MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session June 12, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:00 a.m., on Monday, June 12, 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: 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 Brenda Erdoes, Acting Legislative Counsel, Legislative Counsel Bureau Melanie Meehan-Crossley, Deputy Attorney General, Office of the Attorney General Randall L. Todd, Doctor, Epidemiologist, Chief, Bureau of Disease Control and Intervention Services, Department of Human Resources Harvey Whittemore, Attorney, Lobbyist, RJ Reynolds Company John "Jack" Jeffrey, Lobbyist, Tobacco Institute Sam McMullen, Lobbyist, Phillip Morris, USA Nancy Saitta, Child Advocate, Office of Advocate for Missing or Exploited Children, Office of the Attorney General The chairman opened the hearing on Assembly Bill (A.B.) 319. ASSEMBLY BILL 319: Provides for appointment of public defender in juvenile delinquency cases. Ben Graham, Chief Deputy, Clark County District Attorney, Lobbyist, Nevada District Attorneys Association, explained the bill to the committee. He told the committee a child charged with a criminal offense in juvenile court is entitled to an attorney, and in the vast majority of those cases one is appointed. There have been instances where there has been a public defender available to represent the juvenile, but the master at the hearing (taking the place of the magistrate) would appoint someone other than the public defender. This bill includes the juvenile master as a person who must appoint the public defender or contract attorney, unless there is good reason otherwise, Mr. Graham said. Additionally, at hearings held in the Assembly, language was inserted to create a mechanism to allow available funds or contributions by the indigent parents to be made toward the cost of the appointed attorney (subsection 2 of section 2). Another provision allows the appointment of an attorney for parents in cases of child abuse, the witness explained. If such an appointment is made, however, there must be clear reasons for it, Mr. Graham added. Mr. Graham stated he hesitates to bring out concerns related to the bill, but due to discussions and misinterpretations he talked with James J. Jackson, State Public Defender, who also sat at the witness table. Through a strict interpretation of the bill, Mr. Graham said, only a non-indigent could waive a court-appointed attorney. He explained there might be one minor amendment. Mr. Jackson referred to section 2 of the bill, lines 9-18. There appears to be an inconsistency in this section, as explained by Mr. Graham, he said. Apparently, only a juvenile defendant who is not indigent can waive the appointment of an attorney. Mr. Jackson suggested that since both indigent and non-indigent defendants can waive an attorney, after being advised of their rights and the charges against them, it would be wise to add language at line 13. About halfway through the line he suggested adding the words, "unless waived." Thus, the sentence would read from the beginning of line 13, "...at all stages of the proceedings, unless waived." Mr. Jackson reminded the committee that chapter 61 of the Nevada Revised Statutes (NRS) clearly requires the magistrate, master, or district judge to fully inform the juvenile and his parents what the charges are, what the juvenile's rights are, and what can happen if the juvenile is found guilty or admits to the charges. The waiver could not occur until after the parties (juvenile and their parents) were fully informed about what was occurring, he emphasized. Mr. Graham told the committee that was the extent of the bill, noting it is mainly a "cleanup" measure, in an attempt to clarify any ambiguity that may arise. There was no further testimony on the bill and the chairman closed the hearing on A.B. 319. The senator also advised the audience of the committee's desire to move bills the same day they are heard, unless there is some potential controversy, due to the lateness in the session. ASSEMBLY BILL 514: Revises provisions governing smoking areas in public buildings. SENATE BILL 316: Revises provision governing smoking of tobacco in public buildings. Senator James reminded the committee there had previously been a bill before the committee dealing with the same issue. Senate Bill (S.B.) 316 was indefinitely postponed by the committee, he stated. Both bills amend the same chapter of the NRS, the chairman told, reading the summary for S.B. 316 and explaining its provisions. The instant bill, A.B. 514, would remove the requirement that the person in charge of a public building provide a separate smoking section. The proponents of the bill were called forward. Brenda Erdoes, Acting Legislative Counsel, Legislative Counsel Bureau, and Melanie Meehan-Crossley, Deputy Attorney General, Office of the Attorney General, came to the table to explain the need and intent of A.B. 514. Ms. Erdoes said she was simply here as the person able to explain the provisions of the bill. Ms. Erdoes explained that the bill was requested by the Assembly Committee on Ways and Means. Ms. Erdoes explained the bill and the history behind its genesis. She told the committee the Legislative Counsel Bureau (LCB) had received an