MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session June 22, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:00 a.m., on Thursday, June 22, 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 Dina Titus Senator O. C. Lee COMMITTEE MEMBERS ABSENT: Senator Ernest E. Adler (Excused) GUEST LEGISLATORS PRESENT: Assemblywoman Christina R. Giunchigliani STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Michael P. Gibbons, Judge, Ninth Judicial District Bill Cavagnaro, Lieutenant, Lobbyist, Las Vegas Metropolitan Police Department (METRO) Joni Kaiser, Lobbyist, Executive Director, Committee to Aid Abused Women (CAAW), Member, Nevada Network Against Domestic Violence Diane Loper, Witness/Victim Advocate, Lobbyist, Nevada Women's Lobby Frances Doherty, Deputy Attorney General, Office of the Attorney General Valerie Cooney, Lobbyist, Nevada Trial Lawyers Association Robert Barengo, Lobbyist, Attorney, Representing Jim Ritchie Jim Ritchie, Attorney, Self Bill Bible, Chairman, Nevada State Gaming Control Board John P. Sande, III, Attorney, Lobbyist, Nevada Banking Association Myla Florence, Administrator, Welfare Division, Department of Human Resources Martin J. Roberto, Criminal Investigator, Financial Investigation Unit, Nevada Division of Investigations, Department of Motor Vehicles and Public Safety ASSEMBLY BILL 560: Revises provisions permitting attendant to support prosecuting witness at preliminary hearing and trial. The chairman opened the hearing on Assembly Bill (A.B.) 560 before a subcommittee consisting of himself, and Senators Lee and McGinness. Michael P. Gibbons, Judge, Ninth Judicial District, came forward as the proponent of the bill. This bill was passed by the Assembly with one minor amendment, he reported, and it was designed to address the situation where children or victims of certain types of crime must appear in court. In many of these instances these witnesses wish to have an attendant present to provide support during their testimony, he explained. In 1982, the witness reported, President Reagan's Task Force on Victims of Crime recommended that judges allow victims and members of the victim's family to attend trials and court proceedings. Oftentimes victims have a very intense interest in the case, according to the Task Force Report, and it is very difficult for them to attend the trial and hearings, despite this interest. In these cases, the judge testified, it is very helpful to have family members present in the courtroom to support them in this difficult task. Judge Gibbons continued by noting that particularly in the case of child victims, it is important to have someone the child knows and trusts present while they testify. In 1983, the Nevada Legislature passed what became known as the victims' bill of rights, the witness pointed out. This included a law allowing an attendant to be present for certain types of crimes, he noted. Unfortunately the law has been abused, Judge Gibbons asserted, when defense attorneys designate the attendant as a witness, and thus excludes them from the hearing, even though the attendant really is not a witness. This bill designates all the crimes where children can be involved, along with other sexual crimes. Section 1, subsection 1(b) would require that any attendant who is designated as a witness must be examined first and then allowed to remain in the courtroom for the duration of the trial, he explained. The provision is a fairly minor change in the current law, the witness testified, but it will put the victims on equal footing with other parties to the trial. He requested the committee give the bill favorable consideration. Senator James referred to lines 10-11, which state, "the attendant may be designated as a witness...." He asked when they would be allowed to be excluded. Judge Gibbons explained the bill originally called for the attendant to testify before the victim or prosecuting witness. The Assembly judiciary committee changed the provision to require the attendant to testify before any other witness. Subsections 3 and 4 of section 1 of the bill allows the attendant to be excluded for attempting to affect the testimony or on a good cause motion, the chairman noted. This leaves available a means of having some person, who is inappropriate as an attendant for some reason, to be excluded and replaced by another person. There were no further questions, and no other testimony and the hearing on A.B. 560 was closed. At this point a quorum of the committee was present and the chairman called the full committee to order. He opened the hearing on the next bill. ASSEMBLY BILL 378: Makes various changes to provisions relating to domestic violence. Assemblywoman Christina R. Giunchigliani came forward to introduce A.B. 378. She offered a report on the history of violence against women in domestic relationships. She reported it has long been an accepted, even encouraged, practice in many countries for many centuries. In 1993, domestic violence programs in the state received 29,670 contacts for assistance from victims of domestic violence, the assemblywoman reported. In 1994 that figure rose by 27 percent. These horrendous statistics spurred the introduction of this bill, she testified, and some of the provisions are a result of discussions sponsored by the Nevada Domestic Violence Task