The Committee on Judiciary was called to order at 8:10 a.m., on Wednesday, May 28, 1997. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List.

COMMITTEE MEMBERS PRESENT:

Mr. Bernie Anderson, Chairman

Ms. Barbara Buckley, Vice Chairman

Mr. Clarence (Tom) Collins

Ms. Merle Berman

Mr. John Carpenter

Mr. Don Gustavson

Mr. Dario Herrera

Mrs. Ellen Koivisto

Mr. Mark Manendo

Mr. Dennis Nolan

Ms. Genie Ohrenschall

Mr. Richard Perkins

Mr. Brian Sandoval

Mrs. Gene Segerblom

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Honorable Michael Griffin, First Judicial District Court Judge, testifying in support of A.B. 457, stated the law had been amended to allow justices of the peace and municipal court judges to place offenders on probation. Thereafter, the law was amended to assign a community probation officer. However, the law did not provide any authority for the probation officer to make arrests when a probation violation had occurred.

Judge Griffin explained that Carson City had established a pilot program under the direction of Justices of the Peace, Robey Willis and John Tatro and a community probation officer was hired to conduct misdemeanor supervision. The community supervisor followed up on probation directives and orders to make sure the offender was accomplishing those directives. For instance, if an offender was ordered to attend domestic violence counseling, the supervisor checked to see that such offender is attending the required counseling. He stated this legislative measure strengthened the enforcement of probation requirements. He informed the committee that the pilot program had been in effect for the past 10 months and was funded by probationers and was especially effective in spousal abuse cases and child neglect cases.

Honorable Robey Willis, Carson City Justice of the Peace, speaking in support of A.B. 457, concurred with Judge Griffin's comments and added the bill, at page 5, line 13, the word "felony" needed to be changed to "misdemeanor" indicating that was a bill draft error.

Judge Willis pointed out with regard to the "no-bail hold" section in the bill, he said that was already in place for the district court through the Parole and Probation Department in that if a violation had occurred a no-bail hold was placed on the individual until the matter could be heard by the judge. However, the justice court level did not have such a provision and would like to have that level of security added for the probation officer at the justice and municipal courts. He reminded the offender had already been convicted and was on some form of alternative sentencing or probation and therefore their rights were not affected. In addition, Judge Willis requested the probation officers at the justice and municipal court level be able to carry out search and seizure practices as was presently done at the district court.

Judge Willis concluded by thanking the legislature for the legislation passed in 1995 and the committee's consideration of this measure—stating A.B. 457 would greatly aid in the effectiveness of a probation department. Judge Griffin concurred with the request to change the word "felony" to "misdemeanor" in section 3 of the bill. Chairman Anderson asked the research division to check into making that amendment.

Honorable John Tatro, Carson City Justice of the Peace, speaking in support of the bill, reminded that in most instances the misdemeanor cases being referred to involved violence, such as battered spouses and children, and strengthening the law, especially bail requirements, was extremely important to prevent additional violent acts.

Ms. Buckley asked how the bill compared to the current Parole and Probation statutes. Judge Griffin responded that in adult Parole and Probation situations, individuals were held without bail and were then afforded a probable cause hearing within one week. The consequences of a violation of a district court probation was at least 12 months in prison. However, in a misdemeanor situation, the individual was before the judge within 48 hours, and if the person wanted to contest the issue of probation violation, a hearing would be set. He concluded that a more formal process was not necessary in justice court.

Ms. Buckley inquired further if due process did not require a hearing. Judge Griffin replied a misdemeanor on probation had no protected liberty interest while under a sentence of imprisonment upon conditions. Therefore if a violation occurred, the individual had a right to a hearing before the justice of the peace, but not a preliminary examination such as was conducted in the district court.

