MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session May 31, 1995 The Senate Committee on Judiciary was called to order by chairman Mark A. James, at 8:00 a.m., on Wednesday, May 31, 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 Marcia de Braga Assemblyman P. M. "Roy" Neighbors STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Mary E. Henderson, Lobbyist, Washoe County James Mancuso, Justice of the Peace, Washoe County Paula Treat, Lobbyist, Nevada Judges Association Cherie Louvat, Executive Director, Food Bank of Northern Nevada Bobbie Gang, Lobbyist, Nevada Women's Lobby Robey Willis, Judge, Legislative Representative, Nevada Judges Association Laurel Stadler, Lobbyist, Mothers Against Drunk Driving, Lyon County Chapter Ben Graham, Chief Deputy, Clark County District Attorney, Lobbyist, Nevada District Attorneys Association James J. Jackson, State Public Defender, Office of the State Public Defender The chairman opened the hearing on the first bill on the agenda. ASSEMBLY BILL 206: Revises provisions governing existence of commissioner townships for civil marriages. The proponents of Assembly Bill (A.B.) 206 came forward. Mary E. Henderson, Lobbyist, Washoe County, and James Mancuso, Justice of the Peace, Washoe County, spoke in support of the bill. Ms. Henderson noted the bill is designed to remedy a problem that the Incline Village Township (Incline) is facing. Currently, she reported, there is a registered voter cap on the number of marriages that a judge can perform. The present law sets the limit at 20 marriages per month. Once the cap is met, Washoe County will have to assign a marriage commissioner to the township. As a remedy the bill moves the registered voter cap up to 7500 voters and will allow the justice of the peace to continue to perform the civil marriages. Judge Mancuso offered some background to the original legislation. He noted it attempts to keep the judges in the metropolitan areas, such as Reno and Las Vegas, out of the wedding business. Because of recent changes in the law, including the motor-voter bill, and some other factors, many more people claim residence in Incline than actual population attests. The job of justice of the peace in Incline is not a full-time position, Judge Mancuso stated, and he opined he should be able to perform civil marriages because it does not interfere with the performance of his other judicial duties. Ms. Henderson added Incline has about 8500 people, "population-wise" and despite that fact, the 6500 cap on registered voters has already been met. This reveals an inflated number of registered voters compared to the actual resident count in the township. Senator James asked if the 8500 people were year-round residents. Ms. Henderson stated they are registered voters, but it is felt many are not year-round residents. Judge Mancuso added the three wedding chapels in Incline have provided written support for the legislation. Paula Treat, Lobbyist, Nevada Judges Association, spoke next noting the presence of Judge Robey Willis who, along with herself, represents the Nevada Judges Association, and supports the bill. She asked the committee to pass the measure. Robey Willis, Judge, Legislative Representative, Nevada Judges Association, from the audience, voiced his concurrence with Ms. Treat's representation. There was no further testimony and the hearing was closed. ASSEMBLY BILL 305: Revises provisions governing liability for certain persons in connection with donated food and other grocery products. The chair opened the hearing on the next bill and Assemblyman Marcia de Braga brought A. B. 305 to the floor. Mrs. de Braga introduced Cherie Louvat, Executive Director, Food Bank of Northern Nevada, and explained the bill's intent. She noted the bill seeks to expand Nevada's Good Samaritan Laws by providing immunity from civil liability to persons who volunteer their time to collect and distribute food or other grocery products to needy people. Presently, all states in the union have some form of this law, the assemblywoman noted. The idea for the law germinated in a club at the University of Nevada, Reno, where students were interested in taking food in good condition, but left over from banquets and distributing that food to the homeless people of Reno. It was necessary for those students, as well as the banquet hosts to be immune from any liability, providing certain precautions were observed, she explained. A.B. 305 requires the food be wholesome and fit for human consumption; that it meets certain standards; and that anyone who distributes such items must also comply with all local applicable health standards, the legislator told. Additionally, the food must be donated in good faith to nonprofit or charitable organizations or to needy individuals, she noted. Ms. Louvat spoke to the committee. She provided them with a copy of her testimony (Exhibit C). Senator James asked if anyone in Nevada has been sued for providing such groceries. Ms. Louvat could not think of any, but speculated there may have been "some frivolous" suits brought throughout the United States. She explained most donors are concerned that adequate protection be available. This bill is based on the U.S. Government's model Good Samaritan bill, Ms. Louvat told, and the idea is that people who are donating wholesome food with good intentions should not be exposed to liability. There is provision for liability to arise if the parties are grossly negligent or through willful misconduct cause harm to the recipients of the donated food, she added. She also presented testimony from Garry Ray, Director of Special