MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session May 24, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:00 a.m., on Wednesday, May 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 GUEST LEGISLATORS PRESENT: Assemblywoman Dianne Steel, Clark County Assembly District No. 16 Assemblyman Douglas A. Bache, Clark County Assembly District No. 11 Assemblyman David E.Goldwater, Clark County Assembly District No. 10 STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Marilyn Hofmann, Committee Secretary OTHERS PRESENT: John Sarb, Administrator, Department of Human Resources, Division of Child and Family Services Lucille Lusk, Lobbyist, Nevada Concerned Citizens John Sande, Lobbyist, Nevada Bankers Association Alan B. Rabkin, General Counsel, Senior Vice President, Sierra Tahoe Bancorp, Nevada Bankers Association Sheila Smith, Deputy Attorney General, Office of the Attorney General, Department of Human Resources, Welfare Division Randy Harris, Gang Specialist, Washoe County School District. Patricia Justice, Lobbyist, Clark County Helen Foley, Lobbyist, Pardee Construction Company of Nevada Lieutenant Phillip A. Galeoto, Lobbyist, Reno Police Department, City of Reno Gregory P. Harwell, Lobbyist, California State Automobile Association-Nevada Division Jim L. Werbeckes, Lobbyist, Farmers Insurance Group Catherine L. Gregory, Lobbyist, State Farm Insurance Company Ben Graham, Lobbyist, Nevada District Attorneys Association, Office of the Clark County District Attorney The first matter to be brought before the committee was a discussion regarding Assembly Bill (A.B.) 185. ASSEMBLY BILL 185: Includes within crime of involuntary manslaughter violation of certain laws resulting in another person's death. Senator James indicted the Assembly Committee on Judiciary did not concur with an amendment regarding a change in language from gross negligence to simple negligence, which was discussed with the sponsors of the legislation before approval. SENATOR McGINNESS MOVED NOT TO RECEDE FROM THE AMENDMENT TO A.B. 185. SENATOR WASHINGTON SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS TITUS AND ADLER WERE ABSENT FOR THE VOTE.) * * * * * The chairman appointed a first committee on conference to consist of Senator Washington, Senator Lee and Senator McGinness. The first bill scheduled to be heard was A.B. 297. ASSEMBLY BILL 297: Requires juvenile court to order counseling for child and parents and to impose civil penalty on parents under certain circumstances upon adjudication of child as delinquent. The first person to testify was Assemblyman David E. Goldwater, Clark County Assembly District No. 10. Mr. Goldwater presented a prepared statement, set forth herein as Exhibit C. He summarized by saying A.B. 297 "attempts to sensitize parents to the actions of their children." Mr. Goldwater stated a representative of the Nevada State Teachers Association testified in front of the Assembly committee in support of the bill, indicating it could be one of their most important bills of the current session. He said he was not holding the bill out to be a "solution to crime in our neighborhoods," but asked the committee to help improve the penal code as a "start down the road to a solution...." Senator James asked Mr. Goldwater to indicate the nature of the amendment placed on the bill in the Assembly. Mr. Goldwater answered he originally requested the language regarding age of the children be younger, but the Assembly committee felt the age should be raised. Senator James asked Mr. Goldwater if he felt the age should be set as "17 or under," and Mr. Goldwater answered he did, but the Assembly committee felt differently. He also said language was added to give the judge more discretion regarding fines, community service, et cetera. Senator Washington agreed the age should be set forth as 17 years. Mr. Goldwater stated he is amenable to that suggestion. The next person to speak was John Sarb, Administrator, Department of Human Resources, Division of Child and Family Services. Mr. Sarb stated the division is in support of A.B. 297. He said one of the important strategies the division looks at when dealing with juvenile delinquency is parental involvement. Mr. Sarb indicated in the past the focus has been almost exclusively on the behavior of the child to the exclusion of the role of the parents. He said the bill will help focus on the parents' role in accountability for the actions of their children. Mr. Sarb stated he believes the age set forth in the legislation should be kept at 18 years. He said there have been many debates concerning the age factor, and added while he tends to agree a child at age 16 or 17 years "...is probably less amenable to parental control...that is not always the case." Senator James stated he is bothered by the bill in that "it comes close to making a parent responsible or liable for the conduct of the child without regard to the culpability of the parent in allowing that to occur." He said he supports