attorney general opinion, drafted by Ms. Meehan-Crossley, which anticipated what would occur if pending federal regulations concerning tobacco smoke in the workplace became effective. These federal regulations would require the smoking area in a workplace to have a separate area in the building with a separate system to exhaust the air to the outside. Such a regulation, combined with the current Nevada law which requires a smoking area in all public buildings, would have a serious fiscal impact. This information was passed on to the Assembly Committee on Ways and Means, and they requested this bill, Ms. Erdoes said. This is not a revisors bill, she added, and the LCB does not support or oppose the legislation. Additionally, the bill is drafted oddly, Ms. Erdoes opined, pointing to line 21 of page 1, which adds paragraph b to the section. The current law, as outlined under subsections 2 and 3 of section 1, remains the same. Subsection 2(2)(b) says the person in charge of the building may designate a smoking area. Subsection 3 says the personnel shall..., Ms. Erdoes noted, but it is being removed by this bill. Thus, the bill allows, rather than requires, a person in charge of a public building to create a separate smoking area. One other point, Ms. Erdoes emphasized, is on page 2, line 46, which provides a delayed effective date. This is to allow the bill to become effective only if a federal law or regulation requiring a special room or specialized equipment for smoking becomes effective, and only if it becomes effective before February 1, 2000. This gives the Legislature 5 years to clean up the statutes if the federal regulations do come into effect. Senator Adler asked for more clarification. Ms. Meehan-Crossley addressed the senator's question. She explained it is her job to field all the calls to the state regarding smoking laws. She also reported she is the person who researched and drafted the attorney general's opinion Ms. Erdoes referred to earlier in testimony. Ms. Meehan-Crossley explained the proposed federal regulations do not require a designated smoking area, but if there is one it must have a separate exhaust system with a negative air pressure, with outside exhaust. These are proposed federal Occupational Safety and Health Administration (OSHA) regulations, she told. The witness said current Nevada law requires each public building to have a smoking area and requires that there be no smoking in the non-designated area. As a result, this bill proactively prevents the necessity of having to retrofit state buildings to meet the OSHA requirement. If the bill is passed it will allow the building manager or the person in charge of the building to decide whether or not have a smoking area, thus it will eliminate the huge fiscal impact that the federal regulations would bring. Senator McGinness summarized the bill as stating if the federal regulations are passed the buildings could still have smoking areas. Ms. Meehan-Crossley agreed the buildings may have the smoking areas, but are not required to have them. However, if it is decided to have them, the building director will have to meet the federal OSHA requirement. The witness rephrased the bill as saying there may be a smoking area, if the building manager or owner can afford to do it. If the cost is too high, there will no longer be a requirement that a smoking area be provided, she explained. Senator James asked if the bill is premature. Ms. Meehan-Crossley replied it is premature only if the OSHA regulations are not passed. The chairman asked what the OSHA process usually is in regard to promulgating regulations. Ms. Meehan- Crossley explained OSHA has been taking public testimony on the issue for several months. The proposed regulations are very complicated and would impact the casinos greatly, she added. The casinos are lobbying Congress strongly to not pass this regulation. The witness could not offer an accurate estimate as to whether the regulations will pass in their present form, because they are being "hotly debated." If the regulations were to pass between legislative sessions, without this bill the state would be liable for retrofitting all the smoking areas in public buildings, Ms. Meehan-Crossley opined. She added if the regulations are passed at all, it will be before the next legislative session, but they may not be enacted at all. Senator Lee wondered if there was any likelihood that the passage of the federal regulations would necessitate a special session of the Legislature to address this problem. Ms. Erdoes noted this question was raised in the ways and means committee. There was no good answer, she reported, but usually when Congress passes a law that directly affects the states, there is a window of time to allow for biannual Legislatures to enact the laws. In this case, the proposed regulations do not allow a period of adjustment, but it could be added, she stated. Additionally, there are not a lot of states like Nevada that absolutely require a smoking area in a public building. This is what would cause the problem, she told the committee. Senator Lee voiced concern that, if the state anticipates the federal action and passes this legislation proactively, what message will the federal government