MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session June 1, 1995 The Committee on Judiciary was called to order at 8:10 a.m., on Thursday, June 1, 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. 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 STAFF MEMBERS PRESENT: Dennis Neilander, Senior Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Scott Doyle, Douglas County District Attorney's Office Christine Thiel, Division of Water Resources Judge Michael Gibbons, District Court, Minden Judy Jacoboni, MADD Bill Cavagnaro, Las Vegas Metropolitan Police Department Noel Waters, Carson City District Attorney Nancy Saitta, Senior Deputy Attorney General Ben Graham, Clark County District Attorney's Office Lieutenant Phil Galeoto, Reno Police Department Jim Nadeau, Washoe County Sheriff's Office Chairman Anderson began the hearing by calling upon Co-chairman David Humke. Mr. Humke submitted written, follow-up material, from Lt. Governor Lonnie Hammargren regarding his testimony of Monday, May 29, 1995 for entry into the record for the hearing of Wednesday, May 31, 1995 (See minutes of May 31, 1995.) Chairman Anderson requested the Minnesota study, "Medical Malpractice Report", submitted by the Nevada Trial Lawyers Association, be entered into the record of May 31, 1995 (See minutes of May 31, 1995.) Chairman Anderson opened the hearing on Assembly Bill 598. ASSEMBLY BILL 598 - Limits exclusion of persons from criminal proceedings. Judge Michael Gibbons, District Judge, Department 2, Ninth Judicial District Court, Douglas County, explained he had drafted this bill when he was in the District Attorney's Office [Douglas County] but the bill addresses a problem which is more unique to the judiciary than to prosecution. He reviewed the content of the bill and discussed the reason for the changes. One was to allow the victim who has the most interest in the case, other than the defendant, to be in the courtroom; the victim is often excluded from the proceedings. The bill strikes a compromise by allowing the victim to be in the court room after testifying. The 1982 Presidential Task Force on Victims of Crime recommended judges should allow victims to remain in the court room at all times as the victims felt disenfranchised because they could not watch the proceedings. A second change is to allow the investigating officer to view the proceedings. He described in many states the investigating officer remains part of the case and the officer's presence in the court room is to assist the prosecutor to make evidence available and to provide other information. Judge Gibbons testified the officer should not be excluded from the court room as a possible witness in the case. Ms. Buckley asked if the investigating officer is also a witness. Judge Gibbons replied the person may or may not be, but the bill does not make the distinction; the officer may remain whether or not he is a witness. Ms. Buckley inquired if the investigating officer were a witness why is the same provision not used to exclude him until after his testimony and cross-examination has been completed to keep testimony from becoming slanted to the victim. Judge Gibbons agreed it would be logical and the bill could be made consistent. He continued often the investigating officer's information is largely based on hearsay which he can not testify to, but he could still provide information to the attorneys. He stated the Presidential Task Force had studied the issue and found the remedy should be for the defense attorney or judge to tell the jury to acknowledge the officer's presence and to consider if it had influenced the testimony. Judge Gibbons noted the defendant is in a perfect position to have his testimony colored by the proceedings as he is present and hears everything regarding the case and testifies at the end of the trial. Chairman Anderson asked if Judge Gibbons had had an opportunity to review Assembly Bill 110, now signed into law. Judge Gibbons responded he did not recognize the number. Chairman Anderson explained A.B. 110 is about not excluding a witness who is there primarily to identify the victim and asked if its wording would give the ability to accomplish Judge Gibbons' intent. Judge Gibbons responded he thought the bill was an excellent first step but it appears to deal with a homicide case, for identification of the victim, and may not go far enough. He then reiterated the most important part of A.B. 598 is to allow the victim to remain at a non-homicide case. He understood the rationale to exclude victims to assure testimony would not be effected but the Task Force found the procedure is abused and people are excluded for tactical reasons and not for legitimate reasons. He would support A.B. 110 but feels the next step needs to be taken. Chairman Anderson asked if A.B. 598 would include giving the judge discretion to exclude the people noted. Judge Gibbons answered yes as it was not mandatory either way since the word "may" is used. He commented the Task Force found if there was a compelling reason to exclude a person then it should be done. He further commented the [Nevada] constitutional amendment for rights of victims, which will go for a vote of the people, requires legislative enactment for enforcement; this bill and Assembly Bill 