MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session June 16, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:30 a.m., on Friday, June 16, 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: Assemblyman Michael A. Schneider Assemblywoman Dianne Steel Assemblyman Richard Perkins STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Eric Cooper, Lobbyist, Las Vegas Chamber of Commerce Greg Harwell, Lobbyist, California State Automobile Association Paula Treat, Lobbyist, Nevada Judges Association Eleissa C. Lavelle, Attorney, Lobbyist, Community Associations Institute Andy Maline, Vice President, Community Associations Institute I.R. (Renny) Ashleman, Lobbyist, Commission for Binding Arbitration/Dispute Resolution Commission and Southern Nevada Home Builders Association Becky Lu Brown, PCAM, Owner, Community Consulting Services John L. Gibbons, Investigator, Real Estate Division, Department of Business and Industry Jean Georges, Citizen Lansford Leavitt, President, Nevada Dispute Resolution Services Pat Coward, Lobbyist, Nevada Association of Realtors Nancy M. Saitta, Senior Deputy Attorney General, Human Resources Division, Office of the Attorney General Ben Graham, Chief Deputy, Clark County District Attorney, Lobbyist, Nevada District Attorneys Association Richard Gammick, District Attorney, Washoe County John C. Morrow, Chief Administrative Deputy, Washoe County Public Defender Margaret Springgate, Legal Counsel, Governor's Office Chairman James opened the hearing on the first bill and welcomed Assemblyman Michael A. Schneider to the hearing. ASSEMBLY BILL 540: Increases monetary limits relating to small claims in justices' courts. Senator James asked the assemblyman to explain the purpose of the bill, since the Legislature had addressed the same issue in the last session. Mr. Schneider explained he brings the bill because he was not involved in the "background negotiations" during the last session. He noted many businesses, particularly auto dealers and real estate companies, must discount their claims against parties in order to qualify for small claims court. If these businesses cannot meet the $3500 cutoff to get into small claims courts they must pay an attorney to represent them. Thus, he said, there is a lot of support from the business community for a raise in the dollar limit. Mr. Schneider admitted the judges are not in favor of this measure, noting "they never like it," but, there were discussions held with them and they "signed off on it." He reported the original small claim limit proposal was for $10,000, but the compromised limit came in at $5000. Senator James interjected that Paula Treat, Lobbyist, Nevada Judges Association, was indicating from the audience that the judges concurred but were "not acting on free will." Mr. Schneider disagreed, noting Ms. Treat always acts on free will. The assemblyman explained the filing fee was raised to $85 for any small claims in the $3500 to $5000 range. This, he reported, made the judges more agreeable to the concept. Senator James asked the witness how this proposal will help the public. Mr. Schneider replied it will help the small businessman, who is part of the public. This bill will save these small businesses "$10,000" in attorney's fees needed to defend a $10,000 claim in court, the witness testified. Senator Lee observed that the true answer to the chairman's last question is this bill will not help the public. He observed the testimony was that the small businesses were discounting their claims in order to qualify for the small claims court, and as a result the members of the public who are the subjects of the claims are facing a smaller claim. This would appear, the senator noted, to be more of a benefit to the public than raising the limit. He stated he is willing to agree this is a small businessman's bill; but to help the people, the law should remain the same as it is currently. Eric Cooper, Lobbyist, Las Vegas Chamber of Commerce, explained the chamber of commerce likes this bill. In fact, they preferred the original limit request of $10,000, and the $5000 figure is a compromise. He admitted the limit was raised at the last session, but he reminded the committee there is a great deal of discounting done by the businesses, which costs them quite a bit of money. Additionally, the business people are developing the skills necessary to effectively use the small claims courts and would prefer to be able to use them more often. For these reasons, the chamber believes this is a good bill for the small business person. He pointed out that these small businesses are owned by members of the public. Mr. Schneider added that Judge Nancy Osterly, a constituent of Assemblywoman Barbara Buckley and the chairman, met with a subcommittee held by the Assembly judiciary committee and negotiated for this $5000. He told the committee that Ms. Buckley not only supported the measure but is a sponsor of it Senator Porter suggested the committee look to the merits of the bill, rather than the sponsorship. The witnesses stepped down. Greg Harwell, Lobbyist, California State Automobile Association, spoke in opposition to the bill. Mr. Harwell spoke from prepared testimony (Exhibit C). When asked what the highest amount allowed for small claims was in the country, he stated the original proposal for $10,000 would have made Nevada the highest, but he could not say which state currently has the highest limit. When Mr. Harwell noted small claims courts would limit the amount of pretrial discovery done for a substantial monetary claim, the chairman interjected that most actions in small claims courts are for unpaid bills, which do not really require much discovery. Mr. Harwell countered that is not necessarily true. In California there are more and more personal injury cases being filed in small