MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session June 26, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:25 a.m., on Monday, June 26, 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 Marilyn Hofmann, Committee Secretary OTHERS PRESENT: Dennis J. Healy, Lobbyist, Nevada Highway Patrol Association Sergeant Gary Wolff, Lobbyist, Nevada Highway Patrol Association Valerie J. Cooney, Lobbyist, Nevada Trial Lawyers Association Dana K. Bilyeu, Operations Officer, Public Employees' Retirement System Muriel R. Skelly, Attorney Robert W. Teuton, Chief Deputy District Attorney, Clark County District Attorney's Office Ben Graham, Lobbyist, Nevada District Attorneys Association Mary E. Bell, Nevada Court Reporters' Association Morgan R. Baumgartner, Attorney at Law Senator James appointed a subcommittee consisting of Senator Lee, Senator McGinness and himself, and opened the hearing on Assembly Bill (A.B.) 292. ASSEMBLY BILL 292: Provides for disposition of certain pension or retirement benefits upon dissolution of marriage. Dennis J. Healy, Lobbyist, Nevada Highway Patrol Association, testified an Assembly subcommittee considered five points of concern with the bill which have since been included in A.B. 292. He voiced the opinion the bill is now perfectly equitable. Mr. Healy noted this is the first time the Legislature has addressed the point of law and it will be new to the statutes. He explained the bill mandates court action when parties divorce if no premarital agreement exists and there is a question regarding a pension. He acknowledged if the pension is not vested it is not considered in the divorce action. Mr. Healy reviewed the bill as set forth in his written testimony (Exhibit C). He called attention to the provision in section 1, subsection 6, that will remove a practice under current law for which he gave a true example. He cited the case of an ex-spouse who was entitled to an interest in a retirement benefit who remarried, but when she died her exhusband was forced to make retirement payments to her second husband. He declared there have been some very bad interpretations of the law by the Supreme Court, and a decree of divorce should provide finality. Sergeant Gary Wolff, Lobbyist, Nevada Highway Patrol Association, the subject of the above cited case, opined there is no consistency in retirement hearings before the Public Employees' Retirement System (PERS). He called it disheartening and asserted there must be change. Senator Washington asked if the same problems apply to persons in the military. Mr. Healy stated military retirement programs are considered by the court. He pointed out an amendment was added to A.B. 292 which says it will become effective upon passage and will apply to cases filed after that date. He asserted there are current cases in the system that should not be subject to present interpretations and should fall under the provisions of A.B. 292. Senator James asked whether the proposal in A.B. 292 will affect Qualified Domestic Relations Orders (QDROs) under the Employment Retirement Income Security Act (ERISA). Valerie J. Cooney, Lobbyist, Nevada Trial Lawyers Association, responded ERISA governs private pension plans, and QDROs are the vehicles by which pension plans are divided. She stated A.B. 292 will affect all kinds of plans, whether public or private, but it will not affect whether QDROs are used. Ms. Cooney agreed it is time this area of law is addressed by statute and given some legislative direction. She said there is a huge difference in the approach courts take to such plans. She took note of two cases which have impacted the state, Fondi v. Fondi 106 NV 856 (1991) and Gemma v. Gemma 105 NV 458 (1989) [hereafter Gemma]. She stated the Gemma decision established what is known as the time rule, which she explained provides that a pension, upon divorce, will not be valued, but will be valued at the time of eligibility, which may be many years after the date of divorce. Ms. Cooney explained the difficulty in the Gemma approach is that it keeps the parties connected after divorce, and it allows a non-participant spouse to share in the growth and development of a retirement plan after a divorce that can create a lot of acrimony between the parties. Further, she said, it requires the parties to return to court to litigate the division and the value of the non-participating spouse's interest. She stated it could create a situation in which a participant who marries and divorces several times during his employment may wind up dividing his plan among several ex-spouses. According to Ms. Cooney, the most detrimental part of the current policy is that it keeps the parties connected. She concurred with Mr. Healy that there must be finality in divorce so that people can get on with their lives. She stated the time rule does not allow for that. Ms. Cooney noted the Gemma decision adopted an approach that is utilized in California, which she described as "end-loaded," in which pension plans have greater value at the date of eligibility than they did earlier. Ms. Cooney said PERS has a unique plan in which the interests of the participant and non-participant are easily calculated, which is not end-loaded, meaning it is not funded since no interest or dividends are earned throughout the course of its life. When asked if PERS will be the only plan affected, Ms. Cooney said it will not. She pointed out the Gemma decision has a disparate impact on certain PERS participants, namely policemen and firemen, because of their early eligibility requirement. Under current law, a policeman or fireman eligible to retire