560 will help enact the amendment. Chairman Anderson commented it should be discussed whether any implementation should precede or follow the constitutional change. Mr. Carpenter asked if the prosecuting attorneys bring up the matter of the defendant being present during the trial or is it illegal to do so. Judge Gibbons responded the attorneys are not supposed to comment on a defendant exercising his rights; the defendant has a constitutional right to confront and cross examine all witnesses and therefore has the right to be there. Mr. Carpenter asked if it would be better to have the same wording for the investigating officer as for the victim regarding excluding until after testifying. He thought if the defense council could bring the topic into question it might taint the jury. Judge Gibbons stated he could support the change if the Committee felt it was necessary to make it consistent. He added he felt the investigating officer was a different situation; for example, in California the person is there simply to make sure the prosecutor does not miss anything and all aspects of the case are presented. The system has existed for many years in California and in other states and there have been no complaints. Mr. Carpenter inquired if the investigation officer would normally testify early in a trial. Judge Gibbons responded it would be hard to predict as it depends on the officer's role in the particular case. He noted he has had cases where the officer did not testify at all. He stated it would level the playing field by allowing the person to be there and noted it was discretionary. Mr. Humke wished to agree with Judge Gibbons as he thinks there is room and need for this bill. He added the safeguards are in place as the magistrate may include or exclude the party and the victim's presence is after testimony and cross- examination. He also felt it important for the victim's counsel to be present as this counsel usually is not a witness and as an officer of court has an obligation not to shape anyone's testimony who has not yet testified. Ms. Ohrenschall felt confused about the discretionary statement, (Section 1) "...the magistrate may exclude from the examination every person except...." She asked if it means the magistrate has no discretion to exclude the people on the list. Judge Gibbons commented it was a very astute observation; as it does seem to read that way. He stated in practical terms the judge makes the decision on procedural matters. Ms. Ohrenschall continued by asking if there was a danger of narrowing the judge's discretion if the language is not corrected. Judge Gibbons answered the word "may" in Line 3 should remain and asked what Ms. Ohrenschall suggested as a change. Ms. Ohrenschall stated it seems the "except" would need to be modified in some way: "every person except the following, unless the magistrate feels there is good cause otherwise." Chairman Anderson wished to clarify the term "prosecutor and his counsel" was being eliminated and replaced by "attorney general" and "district attorney of the county." Judge Gibbons responded it was not eliminated but was rephrased. He added the Legislative Counsel Bureau wished to change the language. Chairman Anderson was concerned about a conflict with bills previously processed dealing with smaller counties wishing to bring in a special prosecutor because of special circumstances. He requested assistance from Mr. Dennis Neilander. Mr. Dennis Neilander, Senior Research Analyst, noted some things being done in other bills (i.e. A.B. 317) is to take language where is states "district attorney" and insert the language "prosecuting attorney" in order to include any prosecutor which, he concludes, would also mean a special prosecutor. He also referenced Assembly Bill 151 recently amended by the Senate which does the very same thing. Judge Gibbons stated if it was a concern Line 8 could be changed to "prosecuting attorney". He added any person appointed has the same authority of the person he is acting in place of. Chairman Anderson asked Mr. Neilander if the deletion is necessary. Mr. Neilander responded the bill previously stated "magistrate...his clerk" so the bill is only being rephrased. He believed it is the same except a list is being created outside the form of the paragraph; the list includes "the magistrate's clerk." Chairman Anderson wondered why "prosecutor and his counsel" was being dropped from the list. Mr. Neilander responded he guessed the bill drafter felt it was not necessary because it already states "district attorney or attorney general" and would be redundant. Testimony ended on A.B. 598. Chairman Anderson opened hearing on Assembly Bill 560. ASSEMBLY BILL 560 - Revises provisions permitting attendant to support prosecuting witness at preliminary hearing and trial. Judge Gibbons reviewed the bill is an amendment to current law. In 1983 the Legislature passed a victims bill of rights which allows victims of certain crimes (sexual offenses and child victims) to have an attendant present in the court room when the victim testified for support. This bill attempts to close a loophole in the law; that an attorney may designate the attendant as a witness causing the person to be excluded from the courtroom. The current law allows a substitute to