the discretionary provisions so the judge can take into account particular circumstances. However, Senator James added, "As a child gets older, they will have more and more freedom...they are at school and commit some delinquent act, and all of a sudden I'm painting the streets." Mr. Goldwater stated he believes giving discretion to the judge is essential. He reiterated his desire to lower the age set forth in the bill. Mr. Goldwater said the judge who requested the bill and the testimony of the teachers' association was that there are parents who just do not care what their children are doing. He said those are the parents "we want to get at" in the bill. Senator Adler indicated he read an article about a program in Nashville, Tennessee, regarding a high truancy problem within the schools. He said in that city, a parent has to do 1 day of community service at the school for every day a child is absent from school without an excuse. Senator Adler stated the truancy rate went down about two-thirds in 1 year. He said, "About once...of a father scrubbing the men's room at the high school with his son during class hours...for some reason the kid is not truant any more." Senator Porter stated he also has reservations concerning the age set forth in the bill. He stated, "No one is responsible right now...especially in the schools...the teachers can't discipline in fear of a lawsuit...the kids are doing what they want." Senator Porter added, "The parents turn the kids over to the school because they are too busy...society is such we have given up our responsibilities to someone else." He agreed with Mr. Goldwater that the age should be reduced and said, "We have to go back to the parents." Senator James responded, "The problem with that is that we are having the government step in and tell us what to do... Pretty soon, we will have the government tell us everything to do with our kids." Senator Washington stated he understands what Mr. Goldwater is attempting to accomplish with the bill. However, he added, "There is another issue that is battling inside me...." Senator Washington said he knows parents who have done everything they can do to attempt to control their children and have been frustrated. He indicated the schools and the counselors are telling them what should be done to be more responsible, and they feel they are doing the best they can to discipline the children, but have reached a point where "they just can't do it any more." Mr. Goldwater responded he is not indicating A.B. 297 is the only way to make parents responsible. He said he feels it is a vehicle for the judge to use in cases he deems are appropriate. Mr. Sarb added the bill is a "missing piece in the range of options judges have now [in] dealing with juvenile offenders." He said the division sees a wide range of parents, those with no culpability for their child's actions, who are shocked and dismayed, and those who are "active participants in the child's delinquent behavior." Mr. Sarb stated his final belief that the age set forth in the bill be 18 years. He also said judges should be given "huge discretion" in the court regarding juvenile delinquents. Senator James stated it might be "the popular thing to do to say all these parents don't care about these kids that are running around," and added he "walked his district about four times...and I haven't met them." He said in every area the parents he met were "real concerned about their kids." Senator James admitted those parents "may have an inability to control them sometimes...." Mr. Goldwater offered to take Senator James to his district, "...where parents don't care about their kids...where right outside their windows their kids are throwing rocks at people waiting at bus stops...." He added he would take Senator James places "...where mom or dad are sitting drunk...at 5:00 p.m. in the afternoon, and their kids are running around like crazy." Senator Porter stated: We are in a big push for class-size reduction ... that's truly because of lack of parental involvement ... today, for whatever reason. Due to dual employment in the household or lack of care...the dropout rate is at an all time high. Kids that are coming in can't read, can't write...we have test scores that are dropping. We are looking to blame somebody... We are blaming the teachers ... the administration.... We are blaming the curriculum.... We are blaming the legal profession.... We are blaming everyone for all these problems, including the crime, because these kids that are coming in are violent kids. It is a whole different set of first, second and thirdgraders than we have seen in the past 20 years. There is no one to blame except the family.... There comes a time when we have to take a position. Senator Porter stated juveniles in Boulder City, Nevada, who have committed offenses, go before a panel of adults in the community and the parent is required to attend. He said the parent is then involved in setting the penalty for the