Projects for Raley's Superstores. This testimony is attached as Exhibit D. Mrs. de Braga wished to add the bill has been reviewed by the trial lawyers and others involved with the resort association, and these groups are in support of the measure as it is written. Bobbie Gang, Lobbyist, Nevada Women's Lobby, addressed the committee in support of the bill. She explained that in today's climate of reduced governmental funding for program to help the needy, the group believes this legislation will allow nonprofit organizations and for-profit organizations to serve the needy in Nevada. There was no further testimony on A.B. 305 and the chairman closed the hearing. ASSEMBLY BILL 277: Authorizes residential confinement as punishment for certain convictions of driving while license is suspended, revoked or restricted. The next bill to be heard was A.B. 277. Ms. Treat and Judge Willis came to the witness table to explain the bill. Judge Willis stated the bill was "crafted" by Judge Jay Dillworth of Reno, as part of the Judges Association's legislative package. The bill authorizes residential confinement as punishment for driving on a revoked license for a driving under the influence of intoxicating liquor (DUI). The witness opined there are good reasons for this bill, noting there are certain people, at certain times, who are better suited to residential confinement because they can maintain their employment. Also, the bill offers a way to reduce the overcrowded conditions in the jails, he said. Judge Willis pointed out the period of residential confinement is double the possible jail time for driving on a revoked license. The program calls for an ankle locator bracelet and frequent Breathalyzer tests. Senator Adler voiced his support for the bill expressing his view that justice courts should have more discretion for residential confinement because many of the people who are being incarcerated really do not need to be there. Residential incarceration is more cost effective, the senator noted, and in some cases it is better punishment. Ms. Treat voiced appreciation for Senator Adler's comments adding the overcrowding of jails forces lawmakers to come up with innovative ideas that still protect the community. In most areas of the state, the judges are familiar with the individuals who come before them and they can determine who is best suited for these programs. Judge Willis agreed with Ms. Treat. Judge Mancuso spoke briefly in support of the measure. He told of Incline Village's justices' court allowing residential incarceration through a stipulated agreement with the district attorney. This program is supervised by the constable, who is able to run a successful program. He asked the Legislature to validate the program that currently runs in a "grey" area of the law. Senator Adler asked the witness if he felt there should be a broader allowance for the residential confinement through the justices' courts. Judge Mancuso replied he felt it is already generally allowed, except in a couple of instances, which remain "grey" in their definition, such as second offense DUI. He opined such a move is not a good thing. Laurel Stadler, Lobbyist, Mothers Against Drunk Driving (MADD), Lyon County Chapter, voiced several concerns with the bill as well as with the section of law it encompasses, generally. She stated MADD can understand the possible need for residential confinement considering the problem of jail overcrowding; and agrees the doubling of the penalty, served without intermittent periods is a positive thing. Ms. Stadler told the committee that some people report that having a family member with a drinking problem have to spend their weekends in jail actually benefits their family. This occurs because the abuser is not able to go out on the weekend, spending their paycheck on alcohol or getting into other forms of trouble, she reported. Another point Ms. Stadler wished to make is that when individuals are stopped and cited for driving with a revoked or suspended license, they are stopped because they have committed some other offense. This is an important fact to keep in mind, she noted. Ms. Stadler referred to page 1, lines 21-22 of the bill. This provision allows the person to be cited for driving without a valid license if their term of revocation has passed, but the individual has not reinstated the license. Ms. Stadler attempted to make an argument that an individual who does not reinstate their license after a revocation should be forced to renew their license or face the harsher penalty. She observed the harsher penalty might be an incentive to reinstate the license. However, it was pointed out that persons who have passed the time of their revocation have "served their time" and to continue with the harsher penalty would be unconstitutional. Senator Adler interjected his understanding of the program requires an ankle bracelet, along with substance testing 4-times daily. Ms. Stadler explained she had discussed a house arrest program with an independent program provider. She said it was her understanding that different jurisdictions have different criteria for their programs. The senator noted it would be possible to legislative the criteria to include both ankle bracelet and remote alcohol testing. Senator Adler explained the judge's intent is to have both these criteria met. Ms. Treat came to the stand to explain the intent of the bill. The bill was left open in order to allow the criteria to be set for each jurisdiction depending on the available funding. Senator Adler pointed out the Division of Parole and Probation has the program available