at age 50 will be required to pay his wife her interest in the retirement plan at that point in time even if he does not retire at age 50. By statute, she said PERS may not make payments from the plan until the participant actually retires, so it means the fireman or policeman will be required to pay his ex-spouse out of his own pocket until he actually retires. She said the Internal Revenue Service (IRS) treats that as a tax deduction to him and as taxable income to the spouse. She pointed out the participant may find it necessary to work for several years for other reasons, yet if he should die before the actual date of retirement he would have received nothing even though he had been paying his former spouse. Senator James asked if any inequities will result from A.B. 292 in other, private, pension plans. Ms. Cooney responded there are distinctions between the types of plans, such as a defined contribution plan versus a benefit plan. She explained a defined contribution plan in which funds are actually contributed to the plan and is easily divisible upon divorce will create no problem. On the other hand, she said, a private defined benefit plan that allows for valuation and distribution as of the date of eligibility should always be valued as of the date of divorce, and distribution can take place at the date of eligibility for retirement. Ms. Cooney said the focus has been on the PERS plan because it is the type of plan that does not allow for payment directly from the plan as of the date of eligibility. She stated the net result of that under the Gemma decision is that policemen and firemen are required to make direct payments rather than having the plan make payments to the ex-spouse from the date of eligibility, but they do not receive any pension payments until they actually retire. According to Ms. Cooney, if the participant retires upon the date of eligibility, he will receive his portion and, under the PERS plan, PERS makes payments directly to the ex-spouse as in any other plan. Senator James wanted to know how A.B. 292 will affect the type of situation in which the employee and employer both contribute to the retirement plan, but the employee is not ready for retirement at the time of divorce. Ms. Cooney replied the bill will provide that the value of the spouse's interest will be determined as of the date of divorce and will be divided between the parties, so no change is anticipated as a result of the bill. She explained the bill will establish that the marital interest will be ascertained as of the date of divorce, which current law does not address. She said current law is different under the Gemma decision, since Gemma provides that the date of eligibility is the time when the coverture interest is determined, which is the value of the interest that accumulated during the course of the marriage. Senator James asked why so many cases are litigated regarding the division of pensions and why there should be QDROs. Ms. Cooney replied, "The QDRO is nothing more than the vehicle that comes from the court that goes to the plan. It's a separate, individual court order that the court signs at the time of the divorce." She said QDROs in which she has been involved have divided the plan at the time of the divorce by authorizing movement of certain funds from one account to another in the non-participant spouse's name. She explained that occurs in a defined contribution plan, which she noted is different and distinct from a defined benefit plan. Defined benefit plans do not have a fund into which contributions are made, she said. Dana K. Bilyeu, Operations Officer, Public Employees' Retirement System, recalled the Qualified Domestic Relations Order was passed by the Legislature in 1993. She explained it is a vehicle for PERS to ensure that when orders are received by PERS they do not violate the statutory plan design. She stated QDROs are also used as a shield to ensure that the benefit is not larger than that to which a member is entitled. Ms. Bilyeu stated PERS does not review the formula used for the division as designated in the QDRO, because that is a social issue for the court to decide, as long as the QDRO does not violate the PERS plan. Occasionally, she said, the QDRO mandates that no payment should be made until a subsequent order is handed down by the court for further evaluation. PERS holds the order in the file until the second determination is made by the court. She noted there are times when there may be several orders in the file for an employee who has received promotions, raises or transfers. She stated that is now considered by the court despite the fact the divorce may have taken place several years earlier, so an ex- spouse benefits from the efforts of the participant to increase pension benefits. Ms. Bilyeu declared A.B. 292 will make a determination between the marital property prior to the divorce and the change in the plan after the divorce. Senator James inquired if there will be a change in the provision about not allowing any division of a pension retirement benefit unless it is vested. Ms. Bilyeu responded, "For purposes of PERS, vesting occurs at 5 years, so at that time a person is absolutely vested for receiving a benefit whenever eligibility actually happens." She stated her belief that there is no value if it is not vested, because a person is not entitled to a retirement benefit until he or she has worked for a full 5 years. She acknowledged that may be different under an employee-employer contributory plan, and PERS does have a few such employers. In those cases, she said, the parties disclose that