receive. He speculated the message would be to the effect, "go ahead and do what you want to do, we're prepared now." This would allow, and even put the state in the situation of participating with the federal government's continued "beating up" on the states, he opined. He stated the media predicts a lot of things from Congress, but there have been no other pieces of state legislation to take a proactive stance in anticipation of these predicted Congressional actions. The witnesses stepped down. Next, Randall L. Todd, Doctor, Epidemiologist, Chief, Bureau of Disease Control and Intervention Services, Department of Human Resources, came to the table. He spoke in support of the bill, for reasons of public health. His testimony is attached as Exhibit C. There were no questions for Dr. Todd and he stepped down. Harvey Whittemore, Attorney, Lobbyist, RJ Reynolds Company, John "Jack" Jeffrey, Lobbyist, Tobacco Institute, and Sam McMullen, Lobbyist, Phillip Morris, USA, came to the witness table in opposition to the bill. Mr. Whittemore proclaimed this bill would "renew the debate" dealing with the balance reached between smokers and nonsmokers in public buildings in Nevada. He opined the most important point was that raised by Senator Lee; sending the wrong message to the federal government about a policy decision in OSHA. There have been over 100,000 letters sent against the regulations, along with over 1,000 people who have testified against their implementation, he reported. Mr. Whittemore reminded the committee that Nevada has an OSHA preemption status which allows it to respond to such regulations in a fashion that is most appropriate and timely. To make this proactive legislation sends the message that we are anticipating and more than willing to comply with their proposed future regulations. Additionally, the anti-smoking faction would be able to point to this bill and claim Nevada has changed its policy with respect to smoking in public buildings, Mr. Whittemore opined. On behalf of the casino industry, and the trade industry generally, the witness stated, these proposed regulations would have a widespread impact that is hard to even imagine. He speculated the proposed regulations would probably not pass because of the intense opposition being expressed to Congress, but it seems premature to anticipate and legislate their actions. Mr. Jeffrey supported the testimony of Mr. Whittemore, adding smoking in the workplace could potentially involve every building in the state. There were representatives from a wide variety of industries at the hearings in Washington to oppose these regulations, he explained. Additionally, organized labor has taken a position, he reported, that the important thing to be considered is to require a workplace to be properly ventilated in any case. There has been much discussion of the air quality generally, he stated, and apparently new ventilation systems do not bring in the same amount of outside air as used to be provided. This has resulted in a deterioration of the air quality, not from smoke, but from bacteria, he said. Mr. Jeffrey also represented the organized labor groups prefer to allow states to formulate their own air quality regulations. He told the committee the state has its own OSHA program which would allow sufficient time to respond to any federal OSHA rules that may be promulgated. Senator James asked for confirmation that organized labor would prefer OSHA regulations on a state-by-state basis. Mr. Jeffrey confirmed this, reiterating their concern was greater that buildings be properly ventilated in every case, whether smoking is allowed or not. Mr. McMullen told the committee he has personally participated in the process of developing the federal regulations. He went as a representative of various casinos, he reported, along with the Nevada Resort Association. It is highly unlikely the regulation will pass in anything close to its current form, he reported, and this makes this bill even less necessary. Additionally, since Nevada is a preemption state for OSHA, the state will be given time to bring its laws, regulations, and other operating practices into compliance. The chairman asked for an explanation of the term "preemption state." Mr. McMullen explained Nevada implements its own OSHA regulations. Mr. Jeffrey interjected Nevada has its own program, which originated in the early 1970s. The reason, he told, is because the state felt it could do a better job than the federal government could. States have the option to participate this way, he added. Mr. McMullen continued by telling the committee Congress is required to respond to every single comment filed (over 100,000), and this will require a long time. Also, the proposed regulation uses an office building model, which is not easily translated to all workplaces. There are so many issues and questions in the proposed regulations to be addressed, Mr. McMullen reported, that it is virtually impossible to assume they will be passed as drafted. Senator James asked if the witnesses were present to testify at the hearing held in the ways and means committee, and what the Assembly vote was. Mr. McMullen explained there was a great concern about the fiscal impact and "they overreacted to the point where