claims court. The chairman replied the only real concern would probably be the assertion of an affirmative defense to counter such a claim. He asked the witness if this is so. Mr. Harwell agreed this may be one of the problems, but it has been his experience in California that "unscrupulous law firms would--for a fee--script out a case and send the plaintiff off to small claims court" where they would meet up with an unprepared and unsophisticated defendant. These defendants would be unable to respond to the scripted attack of the plaintiff who was coached by the attorney. Mr. Harwell concluded his testimony, noting $3500 is an appropriate amount for small claims court, where people come to settle their differences without a lot of "hassles." Ms. Treat spoke next, stating, when asked, that she was speaking neither for or against the bill. She explained she finds herself in an awkward position because she is friends with the proponents of the bill. On the other hand, the judges association negotiated the same issue last session, in good faith, with then-Senator Matt Callister, who promised it would not come up again. She represented that during the processes of the subcommittee hearings on the issue this session, she was faced with a group of people who were adamant that something be done. Ms. Treat testified that when the subcommittee asked her if $5000 was alright with the judges, her reply was, "If we have to go, $5000 is as high as we [can] go." Ms. Treat explained she finds herself in a "catch-22" because if nothing is done this session it will be brought up again next time, and if something is done this time it will be brought up again next time. The issue does not seem to go away, she emphasized. The judges association feels they are the people's court, she testified, and if Nevada raises the limit to $5000 they will have the second highest limit in the country. Senator James declared he has learned his lesson. He noted the issue was thoroughly examined and debated during the previous session, and he is hard- pressed to understand the need. He asked the committee how they feel about the issue. Senator Adler pointed out the committee has already passed a measure which allows businesses to hire an agent, who is experienced and adept at handling these small claims matters, to represent them effectively. This gives the businessmen a major advantage over the average consumer who would be faced with the action in small claims court, he observed. He asked someone to address that change in relation to this proposal. Ms. Treat agreed with the senator. She noted there are many bills around which could negatively impact the state courts, which are already burdened with full calendars. There are not enough judges, nor enough financial backing, she testified, to hire personnel to process all the work the courts face. She asked the Legislature to take an opportunity, in some interim, to examine the lower courts in an attempt to gain a clear perspective of their situation and to examine possible ways to make them work better. There was no further testimony on Assembly Bill (A.B.) 540 and the chairman closed the hearing. He moved to the next bill, brought by Assemblyman Schneider, A.B. 152. ASSEMBLY BILL 152: Requires arbitration or mediation of certain claims relating to residential property. The assemblyman explained this bill is very important to the citizens of Clark County, as well as being a good step toward tort reform. Mr. Schneider reported that currently 60 percent of all people in Clark County live under some type of community association. Virtually all the new homes being built in the county are in an association. This is supported by the city and county government because it shifts some of the governmental responsibilities to the associations which are like "mini-cities," the witness said, with their own "little" governments, police forces, etc. Unfortunately, these mini-cities are without real enforcement authority and the residents and boards of directors are at war with each other, the assemblyman reported. There have been efforts to devise a solution to this problem, Mr. Schneider said, with representatives of the Community Associations Institute (CAI) working with the assemblyman to draft this legislation. He reported there was much public testimony on the problem during hearings held in the Assembly, and many stories were told of the extent to which the animosity exists between these boards and the residents of the community. This bill proposes for any problems between the residents of the community or the residents and the board, Mr. Schneider explained, the parties go to arbitration or mediation, rather than court. He opined this first step will result in most of the dispute being resolved before they make it to court. Especially since most of the disagreements end up as personality conflicts, rather than conflicts over substantive issues, he stated. Senator James asked how it is decided whether mediation or arbitration is used. Mr. Schneider told him the parties must choose, and they must both agree. Mr. Schneider told the committee the Assembly had amended the bill, but it did not come out of bill drafting quite as intended, and therefore, there are some small changes to be made, as time allows. He reported the Assembly ways and means committee approved the bill due to its minimal fiscal impact. He noted the Real Estate Division requested the bill become effective January 1, 1996, and there is no opposition to this request. He offered to answer questions from the committee. Senator Porter told the witness he had read newspaper articles which told of these community problems, referring to the parties involved as "condo commandos." This is because the problem is way out of hand, with physical assaults and emotional and psychological