information, and if the person terminates employment the contribution may be divided. Senator James voiced concern regarding the vesting, since an employee considers the retirement plan part of his employment package, even if it does not vest for 10 years. He asserted the ex-spouse should be entitled to a portion of the pension even if it has not vested. Ms. Bilyeu acknowledged the point regarding the public policy of the community asset being created. She stated: With respect to the Public Employees' Retirement System and other public pension plans around the country, and actually even in private plans, if they are non-contributory, if it's an employer-paid type of plan, there is a statutory [rule], in this instance, for a plan design provision that requires you to make a certain amount of time before there's any benefit. So if the individual ... was actually working, the same argument can apply to that person, that he has been contributing or getting a benefit of that plan for the 4 years 10 months that he's been working there, but if he ceases to be employed in public service, he's not entitled to anything either. Ms. Bilyeu concluded the issue is whether it becomes a benefit upon the vesting date. Senator James asked if the spouse will be entitled to a portion of a benefit in which the employee has been making contributions and wherein he is entitled to a refund before the vesting time if he quits, but the plan has not yet vested. Ms. Bilyeu replied there is one contributory plan at PERS, and once an account has been established it is valued and QDROs are handed down in which the plan is divided if the person quits the job. Senator James pointed out A.B. 292 states the court shall not make a distribution of any interest in a pension or retirement benefit unless the benefit is vested. He concluded that language will not include an amount paid in by an employee. Ms. Bilyeu responded that is her understanding of the bill. She noted that was widely discussed by the Assembly Committee on Judiciary. Typically, according to Ms. Bilyeu, pension plans earned during the course of the marriage, whether vested or not, are considered community property. She said in many states non-vested plans are divided. She acknowledged there is an argument that it is unfair for the participating spouse to be forced to pay out an interest to a former spouse if he should lose his job and then receive nothing. She stated vesting normally occurs in 5 years, and unvested plans usually have little or no value. She explained the argument is that it should not be divided at the date of divorce when it has little or no value. Ms. Bilyeu reported the Assembly committee felt the provision should apply only to vested plans. She admitted she has some ambivalence about that section of the bill. Muriel R. Skelly, Attorney, noted she sits on the executive board of the family division of the Nevada State Bar Association, and she is a member of the family divisions of both the American Bar Association and the Washoe County Bar Association. She asserted whether retirement plans are vested or non-vested is not a major problem in court. She declared 98 percent of her practice is middle-income family law in which there are usually only two assets, a retirement plan and a heavily mortgaged house. Ms. Skelly stated retirement is no longer gender-based, and both parties often have plans. She testified: I have some of the most ludicrous decisions from different judges around the state that put women and children in harm's way, because a court does not look at a clean division of a retirement fund, even though the Supreme Court has said this is what you're supposed to do, you're supposed to evaluate this, you're supposed to evaluate this, you're supposed to do the time-line.... Ms. Skelly asserted the courts have been attempting to "juggle" the assets. As a result, she said, "I have seen women in the PERS system that have been in the PERS system for some time and have had their PERS ultimate value come out in six figures, who wind up giving the family home, and the equity in it, to the soon-to-be ex-husband, and taking on the lion's share, or all, of a very deep community debt in order to preserve her value in her retirement." She declared those women are forced to live "hand-to-mouth" for several years, often with several young children, because of the way the retirement plan was divided. She acknowledged she represented the men in two such cases, and in one she represented the woman. Senator James pointed out his use of the word "his" is done as a matter of convenience, the division must be fair to both sides, and he means no disregard of either gender. Ms. Skelly charged the application of present law is not fair to both sides. Ms. Skelly observed every court before which she has appeared has divided what has been contributed to plans, even non-vested retirement funds. She called that practice fair because it is part of the community assets. She asserted private vested and non-vested plans are being divided at the time of the divorce regardless of whether it is fair. She declared those going into QDROs, which may go on for several years, are not fair to anyone. Senator Adler stated most private plans vest within 3 years under IRS regulations. He speculated the legislative rule that the retirement plan vests at 10 years may be a violation of IRS regulations. Ms. Skelly agreed. Ms. Cooney requested an amendment to A.B. 292 which will remove sections 3 and 4 to change the effective dates. She explained, "Given the inconsistency and the effect of the current law in this state ... the courts need