be named but it can be very difficult to find a proper substitute or any substitute at the last minute. The law allows abuses; i.e., a child victim's mother being subpoenaed as a witness the day before the child is to testify. The proposed changes expand the list of crimes when an attendant may be present in the courtroom by completing the list of sexual and child victim offenses. If special protection is given for a class of victims all victims in the class should be included within the protection. A second change attempts to deal with the problem when the attendant may be a witness, possibly giving good reason to exclude the person from the courtroom some of the time. The bill will allow the person to remain in the courtroom after completing their testimony. Mr. Scott Doyle, Douglas County District Attorney, stated his support of the bill. Ms. Buckley asked where in the bill it allows the attendant, who is also a witness, only to be in the courtroom after their testimony is completed. Judge Gibbons referenced Line 14 which states, "before the prosecuting witness testifies." Ms. Buckley commented it just states they have to testify first, not that they are excluded until the time of their testimony. Judge Gibbons responded this [change] works with the other bill. If there is current law stating people can be excluded (witnesses) then if the attendant is a witness they can be excluded under the existing law. He asked if Ms. Buckley was saying the proposed change did not go far enough. Ms. Buckley stated she thought he had said under existing law the attendant may not be a witness and what he was proposing was the attendant may be a witness but they not be allowed to stay until after they have completed testimony. She did not see in this bill the standard used in the other bill. Judge Gibbons responded [the bill] provides for a procedural way to accomplish the same thing by stating the attendant may not be excluded, but the attendant must testify before the victim testifies. He continued the idea of excluding witnesses is to keep one person from influencing another's testimony. He thought "this" solved the problem. Ms. Ohrenschall asked if it could be clarified by inserting "after he has completed his testimony" after "must not be excluded" in Line 12. Judge Gibbons answered it would address the problem being raised. He added Mr. Doyle had pointed out to him, referring back to A.B. 598, Line 16, the attendant is already allowed to remain in the courtroom under current law. Ms. Ohrenschall asked if under current law it meant the attendant would not be a witness. Judge Gibbons answered "right." Ms. Ohrenschall commented the clarification might help in A.B. 560. Judge Gibbons stated it would help; it would address the problem being raised, but the problem he has been talking about is the attendant is not really a witness and is being called as a witness to harass them and force them out of the court room. Ms. Ohrenschall asked if it could be put in the attendant has to be called prior to any other witness, defense or prosecuting. If the person is being called for a bona fide reason they will testify at the beginning and be able to stay for the remaining proceedings. Judge Gibbons agreed that would also solve the problem; either change would work. He did not know which would be better. Ms. Ohrenschall thought having the attendant testify first would be best as it would assure the attendant is available for the child throughout the proceedings. She also wished to compliment the judge and Mr. Doyle as the bills are very good and she would like to see them enacted. Mr. Ben Graham, Clark County District Attorney's Association, voiced the support of the concept of both A.B. 560 and A.B. 598 by the [Clark County] District Attorney and his assistant. He stated there are adequate safeguards to protect testimony. Lt. Phil Galeoto, Reno Police Department, testified to their support of A.B. 598 since the investigating officer is the technician in the case; the one who's position is more of record in the case due to doing the majority of the police reports and gathering the case information on behalf of the investigating agency. Lt. Galeoto added if the officer's testimony is tainted it is the most easily impeach as the information is already on record with the court. He added it is logical to allow the investigating officer into the courtroom. He gave a personal example in a past case in Reno where he had not been excluded as the investigating officer by the defense and viewed the proceedings (unobserved) and heard the defendant perjure himself which could have resulted in the exclusion of major evidence. He was able to notify the prosecutor of the deception. Chairman Anderson closed the hearing on Assembly Bill 560 and Assembly Bill 598. He opened the hearing on Senate Bill 157. SENATE BILL 157 - Revises provisions governing use of affidavit of declaration in lieu of testimony of expert witness as to existence of alcohol or controlled substance. Mr. Ben Graham, Nevada District Attorney's Association, acknowledged Mr. Noel Waters, Carson City District Attorney, and Mr. Scott Doyle, Douglas County District Attorney was accompanying him. Mr. Graham began by providing background for the bill. He explained a preliminary hearing is a statutory