warfare. This bill is very much needed, he opined, and offered his support for the bill. Mr. Schneider informed the senator the bill covers all real property that is covered by covenants. The assemblyman turned the floor over to the next witnesses, who were there to explain the technical aspects of the bill. Eleissa C. Lavelle, Attorney, Lobbyist, Community Associations Institute, and Andy Maline, Vice President, Community Associations Institute (CAI) came forward. The chairman asked the witnesses if the bill allows the parties to choose from mediation and arbitration that is binding or nonbinding, depending upon their agreement. Ms. Lavelle responded affirmatively. He asked if the parties could then file an action in court and go to trial. He asked also what would be the effect of an adverse, nonbinding arbitration. Ms. Lavelle reported the intent was to provide some "bite" to the law because it is believed it is important that people understand the significance of the arbitration. It is not simply one more layer of bureaucracy that people would have to go through. If the award made by the arbitrator is not bettered by the court, should the parties proceed to that venue, then the party taking the action to court will be bound to pay the attorney's fees and costs of the opposing party, she explained. Thus, the law should make the parties pause to consider whether the court action is really justified and worth the possible expense. It is not the intent to foreclose access to the court, but it is important to make the arbitration a legitimate means of resolving these conflicts. Senator James asked if the losing party would have to pay only the attorney's fees and costs for the court action, but not the arbitration. He read from the bill. Ms. Lavelle replied the senator is correct, and it would be the costs incurred after the filing of the petition for rehearing or a complaint for suit. The intent of the bill is to make it clear that the costs incurred after the trial de novo or the rehearing is requested, would be those paid by the party that requested the rehearing or trial and still does not receive a better award. Senator James opined it would not be a rehearing if the matter is moved from the arbitrator to the court. Ms. Lavelle stated it was her understanding the parties would only have one arbitrator. Senator James agreed with the witness. He noted the parties are entitled to challenge the decision collaterally on the basis of fraud or the arbitrator exceeding his authority, without having to pay the attorney's fees. Ms. Lavelle explained that any time the matter proceeds to court the parties will be exposed to fees, as the bill is currently drafted. She expressed her preference to allow the parties to challenge the hearing collaterally without having to pay fees of the other party. Ms. Lavelle explained the bill is designed to allow the parties mediation, if both parties agree to it. If the mediation is not successful, or if a decision cannot be made, or if no mediation is sought, the matter will go to arbitration. The parties can elect to make the arbitration binding, in which case there is no court review; or they can decided to have nonbinding arbitration, with the option of a rehearing before the court or filing for a trial de novo before the court. Therefore, the exposure to fees only applies to arbitration and not mediation, the witness stated. Mr. Maline spoke next, telling the committee the history of this bill. He explained the bill is designed to cover all property with covenants, even those with no architectural committee or board of directors to enforce the covenants. This bill is unique to Nevada, he told, and it is beneficial to the citizens because it provides a low-cost and expedient means of dispute resolution. He voiced support for the Real Estate Division's request to postpone the effective date of the bill. Ms. Lavelle told the committee she has been very active in the process of drafting this bill. As an attorney that works with community associations, she stated, she has noticed the same issues develop over and over again. The need for the association to repeatedly defend the same issue is very costly to all the members of the association. This bill will provide a means to quickly, easily, and expertly resolve the disputes in the communities. She explained there are some changes to the bill being requested. They relate to section 6, Ms. Lavelle told, and one would add a requirement that the fees charged by the arbitrators and mediators should be provided to the litigants in order to allow an informed choice. The second change would be a minor word change; the requirement that the parties offering the mediation or arbitration should be trained in one or the other, but not both. Thus, if the service offered is mediation, it should not be a requirement to be trained in arbitration, she explained. The chairman pointed out the bill says the board "may require" that they have training. Ms. Lavelle responded it is the hope that they will have the training because it is one of the chief components of the bill. The senator read the section again and the intent was clarified to be the board may require proof of the training. Finally, Ms. Lavelle noted, the bill currently includes an incomplete list of the sources for arbitrators or mediators. She asked that the list be expanded to include all possibilities such as the American Arbitration Association, Nevada Arbitration Association, Communities Associations Institute, Nevada Dispute Resolution Service and Mediators of Southern Nevada, Inc.. Another alternative would be to remove the list altogether. Senator Adler interjected there seems to be no real utility in listing the groups, because they could change over time. He supports requiring training in either mediation or arbitration, but