direction." She asserted the Legislature should offer direction by removing those sections. Senator James asked why Ms. Cooney is now proposing those changes when the bill was reviewed extensively by an Assembly subcommittee. She responded, "Quite frankly, section 3 did not come out of the subcommittee, but was added in bill draft after it was passed by the full committee." She declared the bill was returned to the full committee with the amendments where it was approved with the amendment. Senator James stated he has a different understanding, but agreed to consider the request. Ms. Skelly concurred in the request to remove sections 3 and 4 of A.B. 292. She acknowledged the Legislature has given guidance on child support, alimony, rehabilitative alimony, and on how to divide real estate, but she asserted there has been no guidance on what to do with retirements. She reiterated, "This is ... a major asset of the middle income group, and the results are positively ludicrous. When we go into court we can never tell how we're going to come out with this." Ms. Skelly declared, "I have no personal axe to grind; I have no personal interest in this. I have no financial axe to grind; I have no financial interest in this. All I have is a professional interest from the trenches who does this day after day after day. And I can see great injustice, both to men and to women." She exhorted the committee to come forth with a formula to guide judges on how to handle retirements. Senator James acknowledged the importance of the bill, but said he will accept an amendment only after members of the Assembly Committee on Judiciary testify before the Senate Committee on Judiciary as to why the provision was added to the bill, and after they add their approval to its removal on the record. Otherwise, he said, he will only accept a motion to do pass the bill. He indicated he will be ready to take action tomorrow on the measure. He specified he wants testimony from those who dealt with that specific issue in the bill. In the absence of further testimony on A.B. 292, Senator James closed the hearing, and he opened the hearing on both A.B. 623 and A.B. 646. ASSEMBLY BILL 623: Authorizes juvenile division of district court to bind over for trial child certified as adult after formal adversarial hearing. ASSEMBLY BILL 646: Makes various changes to procedure in juvenile cases. Testimony was solicited from Robert W. Teuton, Chief Deputy District Attorney, Clark County District Attorney's Office, on both bills. Mr. Teuton noted he is assigned to the juvenile division, and he served on the commission chaired by Justice Rose which made recommendations for changes in the judiciary. He said A.B. 623 is a reflection of a proposal from the commission which will authorize juvenile certification hearings to be probable cause hearings. Mr. Teuton explained present procedure, as outlined on a chart attached to his written testimony (Exhibit D), and compared it to the proposals in A.B. 623, also charted in the exhibit. He asserted the new proposal, which will be offered as an alternative, will save as much as 3 to 4 weeks between the time of arrest and the time the trial takes place. Mr. Teuton remarked the original measure, as first introduced in the Assembly, proposed that all evidentiary hearing requirements in all certification matters should be substituted. He pointed out district court judges objected to that, primarily because of the case-load. He stated five to six certification matters are being heard each week in Clark County compared to approximately 12 per year about 5 years ago. He called the process "burdensome," and explained the bill will provide flexibility, especially when a child under 16 is a victim. Senator James inquired how A.B. 623 will mesh with A.B. 317. ASSEMBLY BILL 317: Makes various changes related to juvenile courts, sentencing, crimes and punishments. Mr. Teuton answered, "With the exception ... in [A.B.] 623 it was not our intent to make any statement regarding the age of certification." He pointed out current law says certification should be at age 16, and all other bills that have passed this session have changed the age to 14. He suggested the bill may need to be amended to comply with other statutes. He recalled A.B. 317 lowers the age of discretionary certification from 16 to 14 and provides other provisions regarding those aged 16 to 18 years charged with use of deadly weapons or firearms, or who have been previously convicted of a delinquent act or a felony. He said the only impact A.B. 623 will have on the other bills is the age issue. Ben Graham, Lobbyist, Nevada District Attorneys' Association, concurred there should be an amendment to A.B. 623 to be sure it will not conflict with A.B. 317. Senator Adler wondered if there will be a constitutional problem since a person is remanded to a district court for criminal prosecution through a grand jury indictment or by a preliminary hearing before a justice of the peace. He noted some juvenile court justices are not justices of the peace. Mr. Teuton responded according to A.B. 623 the hearings will not take place before a juvenile master, they will be before a district court judge sitting as a juvenile justice. He explained all certification proceedings take place before a judge in Clark County. Mr. Teuton pointed out the provisions of the existing law will still be in effect, so if the certification hearing comes before a juvenile master those laws will be available. Thus there should be no constitutional issues raised, he said. Senator Adler questioned how a district court judge could review his own record