THE SIXTY-FIRST DAY

THE SIXTY-FIRST DAY

Carson City(Friday), April 6, 2001

Senate called to order at 10:46 a.m.

President pro Tempore Jacobsen presiding.

Roll called.

All present, except Senators Rawson and Washington, who were excused.

Prayer by the Chaplain, Pastor Sami Perez.

Loving Almighty God,

We thank You for bringing cohesion on difficult issues facing these men and women throughout this week. They are more than professionals—they are people who have separated themselves from their loved ones to devote time, energy and their own comfort for the good of the State without confusion or discord. We give honor, glory for guidance and wise decisions to Your touch.

During the brief respite, we pray You touch each of them and their families with rest in body, soul and spirit. Renew and refresh them please.

Amen.

Pledge of allegiance to the Flag.

Senator Raggio moved that further reading of the Journal be dispensed with, and the President pro Tempore and Secretary be authorized to make the necessary corrections and additions.

Motion carried.

REPORTS OF COMMITTEES

Mr. President pro Tempore:

Your Committee on Finance, to which was referred Senate Bill No. 492, has had the same under consideration, and begs leave to report the same back with the recommendation: Do pass.

William J. Raggio, Chairman

Mr. President pro Tempore

Your Committee on Government Affairs, to which were referred Senate Bills Nos. 306, 472, has had the same under consideration, and begs leave to report the same back with the recommendation: Do pass.

Also, your Committee on Government Affairs, to which were referred Senate Bills Nos. 61, 63, has had the same under consideration, and begs leave to report the same back with the under consideration, and begs leave to report the same back with the recommendation: Amend, and do pass as amended.

Ann O'Connell, Chairman

MESSAGES FROM THE ASSEMBLY

Assembly Chamber, Carson City, April 5, 2001

To the Honorable the Senate:

I have the honor to inform your honorable body that the Assembly on this day passed Assembly Bills Nos. 305, 396, 400.

Also, I have the honor to inform your honorable body that the Assembly on this day passed, as amended, Assembly Bills Nos. 36, 149, 180, 239, 264.

Also, I have the honor to inform your honorable body that the Assembly on this day adopted Senate Concurrent Resolutions Nos. 29, 30.

Patricia R. Williams

Assistant Chief Clerk of the Assembly

WAIVERS AND EXEMPTIONS

Notice of Exemption

April 5, 2001

The Fiscal Analysis Division, pursuant to Joint Standing Rule No. 14.6, has determined the exemption of: Senate Bills Nos. 125, 421.

Gary Ghiggeri

Fiscal Analysis Division

INTRODUCTION, FIRST READING AND REFERENCE

Assembly Bill No. 36.

Senator Townsend moved that the bill be referred to the Committee on Commerce and Labor.

Motion carried.

Assembly Bill No. 149.

Senator Townsend moved that the bill be referred to the Committee on Commerce and Labor.

Motion carried.

Assembly Bill No. 180.

Senator Townsend moved that the bill be referred to the Committee on Government Affairs.

Motion carried.

Assembly Bill No. 239.

Senator Townsend moved that the bill be referred to the Committee on Judiciary.

Motion carried.

Assembly Bill No. 264.

Senator Townsend moved that the bill be referred to the Committee on Human Resources and Facilities.

Motion carried.

Assembly Bill No. 305.

Senator Townsend moved that the bill be referred to the Committee on Judiciary.

Motion carried.

Assembly Bill No. 396.

Senator Townsend moved that the bill be referred to the Committee on Judiciary.

Motion carried.

Assembly Bill No. 400.

Senator Townsend moved that the bill be referred to the Committee on Judiciary.

Motion carried.

CONSENT CALENDAR

Senate Bill No. 517.

Bill read.

Roll call on Senate Bill No. 517:

Yeas—19.

Nays—None.

Excused—Rawson, Washington—2.

Senate Bill No. 517 having received a constitutional majority, Mr. President pro Tempore declared it passed.

Bill ordered transmitted to the Assembly.

SECOND READING AND AMENDMENT

Senate Bill No. 15.

Bill read second time.

The following amendment was proposed by the Committee on Judiciary:

Amendment No. 148.