Mr. Gustavson asked whether at the district court level the search and seizure provisions were already in place. Judge Griffin answered that when an individual was placed on probation, a consent to search was executed by the offender, which opened their home to open search and seizure day or night without a warrant, and that provision was constitutional. Mr. Gustavson drew attention to page 6, section 7, lines 30-32, and asked whether the same powers of a police officer were being afforded the Chief of the Department of Alternative Sentencing—adding his concern was the training provided to the alternative sentencing officers. Judge Griffin acknowledged that concern and indicated Dwight Gover, Chief, Alternative Sentencing, would respond to that question. However, he continued, Mr. Gover was POST-certified and all such individuals acting in the alternative sentencing program would be POST-certified. In addition, he informed that the adult Parole and Probation Department had police powers already and the section so referenced in the bill would be an extension to the existing parole program.

Responding to Mr. Anderson's further inquiry into section 6 of the bill, Judge Griffin reiterated his comments as to why a second evidentiary hearing was unnecessary, and the issue was resolved by bringing the individual before a judge within 48 hours. Ms. Buckley indicated she wanted to have specific language in the bill that clarified the hearing within 48 hours.

Noel Waters, Carson City District Attorney, testifying in support of A.B. 457, stated Chapter 211A of the Nevada Revised Statutes was created during the 1995 legislative session and established the Department of Alternative Sentencing at the misdemeanor level. As a prosecutor, Mr. Waters indicated it was necessary to specify that the officers enforcing the provisions of alternative sentencing had their powers set forth in the statute so everyone knew the duties and authority of the officer. He stated the misdemeanor probation system in Carson City was an effective law enforcement tool and provided a range of supervision and punishment available to the judges.

Mr. Waters concurred with Ms. Buckley's request to explicitly state in the statute that a hearing would be afforded within 48 hours of the alleged probation violation.

Dwight Gover, Chief, Department of Alternative Sentencing Program, in support of the legislation, indicated the existing language in section 7 of the bill identified the position as a peace officer but was restrictive to the county. He explained that often what occurred in an area such as Carson City which was surrounded by several other counties (Washoe, Storey, Douglas, Lyon) was an individual committed crimes in Carson City then was placed on a suspended sentence in Carson City but moved to another county. He asserted A.B. 427 gave the authority to the peace officer in charge to drive across county lines to enforce the conditions of probation. He stressed that had been a problem since the initial legislation was enacted in 1995. Also, he informed the language in section 7 mirrored the language in the adult parole and probation statutes.

Jerry Mather, Chief Deputy, Carson City Sheriff's Department, favoring the legislative measure, explained he was in charge of the jail which had a 71-bed capacity and currently had approximately 100 inmates per day. He said the 1995 legislation assisted in keeping the inmate population at or under 100 per day since judges now had alternatives to misdemeanor probation violations rather than incarcerating every violator.

Scott Slobe, State of Nevada Peace Officers Association, speaking on behalf of the Parole and Probation Department, who support the legislation, stated the bill aided in keeping violators under control since individuals who started with misdemeanor crimes many times continued through the system into felony charges.

Mr. Gover clarified for the committee that as chief of the alternative sentencing program, he was required to prepare a written report outlining probation violations of the offender. He stated that report was provided to the judge prior to the hearing on the violation.

Judge Griffin suggested that section 5 of the bill be amended to include a person arrested for a felony or misdemeanor "involving violence."

David Gibson, Clark County Public Defender's office, stated his position was neutral and had a couple inquiries. He said if there was no fiscal note on the bill there should be, especially as to local government. In addition, he pointed out that in section 1(g), was a problem provision as it related to search and seizure. He informed that even on a felony probation, a police officer was not allowed to do a protective search of a probationer's home. He clarified, a probation officer can go at any time to a probationer's home but a police officer required probable cause to search a home.

Larry Hyde, Representing the American Civil Liberties Union of Nevada, stated he supported the bill but had similar concerns as Mr. Gibson. With regard to section 1(b), the search provision was too broad and needed to be limited to a search for violation of the conditions of probation rather than a search for anything. Mr. Gibson interjected that the contract between the probationer and the Department of Parole and Probation set forth what the submission to a search included.