requirement where the state must offer sufficient evidence to prove probable cause. The trial is where the defendant has a right of confrontation and proof beyond a reasonable doubt must be presented by the state. The bill eliminates a loophole in the existing law which allows good DUI cases to be lost. Under the DUI law, breath testing devices must be calibrated. The person calibrating the device signs an affidavit to that effect. The affidavit can be presented in lieu of the calibrator's presence unless the defendant demands the calibrator be brought in. This can require a calibrator to be called to any jurisdiction in the state. There are few calibrators in the state so the cases are delayed or even dismissed (no matter how solid a DUI case it is.) In the matter of a blood test, the blood drawer also signs an affidavit of properly drawing and handling the blood. Again, the affidavit can be used unless the defendant demands the technician's presence. When these witnesses are called the chances of them testifying is "about zip." Calling them is used as a tactic by the defense; the person does not show and the case is reduced or dismissed. This bill is to allow the affidavit at the preliminary hearing. Notice would be served on, and copies provided, to the defense and they could subpoena the affiant if they wished. He added the state must have the affiant present if the defendant shows good cause or reason to question the validity of the affidavit or calibration. He noted the defense will say they have a right to cross-examine a witness but there is no constitutional right to cross-examine at a preliminary hearing. Mr. Graham continued by asking the bill to be amended. A recent Ninth Circuit Court case has brought question as to whether the chemist should be summarily at the trial. He requested the bill be amended to delete chemist from trial but allowing a ten-day demand letter. He added the chemist's conclusion is very different from the person's who draws the blood. Chairman Anderson asked where the amendment should be placed. Mr. Graham stated he had worked with Mr. [Dennis] Neilander to develop amending language; some work is still needed. Mr. Dennis Neilander, Senior Research Analyst, stated something which tries to differentiate between persons who perform an objective function, like calibrating the machine, and persons who do subjective evaluations, such as the chemist needs to be prepared. He could not determine a way to do that in terms of language. If a motion is taken it will be necessary to rely on the bill drafter to help. Mr. Carpenter asked Mr. Graham to explain what the chemist was being taken out of. Mr. Graham explained the affidavit of the laboratory person analyzing the blood is issued automatically, the same as the technicians, but there is some question this [the chemist's] is different type of evidence [from the technician drawing the blood] since it is the ultimate conclusion and therefore they are asking it [affidavit] not be automatically admitted into court. Mr. Carpenter asked if he means the chemist would have to be at the preliminary and the trial. Mr. Graham answered not at the preliminary since there is a lower burden of proof; just probable cause. He reminded the Committee 90-95% of the cases are negotiated once they pass the preliminary hearing. Ms. Buckley commented under the present system the prosecuting attorney may request the affidavits of these individuals be admitted into evidence and the defense attorney may send, within 96 hours, a demand the affidavit not be admitted. If they demand it and the defendant is convicted they have to pay the costs. She asked him to explain how it works in "real life." Mr. Graham responded in "real life" the [prosecution] sends a letter stating they are going to use the affidavit. Routinely the defense responds they want the person and so they are called in. He could not think of a case where they have billed or charged the defense bar under that statute. Ms. Buckley asked for the percentage of cases where the defense demands the experts be there. She wondered, since it is the state's burden to show probable cause the person is guilty of the crime; the alcohol was at a certain level, the equipment was tested properly, if mandatory use of affidavits violates the state's obligation to produce the evidence. Mr. Graham answered at the preliminary hearing the chemist's affidavit would be submitted unless the defense showed good cause why it should not be used; then the chemist would be brought in. He added the defense could subpoena the witness at any time. The ability for someone to call a witness is not being precluded. Ms. Steel asked if a line saying "this in no wise has anything to do with the chemist in a drug case." Mr. Graham stated they would still like the option of the ten-day demand letter for the chemist. Ms. Ohrenschall thinks the bill is fine since the standard of proof is not being changed for the preliminary hearing. Mr. Carpenter asked if the affidavits were hearsay. Mr. Graham responded at a trial it could be termed a hearsay document. He continued with short discussion of hearsay. Under this provision they would not be excluded under the hearsay rule. Mr. Carpenter asked if Line 12 regarding a "bona fide dispute" applies to the