there are other persons who may have expertise in the area, but would not appear on the list. Ms. Lavelle reiterated the group would support the alternative of listing no specific groups. Senator James asked what section 10 of the bill intends to do. Ms. Lavelle explained this portion of the bill was an add-on, which would be explained by another witness. I.R. (Renny) Ashleman, Lobbyist, Commission for Binding Arbitration/Dispute Resolution Commission and the Southern Nevada Home Builders Association, came to the stand to explain section 10. He stated this section contains language that is in California law which allows the posting of a bond rather than depositing funds to cover the costs of special add-ons in a construction project. Mr. Ashleman explained depositing these funds, along with the necessary tracing and tracking of it, is quite bothersome. In 99 percent of the cases the money is paid over, he explained, and posting a bond to cover those cases where it is not paid over would aid in cash flow and tracking, for both the escrow company and the developer. Senator James asked the witness to backtrack a bit to page 4 of the bill which refers to Nevada Revised Statutes (NRS) 116.4110. He asked him to explain. Mr. Ashleman told the chairman this is a section of the Uniform Common Interest Ownership Act, which talks about what happens to various kinds of deposits that are made by the purchaser in a real estate transaction. The chairman read section 10, subsection 1(a)-(c), asking the witness to confirm his understanding of the provision. He noted the declarant is the builder and the deposits must be placed in escrow and held until: the deposit is delivered to the declarant at closing (as part of the purchase price); delivered to the declarant because of the purchaser's default (the liquidated damages provision of the act); or released to the declarant for an additional item, improvement, optional item or alteration (if the purchaser wanted upgraded carpet or the like). He continued to read the section and asked if this section was being removed because a bond was being posted, rather than the deposit made. Mr. Ashleman agreed, adding the idea of making the deposits into escrow is to protect the purchasers should he have good reason to back out of the purchase. He noted the bond would be more than adequate to cover these concerns. The chairman expressed confusion. Senator Adler pointed out his concern with dealings with bonding companies. It is typical to end up in litigation with bonding companies that do not pay. Mr. Ashleman explained he asked the regulators in California if there is a problem of this nature. They report they do not have such problems, possibly because the amounts are relatively small, he reported. He explained that ordinarily a master bond is purchased which is for a good sum or money, then individual segments of the master bond are inserted into the individual transactions. The bond segment amounts are not great, he explained. The senator opined that, "telling someone they can sue a bonding company is not doing them a favor." Mr. Ashleman explained there are very few instances where the purchase does not go through. The chairman asked the witness if section 10, subsection 1 refers to the purchaser who is putting up the money. Mr. Ashleman agreed. The senator asked if subsection 3 refers to the builder. The witness concurred the declarant is the builder. The chairman asked what the purpose of this section is. Mr. Ashleman replied the builder mainly wishes to avoid the bookkeeping problems that arise with all the miscellaneous deposits that must be made and tracked. Under subsection 3(c), the chairman asked, what if the bond is in an amount of $5000, for example, and the declarant gets the bond released for the purchase of some item or improvement that costs less than $5000. Mr. Ashleman opined this would not occur because the bond would stand for each of the separate elements in the transaction. When an upgrade is ordered by the purchaser it is paid for by the builder up front, he stated. The witness opined the language in subsection 3 of section 10 simply mirrors the language already in NRS 116.4110. Senator James interjected this was with the exception of the language in subsections 1 and 2. Mr. Ashleman emphasized the bond was only released as to the amount of the item or improvement, the bond is not redelivered or surrendered. The senator did not believe that is what the provision said. Mr. Ashleman disagreed. He stated when a bond is given up it is delivered, which accounts for the first two subparagraphs in subsection 3. Subparagraph, (c) says the bond is released for an additional item.... Here, the witness opined, "released" is a technical term talking about the relinquishment less than the whole. This is a different term than "delivered" which is used in the subparagraphs above. He stated he is willing to consider language that might clarify this difference. The chairman asked if it includes the "stuff in lines 5-8." Mr. Ashleman responded it does not. Senator James stated it might not be important, but it seems to him the language in lines 5-8 should be included in subsection 3. Mr. Ashleman could not say why subparagraph (c) of subsection 3 was included. He referred to section 10, subsection 1, lines 3 and 4 of page 5, noting the funds referred to here are always passed directly through. There is never any bond on these funds, he reported. Senator James suggested the language in lines 5-7 of page 5 should be reinserted in subsection 3(c) in order to clarify the intent. The witness did not object to this change. The next witness to speak was Becky Lu Brown, PCAM, Owner, Community Consulting Services. Ms. Brown stated, despite comments made by previous witnesses, community associations are a positive means of ownership. The