Chairman Anderson asked Judge Griffin, Judge Tatro, and Judge Willis to return to testify on section 1 of the bill. Judge Griffin, responding to Mr. Anderson, agreed the language in section 1 was very broad; however, pursuant to Nevada law, conditions of search and seizure were clearly identified as to what was to be searched. For example, if an offender was on probation for drug offenses, the probation contract would include open search for drugs, and drug testing. He concluded the search would be limited to what was outlined at the time of sentencing by the judge's order of probation. Mr. Anderson asked if that could be clearly stated in the statute. Judge Griffin concurred that the language could be codified.

Mr. Anderson asked if the use of ". . . or any other law enforcement officer" was a concern. Judge Griffin responded that often a probation officer was assisted by a law enforcement officer for protection during a search. However, he agreed the bill did not contemplate a blanket search authority by a police officer. Judge Tatro added that one probation officer may have hundreds of persons under probation and could not always be at each and every search and at times it was necessary to have a law enforcement officer conduct the search based on the probation contract. Judge Willis interjected that although Carson City was the only county that currently had the alternative sentencing program in place, other counties would likely be following suit, and therefore the bill had a statewide affect.

Mr. Collins expressed he was not sure whether ". . . or any other law enforcement officer" should be removed—citing the need for police officers to assist probation officers. Judge Griffin concurred the language should not removed. Mr. Anderson suggested if the bill was to proceed the language should refer to " . . . or any other law enforcement officer acting in assistance" and asked legal staff to redraft the bill accordingly.

In further discussing section 1 of the bill, Assemblyman Perkins, a law enforcement officer in Henderson, stated police officers had worked hand-in-hand with probation officers for a long time in conducting searches. He stated there was some case law on the subject as to where the authority was extended and whether the probation officer could direct the police officer over the telephone and so on. In that regard, existing law handled situations that developed under A.B. 457.

Chairman Anderson reviewed the suggested amendments to the bill and asked Risa Berger, Committee Counsel, to draft the appropriate changes, to include on page 5, the word "felony or misdemeanor involving violence." In addition, in section 6 of the bill at page 6, that a new paragraph 5 be added to require the probationer to be brought before the judge within 48 hours and said individuals had the right similar to those set forth in NRS 176.217. Ms. Berger asked whether a person charged with a felony was placed on probation if the same situation involved a misdemeanor, was it referred to a "suspended sentence."

Assemblywoman Barbara Buckley, District 8, primary sponsor of the bill, stated under existing law, NRS 4.010, justices of the peace in townships whose population were 250,000 or more, must be an attorney. She explained that A.B. 475 amended the statute to provide that in counties whose population was 400,000 or more, the justice of the peace in a township whose population was 100,000 or more, be an attorney. She stated the legislation would affect North Las Vegas township and Henderson township.

Ms. Buckley introduced Steve Dahl, Justice of the Peace of North Las Vegas, and indicated he would be testifying in support of the bill and explain the growth in the caseload of North Las Vegas and the increasing complexity of cases.

Ms. Buckley provided several letters in support of A.B. 475 including one letter from Ken Dawson, Henderson Justice of the Peace, and Edward Dannan, Reno Justice of the Peace (Exhibit C). Ms. Buckley added that A.B. 475 did not affect any county whose population was not 400,000 or more, recognizing the concerns of justices of the peace in rural counties.

Judge Dahl stated the bill had very limited impact on jurisdictions throughout the state and would never impact the vast majority of townships in Nevada. He provided additional supporting statistical data (Exhibit D) for the committee and stated the bill was not attempting to force every justice of the peace to be an attorney. He recognized that was not practical or even possible and acknowledged his great respect for justices of the peace serving the needs of the public in sometimes difficult surroundings.

Judge Dahl asked the committee to look at the realities of the types of cases that were being handled in North Las Vegas and Henderson stating the crime rate in North Las Vegas was double the crime rate of Las Vegas and triple of that anywhere else in the state. He stressed there was no comparing the crime in North Las Vegas and the rural counties.