preliminary hearing or just the district court trial. Mr. Graham stated the referenced section applies at the trial: district or justice court. Mr. Carpenter again asked about the preliminary hearing. Mr. Dennis Neilander, Senior Research Analyst, clarified he believed the changes on Page 2 are only applicable to the trial not the preliminary hearing. There is a different statute, not contained in this bill, which addresses the preliminary hearing. Mr. Carpenter inquired if after the preliminary hearing could the defense counsel bring the chemist in. Mr. Graham stressed defense counsel may bring witnesses at any proceeding, any time. He explained what is trying to be accomplished is the state is not required to do it [bring in a witness] unless there is a good reason. Now, since it is required of the state, if the witness does not appear the judge will frequently dismiss the case or reduce the charge. Chairman Anderson understood the burden shifts; the defense would have to challenge the affidavit in some way in order for the state to request the witness to appear. Mr. Graham affirmed his understanding. Ms. Ohrenschall wanted to clarify the burden is being shifted for going forward with the evidence not changing the burden of proof required at the preliminary hearing. Mr. Graham replied they are not actually shifting any burden; just changing the quality of the presentation from personal testimony to the personal affidavit. The burden of proof still remains. Mr. Noel Waters, Carson City District Attorney, wished to speak in support of the bill and wanted to emphasize the burden of proof was not changing. He stated it was virtually unheard of to successfully challenge a probable cause finding based on the information from the affiant. He discussed the reliability of the affidavits based on the knowledge of the affiant. Mr. Waters reiterated there were not many of these individuals in the state and they were being subpoenaed only to see if they would appear and not to testify. Captain Jim Nadeau, Washoe County Sheriffs Office; Lt. William Cavagnaro, Las Vegas Metropolitan Police Department; and Lt. Phil Galeoto, Reno Police Department came forward together to testify. Capt. Jim Nadeau wished to speak in support of the bill. He described he works at [Washoe County's] Lake Tahoe substation. The small hospital in the area refused to conduct blood tests for DUI/drug cases because of the expense and inconvenience created for their nursing staff. He continued the Washoe County Sheriff's Office certifies the breath [testing] machines for Northern Nevada and Susan Hansen, who certifies the machines, is constantly waiting in court rooms and seldom testifies. Lt. Bill Cavagnaro testified in support of the bill. He stated they feel it is a manpower issue. When people are taken away from their jobs, for no particular reason, we have to staff with more people to cover for them. Lt. Phil Galeoto stated he agreed with the aforementioned reasons and added this bill would streamline the process and allow fewer unnecessary continuances in a process which takes the most time due to their numbers--preliminary hearings. Ms. Judy Jacoboni, Lyon County Chapter President, M.A.D.D., testified her chapter and M.A.D.D. supports this bill. She explained they are in a rural county and many times she has been at a preliminary hearing on a DUI case where the witnesses are called by the defenses in hopes to find a technical reason to have the evidence thrown out. It is a burden on the rural counties to bring the experts in; the counties must pay their travel expenses. She added the limited resources could be put to better use. Mr. James Jackson, Nevada State Public Defender, stated he understands the concerns brought by the prosecutors and he does not know if his office has employed such tactics and is aware of judges being more than willing to continue a preliminary hearing or trial when the calibrators are not available. He wished to state his office does not challenge those [affidavits] unless there is a true problem with the test. The bill addresses a problem created by the Supreme Court regarding whether or not the notice given to the defendant was adequate and if it was fair to shift the burden onto the defendant. He noted the Court's decision did not address fairness but what was effective notice. He thought this bill addresses that area as it makes it "OK" to use the affidavits in all cases unless there is a specific demand. He did not have any particular problem with that situation in misdemeanor trials and at preliminary hearings; his concern is with felony trials. Mr. Jackson could not imagine trying a case by affidavit or hearsay unless the result is not in dispute. Mr. Ben Graham interjected this was in line with some of the caution being taken with the issue of the chemist. Felony trials would not only include the chemist but the persons who calibrated the machines or drew blood, as appropriate. The ten- day demand letter would be preserved. Mr. Carpenter asked Mr. Jackson if the bill passes and he thought a mistake had been made could he call any of these people referred into the preliminary hearing. Mr. Jackson responded yes, it could be achieved two ways; he could subpoena them or send a notice to the district attorney with reason for