problems experienced in them also occur outside the associated communities, she observed. Ms. Brown explained she is a private sector consultant who specializes in management and process consulting for public and private communities. She stated she has many years of experience in the field. Ms. Brown recommended the passage of A.B. 152 with the discussed amendments. She opined that arbitration is a positive way of dealing with the problems that arise in these communities. She voiced particular support for the concept of naming all or naming no dispute resolution services in the statute. She stepped down. John L. Gibbons, Investigator, Real Estate Division, Department of Business and Industry, came to the witness stand. Mr. Gibbons stated he appears as a representative of the Administrator, Joan Buchanan, who was unable to attend. He said the division is in support of making the effective date of the law January 1, 1996. This is because the appropriations needed to effect the change will not be available until October 1, 1995. The division will need some time to prepare before the change takes effect, he reported. Mr. Gibbons stepped down. The next witness to come forward was Jean Georges, Citizen. Ms. Georges offered a copy of her prepared statement (Exhibit D). She informed the committee that the third page of her testimony contains some suggested amendments. These can all be disregarded, except the amendment to page 4, section 6 and section 9, she said, as they have been addressed. Senator Titus asked to note for the record that Ms. Georges is an expert in this area, whom she has known since 1989, when other legislation in this area was started. The next witness to speak about A.B. 152 was Lansford Leavitt, President, Nevada Dispute Resolution Services. Mr. Leavitt voiced concurrence with his colleagues noting this is a very important bill. He spoke of one dispute that ended in a 2-week trial costing in the neighborhood of $50,000 in legal fees. That dispute could have been remedied through the process proposed in this bill, he opined. Mr. Leavitt expressed support for the bill and the proposed amendments. Mr. Leavitt told the committee the Nevada Dispute Resolution Services is a non- profit corporation that was formed in cooperation with the national judicial college and the juvenile/family court judges. The corporation has considerable experience in training and also in providing services of mediation and arbitration throughout the state. Also, the corporation has been responsible for training arbitrators for all the state courts, he reported, as well as for the state bar association. Currently, the organization is administering the real estate contracts disputes for the Reno/Sparks Association of Realtors and for Incline Village. Because of the vast experience of the organization, the witness asked either it be included in the listing of recommended arbitrators and mediators, or alternatively, that no list be provided in the statute. This concluded his testimony. Finally, Pat Coward, Lobbyist, Nevada Association of Realtors, came forward to support this bill. He stated the association feels it is good legislation and very much needed. He offered to answer questions. There were none and he stepped down. There were no more witnesses to testify in support of or opposition to A.B. 152 and the chairman closed the hearing. He moved to the next bill. ASSEMBLY JOINT RESOLUTION 38: Urges congress to require application for passport for child to be signed by both parents under certain circumstances. Nancy M. Saitta, Senior Deputy Attorney General, Human Resources Division, Office of the Attorney General, came forward to bring Assembly Joint Resolution (A.J.R.) 38 to the committee on behalf of Assemblywoman Dianne Steel. Ms. Saitta reported the resolution, in conjunction with other pending legislation, will provide a significant step toward protecting children of Nevada from international abduction. In 1994, the U.S. State Department reported over 1057 instances of international abduction, the witness reported. Nevada had 17, she said. It is very important for the state to make an effort to protect children from becoming victims of this crime. She urged the committee to support the adoption of this resolution. Senator James noted the situation is tragic, and Ms. Saitta responded the children who are abducted are almost never reunited with the parent left behind. Ms. Steel arrived at the witness table and simply echoed the statement of Ms. Saitta. Senator Porter voiced concern with the wording of lines 20-21 of the resolution. He opined that joint custody arrangements should require the signature of both parents. Ms. Saitta agreed that both parents should have to sign in all instances. Ms. Steel responded that the primary physical custodial parent should be able to take a child in their custody to London, for example, on vacation. The senator could not agree, noting he has personal experience in this area. He emphasized that joint custody should provide equal legal rights to both parents, not only the parent with primary physical custody. Ms. Steel agreed with the senator in the situation where there arises a dispute between the parents. Ms. Steel voiced the hope that Congress will recognize the importance of thie issue and change their policy. There was no further testimony. The vice chairman closed the hearing on A.J.R. 38. Senator James opened the hearing on the next bill. ASSEMBLY BILL 624: Defines "deadly weapon" for purpose of imposition of additional penalty for use of such weapon in commission of crime. Ben Graham, Chief Deputy, Clark County District Attorney, Lobbyist, Nevada District Attorneys Association, addressed the committee noting A.B. 624 arose over discussions about deadly weapons, especially those considering battery with a deadly