Force. Ms. Giunchigliani offered an overview of the bill's provisions. She reported there was an attempt in the original bill to add a dating relationship to the definition of domestic violence, however, it was finally decided to only include this type of relationship in the section pertaining to temporary restraining orders. The bill unifies definition of domestic violence throughout the law. It eliminates the 4-hour deadline for arrest after the report of a domestic assault. This deadline has been extended to 24 hours, she noted. The bill adds tape recordings of 911 calls as admissible evidence at trial; prohibits the issuance of mutual protection orders; and allows 24-hour access to obtain emergency orders. The 24-hour access is permissive in jurisdictions with a population less than 400,000, because Clark County already has a program in place, but the smaller jurisdictions may not have the capability for such orders. She offered to provide the committee with Clark County's program, should they desire it. The assemblywoman thanked others who worked on this bill, especially Assemblywoman Jeannine Stroth. She offered to answer questions. Senator Porter asked the witness if the bill requires investigation of all domestic violence reports whether the parties withdraw their complaint or not, as is done in Boulder City. Ms. Giunchigliani replied it is her understanding that is what occurs according to her recollection of testimony given during the Assembly hearings. The senator opined this is the best approach and appears to have made a difference in the occurrence and handling of domestic violence reports in his area. The senator voiced his support for the bill. The assemblywoman also noted that domestic violence does not occur exclusively against women. Men can be the victim too, she observed. Senator James asked for the definition of a dating relationship, wondering if it is included in the bill. Ms. Giunchigliani replied it is not in the bill, but the language in the bill is the same as is in other states' laws. The subcommittee that examined this issue, she reported, felt this best since this is how other states had handled it. She stated she would be more than willing to include a definition of a dating relationship in the bill if the committee had one to offer. The chairman asked if there was a fiscal note with the bill. The assemblywoman responded in the negative. There were no further questions and the witness stepped down. Bill Cavagnaro, Lieutenant, Lobbyist, Las Vegas Metropolitan Police Department (METRO), came to the table to support A.B. 378. He noted METRO strongly supports this measure because similar laws that have come before it have proven to be very effective in saving lives. He stated the amendments to the bill should address some of the problems that law enforcement has faced in the past and allow them to deal much more directly with some of the real problems in domestic violence. The lieutenant noted the dating relationship has been one area that has been problematic for law enforcement. With this provision, the police and the courts should be more effective in their dealings with this particular group. The witness raised a question about the change in time limit for a probable cause arrest. He wondered if there might be constitutional challenges to this provision. It is his understanding, he said, that an officer can make a probable cause arrest only so long after the act has occurred. He told the committee he only brings this up because it would be unproductive to have the provision stricken. Senator James asked the witness if his concern was addressed in the Assembly. Lt. Cavagnaro replied he was not present for those hearings, as he was obligated to be elsewhere. He added he is not sure there is a constitutional problem with this provision, but law enforcement has been restrained so much from making probable cause arrests. In cases of misdemeanor crimes, the only right to arrest is when the officer actually witnesses the crime. With a felony crime, the officer can arrest based on probable cause to believe the crime was committed and that it was committed by the party he is arresting. This probable cause can result from various means, one of which is a reliable source giving the officer the information about the crime. The chairman explained he is unfamiliar with that area of the law. He pointed out that in some instances the spousal abuse or domestic violence could be a felony crime. The witness agreed that is the case, but before the original domestic battery law was passed a police officer could not go to the scene of a domestic battery and make an arrest based solely on the claim of one party against the other. Senator James asked if probable cause is sufficient only on the report of another party, or must there be physical evidence as well. The witness answered it is also necessary to have evidence of the crime, for example there should be some sign of the assault on the victim. Senator James replied unless the committee hears testimony to the contrary, he will allow the provision, as drafted. Lt. Cavagnaro stepped down. The next witness to address the committee in support of A.B. 238 was Joni Kaiser, Lobbyist, Executive Director, Committee to Aid Abused Women (CAAW), Member, Nevada Network Against Domestic Violence. She spoke on