the person to appear. Unknown Committee member, "That's not in here." Mr. Jackson followed with, "I misunderstood the bill." He continued he could make the demand by way of a motion to court. Mr. Carpenter agreed things should be made quick, simple, and efficient but he does not want to cut off the right of anyone to challenge evidence. Mr. Jackson responded he did not think that was the intent of the bill. The intent is to close a loophole which was never intended to be there; a case being dismissed, which should not otherwise be dismissed, when a person is not available for a legitimate reason. Chairman Anderson asked Mr. Carpenter if he was comfortable with the response. Mr. Carpenter acknowledged he thought it was "OK." Chairman Anderson closed the hearing on S.B. 157. He announced a quorum was present and the Committee was ready to entertain a motion. MR. CARPENTER MOVED TO AMEND AND DO PASS SENATE BILL 157 WITH AMENDMENTS TO CLARIFY THE LANGUAGE RELATIVE TO THE CHEMIST AND FELONY TRIALS; THE CONCEPTS AS OUTLINED BY MR. BEN GRAHAM. THE MOTION WAS SECONDED BY MS. OHRENSCHALL. Chairman Anderson asked for any discussion. None was given. THE MOTION CARRIED. ASSEMBLYMEN BATTEN, HUMKE, MANENDO, MONAGHAN, AND PERKINS NOT PRESENT. Chairman Anderson opened the hearing on Assembly Bill 557. ASSEMBLY BILL 557 - Requires disclosure by seller of status of water rights appurtenant to real property being sold. Assemblyman Marcia de Braga, prime sponsor of the bill, described the intent of the bill is when a person sells a piece of land having water rights attached to it they disclose the status of the water rights, such as, any protest of the use of the rights, or other litigation concerning those water rights. Ms. de Braga noted what was thought to be very simple has become more complicated; it appears some things have been left out [of the bill] like certificated water. Chairman Anderson gave the example of his neighborhood where the water rights inadvertently went to the property buyer and it was necessary for the utility company to purchase the water rights from each owner. One neighbor offered a better price for the rights than the utility and was able to purchase the rights in a number of blocks. Chairman Anderson asked if this bill would require the developer to notify the property owners in a subdivision, such as his, the water rights were acquired with the property. Assemblyman de Braga responded the seller would have to disclose to the agent. She stated in past cases the water rights are still in existence but there is no way to use them. In her county an ordinance was enacted (or perhaps state law) allowing them to sell fragments of [surface water] water rights they were unable to use. She stated a bill from last session discussed buying up all unuseable/unappropriated water rights which existed in Washoe County to use in Pyramid Lake or other needs. Ms. Steel asked if the current law required, unless the purchaser asked about the water rights, the seller does not have to disclose the status; what is the impetus behind the bill. Assemblyman de Braga explained there is an assumption if a piece of property is purchased it includes water rights, i.e., an acre of property equals an acre of water rights which the purchaser can use. She continued the water rights may be in jeopardy for forfeiture or being challenged in court; the purchase of a water right does not necessarily guarantee the right to use the water. Ms. Buckley asked currently is it upon the purchaser to inquire and if asked the seller must disclose. Assemblyman de Braga responded she was not sure; it is not something generally in a real estate contract. It would say whether there was a water right but not disclose if the right to use it was challenged. Ms. Buckley inquired if she, as a purchaser, specifically asked she would have to be told the truth by the seller. Assemblyman de Braga answered an honest person would tell the truth but it would be up to the individual. Ms. Buckley commented she thought the contract could be voided for fraud if there was a lie. Assemblyman de Braga agreed it was a good point. Ms. Ohrenschall asked if information on the water rights would show up on a title report. She explained a title report is extensive for commercial water rights. Assemblyman de Braga responded she was not sure. Unless a notice had been served, which is not required by law, she did not see where it would show as a "cloud." Ms. Ohrenschall asked if there was any way it could be included in title insurance prior to changing hands; in addition to what is being proposed. Assemblyman de Braga thought it was a good suggestion. Mr. Sandoval inquired what the penalty was for not disclosing. It [the bill] just says "shall" but does not say it is unlawful. Assemblyman de Braga responded it would be the same penalty as for problems not disclosed on a regular real estate transaction. She did not know what the penalty was. Mr. Schneider commented in the Commerce Committee there were bills on disclosure for real estate from A.C.R. 72 (previous session). He wondered if Ms. de Braga had considered putting this into one of those bills. Assemblyman de Braga answered she had noted the other bill but thought it was already passed. Mr. Schneider explained he was on the committee