weapon and crimes whose penalties are enhanced because of the use of a deadly weapon. The Assembly judiciary committee, from these discussions, concluded there are two different definitions for deadly weapon. Assemblyman Richard Perkins and Richard Gammick, District Attorney, Washoe County, came forward to explain the bill. The bill is an attempt to provide some consistency in the definition, Mr. Perkins told, because it is frequently difficult to make interpretations in the line of duty as police officers. There is always the question of how the state supreme court will stand when cases dealing with deadly weapons are brought before them, he added. Mr. Perkins explained it is very difficult to tell someone whose family member was killed with a claw hammer that such a weapon is not a deadly weapon. He opined there is a need to determine, on an individual basis, what a deadly weapon is and allow a jury to make that determination based on the facts of the case. Senator James asked if the enhancement aspect of deadly weapons charges would apply to murder, because murder, by definition would have to result from a deadly weapon. Mr. Perkins noted the enhancement aspect of the definition is aimed at things that are shocking to the general public. Senator James noted that subparagraph c of subsection 5 refers to murder, which is always committed with a deadly weapon. Thus, a charge of murder would always be enhanced through the use of a deadly weapon, "because, if they're dead, whatever you used on them was deadly," he said. Mr. Perkins responded he understands the senator's observation but noted when weapons are used that shock the public, the public is interested in punishing those crimes more severely. The senator noted that hands would be the only item excluded from the deadly weapons enhancement to murder because they are not considered an instrument. Thus, for murder, what this bill really is, is an automatic doubling of the penalty. Mr. Perkins could not disagree. There have been decisions handed down by the supreme court which ruled things such as steel-toed boots are not deadly weapons. However, the assemblyman noted, Justice Mowbray, in a dissenting opinion asked someone to explain to the dead person how steel-toed boots are not deadly weapons. This bill is designed to address the inconsistency brought by the supreme court decisions such as this, the assemblyman asserted. Senator James, noting that murder is a separate case because it always involves a deadly weapon, asked the assemblyman what policy was being effectuated by the law. Crimes such as robbery, sexual assault or kidnaping are different situations, he observed, where the policy of the law would make the difference in whether the enhancement was brought or not. He asked if the state is attempting to stop people from using guns because they are inherently dangerous, or is there no desire to make a distinction between a gun and a candlestick, for example, and thus make no statement about the use of guns specifically. Mr. Perkins responded to the question of whether the candlestick would be a deadly weapon, noting it would depend on the circumstances of the crime. If the candlestick is used to strike someone over the head, it might be considered a deadly weapon, he opined. If, however, the assailant swung the candlestick at the victim's knees, it would most likely not be considered a deadly weapon. It has been his experience, he noted, that is how the jury would decide the question, by examining the circumstances. Under the bill, the chairman asserted, if an assailant swung the candlestick at someone and missed it could still be a deadly weapon because there still exists the capability of causing substantial bodily harm. Mr. Perkins replied it was his guess that neither of the two district attorneys sitting in the hearing would approve such a charge. The totality of the circumstances should be the determining factor, he insisted. Senator Adler stated that when the Legislature is writing criminal statutes, it is necessary to proscribe specific behavior which everyone can understand as being criminal. It is necessary to write the statute clear enough to be understood by the "average guy." He observed that the possibility of charging assault with a deadly weapon against an individual who swung a pillow in a pillow fight exists simply because that same pillow could be used to suffocate the individual. This is not good because it gives the district attorney too much discretion, he opined. Mr. Perkins noted he understands the senator's concern about ambiguity, adding he wished there were more statutes which were less ambiguous. Senator Adler stated he has seen too many laws passed by the Legislature and arrive at the supreme court only to be overturned. This results in some very guilty people being released simply because the Legislature did a sloppy job, he insisted. Mr. Perkins stated the "flip side" of the situation is that because deadly weapon is so narrowly defined many guilty people are not given the penalty they deserved simply because they did not use a firearm in the commission of their crime. SENATE BILL 416: Makes various changes regarding sentencing of persons convicted of felonies. Senator Adler asked if this language appeared in other statutes of other states or of the federal government. Mr. Perkins could not say. The chairman observed the real reason for this statute is to enhance the penalty of the crime. These penalties have already been doubled with the passage of Senate Bill (S.B.) 416, the truth-in- sentencing bill, he asserted. Senator James again questioned what the policy statement was inherent in the bill. There is a qualitative difference between a gun and a candlestick, he opined, because guns are made for killing, but with a candlestick there is a "fighting chance" the