it was unanimous in both [the committee and the house]." The senator assumed the committee in the Assembly "viewed it as a purely fiscal issue." He asked what the fiscal impact would be. Mr. Whittemore stated, "We cannot envision the circumstances under which the adoption of the regulations would occur and the state would have to implement them immediately. He admitted the opponents to the bill did "a poor job of monitoring [the bill]," because it was assumed it would not get support. Mr. McMullen also told the committee the preempt status allows the state to implement their own regulations as well as enough time to put them in place. Senator Titus observed this type of regulation coming from Washington D.C. seems to be against the tide that allows more decision-making at the state level. Mr. Whittemore agreed with this observation, and stated it is difficult to believe the regulations will be put into place in their current form. He also reiterated that passage of A.B. 514 will simply send the message to the federal government that Nevada interests do not care about the regulations. This is absolutely not true, he emphasized. Senator James observed the Nevada Legislature, in recently passed laws, has attempted to send the message that it is important not to expose people who do not want to smoke to the smoke of others, but it is also important to allow those who choose to smoke to be able to do so. There was no further testimony on the bill and the chairman closed the hearing. ASSEMBLY BILL 567: Authorizes expediting proceedings in juvenile court and trials involving children as witnesses or victims. The proponent of A.B. 567, Nancy Saitta, Child Advocate, Office of Advocate for Missing or Exploited Children, Office of the Attorney General, spoke to the committee. She told them it is a simple, straightforward bill which puts the interest of a child who is a victim or witness to a crime at issue. The bill will require the judge to consider the interests of the child victim or witness when granting continuances. A.B. 567 is drafted to ensure the defendant's rights are not affected, nor that the child victim's or child witness' rights are superior to anyone else's, but merely on an equal footing. However, when children are involved in a court proceeding the extra stress or emotional hardship suffered by children in these proceedings should be a factor in the decision to grant a continence of a hearing, Ms. Saitta explained. Court proceedings are a difficult and drawn out process for all parties concerned, the witness told, but in the life of a 5-year-old child, 1 year is a full one-fifth of his lifetime. There are many studies that confirm there is a traumatic effect from the ongoing criminal justice system on a child witness or victim. It is the goal to protect the child's emotional well-being, Ms. Saitta said, that has prompted introduction of this measure. Senator Adler asked the witness if there are other states that have similar language in their statutes. Ms. Saitta told him that nearly one-half of all states have a statute of this nature, in one form or other. She offered to provide a list of those states to the senator. There was nothing further on the bill and the chairman closed the hearing on A.B. 567. He moved to the scheduled work session. ASSEMBLY BILL 131: Provides for regulation of inter-casino linked systems related to gaming. Mr. Whittemore was asked to confirm the Assembly did not concur in the amendments proposed by the Senate which were requested by Mr. Whittemore. Mr. Whittemore explained there was a technical error made in the last drafting. He asked the committee to request a conference committee to allow the error to be corrected through a technical amendment to the last transitory section. On line 35, page 4 of the bill, Mr. Whittemore explained, "...that is licensed for games other than slot machines..." needs also to be added on line 6, otherwise there would be an internal conflict in the bill, which could lead to the interpretation that, even though section 17 was transitory, without the additional language, it would allow parties to do those activities prohibited in subsection 4, page 4. Thus, the witness explained, the bill is missing the phrase and it needs to be inserted. There were no questions regarding this and the chairman called for a motion to not receded in the Senate amendment to A.B. 131. SENATOR McGINNESS MOVED TO NOT RECEDE IN THE SENATE AMENDMENT TO A.B. 131. THE MOTION WAS SECONDED BY SENATOR LEE. THE MOTION CARRIED. (SENATOR WASHINGTON WAS ABSENT FOR THE VOTE.) ***** Senator James assigned himself and senators Titus and McGinness to the conference committee. The chairman moved to the bills heard this day. He asked if there were any questions on A.B. 567. There were none. He called for a motion to do pass the bill. SENATOR TITUS MOVED TO DO PASS A.B. 567. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR WASHINGTON WAS ABSENT FOR THE VOTE.) ***** Next, the chairman moved to A.B. 514 which would change state law to comply with an anticipated federal regulation. He summarized the sentiment of the committee to be that the bill was premature. He called for a motion to indefinitely postpone the bill, if indeed, this is the sentiment of the committee. SENATOR LEE MOVED TO INDEFINITELY POSTPONE A.B. 514. SENATOR PORTER SECONDED THE MOTION. Senator Adler stated that, while there had been testimony to the effect the Legislature had never passed anticipatory legislation, he recalled passing such legislation in relation to airports and air quality. Senator James opined the Legislature was "under the gun" on that bill, but Senator Adler observed the federal government then failed to follow through on their regulations. THE MOTION CARRIED. (SENATOR WASHINGTON WAS ABSENT FOR THE VOTE.) ***** Senator James asked the witness, Mr. Whittemore, to explain to the Assembly ways and means committee the reasoning behind the judiciary committee's action on their bill. He offered to meet with them, if necessary. A.B. 319 was brought next. This bill would clarify the appointment of the public defender in juvenile delinquency cases, the chairman explained. The amendment requested at line 13 would add the wording "unless waived" to the end of the sentence there. He called for questions or comments. There were none. SENATOR PORTER MOVED TO AMEND AND DO PASS A.B. 319 AS EXPLAINED BY THE CHAIRMAN. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** Senator Titus referred to the bill dealing with enhanced penalties for crimes against the handicapped. She said the bill came out of bill drafting too late and the proponents will work on it during the interim. She told the chairman he could indefinitely postpone the bill if he desired. Senator James said he would address it later rather than postponing it indefinitely. 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 Adler explained he wished to offer an amendment to A.B. 297 to insert the same parental responsibility portion as was contained in another similar bill. He asked for committee input on this idea. The chairman asked if there had already been sufficient debate on that issue. Senator Adler agreed it had been debated quite a bit, but he finds the two bills to be inconsistent. Senator Adler explained he was not looking for a committee amendment, but rather simply wanted to inform the committee of his personal intention to request such an amendment on the Senate floor. The chairman thanked him for the information. ASSEMBLY BILL 134: Revises provisions governing short-term tenancies. Senator James moved to A.B. 134 and asked Senator Porter explain to the committee the results of the subcommittee hearing on the bill. Senator Porter explained the bill has to do with weekly rentals and eviction notices. He asked the committee to refer to page 1 of the bill. There are two options that will be acceptable to both sides of the issue, he explained: first, line 14 says "45 days," this is acceptable and will remain; second, the question of who should deliver the notices, and the amount of time allowed were considered. The senator said the decision would be to allow 4 calendar days with an overnight delivery (costing $8-$12 in postage) or to allow 5 calendar days (with certified mail delivery). The problem arises because some of the apartment facilities are the mail service also, because they are a "Mailboxes type place," he said. Senator Lee had suggested those facilities could use certified mail, since they are already the mail service and do the mail delivery. On page 5, line 10, there would remain the option, with the preference for, personal delivery of the notice, in the presence of a witness. Thus, the decision needed is to decide whether to go with the 4 calendar day, overnight delivery; or the 5 day, certified option. Senator Porter explained the landlords would prefer the fewer day's notice, and the tenants would prefer the longer time. Senator Adler explained there is a problem with certified delivery because the recipients tend to not accept delivery. With the overnight mail, there is evidence of the delivery because of the personal delivery. Senator Porter opined it would be possible to leave it an option. Senator Adler stated he supports the overnight delivery option due to the greater assurance of delivery. Senator Porter explained the subcommittee discussion noted the tenant already is aware they have not paid their rent. The question is to decide which option for delivery. Discussion followed and the committee finally decided to allow the option for either method of delivery to be in the law. Senators Adler and Washington voiced support for this. Senator Lee asked if the option to choose a delivery method is allowed would it still allow those complexes which are in the mail service business to continue to personally deliver the notice in the presence of a witness. This was confirmed. SENATOR PORTER MOVED TO AMEND AND DO PASS A.B. 134 AS OUTLINED IN THE ABOVE DISCUSSION. SENATOR TITUS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** Senator Lee noted for the record that he is a landlord, but he does not feel there is any conflict of interest and he only rents property on a lease basis of 6 months or 1 year. There was continued discussion about the status of various bills pending before the committee or awaiting amendments. No action was taken. There was no further business and the committee adjourned at 10:10 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary June 12, 1995 Page