behalf of both organizations, she stated. Ms. Kaiser's testimony is incorporated as Exhibit C. With Ms. Kaiser was Diane Loper, Witness/Victim Advocate, Lobbyist, Nevada Women's Lobby, she also spoke in support of this bill. She opined the bill will protect a group of women who are involved in a dating relationship and, therefore, are not protected against domestic violence. These women are just as much at risk for violence at the hands of a dating partner as a woman who lives with or is married to a violent partner. Ms. Loper explained she sees examples of this every day in job her as a domestic violence advocate for the Reno City Attorney's Office. A provision that was originally in the bill, but was removed would allow a police officer to make an arrest in a dating relationship, rather than requiring the victim to make a citizen's arrest. Ms. Loper also voiced concern that the time limit for an arrest for domestic violence did not expand beyond the 24 hours. Ms. Loper told of several instances involving dating relationship violence. She urged the committee to pass this important legislation. Ms. Loper responded to the question raised by Senator Porter regarding a "no drop" policy for investigating domestic violence. She reported that the Reno City Attorney's Office has such a policy, as do some of the offices in the Las Vegas area. Unfortunately, these are the only areas in the state that enforce such a policy, she reported. Senator James asked if the witnesses knew of other states that have the 24- or 48-hour provision. Ms. Kaiser replied it was her belief there are some states with these provisions, as well as states that have no provision-no hourly limit. Additionally, she is unaware of any constitutional challenge to any of those laws. He asked if any of the prosecutorial experts had considered this issue. Ms. Kaiser answered it was her belief testimony on the subject was offered during the Assembly hearings. She offered to gather some information about the time limit. Frances Doherty, Deputy Attorney General, Office of the Attorney General, came to offer support for this legislation. She pointed out to the committee a plan for action to combat domestic violence in the State of Nevada has recently been released. The committee releasing this plan, she reported, was composed of at least six judges, a prosecutor, and several victims' services advocates. The committee studied the issue for more than 2 years, and they recommended several things. One, relevant to this bill, is for the Legislature to amend Nevada Revised Statutes (NRS) 171.137 to eliminate the current provision which does not permit the arrest of the alleged batterer later than 4 hours after the act of domestic violence, Ms. Doherty testified. Because the 4-hour limit makes law enforcement officers hesitant to make an arrest after that time period, even in the case of a felony assault, Ms. Doherty explained, it is a distortion of the arrest provision. Senator James concurred, noting that was his reason for raising the felony level crime in the previous discussion. The witness explained that officers need to be educated in this regard. Senator James emphasized the legislative record needs to be clear on the point that in no way is the law limiting the probable cause standard and the right and obligation to arrest if there is probable cause to believe the battery occurred, especially at the felony level. Ms. Doherty offered to draft language to that effect, but she hopes it will not slow the bill. The chairman agreed that would be useful, and he asked Ms. Doherty to also research the question of a constitutional issue for the misdemeanor arrest. Valerie Cooney, Lobbyist, Nevada Trial Lawyers Association, addressed the committee next. She reported the association has worked quite hard on the proposal in an effort to amend it so that it is acceptable to the association's membership. She urged the committee to pass the bill and make it law. There was no further testimony and the chairman closed the hearing on A.B. 378. He opened the hearing on the next bill. ASSEMBLY BILL 644: Extends permissible locations for greyhound racing. Robert Barengo, Lobbyist, Attorney, representing James Ritchie, and James Ritchie, Attorney, came forward to discuss A.B. 644. Mr. Barengo introduced Mr. Ritchie, who explained the intent of the bill. He noted the present law would prevent a greyhound track from being located in Clark County. This bill seeks to change that law, provided the greyhound track is part of a resort, as defined in the bill. A resort would contain more than 1,000 rooms, he reported. The bill would also provide for a tax to be imposed on the amount won by the house, rather than the "handle." This would make the activity more compatible and competitive with other types of gaming. Additionally, the track owner would pay the entire cost of any regulation imposed by the state, Mr. Ritchie told. This would give another opportunity for an additional amenity to be offered to the residents and tourists in Nevada. Mr. Ritchie emphasized it has been his intent from the outset, to have no impact and make no changes to any other provisions dealing with race tracks. For example, Henderson, which has a special charter to allow a greyhound race track, would not be affected. The bill will remove the 100-mile limitation