Amend section 1, page 2, by deleting lines 18 through 24 and inserting:

“(a) Provisions for the payment of fees to an arbitrator who is appointed to hear a case pursuant to the rules. The rules must provide that an arbitrator must be compensated at a rate of $100 per hour, to a maximum of one thousand dollars per case, unless otherwise authorized by the arbitration commissioner for good cause shown.

(b) Guidelines for the award of attorney’s fees and maximum limitations on the costs to the parties of the arbitration . [;

(b)] (c) Disincentives to appeal . [; and

(c)] (d) Provisions for trial upon the exercise by either party of his”.

Amend sec. 2, page 2, by deleting line 40 and inserting: “filed on or after the effective date of this act.”.

Amend the bill as a whole by adding a new section designated sec. 3, following sec. 2, to read as follows:

“Sec. 3. This act becomes effective upon passage and approval.”.

Amend the title of the bill to read as follows:

“AN ACT relating to civil actions; enacting provisions regarding the payment of fees to arbitrators; and providing other matters properly relating thereto.”.

Amend the summary of the bill to read as follows:

“SUMMARY—Enacts provisions regarding payment of fees to arbitrators. (BDR 3‑34)”.

Senator Titus moved the adoption of the amendment.

Remarks by Senator Titus.

Amendment adopted.

Bill ordered reprinted, engrossed and to third reading.

Senate Bill No. 32.

Bill read second time.

The following amendment was proposed by the Committee on Judiciary:

Amendment No. 172.

Amend section 1, page 1, by deleting lines 3 through 11 and inserting:

“1. If a witness resides more than 500 miles from the place of a preliminary examination or is unable to attend the preliminary examination because of his medical condition, a party may, not later than 14 days before the preliminary examination, file a request that the magistrate allow the witness to testify at the preliminary examination through the use of audiovisual technology. A party who requests that the magistrate allow a witness to testify through the use of audiovisual technology shall provide written notice of the request to the opposing party at or before the time of filing the request.

2. Not later than 7 days after receiving notice of a request that the magistrate allow a witness to testify at the preliminary examination through the use of audiovisual technology, the opposing party may file an objection to the request. If the opposing party fails to file a timely objection to the request, the opposing party shall be deemed to have consented to the granting of the request.

3. Regardless of whether or not the opposing party files an objection to a request that the magistrate allow a witness to testify at the preliminary examination through the use of audiovisual technology, the magistrate may allow the witness to testify at the preliminary examination through the use of audiovisual technology only if the magistrate finds that good cause exists to grant the request based upon the specific facts and circumstances of the case.

4. If the magistrate allows a witness to testify at the preliminary examination through the use of audiovisual technology:

(a) The testimony of the witness must be:

(1) Taken by a certified videographer who is in the physical presence of the witness. The certified videographer shall sign a written declaration, on a form provided by the magistrate, which states that the witness does not have in his possession any notes or other materials to assist in his testimony.

(2) Recorded and preserved through the use of a videotape or other means of audiovisual recording technology.

(3) Transcribed by a certified court reporter.

(b) Before giving his testimony, the witness must be sworn and must sign a written declaration, on a form provided by the magistrate, which acknowledges that the witness understands that he is subject to the jurisdiction of the courts of this state and may be subject to criminal prosecution for the commission of any crime in connection with his testimony, including, without limitation, perjury, and that he consents to such jurisdiction.

(c) During the preliminary examination, the witness must not be asked to identify the defendant, but the witness may be asked to testify regarding the facts and circumstances surrounding any previous identification of the defendant.

(d) The original recorded testimony of the witness must be filed with the district court, and copies of the recorded testimony of the witness must be provided to each party.

(e) The testimony of the witness may not be used by any party upon the trial of the cause or in any proceeding therein in lieu of the direct testimony of the witness, but the court may allow the testimony of the witness to be used for any other lawful purpose.

5. Audiovisual technology used pursuant to this section must ensure that the witness may be:

(a) Clearly heard and seen; and

(b) Examined and cross-examined.

6. As used in this section, “audiovisual technology” includes, without limitation, closed-circuit video and videoconferencing.

Amend sec. 2, pages 1 and 2, by deleting lines 14 through 19 on page 1 and lines 1 through 4 on page 2 and inserting:

“1. If a witness resides more than 500 miles from the place of a grand jury proceeding or is unable to attend the grand jury proceeding because of his medical condition, upon the request of the district attorney, the district judge supervising the proceedings of the grand jury may allow a witness to testify before the grand jury through the use of audiovisual technology.