and worked with the real estate people closely and they developed a checklist where this could be included. Assemblyman de Braga stated she had no problem with the suggestion; she had not seen the bill until recently. She thought it could be added. She didn't know if there was anything broader in water rights which could not be covered by the simple addition [to the list] and she would be willing to check on it. Ms. Christine Thiel, Deputy State Engineer, Division of Water Resources, stated she would like to make some comments on the bill. It appears all water rights is what Assemblywoman de Braga would like to address but this has not been done in the language. She wished to propose to include certificates and unadjudicated water rights in the provisions of the bill. Chairman Anderson asked if it was in Section 1, Part 1, at Line 4. Ms. Thiel responded "right." She continued also on Line 13 where it defines the different types of water rights. She added the Division of Water Resources has Senate Bill 93 which defines all water rights and also deals with title. She suggested the two be compared to use the language in S.B. 93. Chairman Anderson noted it was unusual for the Judiciary Committee to have water right questions so the Committee may not receive S.B. 93. Ms. Thiel stated if the same language were used it would cover all types of water rights, if it was this bill's intent. Chairman Anderson, to clarify, asked if the Committee were to proceed with the bill and added the suggested language would questions at a trial level be addressed. Ms. Thiel replied "That's correct...." She added Mr. Schneider's suggestion to add this to a real estate bill was a good one. She discussed the bill's possible fiscal impact to her Division due to the public's interpretation of it and the additional questions it could generate. Identifying the status of a water right is much easier than determining whether a particular parcel has a water right. Assemblyman de Braga interjected the intention is only for the person who is selling land which is "water righted" to disclose. It would be fine if some wording changes are needed. Ms. Thiel added if it was added to a checklist as the realtors are aware of water rights. Chairman Anderson noted the bill may have left the Assembly so would be difficult to deal with in "this body." Mr. Carpenter stated he understands what the intent is but, in his area, title companies do not deal in the water rights; it is up to the buyer and seller. He was concerned about placing an undue burden on the seller with the language which states, "regulation or ordinance that restricts or limits or will later restrict or limit...." He wondered if someone could come back when it can be such an unknown situation. An ordinary person can not be expected to know all these things. Assemblyman de Braga acknowledged it was a real possibility due to using the particular language designating the future. The meaning is a law, not now on the books, which may go into effect in the future; such as, having water which can currently be used be withdrawn for various reasons. She did not think it meant, if in the future a law was passed, the original seller would be responsible. She hoped it would not be interpreted that way. Mr. Carpenter commented when something is put into law somebody will be testing it. He feels the bill, as written, would make it "hard pressed" for an ordinary person, real estate person, or lawyer to be able to answer the questions. Assemblyman de Braga commented if the language needs to be adjusted to assure it doesn't impact someone in the distant future she would like to see it dealt with "here." Chairman Anderson made assignment to Mr. Schneider to work on as a project, rather than to a subcommittee, to bring language in compliance with S.B. 93. Mr. Michael Turnipseed, Nevada State Engineer, Division of Water Resources, stated the purpose of the bill is clear and it is good the seller of property, if it has water rights, should divulge the status of those rights. He noted there are pending lawsuits where persons had purchased property with water rights which had been cancelled. He continued he found there were 3,300 pieces of property which changed hands last year in Washoe County; Las Vegas would have thousands more. Mr. Turnipseed explained his concern was the bill resulting in two to three hundred phone calls a day to his office to determine the status of water rights. He added if it is strictly between the buyer and seller that is fine, but he fears if either party does not know the water right status calls will result. There are situations where the questions may not be answered, such as when water is the subject of a Federal decree (water from rivers.) Mr. Goldwater did not understand exactly what Mr. Turnipseed's office does in relation to telling people about water rights. Is that one of his office's duties. Mr. Turnipseed responded he would be happy to tell people about their water rights if they call. In reference to Assembly Bill 314 (67th Session) he testified he was required to report quarterly to the Interim Finance Committee as to the status of his [office's] backlog. At the last report there were 4,300 applications ready for action, of which 1,700 are protested. He felt, in answer to the