child. Senator Lee said he has sympathy for the concept of "getting government out of my life," but added he feels he must weigh whether the government "or the next- door neighbor kid is in my life...costing me money...scaring me...making my family uncomfortable in the back yard...." He cited a case in which a carload of young juveniles was questioned at 2:00 a.m. Senator Lee said although none had a record, they were taken to the police station and their parents were called. He continued, "It is a little tough when father walks up to you and says, 'What are you doing calling me at 2:30 in the morning?'" Senator Lee stated, "When we talk about...not knowing any families that don't care about their children, I am telling you they are out there everywhere, every day and on every street." He concluded. "I definitely support this piece of legislation." Senator Adler stated he talked to a truancy officer in the Carson City School District, who indicated to him that the patterns started at a young age, and often the parents are keeping their children out of school for a variety of reasons. The last person to testify on A.B. 297 was Lucille Lusk, Lobbyist, Nevada Concerned Citizens. Ms. Lusk stated she opposes the bill, but said, "I hope you will find solutions to make some corrections in the bill, rather than defeat it." She admitted the amended bill is better than the original, but expressed some concerns. Ms. Lusk expressed a belief that civil penalties should be imposed against a person who commits a crime, not against someone else. She continued, "This philosophy of imposing a penalty against a parent is a throwback to the discredited Freudian theory that 'whatever I do is not my fault, it is my mother's fault.'" Ms. Lusk said that does not encourage responsibility, but rather encourages a young person to transfer blame to someone else. She said, however, parents should be held financially responsible for fines, restitution and court costs incurred by their children. Ms. Lusk stated a parent should be made to work with the child in community service if it is deemed to be beneficial. She reiterated when penalties are levied against one person for crimes of another, that is improper law. Ms. Lusk disagreed with Senator Porter's statement that "nothing but the family is to blame for children's problems in school." She said there is a problem in society concerning the placement of "responsibility without authority." Ms. Lusk said the parents' ability to control the education of their children has been severely infringed since much of the school day has been directed towards things other than reading and writing, "against many parents' wishes." She continued, "As long as you are not willing to insist that parents have the right and control over their children's education...then placing that responsibility without that authority is inappropriate." Senator Washington stated the key word in this matter is "involvement" on the part of the parent. He said he is not certain how that involvement can be accomplished by legislation. Mr. Goldwater stressed the intent of the bill is not to solve criminal justice and solve the problems youngsters are causing through a civil fine or counseling. He reiterated it is simply another tool or option "to get at something this criminal justice system is missing." There was no further discussion of A.B. 297, and the chairman closed the hearing on the bill. He then opened the hearing to testimony on A.B. 362. ASSEMBLY BILL 362: Provides for certification to establish content of trust. The first persons to speak were John Sande, Lobbyist, Nevada Bankers Association, and Alan B. Rabkin, General Counsel and Senior Vice President, Sierra Tahoe Bancorp, Nevada Bankers Association. Mr. Sande said the bill deals with the ability of a third party to rely upon a certificate of trust. He said persons who wish to avoid the cost of probate use a revocable inter vivos trust, whereby all assets are transferred to a trust. Mr. Sande said the transferors, typically a husband and wife, become the trustees of the trust. Then, he added, when the husband and/or wife passes away, the assets are held by the trust, and trustees are substituted. Mr. Sande said delays are experienced in this process when dealing with financial institutions, stockbrokers, and real estate transfers. He said passage of A.B. 362 is expected to improve this situation. Mr. Rabkin stated a bill similar to A.B. 362 has already passed in the state of California. He said trusts are "paper-intensive documents," which normally require an intensive review of their contents. Mr. Rabkin stated the bill will allow a bank, a stock brokerage firm or realtor to rely upon the representations by affidavit from the trustees of the trust. Mr. Rabkin stated some trust documents are over 60 pages long, and at this time a bank is bound to review the entire instrument to be certain it contains the authorizations the parties presenting the trust are claiming. He said