2. The district judge supervising the proceedings of the grand jury may allow a witness to testify before the grand jury through the use of audiovisual technology only if the district judge finds that good cause exists to grant the request based upon the specific facts and circumstances of the grand jury proceeding.

3. If the district judge supervising the proceedings of the grand jury allows a witness to testify at the grand jury proceeding through the use of audiovisual technology:

(a) The testimony of the witness must be:

(1) Taken by a certified videographer who is in the physical presence of the witness. The certified videographer shall sign a written declaration, on a form provided by the district judge, which states that the witness does not have in his possession any notes or other materials to assist in his testimony.

(2) Recorded and preserved through the use of a videotape or other means of audiovisual recording technology.

(3) Transcribed by a certified court reporter appointed pursuant to NRS 172.215 in accordance with the provisions of NRS 172.225.

(b) Before giving his testimony, the witness must be sworn and must sign a written declaration, on a form provided by the district judge, which acknowledges that the witness understands that he is subject to the jurisdiction of the courts of this state and may be subject to criminal prosecution for the commission of any crime in connection with his testimony, including, without limitation, perjury, and that he consents to such jurisdiction.

(d) The testimony of the witness may not be used by any party upon the trial of the cause or in any proceeding therein in lieu of the direct testimony of the witness, but the court may allow the testimony of the witness to be used for any other lawful purpose.

4. Audiovisual technology used pursuant to this section must ensure that the witness may be:

(a) Clearly heard and seen; and

(b) Examined.

5. As used in this section, “audiovisual technology” includes, without limitation, closed-circuit video and videoconferencing.”.

Senator Care moved the adoption of the amendment.

Remarks by Senators Care, Neal and Raggio.

Amendment adopted.

Bill ordered reprinted, engrossed and to third reading.

Senate Bill No. 116.

Bill read second time and ordered to third reading.

Senate Bill No. 214.

Bill read second time.

The following amendment was proposed by the Committee on Judiciary:

Amendment No. 150.

Amend the bill as a whole by deleting sections 1 and 2 and adding new sections designated sections 1 through 3, following the enacting clause, to read as follows:

“Section 1. Chapter 484 of NRS is hereby amended by adding thereto a new section to read as follows:

A person shall not operate a motor vehicle upon a highway without giving full time and attention to the operation of the motor vehicle.

Sec. 2. The amendatory provisions of this act do not apply to offenses committed before the effective date of this act.

Sec. 3. This act becomes effective upon passage and approval.”.

Amend the title of the bill to read as follows:

“AN ACT relating to motor vehicles; providing that a person shall not operate a motor vehicle upon a highway without giving full time and attention to the operation of the motor vehicle; providing a penalty; and providing other matters properly relating thereto.”.

Amend the summary of the bill to read as follows:

“SUMMARY—Provides that person shall not operate motor vehicle upon highway without giving full time and attention to operation of motor vehicle. (BDR 43-635)”.

Senator Titus moved the adoption of the amendment.

Remarks by Senators Titus, Care and Raggio.

Senator Care moved that Senate Bill No. 214 be taken from the General File and placed on the Secretary’s desk.

Remarks by Senator Care.

Motion carried.

Senate Bill No. 221.

Bill read second time and ordered to third reading.

Senate Bill No. 373.

Bill read second time.

The following amendment was proposed by the Committee on Commerce and Labor:

Amendment No. 167.

Amend sec. 3, page 2, by deleting line 48 and inserting: “part of the account for [5 years] 1 year or more is presumed abandoned under”.

Senator O'Connell moved the adoption of the amendment.

Remarks by Senator O'Connell.

Amendment adopted.

Bill ordered reprinted, engrossed and to third reading.

Senate Bill No. 389.

Bill read second time and ordered to third reading.

Assembly Bill No. 12.

Bill read second time and ordered to third reading.

Assembly Bill No. 14.

Bill read second time and ordered to third reading.

GENERAL FILE AND THIRD READING

Senate Bill No. 36.

Bill read third time.

Remarks by Senators James and Neal.

