MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session January 24, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 4:17 p.m., on Tuesday, January 24, 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 Senator O. C. Lee STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Terry Lamuraglia, Chief Legislative Representative, Clark County Personnel Department Ben Graham, Legislative Representative, Nevada District Attorney's Association and Chief Deputy District Attorney, Clark County David Sarnowski, Chief Deputy Attorney General, Criminal Justice Division, Nevada State Attorney General's Office Thomas Patton, Deputy Attorney General, Nevada State Attorney General's Office Nancy Tiffany, Unit Manager, Adult Division, Division of Parole and Probation Frances Doherty, Deputy Attorney General, Nevada State Attorney General's Office The secretary called the roll and all committee members were present. The chairman thanked the committee members for their attendance at the first afternoon hearing. Further, he recognized the fact that this was early in the session to start double hearings, but he wanted to keep apace of the workload. SENATE BILL (S.B.) 60: Revises provisions governing sales of property under execution. Senator James opened the hearing on S.B. 60. Terry Lamuraglia, Chief Legislative Representative, Clark County's Personnel Department, addressed the committee. He explained that this bill would allow the constables of the state to "act in the best interest of all parties" as current law requires that property offered at auction must be sold to the highest bidder, even if bids offered are well below the market value of the items being offered. Mr. Lamuraglia provided three examples where vehicles valued over $2,000 were each sold for bids at least $1,000 less than their market value. He stated he felt that the bill would allow constables to reject bids that were too low, thus better representing both the defendant and plaintiff in such property execution cases. Ben Graham, Legislative Representative, Nevada District Attorney's Association and Chief Deputy District Attorney, Clark County, added his testimony to explain the situations referred to by Mr Lamuraglia. He explained that in the examples offered by Mr. Lamuraglia, the creditor did not receive any value for the sale of the property because the cost of the sale exceeded its proceeds. Also, he added, the debtor lost out because he did not get the debt satisfied with such a low sale price. Mr. Graham said that he felt the language of the bill was currently "a little vague and broad" and he asked leave of the committee to return with a clearer, more concise bill at a later date. Senator James agreed with Mr. Graham, the subject was very important but the language was too broad. The chairman called upon Senator Adler, who asked the witnesses whether they were planning to outline a percentage of fair market value as a guideline. Mr. Graham responded that under many circumstances a creditor would bid in an amount high enough to cover his loss. Under the statute such a mechanism was not available. He expressed his belief that such a mechanism would be appropriate in this instance. Next, Senator Adler asked about notice to the creditor about the sale of the property. Mr. Graham responded in the affirmative. Senator James stated he would like to hear testimony from persons who would handle such cases as a matter of daily business. He was concerned that there was not more interest from these individuals. He asked that Mr. Graham and Mr. Lamuraglia attempt to contact other individuals with interest in the matter. He then confirmed that there were no other witnesses for or against the bill. He closed the hearing. SENATE BILL 61: Requires person in custody to sign waiver of extradition proceedings as condition of release. The chairman opened the hearing on S.B. 61. Mr. Graham, as a representative of the Clark County District Attorney's Office and the Nevada State District Attorney's Association, again took the floor. He took some time to explain the process of extradition to the committee and its use and misuse. Mr. Graham told of states that required prisoners, as a condition of release, a promise to return and a waiver of extradition. In 1993, Mr. Graham reminded the committee, the legislature passed a bill that authorized Nevada to recognize and honor such pre- signed waivers when presented by other states. In 1989, he said, there was legislation passed by Nevada which required defendants who were to be released on their own recognizance (O.R.) to sign a promise to appear and a waiver of extradition. Next, Mr. Graham outlined the three issues currently involved in extraditions: 1) is there a proceeding going on in this state?; 2) is the individual held in the other state the person whom the proceedings are against?; and, 3) is all the paperwork contained in the governor's warrant in order? Mr. Graham stated the proposed bill would require a person admitted to bail or released on parole or