so there can be no monopoly created, and the track will be a private enterprise, rather than under state entrepreneurship. This will keep all expenses from being the state's responsibility, he stated. The bill deals with the issue of animal rights, Mr. Ritchie reported, and it is the intention to have "a state of the art adopt-a-greyhound program." The witness assured the committee he has much concern for the health and well-being of animals, coming, as he does, from a family of veterinarians. Senator Porter asked the witness to summarize the history of greyhound racing in the state. Mr. Barengo recalled there is a long history surrounding the track in Henderson. There were many conflicts and the state was involved through a financial investment of PERS (Public Employees' Retirement System) funds. The senator asked for more information about the restriction on the activity, and other regulations that were imposed. Mr. Ritchie opined there was a concerted move, on behalf of the major gaming properties in Las Vegas, to exclude a free standing pari-mutual facility in Clark County. Additionally, Henderson's citizenry opted for a special charter to allow the track to located there, he explained. The law creating the 100-mile limitation on locating another track was an effort to protect the endeavor in Henderson, the witness said. The Nevada Resort Association has been contacted, the witness reported, and they have no problem with the concept, as long as there is no monopoly created. Mr. Barengo explained that section 2 of the bill would add a new section to chapter 466 of Nevada Revised Statutes (NRS), which deals with dog and horse racing. It contains the same definition of resort as is found in other chapters of the NRS, with the exception of the 1,000-room requirement. He continued his review of the bill's provisions. Section 3 of the bill speaks of population limits to be set for locating the race tracks; and indicates the resort/track owner shall pay any taxes imposed, along with the cost of any regulations to be imposed. He noted subsection 3 of section 3 addresses the accounting method to be used to calculate the cost of this regulations. The important point here, the witness noted, is the fact that the track owners may file a petition to challenge the costs and itemizations in a manner similar to that outlined in chapter 463 of NRS. This challenge may only be to the accuracy of the accounting of the costs, not the right of the Nevada Gaming Control Board to regulate the tracks. Section 4 amends current law to ensure everyone maintains their current right to have a race track then limits any new tracks to areas with a population of 400,000 or more at a resort hotel, Mr. Barengo explained. The remainder of the bill contains the necessary changes to related chapters in the NRS pertaining to the population limits. Senator Porter asked about the difference in calculating the tax on the track. Mr. Ritchie explained that current law allows a 4 percent tax on the "handle," the amount of money wagered. Discussions with the chairman of the Nevada State Gaming Control Board resulted in a concern the state might incur some cost in regulation. Thus, it was agreed the track would pay the cost of the regulation as well as agreeing not to challenge the extent of the regulation. The regulations are expected to be as stringent as any other gaming activities, he reported. Because the track will be paying the cost of regulation it was decided to alter the tax scheme. Thus, the tax will be 6.25 percent of the win, rather than 4 percent of the wager. This, he stated, is the same rate as is imposed on a sport book within a casino. Bill Bible, Chairman, Nevada State Gaming Control Board, spoke next. He explained his role in this bill is a little bit different than other bills. Because of the abolition of the state racing commission, the gaming control board has assumed the role of regulating racing. He voiced support for this bill, noting the tax provision and the requirement to pay for the cost of regulation should be sufficient methods to keep the state from becoming fiscally involved in the track. Senator Titus asked if the gaming control board will have to set up an entirely new scheme of regulations to deal with the dog racing. Mr. Bible replied the board will have to adopt regulations for the conduct of the race and hire full-time employees to oversee the racing, as well as veterinarians and stewards. The senator asked if Mr. Bible would assure her the dogs would be treated humanely, and that he would oversee this. Mr. Bible offered his personal assurance of this. There was no further testimony on A.B. 644. The hearing was closed. Next, the chairman opened the hearing on A.B. 575. ASSEMBLY BILL 575: Allows guardian of estate to invest property of ward in certain money market mutual funds. John P. Sande, III, Attorney, Lobbyist, Nevada Banking Association, came to explain the provisions of this bill, which was introduced at the request of a bank trust officer. This is a very meritorious bill, which addresses the ability of a guardian of the estate to invest monies, he reported. These guardians are persons who take care of the property of an incompetent ward, he explained. Without a court order, existing law limits to a great extent what investments can be made, Mr. Sande