Senator James requested that his remarks be entered in the Journal.

As was mentioned yesterday, during the discussion on the amendment, it was noted the bill has gotten some attention. At risk of creating questions where maybe there are not questions, I would like to say a few things about it.

The Legislature can be proud of its record in addressing criminal justice issues. We have, over the past several sessions, enacted some of the toughest criminal penalties in the United States. We are harsh on those who commit serious crimes. But as vigilant as we are about ensuring the sure and severe punishment of those who commit serious crimes, we must also be vigilant about ensuring that the process by which convictions are arrived at is fair and protects the rights of the accused. We don’t hear as much about that. Frankly, we haven’t heard as much about that from the Judiciary Committee. But the justice of the former, the criminal penalties, is dependent upon the rightness and the justice of the latter, and that is the criminal procedure.

We have in the Constitution all of these protections. If you are accused of a crime, you are entitled to certain due processes by which your life and, the second most important thing to your life, your liberty, cannot be taken from you without that due process. Criminal forfeiture is an interesting hybrid that has grown up statutorily. It doesn’t have a constitutional base, and the way it has been interpreted is as follows:

If the defendant in a criminal proceeding is not a person and what is at stake is not the deprivation of a person’s liberty or a person’s life and the proceeding is essentially against a property, which is the fruits or the instrumentality of a crime, then the same protections that are in the 5th Amendment, and applicable to all the states through the 14th Amendment—the right to be represented by council, to have council appointed if you are indigent, to be presumed innocent until you are proven guilty, to not be required to testify against yourself—none of these rights apply because what is at stake is property. The property is, essentially, the defendant not the person.

Yet, the fundamental basis of a forfeiture proceeding is that there has been a crime committed, and the person who owns and controls the property committed that crime. It is a strange hybrid. We have gone so far in this country, at the federal level especially, as well as in many states, to completely wipe the slate clean in terms of the rights of the accused in these proceedings. Essentially, they have no rights. The way forfeiture of property works is the burden is on the person to prove the property wasn’t an instrumentality of a crime or the fruits of a crime.

The State can under whatever evidence it deems to be administratively sufficient, say, “This money, automobile, boat, house, property, real property is now ours. Prove it wasn’t part of a crime, and you can get it back.”

That is not right because there is more at stake than just property. There is the whole, fundamental notion of a capitalistic system of private property and control over your own destiny and your own security in your personal effects and personal property. That is what is at stake.

There are other jurisdictions; we are not the first to have recognized this. There was a bill in Congress to change the federal law, and it is interesting what the federal government did. They attempted to enact a law whereby property wouldn't be forfeited in a criminal proceeding until a person was actually convicted. What they got through the Congressional process was Nevada’s law today, i.e., the State or some party must prove, by a preponderance of the evidence, whether the property should be forfeited or not.

With Senate Bill No. 36, Nevada is going one step beyond that. The critical provisions of the bill, on the first page, states, “You have committed a crime. We are not going to convict you yet, but we are going to take your property.” The State has the burden of proving by clear and convincing evidence that the property was the fruits or the instrumentalities of a crime. Clear and convincing evidence is not evidence beyond a reasonable doubt, which is a criminal standard; it is higher, though, than a preponderance of the evidence. Preponderance merely means one greater than 50 percent. It tips slightly in favor of the State. Clear and convincing evidence requires that the State go beyond that.

There have been high profile cases both nationally and here, in Nevada, regarding criminal forfeiture. These changes will apply to future cases. These changes will apply to seizures of property that occur after the effective date of the act. You should know that the way this bill was drafted, proposed and introduced, it would have applied that way anyway. It has an October 1, 2001, effective date. The committee wanted to be certain there was no litigation in the courts over this issue and added one provision that only applies this prospectively.

What happens to the money and the property once there is forfeiture? Now, it goes back to law enforcement and its activities. Certainly, a certain amount of forfeiture money should go to fund the activities of law enforcement. You can see in the statute that is contained in the bill that in drug prosecutions the money has to go to drug law enforcement. There are a couple of other provisions that deal with specific places that the forfeited property or proceeds must go. The Judiciary Committee was creative and proposed that some of this money go to some other good cause. There could not be a bigger crisis right now in this State than the crisis now over education funding. Although this certainly isn’t a large part of the solution, at least some money will go toward education. After a $100,000 threshold, after the expenses of the forfeiture are paid, after the money is used for the other statutory requirements for which it must be used, 70 percent of the remaining money will go to buy school books and computer education technology in the school district within the judicial district in which the property forfeiture proceeding took place. That is a good thing.