Judge Dahl concluded that sending someone to judicial college for two weeks and then placing them as a justice of the peace worked well in the rural counties but not necessarily in the larger counties.

Responding to Ms. Ohrenschall's question, Judge Dahl explained townships were created by the counties in that there could be as few as one township per county, but there was a requirement that there could only be one township for every incorporated city. He concluded the counties had some leeway in developing townships in an attempt to best utilize their resources. Ms. Buckley added that the next largest township below North Las Vegas and Henderson was Boulder City with 18,000 and Laughlin with 8,000 – which was well below the cap outlined in the bill.

Judge Dahl reminded the bill did not address the requirement of a municipal court judge having a law degree as matters in municipal court were of a misdemeanor nature and matters coming before the justice court involved complex legal issues.

Mrs. Segerblom expressed her support for justices of the peace without law degrees and related the story of her husband, now deceased, who served as justice of the peace of Boulder City for twenty years.

Larry Hyde, American Civil Liberties Union, spoke in support of A.B. 475 and informed the committee that the American Bar Association and the American Judicature Society had taken the position for over 40 years that justices of the peace be law-trained, yet had always recognized the need for an exception in the rural areas because of unavailability of law-trained personnel. Mr. Hyde commented he had observed the work of non-lawyer judges and held a high regard for those persons. He concluded he did not want to see any change in the systems that had existed for hundreds of years.

Ben Graham, Nevada District Attorney's Association, informed the committee that when the bill was first presented to him, he compared the numbers in the townships that required law-trained judges, and on a limited scope, A.B. 475 applied to only two townships in the state where more serious cases were being considered. He said the numbers justified what Judge Dahl was seeking in the bill and therefore he was in support of the legislation.

David Gibson, Clark County Public Defender's office, presented support for the legislative measure--recognizing the crime problem in Henderson and North Las Vegas was increasing and warranted the necessity of law-trained judges. He concurred that he had a high respect for non-lawyer judges; however, issues were becoming more complex.

Mr. Carpenter asked if the judges in Las Vegas township were all lawyers. Ben Graham replied yes and the three judges in the townships considered under the bill were lawyers as well.

Robey Willis, Carson City Justice of the Peace, testifying in opposition to the bill, stated this was the third time this legislation had been brought and he vehemently opposed it. He pointed out the justice court was the people's court and wanted a peer from the community to decide such cases. He informed the committee that at a recent conference every attorney and non-attorney judge, other than three persons, voted against the bill. He concluded A.B. 475 was not a popular bill among the judiciary and it was a voter's choice of who they wanted in the position of justice of the peace. He countered that an increase in case load was not a valid reason for requiring a law-trained attorney in Henderson and North Las Vegas.

Judge Willis reminded there were currently non-attorney judges in Reno, Sparks, and Carson City and the majority of award winners for judge of the year in the last several years had been non-attorneys.

Bill Teurman, Fallon Municipal Court Judge, testified in opposition to the bill and strongly urged the committee to leave the population level in the statute at 250,000 instead of decreasing the cap to 100,000.

Bill Maddox, Attorney at Law, having practiced before many courts in Nevada for the past 20 years and appearing routinely before 6 justices of the peace—2 that were lawyers and 4 non-lawyers. He asserted he did not see any difference between the lawyer and non-lawyer judges and did not believe the argument as to the volume of cases had merit. He concurred with other comments that what was needed at the justice court level was common sense.

Assemblyman Herrera asked how the requirement of a law degree could be a negative impact on the townships mentioned, especially in light of the volume and complexity of cases. Judge Willis replied the training was available to be a justice of the peace and persons well-qualified should be able to run for those positions. As to a complex case, Judge Willis responded that there was nothing more complex than a murder or sexual assault case and those cases were already being handled presently and if the volume of cases exceeded the workforce, then additional judges were supplied.

