MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session January 19, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:50 a.m., on Thursday, January 19, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus COMMITTEE MEMBERS ABSENT: O. C. Lee (Excused) STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary Teri Spraggins, Committee Secretary OTHERS PRESENT: Bobbie Gang, Lobbyist, National Association of Social Workers, Nevada Chapter and Nevada Women's Lobby Nancy Hart, Lobbyist, Nevada Women's Lobby Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence Bill Cavagnaro, Lieutenant, Legislative Liaison, Las Vegas Metropolitan Police Department Donald Mosley, District Judge, Clark County, Nevada Ben Graham, Chief Deputy, Legislative Representative, Nevada District Attorney's Association Frances Doherty, Deputy Attorney General, Office of the Attorney General for the State of Nevada SENATE JOINT RESOLUTION (S.J.R.) 2 OF THE 67TH SESSION: Proposes to amend Nevada constitution to provide expressly for rights of victims of crime. The secretary called the roll and all committee members were present with the exception of Senator Lee. The Chairman made note that Senator Lee, who was newly appointed as Senator and assigned to the committee was excused due to the business of moving. Next, Senator James addressed the schedule for the following week's joint meetings of the Senate and Assembly Committees on Judiciary. Monday's meeting, the senator noted, would be video-teleconferenced and would include a hearing on S.J.R. 2 Of The 67th Session. SENATE BILL (S.B.) 111: Revises provisions governing notice of hearings for attorney's fees requested for administration of estate of decedent. SENATE BILL 112: Authorizes enforcement of liability of surety for executor or administrator of estate of deceased person without independent action. The chairman then turned the discussion to S.B. 111 and S.B. 112 that were agendized for this day's hearing. He asked for witnesses in favor of the bills. None appeared. The senator noted that he had received a fax from Don Ashworth, a probate commissioner. However, since this individual was not present and able to answer questions of the committee, Senator James stated he felt it best to hold the bills for a later hearing, perhaps in Las Vegas. As an aside, Senator Adler pointed out to the chairman that with the district court meeting just across the street in the mornings, it might be of interest to the committee members to attend some of the criminal proceedings. Senator James agreed that such attendance would be beneficial and suggested that it might be possible in one of the early hearings for the committee to attend one of the court proceedings. He suggested further that individual members of the committee could take it upon themselves to attend at their convenience. SENATE BILL 114: Makes stalking of spouse during proceedings for dissolution of marriage aggravated stalking. Senator James opened the hearing on S.B. 114 by providing some background on the bill. He explained that during the previous session much time was spent on the stalking bill. The chairman pointed out that the legislators worked very hard with various interest groups including those concerned with domestic violence. The senator said he felt this interest was natural "because stalking often arises in the context of domestic violence cases." Continuing, Senator James read the definition of stalking embodied in the law as codified in Nevada Revised Statutes (NRS) 205.591 and reminded the committee that the first offense of this crime is a misdemeanor, a second offense a gross misdemeanor, with aggravated stalking being the only felony level of the crime. He mention next the second important provision of the statute which, the senator explained, was the "the power of the court to issue .... protective orders" for the benefit of the victim. Senator James stressed that the bill before the committee focused on two aspects of the statute, the penalty of aggravated stalking and the penalty for violating a protective order issued by the court. Senator James told the committee that he requested this bill as a result of meetings he was involved in during the interim with people who were concerned with stalking and with domestic violence. The chairman indicated that the meetings provided testimony on two points: 1) stalking is on the increase in domestic violence situations and the courts and criminal justice systems seem powerless to prevent the stalking, and 2) the penalty for violation of orders issued by the court are not enough to deter the stalker. As an answer to this concern, Senator James explained, the bill was designed to increase to a felony the penalty for stalking an estranged spouse while a divorce is pending, and also increases to felony level the penalty for violating a protective order. The chairman then opened the floor to testimony in support of the bill and called Bobbie Gang and her associate Nancy Hart. Ms. Gang addressed the committee as a representative of the National Association of Social Workers, the Nevada Chapter and the Nevada Women's Lobby. She introduced Nancy Hart, an attorney also representing the Nevada Women's Lobby. Ms. Gang stated that the Women's Lobby was in full support of "the concept in this bill." She encouraged the committee to pass the bill in its "final format" which she felt would include some changes to strengthen the bill. She referred to two documents that she provided the committee, a card which identifies "Justice and Equity for Women and Families" (Exhibit C) as one of the groups issues. Ms. Gang also read to the committee a position statement (Exhibit D) prepared by the National Association of Social Workers, Nevada Chapter. She then turned the floor over to Ms. Hart. Nancy Hart, also on behalf of the Nevada Women's Lobby, expressed support for the bill. She told of her personal experience as an attorney representing "people, primarily women" who were seeking divorce. She likened stalking during a divorce proceeding to punishment for attempting to leave the relationship. Ms. Hart voiced concern that since the bill focuses on stalking during the proceedings of a divorce the parties to the divorce should be given notice of the divorce action (this notice can be delayed for up to 120 days, she noted) due to the gravity of the offense. Senator Adler questioned whether the bill would reduce access to the court. He felt the legislation might do more damage. Ms. Hart responded that while the penalty for violation of the provision of the bill would be addressed in district