statewide. Ms. Treat said the bill intends to have the criteria met. Senator Porter asked what lines 21 and 22 really mean. Ms. Stadler stated it is her understanding that if a DUI offender is stopped while driving, sometime after the period for which his license was revoked, but he had not reinstated his license, he is subject only to the provisions of section 1, which is a misdemeanor driving without a license. The consensus of the discussion was the provision under lines 21 and 22 was necessary and right and they provide a consistency statewide that was not previously there. The chairman noted the bill only came before the judiciary committee because the overall theme of this legislative session is alternatives to incarceration and the overhauling of the criminal justice system. He stated he would not feel comfortable revamping the DUI laws, as they are really a transportation issue. Ben Graham, Chief Deputy, Clark County District Attorney, Lobbyist, Nevada District Attorneys Association, came forward to offer support for the bill. The current system is not very effective, he noted, and this bill gives the judges another alternative, that does not carry a mandatory 30-days in jail. This may result in a higher conviction rate, because the individual will not be facing such a long incarceration. There was no further testimony and the hearing on A.B. 277 was closed. ASSEMBLY BILL 535: Revises provisions governing penalty and penalty hearing for first degree murder. Opening the hearing on A.B. 535 the chairman call Mr. Graham who explained this bill is a "cleanup bill" from legislation passed in 1993. While the death penalty is one penalty for first degree murder, there are other penalties available, he noted. These penalties include life without the possibility of parole and life with the possibility of parole, the witness explained. He noted in 1993 it was determined there are instances when the jury in a murder trial that does not result in the death penalty should be provided with additional information that is not available during the trial, prior to deciding whether to sentence the individual to life with or life without the possibility of parole. Thus, Mr. Graham explained, legislation was passed and the trial became two-tiered with the guilt phase and, if appropriate, the penalty phase. At the penalty phase hearing, he told the committee, information can be brought that is not admissible in the guilt phase. Since the passage of the law, Mr. Graham stated, some judges have determined there must be an aggravating circumstance applied in order to sentence the individual to life without the possibility of parole. This, he asserted, was not the intention of the legislation. Senator James inquired why the judges would come to this conclusion. Mr. Graham could not answer, exactly, but speculated that providing the second phase (the penalty phase), judges in the northern part of the state adopted the stance that an aggravating circumstance should apply. This bill, A.B. 535, emphasizes the intention that there is no need to show an aggravating circumstance in order to justify the life without the possibility of parole penalty. Senator James again questioned the judges' assumption about the aggravator. Mr. Graham speculated it was because of the penalty hearing which allows additional information about the defendant. The senator asked if the second, penalty phase was mandatory. Mr. Graham replied in the negative, noting it is available, but not mandatory. He explained prior to 1993, the jury would find the defendant guilty and impose sentence directly thereafter. The legislation passed in 1993 was designed to allow the introduction of additional, extenuating information that might be of use to the jury prior to imposing sentence, he said. Senator Titus asked Mr. Graham if the separate hearing is being retained. He replied affirmatively, noting it can be waived by the state if desired. This hearing allows the jury to receive a more total picture of the defendant, he added. James J. Jackson, State Public Defender, Office of the State Public Defender, spoke regarding the bill, also offering his support for the bill. He agreed the judges had read an unintended meaning into the law, which was not the intent of the bill. He noted if an aggravating circumstance is shown, there is potential for a death penalty trial, and this not something the defense bar wants. He said, "The less (sic) of those that come along, the better, quite frankly." There was no further testimony on A.B. 535 and the hearing was closed. ASSEMBLY JOINT RESOLUTION 17: Proposes to amend Nevada's constitution to allow legislature to designate places in county other than county seat for holding terms of district court. The next bill to be heard was introduced by Assemblyman P. M. "Roy" Neighbors. Mr. Neighbors explained that Assembly Joint Resolution (A.J.R.) 17 would change the state constitution to allow the Legislature to designate places outside the county seat where the district court may conduct business. The assemblyman noted that Article 6, section 7 of the Nevada Constitution requires district court judges to sit in the county seat of their respective counties, unless any county is divided into two or more districts. In this case, the Legislature may designate the places for holding court. While counties would still have to seek legislative approval before district court could be conducted outside the county seat, this move would be beneficial to many of the geographically large counties which have to incur the costs of calling juries from communities far from the county