Mr. Herrera asked if 2 weeks of training at the National Judicial College was equal to the training received by an attorney in law school. Judge Willis replied the requirements for training exceeded 2 weeks and there were ongoing requirements in addition to the National Judicial College and records had shown that non-attorneys attend more of those training sessions voluntarily. He explained that many of the non-attorney judges had law backgrounds.

Assemblywoman Buckley stated her concern as a southern Nevada elected official was that the current system provided for certain justices of the peace to have a law degree yet others were not held to such requirement. She explained in order for southern Nevada to have consistency, different regions' needs differ from other regions. Judge Willis answered that over time the people had continually voted in non-attorneys to hold positions in justice and municipal courts and therefore the bill should not proceed.

Scott Slobe, State of Nevada Peace Officers Association, stated they opposed the legislative measure for the same reasons stated by the judges in opposition to the bill.

Dwight Gover, Nevada Peace Officers Association, commented there was no need to change existing law as to requirements for justices of the peace. As a peace officer, he related he had appeared before non-attorney and attorney judges and did not see any difference.

Ed Johnson, Dayton Justice of the Peace, stated he opposed A.B. 475 for the reasons already stated. He informed the committee that many non-attorney judges held law-related degrees. In addition, the National Judicial College was located in Reno and many judges continually attended the variety of courses offered at the college to better their skills. He clarified that law school trained persons to be lawyers and the judicial college trained persons to be judges. He concluded that having a non-lawyer sitting on the bench did not affect judicial proceedings whether or not there was an increased population in a township.

Chairman Anderson provided a letter from Ronald Niman, Ely Justice of the Peace, in opposition to the bill (Exhibit E).

Ben Graham, Nevada District Attorneys Association, introduced Tom Leen, former Chief Deputy District Attorney in Clark County, and announced A.B. 458 was brought to confirm a search warrant procedure that had been developed over the years. He reminded the committee that a search warrant had to be issued upon an affidavit setting forth probable cause. Also, the scope of search warrants was fairly narrow and confined as to what was allowed to be searched.

Mr. Leen informed the committee of his vast background in law and provided the committee with examples of search warrants that were currently used in the judicial system (Exhibit F) in 1994. Mr. Leen explained that police work involved search and seizure of evidence and the United States Constitution provided ample constraints and restrictions on how that was to be done. He announced that the majority of search and seizures were conducted without a warrant—that is to say, the police officers made an immediate decision while in the field, such as: to search an automobile, search incident to arrest, search with consent, search under emergency circumstances, and so on. Mr. Leen explained that searches performed without a warrant were presumed by the courts to be unreasonable and illegal. Therefore, it was the burden of the police and prosecution to prove to the judge that the search was legal and well-founded.

On the contrary, searches conducted pursuant to a search warrant were presumed to be lawful because it was harmonious with the basic principles of society in that before a search warrant was issued, a police officer had to present the facts and circumstances of the case to the judge, under oath, then the judge made the decision as to whether the search should be carried out or not.

Mr. Leen, in discussing A.B. 458, stated there was currently no law that dealt with the sealing of search warrants. However, 50 percent of search warrants issued in the past 6 to 8 years in Clark County had been sealed even though there was no statutory provision to warrant such procedure. He explained that sealing of a search warrant was necessary at times because often detailed confidential information was disclosed in a search warrant and the integrity of the investigation would be risked should such information be released. Mr. Leen provided examples of cases where sealing the search warrant was most helpful, such as gang violence, child pornography, narcotic distribution, which used confidential informants and needed to remain anonymous. He concluded that the sealing of a warrant was usually only needed for a period of several weeks so no impediment to the investigation occurred. Mr. Leen reminded the committee that the bill allowed the judge's discretion to remain in determining the sealing of the affidavit requesting the search warrant and that judge or any party could request at any time that the warrant be unsealed.

David Gibson, Clark County Public Defender's office stated his office supported the legislation and the practice of sealing warrants was already occurring.

Chairman Anderson provided the committee with a copy of a bill draft request for an Assembly Current Resolution regarding an interim study for family courts and asked the committee to review the document. He announced if the committee wished to adopt the resolution it would go on to the Committee on Elections, Procedures and Ethics.

