393, or S.B. 416. ASSEMBLY BILL NO. 410 - Revises provisions regarding filing fee for divorce. Mr. Neilander reported on his research regarding administrative assessments and divorce filing fees, attached as (Exhibit F). ASSEMBLYMAN SANDOVAL MOVED TO DO PASS A.B. 410. ASSEMBLYMAN GOLDWATER SECONDED THE MOTION. Under discussion Mr. Anderson recommended request of interim committee to study the wide variety of fee requests coming forward on a continuing basis. Mr. Neilander advised there was a legislative audit completed. Mrs. Monaghan recalled the fees were not collected very well and the only way she would support it was if the amount of legal aid was shifted to displaced homemakers. Ms. Steel asked when the last time the divorce fees were raised. Mr. Neilander advised he did not include that in his initial research. Because they are all derived from different sections of N.R.S., it would be a matter of reviewing each statute. Ms. Buckley commented if the committee engaged in a discussion and later voted to take funds from legal aid to fund this bill, she would like to disclose that she is on an unpaid leave of absence from Nevada Legal Services, one of the six legal aid organizations in the state of Nevada. If the committee pursues this, she will abstain because of a conflict of interest but will participate in the discussion to the extent as to provide facts only. Chairman Humke cautioned the committee that Mr. Neilander has combined two things: administrative assessments for crimes in the lower courts, municipal and justice court; and combined from district courts, the divorce filing fees. With regard to the district court and the divorce filing fee, also keep in mind Mr. Neilander gave the caveat the sheep that is present is from Washoe County, Second Judicial District Court. Chairman Humke advised every judicial district in this state would have a different payment schedule and that is the impact on their budget when the funds are moved around. THE MOTION CARRIED. (ASSEMBLYMAN MONAGHAN VOTED NO.) Assemblyman Batten was assigned A.B. 410 to handle on the floor. Mr. Neilander informed of two other pending issues, A.B. 95 and A.B. 91, DUI juvenile legislation regarding seven year record, are ready to move. In reference to A.B. 95 Mr. Sandoval requested extra time to look into the amendments to ensure that it accomplishes the intent of the subcommittee. Co-Chairman Anderson pointed out the workload for tomorrow was reduced by one bill and it was the consensus to address those issues. Mr. Neilander informed three subcommittees, A.B. 292, A.B. 502, and A.B. 152 are ready for committee report tomorrow. In addition there may be a few other measures that were discussed last week that may be ready for tomorrow's meeting. There being no further business before the committee, the meeting adjourned at 10:53 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman David E. Humke, Chairman Assemblyman Bernie Anderson, Chairman Assembly Committee on Judiciary May 23, 1995 Page