court, the protective orders could still originate in the justice or municipal courts. Senator James also felt confident that this was the case. He also noted that one of the findings in the interim meetings was that the protective orders currently being issued "had no teeth." Senator Adler persisted with the point that in many instances the stalking charges are without truth. He queried whether adding criminal charges to civil contention would only unfairly impact the situation. Senator James retorted that he felt there was no difference between the situation described by Senator Adler and one where false charges of child molestation were leveled against one parent by another. He continued that he felt that just because some individuals misuse the system in not reason enough to remove the remedy from legitimate use. Ms. Gang also pointed out that in a case such as one outlined by Senator Adler the charged party would gain access to representation when the criminal charges were brought, and further, that while these might be issues, she hoped they could be addressed through other means. Senator Porter voiced his concerns about domestic problems generally, the difficulty of filing documents, the trauma of domestic violence, and then figuring out where the help is to be located. He hoped there would be some "fast-track" to facilitate these steps. Senator Porter also suggested that mandatory counseling would be a positive addition to the punishment, and he felt that doing away with "own recognizance" releases would add to the effectiveness of this law. Senator James affirmed these points as valid concerns. He stated his willingness to consider these things, but he also stated that he did not want this bill to be the "omnibus domestic violence bill," but to be a tool to deal with stalking. Senator Porter, at this point, complimented Ms. Gang and Ms. Hart for their commitment of time and energy in this effort. Senator James next called Donald Mosley, District Judge from Clark County. The judge began his comments by addressing the temporary restraining order, in the domestic law context, as subject to abuse. He offered the example of a divorce case where there is an issue of child custody. He proposed that one party might go to the court and claim abuse simply as a means to "put it to the other spouse...." Judge Mosley further stated that, while he had no fundamental opposition to the bill and he recognized that aggravated stalking was a horrendous problem, he felt it necessary to reconsider the process in two ways: 1) raising the threshold for obtaining a temporary restraining order, by requiring "indicia of a battery..." (e.g., a bruise or a witness to the occurrences), and 2) a penalty for abuse of the process (e.g., making false claims of stalking). Next, Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence, read a prepared statement to the committee (Exhibit E). She then addressed Senator Adler's concern about abuses of the system and Senator Porter's query about access to the courts. Ms. Meuschke stated her belief that the bill not only increase access to the courts, but also sent a message that "if you are going to participate, you are going to be held accountable." She also expressed her view that not passing the bill would send a message that abuse pays, that coercion not only works on domestic partners, but on legislators, as well. Ms. Meuschke reiterated her organization's support of the bill, "even though it may not be the perfect solution." Senator James addressed Ms. Meuschke, asking her opinion about amending the bill to contain evidentiary requirements in order to reduce false claims. Ms. Meuschke reminded the committee that persons accused of stalking are afforded an opportunity to address the court that issued the protective order, and to present evidence or defense against the claims being made. She also reminded the committee that the purpose of the bill was to stop the violence before it occurred. She emphasized desire that such an amendment not be made. Senator Adler opined the affidavits that are required in order to obtain a protective order need to be more carefully examined for truthfulness, and that the courts that are issuing the orders are doing so without any real belief that the claims made are true. Ms. Meuschke replied that perhaps the victims should keep a log of the stalking events and that judges need to closely question the petitioners in order to ascertain their truthfulness. She stated that she felt most judges do examine the petitioners and their affidavits for truthfulness. Ms. Meuschke also questioned Senator Adler as to the proportion of these claims that were false, stating that while most examples offered were of false accusation of stalking, she was certain that there were thousands of instances where stalking was actually taking place and the orders were justified and valid. Senator Porter asked Ms. Meuschke whether her experience included problems with jurisdiction; that is, whether victims had to repeatedly file for protective orders when they or the stalker moved. Ms. Meuschke responded that, indeed, jurisdiction issues were a problem and that there was a need for jurisdictions to respect and enforce orders from other courts. She suggested a need for a statewide registry of protective orders, perhaps using the criminal justice information system (CJIS). Senator Porter also pointed out the cost involved in filing and refiling for these orders and Ms. Meuschke reminded the committee that there was a provision for waiver of fees in some cases. At this point, Senator James asked the members of the audience to return to the committee at a later day in order to better address the issues that had been raised regarding jurisdiction, false claims, and access problems, without stalling this particular bill. Next to testify was Lieutenant William H. Cavagnaro, Legislative Liaison for the Las Vegas Metropolitan Police Department. He spoke in support of the bill taking the perspective of law enforcement. Lt. Cavagnaro explained that the police considered domestic violence from two perspectives, the protective order and the aggravated stalking. First, he noted that while protective orders are issued, they are frequently disregarded. When the order is violated, Lt. Cavagnaro told, the violator is most times released on his own recognizance (O.R.), sometimes repeatedly. The Metropolitan Police Department of Las Vegas supports the bill because it would take the discretion away from the courts in this instance, Lt. Cavagnaro said. This would be beneficial, he continued, because currently