seat. Mr. Neighbors offered Parumph as an example, noting Tonapah is the county seat of Nye County, and it is a 368 mile round trip from Parumph to Tonapah. The majority of the population in Nye County lives in Parumph, he testified, and the district judge there would like the prerogative to hold court in Parumph, rather than pay the travel costs of jurors from Parumph to Tonapah. The same situation exists in other counties of the state. The change would also assist Washoe County, Mr. Neighbors noted, by allowing district judges to hear commitment hearings at the Nevada Mental Health Institute in Sparks, Nevada, as well as allowing court hearings in the correctional centers of the state, the assemblyman explained. Mr. Neighbors emphasized the resolution will need to be passed, in its exact form, by both houses during this session and the next, as well as requiring the support of the voters, as evidenced in a general election. He admitted the problem could be addressed by dividing the counties into more than one judicial district, however, this results in an onerous fiscal note. By passing this constitutional amendment, Mr. Neighbors asserted, the fiscal impact is reduced to a point that will be determined by the county commissioners of the respective counties. Senator McGinness voiced his support for the resolution. He told he had discussed the proposal earlier in the session with the assemblyman and the fact that Parumph is growing so rapidly, and the uncertainty of court calendars makes the situation even more pressing. Chairman James noted the bill was a farsighted measure that looks ahead to the future growth of the state. There was no further testimony, and the hearing on A.J.R. 17 was closed. Senator James moved to the scheduled work session. SENATE BILL 513: Authorizes gaming control board to investigate certain crimes and increases fines for certain crimes related to gaming. Senator James explained the committee had heard Senate Bill (S.B.) 513 the previous day, but had failed to move on it. He stated it is in Nevada's best interest to govern its own house when it comes to gaming, and thereby avoid federal governmental intervention. Thus far, the state has been very successful in this regard. The instant bill is a measure to ensure that both licensees and patrons have no opportunity to use the casinos of the state to launder money. He called for questions or comments; there were none. The chairman then called for a motion to do pass S.B. 513. SENATOR LEE MOVED TO DO PASS S.B. 513. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER AND TITUS WERE ABSENT FOR THE VOTE.) ***** Moving on to the bills heard this day, the chairman referred to A.B. 206, reviewed its intent and asked for questions. There were none. He called for a motion to do pass the bill. SENATOR LEE MOVED TO DO PASS A.B. 206. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER AND TITUS WERE ABSENT FOR THE VOTE.) ***** Next, A.B. 305 was moved. SENATOR PORTER MOVED TO DO PASS A.B. 305. SENATOR WASHINGTON SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER AND TITUS WERE ABSENT FOR THE VOTE.) ***** Senator Porter observed there had been problems in Las Vegas with a nonprofit organization that was gleaning food. This occurred a few years ago, he remembered and asked if the problem was with the food gleaned or with the management of the organization. The response was the problem was with the management of the organization. Senator James pointed out this bill makes it clear that liability can arise if there is gross negligence or willful misconduct. The chairman moved to A.B. 277 which provides for residential confinement for driving while a license is revoked or suspended for DUI. Senator James opined the bill is a good proposal. SENATOR LEE MOVED TO DO PASS A.B. 277. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER AND TITUS WERE ABSENT FOR THE VOTE.) ***** The chairman called for A.B. 535 to be addressed next. It deals with the penalty phase hearing for offenses with a penalty is life with or without the possibility of parole. He asked if there were questions. There were none. SENATOR McGINNESS MOVED TO DO PASS A.B. 535. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER AND TITUS WERE ABSENT FOR THE VOTE.) ***** The final measure heard this day is A.J.R. 17 which allows courts to sit outside the county seat, Senator James noted. He called for questions. SENATOR McGINNESS MOVED TO DO PASS A.J.R. 17. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER AND TITUS WERE ABSENT FOR THE VOTE.) ***** SENATE BILL 286: Revises provisions relating to homestead exemption. Senator James noted the above bills will be voted on the floor in the next legislative day. He moved to S.B. 286 and asked Allison Combs, Senior Research Analyst, Legislative Counsel Bureau, to explain the Assembly amendment to the bill. Ms. Combs explained the amendment deals with the provision that was designed to address people who are soliciting the business of filing homestead acts. Apparently, she reported, there is abuse in this area, and the Assembly felt it is necessary to clarify that the provision applies to those who solicit such business. In the original bill there was general language saying "if a person is charging or accepting a fee," which could apply to anyone, including attorneys or accountants, who in the course of their regular business might charge a fee, but who do not actually solicit this business. Senator James read the rather convoluted language change, declaring it to be unclear. He asked if Senator O'Connell, the bill's sponsor, had approved the change. Ms. Combs replied she did not object to the change. After some discussion, the committee's consensus was the language would work, despite its confusing nature. Senator James called for a motion to concur in the amendment. SENATOR ADLER MOVED TO CONCUR IN THE ASSEMBLY'S AMENDMENT TO S.B. 286. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS McGINNESS AND TITUS WERE ABSENT FOR THE VOTE.) ***** ASSEMBLY BILL 393: Makes various changes related to possession of firearms by children and increases penalty for sale of certain firearms to children. SENATE BILL 42: Makes various changes related to possession of firearms by minors. Senator Adler explained his efforts to amend and coordinate A.B. 393 and S.B. 42. He noted "there are superior parts in both bills" and suggested the committee start with section 2 of A.B. 393 which says if a child is adjudicated for one of the juvenile firearms offenses, the court shall suspend their drivers' license for 2 years. There, he reported, Senator McGinness desired substituting section 4, page 2 of S.B. 42 , which provides a 1 year suspension and 100 hours of community service for a first offense. Thus, section 4 of S.B. 42 should be moved to replace section 2 of A.B. 393, Senator Adler stated, because it has a wider range of discretion for the judge. The second issue which is not addressed by A.B. 393 is when does a juvenile who has committed a weapons offense get certified to adult court, the senator observed. Page 3 of S.B. 42, section 6 states if a child is 14 years old or older and commits an offense which would be considered a felony if it were committed by an adult, the court shall hold a certification hearing to determine if it shall retain jurisdiction or certify the juvenile to adult court, he explained. The assembly bill does not address this issue, he told, and opined it should be addressed. Ms. Combs pointed out the certification issue is addressed in the Governor's bill and that is, perhaps, why it was not addressed in this Assembly bill. Senator Adler opined the committee desires to deal with the issue in the case of weapons use, noting there should be an automatic certification hearing for crimes such as drive- by shootings, or other weapons offenses by youth offenders. Senator James asked which section would be inserted, specifically. Senator Adler replied an amendment would be needed to insert all of section 6 of S.B. 42 into A.B. 393. Senator Titus recalled the committee changing the age to 16 years of age. Senator Adler corrected her recollection, noting the committee had decided to leave the age at 14. Senator Titus remembered much discussion of the issue, but felt certain the age was 16. Ms. Combs noted 14 years of age is consistent with the Governor's bill. Senator Titus agreed to leave the age at 14. Returning to the penalties portions of the bill, Senator Adler revised his suggestion noting that both sections 4 and 5 of S.B. 42 should be inserted to replace section 2 of A.B. 393. Otherwise, he reported, the two bills are very similar, and he asked Senator Washington what his conclusions on the bills were. Senator Washington noted his agreement with Senator Adler on the point of the certification hearing requirement. Senator Adler offered that Senator McGinness' suggestion for a combination of license suspension and community service makes more sense than simply revoking the license for 2 years. Senator James offered a review of the proposed amendments to A.B. 393; substituting section 4 of S.B. 42 for section 2 of A.B. 393; allowing the Department of Motor Vehicles and Public Safety to report license suspension to insurance companies, as long as it does not result in a rate increase to the policy holder; and making the definitional change on page 5 of the bill to the loaded weapon provision which clarifies a cartridge must be in the magazine, and the magazine must be in the firearm for a semiautomatic weapon to be considered loaded. He called for a motion to amend and do pass. SENATOR ADLER MOVED TO AMEND AND DO PASS A.B. 393. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** Senator Adler asked if the illegal sale of a firearm to a juvenile was still a misdemeanor in the Assembly bill. In the Senate bill it was changed to a felony to make it consistent with the crime bill. Senator Washington opined it was changed. Ms. Combs referred to section 13 of A.B. 393 which does define the crime as a felony. 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. Senator Washington, noting the previous day's floor session had resulted in A.B. 297 being put on the secretary's desk. The senator wished to state his "grave reservations" about the bill, and to notify the chairman that he would be voting against the measure when it comes to a vote on the Senate floor. Senator James noted the bill was placed on the secretary's desk in order to allow time for an amendment. He thanked Senator Washington for the notice of his intentions. Senator Porter also voiced his reservations regarding A.B. 297, noting the bill may have gone too far. He asked to see the proposed amendment prior to any vote on the Senate floor. The chairman thanked Senator Porter for his announcement, as well. He also announced the bill scheduled for hearing the next day would be postponed, and there is little time to reschedule another bill, with the proper notice. For this reason, the next day's hearing will probably be canceled, he announced. There was no further business before the committee and the hearing was adjourned at 9:40 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, chairman DATE: Senate Committee on Judiciary May 31, 1995 Page