victim will not be killed. There is a policy to discourage people from using guns, which are unquestionably deadly weapons. It is the goal to discourage the use of guns, because people always get killed with guns, he stated. If all the criminals were out using candlesticks, there would be a lot less death involved in crime, he stated. This bill, however, will throw guns and candlesticks into the same arena. Mr. Perkins agreed with the caveat that the circumstances must exist and the burden of proof must be met by the prosecutor. Senator Adler asked whether an automobile or other motor vehicle would fall under the "any instrument" descriptor. He wondered if the bill would double the penalties for vehicular homicide or drunk driving with substantial bodily harm. Mr. Gammick responded, he did not believe this would be the case because the bill requires the intent to be present. The chairman disagreed with Mr. Gammick, noting the bill says, "used in a manner capable of causing substantial bodily harm," and driving when drunk is using an instrument (the vehicle) in a manner capable of causing substantial bodily harm. Mr. Gammick opined such a charge would result in a "tremendous discussion in front of a court." Mr. Gammick referred to the Nevada Supreme Court decision of Clem v. State, 1988, which specifically adopted a broader test. They did this by referring to other states which have generally resolved the definitional question by resorting to a functional test of how the instrument is used, he stated, along with the facts and circumstances of its use. In Clem, the supreme court specifically adopted this definition, he insisted. The thing to remember, Mr. Gammick stated, is that a jury is given the definition and they decide whether or not the situation reveals the instrument to be a deadly weapon. The Clem decision has since been rendered ineffective, due to a subsequent decision in the case of Zombach, the witness explained, and we are in a mess. He offered several examples of how the deadly weapons enhancement would have been useful in particular cases. This bill will help law enforcement and prosecutors do their job to get these violent criminals in prison where they belong. The chairman pointed out the Senate had not bothered with issues such as what kind of knife was used in the crime; the Senate simply doubled the penalty for murder with S.B. 416. He reminded the witness the purpose of the deadly weapon definition is to get the enhancement of the penalty. With the truth-in-sentencing bill the penalties have already been doubled. Senator Titus asked if this law would provide the prosecution with another tool for plea negotiations. Mr. Gammick replied in the affirmative, noting it is very effective because it can be applied in many more crimes than the four listed in the bill. The four in the bill are cases where parole would not be allowed, he explained, but the enhancement could be applied in any number of cases. Senator James stated he sees the proponent's point, noting the bill should pass. He did express continued concern about the language in lines 1 and 2 of page 2 of the bill. He asked Mr. Gammick to provide language that is closer to the Clem definition, which talks about allowing the jury to determine the totality of the circumstances and the functional definition. This is important because the language will be the jury instruction, he reminded the proponents. Mr. Gammick stated he has the Clem definition with him. He read it, "A deadly weapon is any object, instrument or weapon which is used in such a manner as to be capable of producing and likely to produce death or great bodily injury." The chairman asked Mr. Gammick to attempt to "tighten it up a little." The witness agreed to try. Senator Adler asked if the supreme court decision, which made reference to other states, had mentioned other states specifically, noting if this information was available it would be easy to examine the other states' statutes. Senator James asked some work be done to ensure the definition is not overbroad. John C. Morrow, Chief Administrative Deputy, Washoe County Public Defender, spoke briefly in opposition to the bill, as it is drafted. He stated the chairman's concerns are on target, because it is overbroad. This definition has already been effectively discredited by the state supreme court. This concluded his remarks, until there is a work session on the bill, he stated. The chairman closed the hearing on A.B. 624 and moved to the work session. ASSEMBLY BILL 317: Makes various changes related to juvenile courts, sentencing, crimes and punishments. Margaret Springgate, Legal Counsel, Governor's Office, came to the table to explain the conflict amendments to A.B. 317. The chairman noted none of these conflicts are substantive. He referred to Exhibit E which was provided by the research analyst. This document is a summary of the conflict amendments needed for the Governor's crime bill. Ms. Springgate explained the conflict amendments, as well as the compromise amendments (Exhibit F). She observed there is a consensus among the legislators and the public that there are more and more violent youthful offenders, who need to be dealt with. Additionally, it is understood that many of the young criminals really do not belong in the adult system, she stated. Senator Washington asked for confirmation that a youth at the age of 16 who commits a crime with a deadly weapon will automatically go to adult court. Ms. Springgate explained that was the original provision in A.B. 317, but not in the compromise amendment. She read the proposed amendment to section 1 of the bill, as outlined in Exhibit F. Additionally, Ms. Springgate explained, a child 14 years old or above who is charged with a sexual assault involving the use or threatened use of force or violence or