question, his office had things more important to do for the citizens of Nevada than to answer the questions as to the status of water rights. Mr. Carpenter thought the way the bill is written, "or in the exercise of reasonable diligence...", would require people to contact Mr. Turnipseed's office. He reiterated the title companies in his area do not handle water rights. Mr. Turnipseed responded if a water right has been decreed by a court or adjudicated under federal law they will rarely change. They may come under challenge but his office would not know and would be unable to answer those kinds of questions. He added the seller should probably know since he had been served a summons to appear in Federal Court. His office is not a party to the action. If the property is the subject of a commercial or municipal permit his office would probably know. Chairman Anderson closed the hearing on A.B. 557. He opened the hearing on Assembly Bill 567. ASSEMBLY BILL 567 - Authorizes expediting proceedings in juvenile court and trials involving children as witnesses or victims. Ms. Nancy M. Saitta, Senior Deputy Attorney General, Attorney General's Office, presented written testimony, (Exhibit C), regarding the purpose of the bill to allow for the emotional and mental well-being of a child victim or witness to be considered in the process of expediting a trial setting. She felt most important purpose is children who become victims or involved in the criminal justice system are often revictimized by the system; subjected to repeated interviews, interrogations, and are forced to relive the trauma. A court should be given the opportunity to consider the well-being of the child when they entertain a motion to continue or delay the trial setting. The bill has been drafted so it remains open so the judge has the appropriate amount of discretion in balancing the defendant's rights. She commented in 1993 the Office of Juvenile Justice and Delinquency Prevention in coordination with the National Center for Missing and Exploited Children conducted a study of state laws regarding children as victims and witnesses. Their recommendation brought about the bill before the Committee. Chairman Anderson read into the record a letter from Robert E. Gaston, District Court Judge, Family Division, Eighth Judiciary District Court, Las Vegas (Exhibit D.) Ms. Steel wondered how the constitutional challenges are handled and have there been any in other states. Ms. Saitta responded the language allows the reason for the continuance to be balanced against the [defendants] rights and does not impede the right to come forward and request the continuance for a reason. Ms. Steel commented Ms. Saitta's response addressed a continuance and asked about the impact on the start of a trial. Ms. Saitta answered the intent of the bill is exactly the same; it does not require the trial to move more quickly than it would in the ordinary course of the trial just for the reason the victim is a child. Chairman Anderson asked Mr. Ben Graham to comment if the bill creates an undue burden for the defense in their control of trial setting. Mr. Ben Graham, District Attorney's Association, believes the bill leaves it discretionary to the court. The court is now to weigh this as a consideration to possibly set it sooner. He echoed testimony by Ms. Saitta. He did not see a constitutional problem unless the court abused their discretion. Ms. Steel stated her concern was not the way the bill is written but how it may be applied. She gave an example of the the court using its discretion and being challenged by the defense as a constitutional infringement of the defendant's rights. She asked if it could withstand the claim. Mr. Graham responded by having it discretionary and requiring reason for a delay the court's decision should not be reversed unless there was an abuse. Ms. Steel stated she would hate to see a trial expedited when a child is involved and having a guilty verdict be challenged successfully for constitutional reasons and the defendant "getting off scot free." Mr. Graham replied he did not see that happening; if the defendant could show there was an abuse of discretion he could only see the case being sent back for retrial. Chairman Anderson closed the testimony on A.B. 567. ASSEMBLYMAN SANDOVAL MOVED TO DO PASS ASSEMBLY BILL 567. THE MOTION WAS SECONDED BY ASSEMBLYMAN GOLDWATER.. Chairman Anderson asked for discussion. Ms. Steel stated she was still not comfortable; she was afraid there would be some loophole built-in to the system for the defendant to "get off the hook." She referenced Mr. Graham's statements if it is claimed there was abuse the child would need to live through the trial twice. She felt it could be abused in the appellate process. No further discussion was given. THE MOTION CARRIED. ASSEMBLYMAN STEEL VOTED NO. ASSEMBLYMEN HUMKE, PERKINS, BUCKLEY, AND BATTEN WERE NOT PRESENT. There being no further business before the Committee the hearing was adjourned at 10:50 a.m. RESPECTFULLY SUBMITTED: _________________________________ Jacque Sneddon, Committee Secretary APPROVED BY: ______________________________________ Assemblyman Bernie Anderson, Chairman ______________________________________ Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary June 1, 1995 Page