regarding a certification hearing if the offender is bound over for trial, since in many rural areas only one district court judge presides. Mr. Teuton acknowledged the matter is not addressed by any provisions in the bill, but he doubted a judge would place himself in a position to review his own decision. He added the remedy would be for the Supreme Court to appoint a visiting judge to review the bind-over decision. Senator Adler remembered there are now two district court judges assigned to every district. Mr. Graham interjected there are provisions to resolve conflicts in the rural counties in which visiting judges from other rural counties are utilized. He doubted there will be any significant adverse affect from the provision. Mr. Teuton said the only other amendments to A.B. 623 will clarify existing law, such as the subsequent offense jurisdiction. He stated at present the statutes provide that once the person is certified, any subsequent arrest will be referred to the court to which he has been certified. He explained the amendment will provide that any subsequent arrest will be referred to the court that would have jurisdiction over the offense if the offense had been committed by an adult. Senator James pointed out A.B. 623 needs to be made consistent with the amended version of A.B. 317. Mr. Graham acknowledged the suggestion. Since there was no other testimony to be offered on A.B. 623, Senator James invited Mr. Teuton to address A.B. 646. Mr. Teuton referred to five basic provisions in A.B. 646 addressed by a chart included in his written testimony, found in Exhibit E. Explaining the current process, he said once a juvenile is arrested an affidavit is prepared and the referral is forwarded on felony and gross misdemeanor offenses to the office of the district attorney (DA). Any subsequent police reports, witness statements, or anything else that comes in, he said, goes directly to the DA's office and is not reviewed by any probation officer. The DA's office then makes a decision to file a petition. Mr. Teuton explained, under the current law, the probation officer is the petitioner and must review all those police reports, affidavits, or other documents, then file the petition, and the DA's role is limited to counter-signing the petition prepared by the probation officer. He stated: So you see, from arrest, referral to legal, the DA prepares the petition, then returns the file including all subsequent reports back to the probation division, which, to affirm that the information is true and correct, the probation officer is required to read and then sign and then return the file back to the D.A.'s office to be countersigned so the petition can then be filed with the report. According to Mr. Teuton, the proposed amendments to the bill will enable the district attorney, as the charging authority, to be the sole signer on those petitions, removing the probation officer's involvement and taking two steps out of the process. He pointed out in all cases the DA has the authority to disregard any recommendation that may come from the probation office not to file the charge, and the DA has the ultimate authority to file petitions. Mr. Teuton asserted the amendments will streamline the process, and enable the juvenile process to be consistent with the adult process. He noted years ago there was a requirement that a police officer sign every complaint that was filed in justice court, which became meaningless since any police officer was signing whether involved as the arresting officer or whether he had knowledge of the arrest or not. As a result, he said, that provision was removed, thus enabling the DA to provide the sole signature on those adult complaints. Senator James asked why both bills state the provisions of Nevada Revised Statutes (NRS) 354.599 do not apply. Mr. Teuton replied NRS 354.599 provides that if the Legislature creates any new obligation, the state must fund it. He declared there will be no new obligation with section 1. Senator James interjected A.B. 646 contains a fiscal note indicating there may be an impact on local government. He stated, "I just want to get on the record that you all are asking for that, and we're not imposing it on you." Mr. Teuton observed that was added by the Assembly. He conceded he had not considered the cost when he requested the amendments. In the absence of further testimony, Senator James closed the hearing on A.B. 646 and opened the hearing on A.B. 722. ASSEMBLY BILL 722: Makes various changes to provisions governing certified court reporters. Mary E. Bell, Nevada Court Reporters' Association, stated she is a certified court reporter who has been in business since 1969, is immediate past president of the association and currently serves as cochairman of the legislative committee. On behalf of the association, she made a request that salaries be increased. She explained it has been 6 years since the last increase. Ms. Bell pointed out court reporters are independent business people who have expenses and obligations to meet, and they are required to be certified, licensed, and must complete continuing education to maintain licensure. She noted court reporters pay for all their own equipment and supplies as well as all other costs associated with doing business. She declared court reporters have been unable to raise fees to meet rising expenses because salaries are determined by statute. She urged the committee to pass A.B. 722. In response to a question by Senator James, Ms. Bell said 6 years ago the salary was increased from $100 per diem to $120. She stated the previous increase took place in 1981 