probation to sign the waiver of extradition prior to being released. He felt it would be a money saving and a time saving factor, and, in fact, it would not require the individual to give up any "actual benefit." Mr. Graham pointed out that there was a proposed amendment to the bill (Exhibit C) from the Attorney General's Office which makes the bill comport more closely with the process followed by the department of parole and probation. Senator James asked if the representatives from the Attorney General's Office would like to address the committee. David Sarnowski, Chief Deputy Attorney General, Criminal Justice Division took the floor. He told the committee that one of the functions of his office is to review extradition requests both coming into and going out of the state of Nevada. Mr. Sarnowski opined the proposed bill would streamline the process of extradition, but he noted the need to correct a minor discrepancy by means of the proposed amendment (Exhibit C). He called on Thomas Patton, Deputy Attorney General, Nevada State Attorney General's Office. Mr. Patton was introduced to the committee by Mr. Sarnowski, as a former staff member of the Nevada Supreme Court and current counsel to the Parole Board and the Division of Parole and Probation. Mr. Patton was accompanied by Nancy Tiffany, Unit Manager, Adult Division, Division of Parole and Probation. Mr. Patton explained his role in the drafting of the bill amendment as attempting to accurately reflect the parole and probation division's process of release for parolees and the point and location at which the extradition waiver should be filed. He then turned the floor to Ms. Tiffany. She stated that the request for change of language as proposed in the amendment (Exhibit C) was primarily to "reflect the correct repository for a parole agreement." She wondered what a district court clerk would do with a defendant's parole agreement and pointed out that the proper filing locale would be with the parole board. Senator Adler referred to section 5 of the bill, that of bail, and wondered if the same kind of change as was proposed for line 14 (Exhibit C) needed to be made to section 5 (i.e., file the waiver with the jailer or representative of the sheriff where the bail is posted). He suggested it should read "submit to the sheriff...." Mr. Graham agreed and asked leave to make such a change and return to the committee. Senator James asked if there were further questions. Senator Adler asked to be recognized once more. He questioned the situation of house arrest, wondering if it was covered by the bill. Ms. Tiffany answered the situation was not covered by the bill being considered, but it was addressed in the waiver required by the department of parole and probation (Exhibit D). The chairman asked Mr. Sarnowski if there was a constitutional right to bail or to a certain procedure before extradition. Mr. Sarnowski responded that there was a statutory right. Senator James was concerned that the bill not infringe upon constitutional rights. Mr. Sarnowski explained there was a state constitutional right which entitled a person held by Nevada courts to be admitted to bail in all but capital cases. He continued that, this right did not extend to those being held in Nevada for charges made in another state. In cases of extradition, once a governor's warrant is signed, the statutes expressly allow no bail unless there is agreement between the demanding state's and Nevada's prosecutorial authorities. Mr. Graham interjected there is substantial case law that finds pre-signed waivers to be valid. At this point, the chairman called for a motion regarding the bill and its amendment. SENATOR ADLER MOVED THAT S.B. 61 BE AMENDED AND DO PASS AS AMENDED. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** SENATE BILL 114: Makes stalking of spouse during proceeding for dissolution of marriage aggravated stalking. The chairman opened the work session on S.B. 114. He recounted for the committee some of the prior discussion on the bill and noted the amendments that were returned. His presentation noted amendments such as inserting the same due process as contained in the temporary injunctions or restraining orders under chapter 33 of the Nevada Revised Statutes (NRS). Specifically, the senator outlined, ...a temporary order could be issued and it would expire within a time fixed by the court not to exceed 30 days. If an application for an extended order was filed within the period of the effectiveness of the temporary order, the temporary order would remain in effect until there was a hearing held. The party who is being restrained by the temporary order would have the ability, on 2 days notice to the adverse party, to appear and move for its dissolution or modification in some way. In that event, the court would proceed to hear and determine the motion as expeditiously as the ends of justice would allow and require. If an extended order was issued by a justice's court...an interlocutory appeal would lie to the district court, which