the use of a deadly weapon shall be certified to adult court, unless the court makes a specific finding that there were exceptional circumstances, or the child was not the principal actor in the offense, she explained. The goal here is to have the court determine whether the child is "saveable," she explained. This change is also outlined in Exhibit F. Senator Titus asked where the 14-year-olds would be housed in the prison system. She asked Ms. Springgate if she was aware of what Mr. Bayer, Director, Department of Prisons, was planning to do with these young offenders. Ms. Springgate explained there is currently no special provision for housing these juveniles. However, it is clearly the goal of the director is to keep the inmates safe, she stated, with some exploration being done about special housing at the new Lovelock prison. It was estimated, during the original drafting of the bill, that by the end of the biennium there would be 27 children 16 years old and older in the prison system, Ms. Springgate explained. Under the compromise, she estimated the number to be fewer. Senator James noted he had originally voiced concern about the young inmates because once they enter the system, it is very unlikely they will be anything other than hardened criminals. The other concern with that fact is, they eventually will be released from the prisons. He opined the changes are a fair compromise. Senator Washington voiced support for the compromise as well. Senator Adler noted the amendments seem to address his concerns. Senator Washington asserted that if the young offenders are caught at an earlier age there may be a chance to salvage them and make them productive citizens rather than hardened criminals. Ms. Springgate noted that if the amendments that are proposed are found to be acceptable, it may not be necessary to amend A.B. 393. ASSEMBLY BILL 393: Makes various changes related to possession of firearms by children and increases penalty for sale of certain firearms to children. The chairman noted it will be necessary to change the amendment to A.B. 393 rather than trying to explain two different amendments. He asked the committee if they are comfortable with the proposed changes as presented so far and then asked the witness to continue her discussion of the remaining proposals. Moving to the habitual offender changes, she explained, the habitual violent felon in A.B. 317 would be amended to include lewdness with a child under 14 as one of the offenses covered. Senator Adler asked to confirm the language from S.B. 416 would be incorporated into the habitual violent offender provision of A.B. 317. Ms. Springgate concurred. He was pleased. The "big" habitual statute would retain the language from A.B. 317 which provides for three felonies and then a subsequent violent felony will result in a discretionary habitual criminal charge, with a mandatory minimum of 10 years in addition to the underlying penalty. Also, the "little" habitual criminal language will be reinserted. These aspects are outlined on Exhibit E she explained. The chairman continued with the overview of the conflict amendments outlined on Exhibit E, including the commutation of the sentences and the residential confinement. The exhibit also discusses conflicts with the age of juveniles who could be subject to the counseling provision; it clarifies the definition of victim; and also the length of time between parole eligibility hearings. This concluded the witnesses explanation. The chairman asked the committee for questions, concerns or comments. Senator Adler noted there has been a good job done in the compromise effort; he commended Ms. Springgate for her work. Senator James called for a motion to amend and do pass A.B. 317 as explained by Ms. Springgate and as outlined on Exhibit E and Exhibit F. SENATOR ADLER MOVED TO AMEND AND DO PASS A.B. 317. SENATOR WASHINGTON SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR PORTER WAS ABSENT FOR THE VOTE.) ***** The chairman then called for a motion the have the Legislative Counsel Bureau bill drafters change the amendment to A.B. 393, that they are currently drafting, to reflect the juvenile certification and age for counseling of other family members as outlined in Exhibit E. SENATOR ADLER MOVED TO CHANGE THE AMENDMENT TO A.B. 393 TO REFLECT THE CHANGES NOTED ABOVE. SENATOR TITUS SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR PORTER WAS ABSENT FOR THE VOTE.) ***** Senator James thanked Ms. Springgate for her work on the bill. Senator Titus asked if the committee was going to take any action on the bills heard that day. The chairman explained A.B. 624 would be held to allow some tightening of the language. He asked if everyone understood the amendments proposed to A.B. 152. He outlined them: change the word "and" to "or" on page 4, subsection 1, lines 4 and 14; eliminate the list of those who provide mediation and arbitration services, since the bill already provides a list of requirements to be met by those providing the services; add a disclosure of the arbitration fees before selection of the arbitrator is made; and finally, amend section 10 by adding in language from lines 5, 6, and 7 on page 5, at the end of subsection 3(c), on line 23. Additionally, the effective date would be changed to January 1, 1996, he stated. He called for a motion. SENATOR TITUS MOVED TO AMEND AND DO PASS A.B. 152 AS OUTLINED ABOVE. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR PORTER WAS ABSENT FOR THE VOTE.) ***** Senator James explained that A.B. 540 would be held for a work session at a later date, along with A.J.R. 38, to allow time to address Senator Porter's concerns about joint custody. There was no further business and the chairman adjourned the hearing at 10:35 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary June 16, 1995 Page