A.B. 362 will allow bankers, stockbrokers, realtors, etc. to accept a shortened version of the trust which states specific powers, who the trustees are and who created the trust, "...all properly notarized." Mr. Rabkin stated he could rely on such an affidavit, so long as he did not have independent knowledge which indicated the affidavit is not correct. He called the bill a "paperwork reduction act...which will help both sides deal with each other in a more expeditious way." Senator James stated he believes there are "trust certificates" used at this time. Mr. Rabkin agreed, but indicated there is no enabling statute which allows a financial institution to rely solely on such a certificate. Senator Adler brought up the matter of real estate transactions, and Mr. Rabkin responded at this time a title company has to review an entire trust instrument, and retain a "powers document." He said the bill will allow an affidavit form to be recorded along with a deed or transfer document, thereby protecting the title company. Mr. Sande confirmed the act will be voluntary, and a financial institution, stockbroker, realtor, et cetera may review the entire document if it desired. The last person to testify was Sheila Smith, Deputy Attorney General, Office of the Attorney General, Department of Human Resources, Welfare Division. Ms. Smith presented prepared testimony, which is attached hereto as Exhibit D. There was no further testimony on A.B. 362. Senator James closed the hearing on the bill and opened the hearing on A.B. 374. ASSEMBLY BILL 374: Creates crime of placing graffiti on or otherwise defacing property and provides various penalties. The first person to testify was Assemblywoman Dianne Steel, Clark County Assembly District No. 16. Ms. Steel stated a survey completed by constituents indicates their second priority for legislative action is "getting rid of graffiti in their neighborhoods." She said people are frightened because they do not know if gangs are doing the graffiti and how it will affect their safety. Ms. Steel stated property values are also diminished when graffiti appears. Senator Adler pointed out the language of the bill is similar to A.B. 297, heard earlier, with regard to parental responsibility. Ms. Steel agreed a parent should be involved in community service "...only if a child cannot do the community service...and if a parent cannot pay the fine." Senator James referenced A.B. 297 and said the committee has discussed some problems regarding "...whether we should or shouldn't make parents liable for the acts of their kids...whether parents had control over their kids...." He said they considered an amendment to state the age to be "under 17." Senator James asked Ms. Steel if she will have an objection to amending A.B. 374 in the same manner, and Ms. Steel answered she will not. The chairman indicated he is also disturbed with language which will make a parent liable on the first offense committed by the child. Ms. Steel answered, "If a child commits a delinquent act right now that damages property, and it goes to civil court, the parent is liable immediately." She reiterated, "Graffiti is a crime against property." Senator Adler agreed with the legislation, indicating placing responsibility on the parent will be a strong incentive to exert more control over the child. Ms. Steel pointed out language of the bill provides if a parent is financially unable to pay restitution and/or fines, community service is an alternative. Senator Washington brought up the matter of another bill regarding graffiti, which was introduced by Assemblywoman Genie Ohrenschall. Ms. Steel indicated that bill permitted the court to use graffiti abatement as a punishment for any delinquent act committed by a juvenile, while A.B. 374 will make the act of writing graffiti against the law. The next person to testify was Randy Harris, Gang Specialist, Washoe County School District. Mr. Harris indicated the school district supports passage of A.B. 374. He said there has been an increase in graffiti in the community and especially on school district property. Mr. Harris stated graffiti incidents are normally caused by juveniles between the ages of 13 years and 18 years. He said public education and law enforcement "...are not having much of an impact on kids who are out doing graffiti." Mr. Harris said a key element of the bill is the accountability factor, since even when juveniles are caught doing graffiti, there is not such an accountability method. He also indicated although there are many residences adjacent to school property, people rarely report it when they see graffiti being placed on that property. Mr. Harris said in talking to citizens regarding their failure to call, the authorities are told, "Why should we call...nothing ever happens to these kids when you catch them." He said A.B. 374 will give those in law enforcement and public education another tool to deal with the problem of graffiti abatement. Mr. Harris added, "In any