· BDR R-1762 Directs Legislative Commission to conduct interim study of family courts.

Mr. Anderson explained the resolution required five members and explained the make-up of the subcommittee. Ms. Buckley asked if one member from the public could be included in the subcommittee and asked why the issue of alimony was not an area to be reviewed by the interim study. Mr. Anderson stated in drafting the resolution, he decided the issue of alimony deserved its own study. Mr. Collins observed there was no member of the committee representing a men's group. Mr. Anderson replied the groups outlined in the resolution included organized and recognized groups.

Senator Maurice Washington, Senatorial District 2, primary sponsor of S.B. 102 introduced Don Williams, Chief Principal Research Analyst, Legislative Counsel Bureau, to address the bill. Mr. Williams explained that Senator Mark James, Chairman to the Senate Committee on Judiciary had asked him to provide background information on the bill to lead into Senator Washington's testimony. He explained he did not support or oppose the legislative measure but was merely present to provide background information. He announced that S.B. 102 was requested by the Legislative Commission Subcommittee to Study the Treatment of Mentally Ill Offenders in the Criminal Justice System, Senate Concurrent Resolution 59 study and the January, 1997 report of the subcommittee had been published as Bulletin No. 97-7.

Mr. Williams read his prepared testimony (Exhibit G).

Senator Washington reiterated Mr. Williams' comments and the bill provided notification to the superintendent or the executive director of private schools if there was a sex offender attending that school then it became the administrator's responsibility to make sure the offender was following the prescribed supervision of probation and set up an alternative form of supervision if the offender needed to attend the same school as the victim; however, the parent of the sex offender and the victim needed to approve the plan. Lastly, the bill provided for an alternative plan if no school in the district wanted to accept the offender than the offender could attend an adjoining district with an agreement worked out by both superintendents. He explained there was an immunity clause in the bill provided for the superintendent that if the name of the victim was released unintentionally, they were immune from any recourse or libel suit.

Mr. Carpenter asked how the bill affected a rural area when there was only one school to attend, and if the parents did not agree to the alternative plan, what would occur. Senator Washington replied there were two choices—first, the offender could attend the same school without interacting with the victim wherein a supervised plan would have to be in effect to insure that no contact was occurring. The second plan would be that an adjoining school district could agree to receive the student with the consent of the parent.

In response to Mr. Carpenter's further inquiry, Senator Washington indicated if the school accepting the offender was some distance away, it would be the responsibility of the parent to transport that child to the other school, or accept the incurred cost by the school district to transport the student.

Senator Washington provided a chart setting forth the numbers of sexual offenses committed against juveniles (Exhibit H) and a letter in support of the legislation (Exhibit I).

Henry Etchemendy, Nevada Association of School Boards, stated the Association supported the bill. However, he pointed out page 3, section 9, lines 10-13, needed some attention as it did not read well. He informed the chairman he would provide some proposed language changes to that section for the next hearing on the bill.

Carolyn Edwards, legislative representative, Clark County School District, indicated her support for the bill and announced the concept was already in regulation in the Clark County School District and she would be available to answer questions. Chairman Anderson announced the hearing on the bill would continue on Friday since the committee was required on the floor of the Assembly presently.

Jim Costa, Nevada Rural School District Alliance, stated he would reserve his comments for the hearing on Friday. However, he pointed out that section 9 which allowed for modification of the alternative plans at the request of the superintendents needed some clarification.

Replying to Mr. Manendo's question, Ms. Edwards stated with regard to the Clark County School District, there was not much of a fiscal note since areas of concern in that regard involved transportation. She pointed out, however, there was a fiscal note for the rural counties. Chairman Anderson said that issue would be brought up at the Friday hearing also. Senator Washington indicated he would make himself available on Friday.

There being no further business before the committee, the meeting was adjourned at 10:45 a.m.

RESPECTFULLY SUBMITTED:

Joi Davis, Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

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