There is an accounting process for this money that exists in the law and added to that accounting process is a process that ensures this money gets into the right hands. Law enforcement, and that includes the police and the prosecutors who were naturally wary of this bill when it first came out, did not know what to think of it. They wondered what the Judiciary Committee was doing proposing this forfeiture bill. But to their credit, I can tell the Senate, today, that we had the Las Vegas Metropolitan Police Department, the Washoe County Sheriff’s Office, the Reno Police Department and the District Attorney’s Association before us, and they all agreed to this language. They all stepped forward to see that, first, we have a heightened standard and better protection in criminal forfeiture cases. They have agreed to this, and they are going to support this in the other House. This money, once it is forfeited, is going to a good cause, and that is the education of our children. I cannot think of a better way to take criminal wrongdoing, and through a good and fair process, turn it into something good for the kids of the State.

I urge you to vote for Senate Bill No. 36 and to send it to the Assembly and the Governor so that it may do its good work.

Roll call on Senate Bill No. 36:

Yeas—19.

Nays—None.

Excused—Rawson, Washington—2.

Senate Bill No. 36 having received a constitutional majority, Mr. President pro Tempore declared it passed, as amended.

Bill ordered transmitted to the Assembly.

Senate Bill No. 65.

Bill read third time.

Roll call on Senate Bill No. 65:

Yeas—18.

Nays—Titus.

Excused—Rawson, Washington—2.

Senate Bill No. 65 having received a constitutional majority, Mr. President pro Tempore declared it passed.

Bill ordered transmitted to the Assembly.

Senate Bill No. 112.

Bill read third time.

Remarks by Senators Amodei and Neal.

Roll call on Senate Bill No. 112:

Yeas—18.

Nays—None.

Not Voting—Neal.

Excused—Rawson, Washington—2.

Senate Bill No. 112 having received a constitutional majority, Mr. President pro Tempore declared it passed, as amended.

Bill ordered transmitted to the Assembly.

Senate Bill No. 236.

Bill read third time.

Roll call on Senate Bill No. 236:

Yeas—19.

Nays—None.

Excused—Rawson, Washington—2.

Senate Bill No. 236 having received a constitutional majority, Mr. President pro Tempore declared it passed, as amended.

Bill ordered transmitted to the Assembly.

Senate Bill No. 347.

Bill read third time.

Remarks by Senators Titus, James, O'Donnell and Raggio.

Senator Titus requested that her remarks be entered in the Journal.

I stand in strong support of this bill that would designate a State tartan, and if you look around the halls of the building today, you will see lots of examples of tartans being worn by our visitors. What a lovely sight to see. Please read the description of what the different colors mean. You will be quite impressed by the amount of work that went into designing this tartan.

Blue is to represent one of the State colors of Nevada, the pristine colors of Lake Tahoe and the mountain bluebird which is the Nevada State Bird. Silver represents another of our State colors. We are the Silver State; silver is our State Mineral, and it also represents the granite of the Sierra Nevada Range. Red is another of our State colors. It stands for the Fire Opal, and it represents the Red Rocks of southern Nevada. Yellow is the color of the State Flower, the sagebrush, and it represents the Great Basin Region of central Nevada. White represents the snowcaps and, indeed, that is what “Nevada” means. The crossing of the yellow and red lines represents the different colored sandstone of Nevada. Sandstone is our State Rock. The white intersection on the silver‑gray field represents the snowcapped peaks that make up the Sierra Nevada Mountain Range. The four blue lines represent our four main rivers in Nevada. They are the Colorado, the Truckee, the Humboldt and the Walker River. The intersecting blue and the silver and gray field represent the Colorado River as it meets Hoover Dam and creates Lake Mead. The intersecting color blue, numbers 8x8 or the number 64, is for the year Nevada became a state. The 13 solid color intersections of the small stripes represent Boundary Peak the highest point in Nevada with an elevation of some 13,000 feet. Finally, the 16 solid silver intersections and the solid white intersection in the center of the tartan represent the 16 counties and the one consolidated city-county government that make up the State of Nevada. It will truly be a grand tartan and a proud thing for many people in Nevada to wear because it represents so many different aspects of our geography and our culture.