type of graffiti abatement program ... whether it be through a school district or city government ... you need to start with the immediate removal of graffiti." He said he is glad the bill will require such removal. Mr. Harris stated, "Parents don't seem to know or care that graffiti is against the law." He said they do know parents have a large impact on their children, and parents should be responsible in the area of graffiti. Mr. Harris presented a booklet (Exhibit E. Original is on file in the Research Library.) regarding graffiti in general, including terms and an explanation of what law enforcement and the school district is attempting to accomplish. Senator Washington asked how often parents become involved with the school district in an effort to curb the problems surrounding juvenile delinquency in general, and graffiti in particular. Mr. Harris answered when they see signs that children, even in the elementary schools, are doing forms of graffiti on their notebooks or their lockers, they encourage the schools to contact the parents. He said there are times when the parents become "very involved," but added there are many parents who indicate the schools should "quit bugging" them and their children because "they are not hurting anybody." Mr. Harris said he does not believe parents understand the seriousness of graffiti, and that such graffiti can lead to more serious problems. He said the district attempts to educate the parents as much as possible, but many parents are not interested. Senator Washington indicated it may be helpful to institute a program such as the Drug Abuse Resistance Education (DARE) program, in order to emphasize the importance of respecting property. Mr. Harris said there is no reason why that cannot be done in connection with education regarding gang violence. Senator Washington said the key is parental involvement, and the DARE program has done a lot in that regard. The next person to testify in support of A.B. 374 was Patricia Justice, Lobbyist, Clark County. Ms. Justice suggested the words "at least" be added on page 1 to the words, "...125 hours of community service." She said this will provide flexibility if it is felt stronger sanctions are necessary. Ms. Justice stated she has discussed this change with Ms. Steel, who has no objection. Senator Adler said in Carson City any juvenile who "shows up in juvenile detention" is required to remove graffiti, even if he or she had no part in doing that graffiti. He suggested Clark County might try that, "...instead of trying to catch who is doing it...." Senator Washington reminded Senator Adler that Assemblywoman Ohrenschall's bill, discussed earlier, accomplishes that goal. Testifying next was Helen Foley, Lobbyist, representing Pardee Construction Company of Nevada (hereafter Pardee.) Ms. Foley stated Pardee was one of the largest home builders in southern Nevada, and they have discovered that "...the fastest way to stop selling homes in a new development is to have the walls filled with graffiti." She said it is the first signal that a neighborhood is going downhill. Ms. Foley said it is important that the graffiti be immediately cleaned off the buildings. She said emphasis has not been placed on this problem in the courts in the past. Ms. Foley said community service will "give them a realistic penalty for the crimes they are committing." She said Pardee donates funds and paint to try to repair the results of vandalism and graffiti. The next to speak was Lieutenant (Lt.) Phillip A. Galeoto, Lobbyist, Reno Police Department, City of Reno. Lt. Galeoto stated the department is in support of A.B. 374. He addressed the graffiti problem and said in Reno, Sparks and Carson City, "...it is a very, very serious problem." Lt. Galeoto said he has worked with the youth-gang task force and added, "We take it very seriously and it is out of control." He said the problem must be addressed with a "multidisciplined effort," and that is now being done in northern Nevada. Lt. Galeoto said the one element which has not been present is in the area which the bill addresses. He said he has requested a minor amendment, which was discussed with the bill's sponsor, which will include the addition of the words "affixed to" after the word "drawn," in section 2, line 4 of the bill. Lt. Galeoto stated when the department first discovered the broad-based damage gang "taggers" are doing in Reno and Sparks, they found that juveniles are having their "tagger" marks placed on stickers, on the presumption that because a sticker can be pulled off, it is not actually property damage. He said, however, "Once the sun comes out for a couple of days...or you have bad weather, they are permanent stickers." Lt. Galeoto said that is the reason behind the addition of the requested language. Lt. Galeoto stated another issue he would like to address is the matter of a reference to "city government" on page 5 of the bill. He said he does not have a fiscal note, and does not believe