noted. These are outlined in the bill. The provision would allow guardians of the estate to invest in money market mutual funds which in turn invest in the authorized investments outlined in subsection 2 of section 1. The upshot of the legislation is to stop a lot of extra paperwork (seeking a court order) to invest when it really should not be necessary. There were no questions and no further testimony. The hearing was closed. The next bill to be heard was A.B. 132. Senator James called the first witness. ASSEMBLY BILL 132: Revises provisions governing crimes relating to federal food stamps. Myla C. Florence, Administrator, Welfare Division, Department of Human Resources, came forward to explain the intent of this bill. She provided a copy of her testimony which is attached as Exhibit D. She then offered to answer questions. Senator McGinness asked the witness why there is a list included in subsection 6 of section 1 of the bill. He pointed out the list could actually be quite extensive. Ms. Florence explained this language was added by the Assembly judiciary committee. These items are not allowable under food stamp provisions, she asserted. The senator asked if these words were really necessary, or could the subsection simply end "...may not be obtained with coupons." The witness asserted this still would be a violation of federal law, which only allows the purchase of food items with food stamps. Senator James agreed with Senator McGinness that the list was superfluous. There was discussion as to what might be considered necessities and not foodstuffs. The next witness was Martin J. Roberto, Criminal Investigator, Financial Investigation Unit, Nevada Division of Investigations, Department of Motor Vehicles and Public Safety, who also provided the committee with prepared testimony (Exhibit E). Additionally, Mr. Roberto noted the language in subsection 6 is discretionary. Also, it refers to evidence presented at the time of sentencing, which indicates the person was found guilty of the fraudulent use of food stamps. Senator Washington asked about the bill's reference to access device. He wondered if this was incorporated in anticipation of some electronic benefits transferring services. Mr. Roberto affirmed this. The senator observed these electronic devices are designed to cut down on the illegal use of these benefits. Mr. Roberto pointed out that food stamps are an underground economy. They are used to finance and purchase many items other than food. There were no more witnesses and the hearing on A.B. 132 was closed. The committee moved to a work session. Senator James referred to the bills heard by the committee this day. He asked if there were questions or comments on A.B. 560. There were none. SENATOR McGINNESS MOVED TO DO PASS A.B. 560. SENATOR PORTER SECONDED THE MORTON. THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.) ***** Moving to A.B. 378 the chairman called for discussion. He clarified the change from a 4- to a 24-hour time limit was on the arrest for a misdemeanor battery. There is no change to the felony standard of probable cause. SENATOR TITUS MOVED TO DO PASS A.B. 378. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.) ***** Next, the committee voted on A.B. 644. SENATOR WASHINGTON MOVED TO DO PASS A.B. 644. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.) ***** A.B. 575 was addressed next. The chairman called for discussion of the bill; there was none. SENATOR PORTER MOVED TO DO PASS A.B. 575. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.) ***** On A.B. 132 Senator McGinness asked to remove the list of items from the end of subsection 6 of section 1 of the bill. SENATOR McGINNESS MOVED TO AMEND AND DO PASS A.B. 132 BY REMOVING "SUCH AS GASOLINE, TOILET PAPER OR DIAPERS." SENATOR TITUS SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.) ***** SENATE BILL 329: Provides for certification of court interpreters for persons involved in judicial proceedings who speak language other than English. Senator James explained this bill was amended by the Assembly. Section 4, page 2, line 18 was changed to read, "...municipal judge in a county whose population is less than 100,000." The chairman noted this change was also made to line 20 on that page. He called for a motion to concur in the Assembly amendment. SENATOR TITUS MOVED TO CONCUR IN THE ASSEMBLY AMENDMENT TO S.B. 329. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.) ***** ASSEMBLY BILL 624: Defines "deadly weapon" for purpose of imposition of additional penalty for use of such weapon in commission of crime. Senator James reported an amendment to this bill was proposed. This is an attempt to tighten the definition of deadly weapon. On page 2, subsection 3, at the top of the page, the amendment would remove the current definition and replace it with, "any weapon, device, instrument, material, or substance which under the circumstances in which it is used, attempted to be used, or threatened to be used is readily capable of causing death or serious physical injury." SENATOR McGINNESS MOVED TO AMEND AND DO PASS A.B. 624 AS OUTLINED ABOVE. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.) ***** This concluded the business before the committee. The chairman adjourned the hearing at 9:25 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary June 22, 1995 Page