Roll call on Senate Bill No. 347:

Yeas—19.

Nays—None.

Excused—Rawson, Washington—2.

Senate Bill No. 347 having received a constitutional majority, Mr. President pro Tempore declared it passed.

Bill ordered transmitted to the Assembly.

Senator Titus moved that the Senate recess subject to the call of the Chair.

Motion carried.

Senate in recess at 11:48 a.m.

SENATE IN SESSION

At 11:51 a.m.

President pro Tempore Jacobsen presiding.

Quorum present.

MOTIONS, RESOLUTIONS AND NOTICES

Senator Raggio moved that Senate Joint Resolution No. 1; Assembly Bills Nos. 150, 151, be taken from the General File and placed on the General File for the next legislative day.

Motion carried.

UNFINISHED BUSINESS

Signing of Bills and Resolutions

There being no objections, the President pro Tempore and Secretary signed Senate Resolution No. 9; Assembly Concurrent Resolution No. 20.

GUESTS EXTENDED PRIVILEGE OF SENATE FLOOR

On request of Senator Carlton, the privilege of the floor of the Senate Chamber for this day was extended to Lynsey Coffman.

On request of Senator James, the privilege of the floor of the Senate Chamber for this day was extended to Cherie Baker.

On request of Senator O'Connell, the privilege of the floor of the Senate Chamber for this day was extended to Lynda Bailey and Oscar Bailey.

On request of Senator Porter, the privilege of the floor of the Senate Chamber for this day was extended to Nathan Taylor.

On request of Senator Schneider, the privilege of the floor of the Senate Chamber for this day was extended to Donna Woodward.

On request of Senator Raggio, the privilege of the floor of the Senate Chamber for this day was extended to the following students from the Truckee Meadow Christian School: Ryann Roepke, Ethan Roepke, Joshua Root, Chris Spiteri, Steven Ferrari, Devin Katsionbras, Kristal Dodge, Eric Kuzemchak, Naomi Johnson, Kindel Vanderwell, Devyn Gruhn, Candace Jones, Brianne Roepke, Alishia Katsimbras, Megan Check, Melissa Darrow, Jeff Williams, Nick Bailey, Rita Vannoy, Courtney Williams, Jonathan Oldham, Jeanette Salles, Zaharayab Bennett, Jennifer Pheffing, Jessica Pheffing, Devin Shaw, Brandon Anderson, CoraJoy Sutton, Warren Anderson, Robbie Heckman, Daniel Loftis, Brittany Neely, Terra Neely, Emily Lovato, Joshua Loftis, Marylee Neeley, Robby Bradshaw, Zaraan Bennett, Chelsea Bosworth, A. J. Royske, Kyla Holt; teacher: Diane Van Derwell; chaperones: Dr. Robert Daugherty, Dawn Serafin, Sharon Cruz, Kim Roepke, Dian Vanderwell, Carol Dial and Rick Dial.

On request of Senator Titus, the privilege of the floor of the Senate Chamber for this day was extended to the following participants for Tartan Day: Dr. Stephen McFarland, Rick Pawkowski, James Bennett, Patricia Puchert, John Howe, Elizabeth Howe, Loran Logan, Christopher Logan, Betty Peters, Robert Bledsaw, Chester Buchanon, Lady Joy Lawson, Pat Lantz, Sue Cobbs, Patricia Keough, Lynda Allen, Dorothy Headrick, Walter Headrick, J. J. McDonald, Paula McDonald, Larry Pizorno, Sharon Pizorno, William Glenn, Helen Glenn, Bettylu Hopkins, William Brainard, Marilyn Brainard, Don Mitchell, Katrina Bledsaw, Robert Bledsaw and Danielle Bledsaw.

Senator Raggio moved that the Senate adjourn until Monday, April 9, 2001 at 11 a.m.

Motion carried.

Senate adjourned at 11:56 a.m.

Approved:Lawrence E. Jacobsen

President pro Tempore of the Senate

Attest: Claire J. Clift

Secretary of the Senate