the impact will be significant, but stated he will have to "hedge" support on behalf of city government until he receives a fiscal note. Senator McGinness stated the language places some "pretty good restrictions on cities and counties." Lt. Galeoto said the addition of language, "...or as soon as practicable" will allow the City of Reno to support the bill. He said the department used to believe simply spray-painting over graffiti would be adequate to remove the it, but they found up to $25,000 each month can be required for graffiti eradication. Lt. Galeoto stated there are times when the graffiti cannot be removed for several weeks because of manpower problems. The next to speak was Lucille Lusk, Lobbyist Nevada Concerned Citizens. Ms. Lusk expressed support for the legislation, saying the penalty set forth fits the crime. Gregory P. Harwell, Lobbyist, California State Automobile Association-Nevada Division (CSAA), testified in support of the bill, but expressed concern regarding provisions regarding drivers' license suspensions. He presented suggested amendments to the committee, which are set forth on Exhibit F. Mr. Harwell said the amendments request the Department of Motor Vehicles & Public Safety (DMV&PS) to release information to the insurer regarding suspension of a license, but ask that the insurer not use the suspension for any underwriting or rating purposes. He said rates should not be increased, since the suspension will not be for a driving violation. Jim L. Werbeckes, Lobbyist, Farmers Insurance Group, approached the committee to lend support to the amendment, as did Catherine L. Gregory, Lobbyist, State Farm Insurance Company. Senator James asked those testifying for the insurance companies what problem the Assembly committee has regarding the driver's license suspension language. Mr. Werbeckes said that committee is concerned insurance companies will raise rates when a party is reinstated under a policy because a license was suspended under the provisions of A.B. 374. He said the amendment set forth in Exhibit F addresses that concern. There was no further testimony on the bill, and Senator James closed the hearing on A.B. 374. The hearing was opened on A.B. 510. ASSEMBLY BILL 510: Increases requirements of disclosure and notification by associations of units' owners of common-interest communities. The first person to testify was Assemblyman Douglas A. Bache, Clark County Assembly District No. 11. Mr. Bache stated he has taken an interest in the area of the law regarding the powers, duties and responsibilities of home owners' associations. He said there have been a number of complaints from constituents stating some associations "enforce bylaws and regulations far exceeding the power of any local government." Mr. Bache said the bill will address those concerns. He said the provisions require that associations meet at least twice each year, that notice is given to home owners regarding all meetings, assessments, and fines. Mr. Bache stated he believes there will also be a legislative interim study concerning home owners' associations and their rules and regulations. Senator Titus said she is happy to see the legislation come forward, since she frequently receives calls from constituents with complaints regarding such associations. There was no further discussion or testimony on A.B. 510, and the hearing was closed on the bill. The chairman indicated a work session would be held on bills previously heard by the committee. The first bill to be discussed was Senate Bill (S.B.) 454. SENATE BILL 454: Requires prisoners and former prisoners to exhaust administrative remedies before pursuing tort action against department of prisons. SENATOR McGINNESS MOVED TO DO PASS S.B. 454. SENATOR TITUS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * The next bill brought forward was A.B. 40. ASSEMBLY BILL 40: Revises provisions that prohibit employers from taking certain adverse actions against employees who serve as witnesses. SENATOR PORTER MOVED TO DO PASS A.B. 40. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James commenced a discussion of A.B. 106. ASSEMBLY BILL 106: Provides for forfeiture of good-time credit on account of frivolous civil action. Senator James indicated he believes the bill to be a good one, but opined it provides a "pretty tough sanction," especially in subsection 3. He said all good- time credits will be forfeited, which could mean the difference between a 20-year and an 8-year sentence for an inmate. Senator Adler indicated another section of the bill provides that the prison director has the discretion to restore good-time credits. Senator Lee pointed out other legislation during this session has provided stiff penalties for attorneys who file frivolous lawsuits and stated he supports an equal penalty for a person already convicted of a crime. Senator Titus agreed, particularly since the director is given discretion. Senator Adler pointed out good- time credits are the only leverage