could affirm, modify, or vacate the order in question. The appeal could be taken without a bond, but its taking would not affect or stay the enforcement of the order during its pendency of the appeal. Then, an extended order would, if it was issued after one of these hearings, expire within the time fixed by the court, not to exceed 1 year. Senator James expressed the view that a period of 1 year would provide enough time for the resolution of the conflict, either by criminal justice means, or by the proceeding of the divorce. This, he opined, addressed the issue of due process. He continued with a proposal to leave section 3 of NRS 200.591 as it currently reads, (i.e., a violation of a temporary order is a gross misdemeanor), at least prior to any hearing being held. Once a hearing had been held, and the parties afforded due process, the chairman stated, the violation of an order would be a felony. Next, Senator James turned back to section 2(b) of the statute and proposed to add wording addressing the circumstances of a custody proceeding between parties that are not married, but where custody of the child is at issue (Exhibit E). Additionally, he proposed that any person who was charged with the crime would have to have "actual or legal notice that this proceeding was occurring." Finally, he moved to address testimony that asked for a warning to the parties of the action that stalking during its pendency is a felony offense. He pointed out that despite some rare exceptions (i.e., child custody orders warn against child abduction, according to Senator Adler) in all other cases ignorance of the law is not a defense. Senator Lee interjected a question, asking whether the term "divorce proceedings" would cover a situation of legal separation as well. Senator James, upon reading aloud the exact wording of the bill, concluded that there was no reference to legal separation and the bill would be limited to the situations explicitly outlined in the language. Turning back to the warning issue, the chairman asked Frances Doherty, Deputy Attorney General, Nevada State Attorney General's Office, if she would articulate to Senator Adler her concerns or conclusions about including warnings to the parties. Senator Adler had expressed his opinion that it would be simple and expedient to provide a written warning to the parties that stalking during a divorce proceeding was a felony. She explained that notice of a pending action was not served in any uniform manner. According to Ms. Doherty, sometimes notice is given in a summons and sometimes in a motion to the court, depending upon the nature of the civil action. The deputy attorney general expanded her explanation by noting that the bill drafters had questioned a cross section of the legal community; the consensus being that such notice would be exceptional (i.e., no other criminal law required a written notice to be enforceable) and that requiring such a warning, especially in the case of domestic violence, was unreasonable, and might, in fact, provide a "loophole" for the defense. She added that requiring a warning to be incorporated would result in some fiscal impact to smaller jurisdictions, as well as a need to change civil procedural rules statewide. Senator James stated his agreement with Ms. Doherty, and with his desire to make the law as enforceable as possible. Senator James asked Mr. Graham of the District Attorney's Association, what his opinion was regarding the need for a warning to the parties. Mr. Graham stated his view that while adding a warning might make prosecution a little easier, the law would still be effective without it. Additionally, he stated, adding a warning would be burdensome. Here, Senator Adler voiced his concerns about effectiveness of notice of the proceedings. He gave the example of a divorce summons being left with an 18 year old in the household, as the law allows, and the defendant claiming he or she did not receive it, or the situation where a child custody motion is served upon a party's attorney and the party is unaware of the motion. Mr. Graham responded that "from a practical standpoint" he felt notice would be given by an number of sources including the petitioner, the mother or mother-in-law, or the policeman who is called to the scene. Senator James called for a motion to amend and do pass the bill as amended. SENATOR TITUS MOVED TO AMEND AND DO PASS S.B. 114. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** Prior to the close of the hearing Senator Titus asked to make a statement for the record. She stated, "I have previously toured all three prisons in Carson City, also I have been to the maximum security prison in Ely and the Clark County Prison in Las Vegas. I have an appointment in Reno tomorrow and won't be going on the prison tour, but my intern will." Senator James thanked Senator Titus for her statement and excused her from the next day's tour. The hearing was adjourned at 5:07 p.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary January 24, 1995 Page