aggravated stalking requires that a threat be made against the victim and often, it is the only component missing from the scenario. Also, Lt. Cavagnaro added, many courts are reluctant to call domestic stalking aggravated because of the common property and children involved. He felt the bill would help law enforcement "get the stalker off the street" and perhaps, it would also alleviate the "O.R." problem. Calling for questions, Senator James continued the hearing. Senator Adler called for the floor and asked about making repeated offenses of stalking progressive in their penalty (i.e., first offense, misdemeanor, second offense, gross misdemeanor, and third offense, felony) as in the drunk driving law. Lt. Cavagnaro responded that as long as the bill did not change from the wording being proposed, he felt such an addition or another bill would be helpful. Secondly, Senator Adler wondered about couples living together, with children in common, who may be in a similar situation. Lt. Cavagnaro agreed that this was a problem as well, but noted that the bill does not address the question. Senator Adler agreed. The next witnesses were Ben Graham of the Nevada District Attorney's Association and Frances Doherty of the Nevada State Attorney General's Office. Mr. Graham addressed the committee first and started out by presenting to the committee some materials brought to the hearing by James Jackson of the Nevada State Public Defenders. Mr. Jackson had wished to express a concern about the "notice issue," which, Mr. Graham assured the committee, was addressed in the rough draft of an amendment to the bill (Exhibit F) and, according to Mr. Graham, he also asked the committee to review a letter from Richard Wright and forwarded by Ms. Karen Winckler (Exhibit G) which voiced some concern. Mr. Graham then moved to his own testimony. He reported the Nevada State District Attorney's Association supports the bill with the proposed amendment (Exhibit F). Next, Frances Doherty, Deputy Attorney General to the Commission on Ethics, addressed the committee. She reported her previous experience in the area of domestic law as extensive. She expressed a desire to support the bill as it was proposed and also to, perhaps, come back before the committee with another bill to address the issues raised by senators Adler and Porter. In her testimony, Ms. Doherty described how domestic violence is "heightened during the divorce proceeding and the custody proceeding." She said this applied equally to married and unmarried couples who share children or domestic arrangements. Ms. Doherty reminded the committee that stalking is a pattern of practice that results in tremendous fear in the victim and that "it is one of the primary reasons why women do not proceed to get a divorce, to leave their relationships, to insist on the custody of their children or to even maintain steady contact with their children in a relationship where a marriage has been involved." She pointed out that over long term exposure to domestic violence and to stalking, the victim can become numb, which raises the level of danger to the victim. Ms. Doherty encouraged the committee to consider adding language to the bill which requires notice to the parties of the divorce or to parties in a pending custody proceeding that the action has been filed. She explained that her experiences has been equal in number when looking at divorce cases versus custody cases. She addressed the issue of proof of stalking by saying it was best left to the judge in the matter to consider the evidence and testimony when the stalking is during the pendency of a divorce. She agreed that it might be useful to include some standards of proof in the section dealing with violation of a protective order. Senator James asked Ms. Doherty if she was suggesting a need for evidentiary threshold criteria in section 3. She responded that articulating the nature of the evidence required would be, in her opinion, a regression. Further, she opined, that the judges in these matters were credible and capable of discerning the truthfulness of the victims and she further suggested that to do so would be "questioning the victims in our statutes." Ms. Doherty expressed her view that the current standards of proof were sufficient. Senator McGinness made known a concern of his dealing with a situation where there was no history of violence or stalking and an individual was suddenly faced with a felony charge. Ms. Doherty suggested the senator look to the definition of stalking, "...a quite severe course of conduct...," and to remember that the act is subject to proof during a criminal proceeding. Senator McGinness noted that it might be useful to provide both parties with notice that any stalking during the proceeding would be a felony. Ms. Doherty disagreed. Senator Adler mentioned that the notice suggested by Senator McGinness might simply be given by stamping the divorce complaint with a warning. He felt this would alleviate any question of intent or notice and might be of assistance to the prosecutor if the charge was brought against one of the parties. Senator James restated to the committee the existence in the bill of two separate issues: 1) violation of a protective order is a felony, and 2) stalking during a divorce proceeding is a felony. He asked Mr. Graham to explain prosecution under section 3 of the statute (Nevada Revised Statutes (NRS) 200.575). Mr. Graham responded that the proceeding under the new language would not be very different from that proceeding under the old language because they are both district court matters (a gross misdemeanor versus a felony). He continued, that from a practical standpoint the enhanced charge would allow the prosecutor some room to negotiate a plea, and that it would carry more weight for both the defendant and also for the law enforcement community. Senator James excused the witnesses and noted that he would include in the record of the hearing two items: 1) a letter from Michelle Babbitt (Exhibit H) who had been a witness at the previous session, and 2) a facsimile from an organization called "Stop All Stalkers" (Exhibit I) which gives examples of the weakness of the current legislation. Mr. Graham again took the floor, thanked the committee and promised to return with Ms. Doherty to better address the issues raised. Senator James closed the hearing on S.B. 114 and promised to readdress it at a later work session. He called for further business. There was none. The chairman closed the hearing at 10:16 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary January 19, 1995 Page