when the fee was increased from $50 per day to $100, where it remained until 1989. She said there was a page rate increase in 1989 on the original draft of $.50 per page. Morgan R. Baumgartner, Attorney at Law, stated an increase of $1 per page is being requested for the original, but the client will also receive one copy with the original. Previously, she explained, only the original was provided. Ms. Baumgartner said A.B. 722 as amended is the result of a negotiated compromise between the counties and the court reporters' association. She stated the counties were primarily concerned with the fee increases for the per diem and the page rate, since those are the parts of the bill which impact them. She explained the counties pay the per diem fees for criminal and civil cases, and the counties must pay the page rate for criminal cases. She noted the hourly fees are paid by civil litigants as is the page rate. Senator James indicated the cost has been $2.25 per page for the original draft, and $.50 per page for each additional copy. Now, he noted, it will cost $3.25 per page for the original draft and one copy, and $.50 per page for each additional copy to the party ordering the original draft, while civil litigants represented by a nonprofit legal corporation or under pro bono legal assistance will be charged $2.50 per page, plus $.50 per page for extra copies. Ms. Baumgartner confirmed that was the compromise reached at the suggestion of the members of the Assembly Committee on Judiciary. She recalled the committee had concern that indigent litigants would have to bear the cost, who usually only buy the original copy. She said the counties traditionally buy two copies. Ms. Bell told the chairman court reporters normally charge $3 per page for an original and one copy for depositions, although reporters in Clark County charge from $.75 to $1 more per page. When asked by Senator James, Ms. Baumgartner said the county agreed to a fee of $140 per diem as well as to the other terms in the first reprint of A.B. 722. She related Robert Hadfield, director of the Nevada Association of Counties, gave her permission to express the counties' agreement with the changed version of A.B. 722. Senator James requested an explanation of the part of the bill referring to notary oaths. Ms. Baumgartner explained that the majority of certified court reporters only use their notary powers to swear in people when they are taking depositions, and they do not attest to anything beyond that. However, she said, under the notary statutes they are required to post a bond. She stated they are requesting that they be exempt from the bond requirement as well as from keeping a journal since their use of the notary power is so limited. She explained they will still be required to pay the same license fees. In response to a query about sound recording, Ms. Baumgartner called attention to an amendment (Exhibit F) designed to allay concerns by the Clark County Courts and the Supreme Court regarding their interpretation of section 2 in the bill. She explained they feared allowing two official transcripts could lead to potential litigation problems. She said the Nevada Court Reporters' Association has accepted the amendment submitted by Ben Graham. According to Ms. Baumgartner, the section was included in the bill to accommodate attorneys who occasionally wish the presence of a court reporter in the room because they may need a transcription on an expedited basis. It will enable an attorney to receive daily transcripts without putting the burden on the official court reporter, but it is not supposed to provide a second "official" transcript, she said. Ms. Baumgartner stated the last section of the bill contains an amendment to the definition of "notarial acts." She said it removes "taking a deposition" as a notarial act, which will prevent notaries who are not certified court reporters from taking legal depositions. She reiterated certified court reporters go through extensive training and continuing education, which notaries do not, and are subject to licensing. There being no further testimony, Senator James closed the hearing on A.B. 722. SENATOR ADLER MOVED TO AMEND AND DO PASS A.B. 722. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR PORTER WAS ABSENT FOR THE VOTE.) * * * * * Senator James acknowledged he had just been made aware of a problem with S.B. 335. SENATE BILL 335: Prohibits person from having actual physical possession of firearm while under influence of intoxicating liquor or controlled substance. He reminded the committee it already concurred with the Assembly in one amendment, but there were two amendments. He said the second amendment, proposed by Assemblyman Hettrick, deletes the main part of the bill. He said line 11 on page 1 will be deleted, and the bill will provide that it is unlawful for a person with alcohol in his blood "to have in his actual physical possession any firearm which he is brandishing or aiming or with which he is otherwise endangering himself or others." According to Senator James the committee had previously voted that the person simply could not have a firearm in his possession, with no qualifications. He related Mr. Hettrick voiced concern that a person in his own home who has taken a drink might grab a firearm when he believes a person is trying to break in. Senator Adler pointed out that is the current statement of the law, and no concurrence may be necessary. SENATOR ADLER MOVED TO RESCIND THE CONCURRENCE WITH S.B. 335. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR PORTER WAS ABSENT FOR THE VOTE.) * * * * * SENATOR ADLER MOVED NOT TO CONCUR IN ASSEMBLY AMENDMENTS NOS. 802 AND 1170 TO S.B. 335. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR PORTER WAS ABSENT FOR THE VOTE.) * * * * * Senator Adler noted under the statutes the gun would technically be subject to forfeiture, which is not the intention of legislators. Senator James asked him to address that in a conference committee. Senator James reminded the committee they had heard S.B. 157 while in Las Vegas. SENATE BILL 157: Revises provisions governing use of affidavit or declaration in lieu of testimony of expert witness as to existence of alcohol or controlled substance. He said the testimony on S.B. 157 referred to accepting affidavits from experts. He called the amendment from the Assembly "a total rewrite." He said the amendment will amend the bill as a whole by deleting section 1. He remembered the first reprint was approved in the Senate and it contained only one section, which is now being deleted. Mr. Graham stated those who previously voiced concern about S.B. 157 should have less concern now. He explained the bill has taken the chemist, the blood- drawer and the calibrator completely out of the affidavit process except for what already exists today at felony trials, so there will be no automatic admission of an affidavit from a chemist at any proceeding. He said misdemeanor trials will not allow a chemist except for the present standard. He indicated the notification process will be retained just as in the original bill. He asserted the bill, as amended by the Assembly, has stricter provisions regarding what will be admissible. According to Mr. Graham, a case from the Ninth Circuit Court of Appeals conflicted with the Seventh Circuit Court of Appeals. He declared a majority of the district attorneys feel the bill is still constitutional, but in the interest of being conservative he agreed with the Assembly to remove the chemist from the list of experts. He urged the committee to concur. Senator Adler asked how the bill will work procedurally. Mr. Graham responded in a case of driving under the influence of a controlled substance (DUI), the district attorney sends the attorney a notice that the affidavit of an expert, such as the person who calibrated the breath machine, is to be used in court, along with a copy of the affidavit. If the attorney can establish a bonafide reason why the affidavit should not be used, the state will be required to bring in the expert witness. Mr. Graham explained in the case of the chemist, the district attorney will send a letter stating a desire to use the affidavit of the chemist, but the defending attorney can reject it without a bonafide reason, and the chemist will have to appear in person. He said the state will pay the fee for the chemist. He noted this differs from present law in that the calibrator does not have to appear, but the chemist does, which is the result of the Ninth Circuit Court case. Senator James recalled many people had testified S.B. 157 will make a tremendous change. He asked if they approve of a law which mandates that the evidence must be admitted at any time except for the trial, and no objection will be allowed. Mr. Graham pointed out there is an opportunity for objection, which is contained in S.B. 157. He declared: I spent hours not only with bill-draft people, but with our district attorneys, emphasizing that if there's a bonafide dispute, that it is a savings clause. I was assured over and over again by the bill-draft people that that was still in there. Mr. Graham acknowledged he found the amendment to be confusing, so he asked Noel Waters, Carson City District Attorney, to review it, and he agreed that the provision covering a bonafide dispute is still in the bill. Mr. Graham asserted if that is not in the bill, the bill was not amended as intended. He suggested the measure be held until he can obtain assurances from the bill drafters that the bonafide dispute provision is still contained in the bill. Senator James insisted the bonafide dispute language was deleted, which means that notice of the affidavit will not be required, and the judge will not be able to sustain an objection. He stated, "It says right here that the court shall not sustain any objection to the admission of such an affidavit." Mr. Graham reiterated his request to examine the matter further. Senator Adler pointed out the prohibition against sustaining an objection applies to pretrial matters as set forth in section 1, subsection 1 of the bill, whereas subsection 2 allows for an objection to evidence to go before the trial. Senator James announced the bill will be held for the next work session. He asked the committee to consider S.B. 496, the revisers bill. SENATE BILL 496: Makes various technical amendments to provisions of Nevada Revised Statutes. He called attention to section 2, page 2, line 17, which was amended by the Assembly to resolve a conflict. He said the figure was changed to $125,000 because the homestead provision was raised. Also he noted an effective date change in section 75. SENATOR TITUS MOVED TO CONCUR IN THE ASSEMBLY AMENDMENT NO. 1048 TO S.B. 496. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James announced the next day's meeting will be the last regularly scheduled meeting of the session, and subsequent meetings will be at the call of the chair. Because there are several major items to be considered, he will attempt to post agendas in as timely a manner as possible. There being no further business, the meeting was adjourned. RESPECTFULLY SUBMITTED: Judy Jacobs, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary June 26, 1995 Page