a prison director has against an inmate who files such frivolous lawsuits. SENATOR PORTER MOVED TO DO PASS A.B. 106. SENATOR WASHINGTON SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * The next bill to be discussed was A.B. 395. ASSEMBLY BILL 395: Creates rebuttable presumption that upon dissolution of marriage, sole or joint custody of child by perpetrator of domestic violence or by former spouse convicted of sexual assault is not in best interest of child. Senator James indicated he has discussed the bill with the sponsor, Assemblyman Thomas Batten. Senator Titus said the only concern is the matter of language which states, "...each party has engaged in acts of domestic violence...determine which one is the primary physical aggressor...." She said, "Why would you give the child to the person who has fewer bruises, if they have both been involved in this kind of activity?" Senator James said he believes the language means, "If you can't determine one or the other to be the primary physical aggressor, then no side is entitled to a presumption," and the court will have to deal with what is in the best interests of the child. Senator Adler said he is not sure that is what the language sets forth, because of the words at lines 23 and 24, "...it [the court] shall then determine which person was the primary physical aggressor." He added it seems like that determination will have to be made, and "...they can't call it a tie." Senator Adler stated what Senator James set forth is what he would like to see in the bill, and Senator Titus agreed. The committee determined to add amended language so it will read, "...it shall, if possible, then determine...." SENATOR ADLER MOVED TO AMEND AND DO PASS A.B. 395. SENATOR TITUS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James asked Senator Adler to discuss S.B. 43 and A.B. 93. SENATE BILL 43: Makes various changes in judicial system related to treatment of certain persons who abuse alcohol or drugs. ASSEMBLY BILL 93: Makes various changes to provisions governing assignment of offenders to program for treatment of abuser of alcohol or drugs established by director of department of prisons. Senator Adler indicated the bills are related, but accomplish different things. He said the Assembly bill deals more with alcohol and drug problems when released from house arrest to employment. Senator Adler said the Senate bill deals more with making sure as many inmates as possible receive treatment for drug and alcohol problems, and that the Legislature receives reports as to whether such treatment is successful. He said both bills provide for forfeiture of good-time credits for failure to participate. Senator Adler indicated he has submitted an amendment to S.B. 43 which provides for forfeiture of 90 days in good-time credits. He said he also deleted the provision in A.B. 93 which states the only way an inmate can enter the program is by his or her own written consent. Senator Adler stated if the director requests the inmate enter the program, he must participate. He said, "I have a real hard time with inmates determining what they are and what they are not going to do." The chairman asked the committee members to review the information provided by Senator Adler so the matter can be discussed again at the next meeting. The next bill to be discussed was A.B. 338. ASSEMBLY BILL 338: Removes certain restrictions governing disposition of certain fees imposed by justices' courts. The chairman indicated the bill should have been referred to the Senate Committee on Finance. Senator Titus stated the reason for the bill is because more of the fees being collected are going to the counties, rather than to the state. SENATOR TITUS MOVED TO RE-REFER A.B. 338 TO THE SENATE COMMITTEE ON FINANCE. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * The next bill to be voted upon was S.B. 371. SENATE BILL 371: Expands circumstances under which person fleeing from or otherwise attempting to elude peace officer in motor vehicle is guilty of felony. Senator Washington indicated he is awaiting the completion of an amendment to the bill, which involves the speed at which the person was driving. SENATOR WASHINGTON MOVED TO AMEND AND DO PASS S.B. 371. SENATOR ADLER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James asked for a motion on S.B. 436. SENATE BILL 436: Revises provisions governing reports required of state public defender. SENATOR TITUS MOVED TO DO PASS S.B. 436. SENATOR ADLER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * The next bill to be discussed was A.B. 256. ASSEMBLY BILL 256: Increases penalty for abuse, neglect or endangerment of child where substantial bodily or mental harm exists. Senator Adler explained the legislation, "Once a parent has been convicted of child abuse, the judge must make a finding beyond a preponderance of the evidence that the child will not be re-injured, before the child is returned to the home." The committee suggested the language should state "clear and convincing evidence," rather than "preponderance of the evidence." SENATOR ADLER MOVED TO AMEND AND DO PASS A.B. 256. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James asked for a discussion of A.B. 302. ASSEMBLY BILL 302: Makes best interests of child determining factor in cases concerning termination of parental rights. Senator Adler stated the legislation stems from a case in which both parents were totally unfit, and the foster parents wished to adopt the child involved. Senator Titus said there was testimony that some parents perpetually leave their children in a foster home, but will not give up their parental rights so a child can be adopted. Senator Adler said testimony indicates there are over 800 children in foster care at this time beyond 18 months, "...where the parents have shown no interest...." SENATOR TITUS MOVED TO DO PASS A.B. 302. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James then moved to a discussion of the four bills on the present agenda, A.B. 510, A.B. 362, A.B. 374 and A.B. 297, in that order. SENATOR TITUS MOVED TO DO PASS A.B. 510. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * SENATOR ADLER MOVED TO DO PASS A.B. 362. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James asked if the committee members are agreeable to amending both A.B. 374 and A.B. 297 to reflect the "under age 17" language discussed earlier. Senator Lee stated he agrees with the change, but would not like to see either bill be lost if no agreement can be reached in both houses of the Legislature. Senator Washington stated he wishes to be on record in support of both bills and added, "We need to do some additional work as far as trying not only to hold parents responsible, but to find a mechanism to get them more involved in their children's lives." Senator James posed a question to Ben Graham, Lobbyist, Nevada District Attorneys Association, Office of the Clark County District Attorney, regarding the fiscal impact to the counties by virtue of a requirement that a graffiti fund be established and that graffiti "be cleaned up within 15 days or as soon as practicable." Mr. Graham, speaking on behalf of Clark County, said a position has not been taken by the county, and he does not see a fiscal impact at this time. The committee discussed earlier testimony by Patricia Justice, lobbyist for Clark County, who wants additional language regarding community service. Ms. Justice suggested the words "at least" be added on page 1 to the words, "...125 hours of community service." Lt. Galeoto, who testified earlier, stated he does not believe there will be a fiscal impact on Washoe County, but stated he needs to confirm the same. Senator James indicated he wishes to move on A.B. 374, and if there are any fiscal concerns, they will be addressed before the bill is taken to the floor of the Senate. Senator Porter asked to place on the record a matter concerning insurance companies and stated: We charge for youthful drivers substantially higher than an adult.... In many cases it is double. If that youthful driver is not driving, we can reduce the rates. The problem with this scenario as proposed, is that insurer would have to go to DMV[&PS], wait in line and get a written statement from DMV[&PS] that the license was actually suspended. That is OK, if that is the way we want it...but if we are able to get that information electronically, we will do it with no question. Senator James stated he supports the amendments to the bill, as does the sponsor, with the addition of the words "affixed to" on page 1, "at least" regarding community service, lowering the age to 17 and adding the insurance amendment (Exhibit F). SENATOR LEE MOVED TO AMEND AND DO PASS A.B. 374. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James indicated the same change to the age requirement will be made on A.B. 297. SENATOR LEE MOVED TO AMEND AND DO PASS A.B. 297. SENATOR TITUS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James next referenced S.B. 62. SENATE BILL 62: Increases burden of proof defendant must meet to establish defense of not guilty by reason of insanity. The chairman indicated since a bill was recently passed abolishing the defense of insanity, S.B. 62 should be indefinitely postponed. SENATOR TITUS MOVED TO INDEFINITELY POSTPONE S.B. 62. SENATOR WASHINGTON SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James asked for a motion to indefinitely postpone S.B. 331, since the sponsor has asked that it be withdrawn. SENATE BILL 331: Clarifies authority of unit-owners' association of common- interest community to commence certain actions for deficiencies in construction of common-interest community. SENATOR TITUS MOVED TO INDEFINITELY POSTPONE S.B. 331. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * There being no further business to come before the committee, the hearing was adjourned. RESPECTFULLY SUBMITTED: Marilyn Hofmann, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary May 24, 1995 Page