MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
February 4, 2003
The Committee on Judiciarywas called to order at 8:32 a.m., on Tuesday, February 4, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Ms. Barbara Buckley (excused)
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst, Principal Research Analyst, Research Division, Legislative Counsel Bureau (LCB)
Danielle L. Christensen, Research Analyst, Research Division, LCB
Risa B. Lang, Committee Counsel, Principal Deputy Legislative Counsel, Legal Division, LCB
Amiee McGimpsey, Deputy Legislative Counsel, Legal Division, LCB
Jessica Shade, Deputy Legislative Counsel, Legal Division, LCB
JoAnn Kula, Committee Manager
Deborah Rengler, Lead Committee Secretary
Sabina Bye, Committee Secretary
Nancy Elder, Committee Secretary
Carrie Lee, Committee Secretary
OTHERS PRESENT:
James J. Jackson, Attorney, Thorndal, Armstrong, Delk, Balkenbush & Eisinger, Las Vegas, Nevada, and representing the Nevada Attorneys for Criminal Justice
Ben Graham, Chief Deputy District Attorney, Clark County District Attorney’s Office, and Legislative Representative, Nevada District Attorney’s Association, Las Vegas, Nevada,
Chairman Anderson began his opening remarks (Exhibit C) and noted a quorum was present. He welcomed all those present to the first meeting of the Assembly Committee on Judiciary for the 72nd Legislative Session. He reminded the Committee members that the meeting was being recorded and broadcast over the Internet and that any comments made before or after the meeting may be transmitted. Chairman Anderson advised that the link to listen to committee meetings was found on the Internet at <www.leg.state.nv.us> and that audio recordings of the meetings were available for purchase.
Chairman Anderson introduced himself as Assemblyman Bernie Anderson of Sparks, representing Washoe County Assembly District 31. This was his seventh legislative session and he had been a member of the Assembly Committee on Judiciary since the 1991 Legislative Session. He had served as Chairman of the Committee since 1997 and served as co-chairman during the 1995 Legislative Session.
Continuing, he introduced the members of the Committee, acknowledging their varied backgrounds: attorneys, consultants, a school teacher, university staff, a fire captain, a retired operating engineer, a professional driver, a rancher, a nuclear physicist, a physician, and a number of managers or owners of various businesses. There were seven returning members and seven new members to the Committee.
He then introduced the Committee staff:
· Risa B. Lang, Principal Deputy Legislative Counsel, Legal Division, Legislative Counsel Bureau, who would be acting as the Committee Legal Counsel.
· Amiee McGimpsey, Deputy Legislative Counsel.
· Jessica Shade, Deputy Legislative Counsel.
· Allison Combs, Principal Research Analyst, Research Division, Legislative Counsel Bureau, who would be the Committee’s Policy Analyst.
· Danielle Christenson, Research Analyst, Research Division, who would assist with research requests and might staff the subcommittees.
· JoAnn Kula, Personal Secretary and Committee Manager.
· Deborah Rengler, Lead Committee Secretary.
· Sabina Bye, Nancy Elder, and Carrie Lee, Committee Secretaries.
He reported that the Assembly Committee on Judiciary was one of the busiest and hardest-working committees, and he displayed the bill books from the Seventy‑first Legislative Session, which included 189 legislative measures that had been referred to the Committee. Expecting to compare the 2001 bill books to an empty bill book for the Seventy-second Legislative Session, Chairman Anderson noted that the current bill book already contained a 425‑page bill, Assembly Bill 38. Quoting former Assemblyman Robert M. Sader, Chairman of the Committee from 1987 through 1993, Chairman Anderson said the Committee dealt with issues ranging from “before life to after death,” tracking the interests of Nevada citizens “from cradle to grave.”
Continuing, Chairman Anderson announced the Committee meetings would begin at 9 a.m. on Mondays, and on all other days the meetings would begin at 8 a.m. Later in the session, due to workload constraints and the 120-day session, the meetings might begin at 7:30 a.m. on days other than Mondays. He emphasized the importance of courtesy in dealing with members of the Committee, staff, and all those who would testify before the Committee. He stressed the importance of providing a fair hearing to all parties on all the bills that were scheduled for hearing. Of special importance was the public testimony, since the Committee must never forget that it served the public.
Chairman Anderson pointed out deadlines for the Committee.
Chairman Anderson previewed presentation topics to be heard in the next four meetings:
He announced that upon completion of the presentations, the Committee would begin hearing testimony on the bills. He called attention to the Committee minute books, seven volumes, from the Seventy-first Legislative Session. He announced he would choose a volunteer to review minutes prior to final approval. He discouraged Committee members from receiving individual copies of all the minutes, but acknowledged that the Committee secretaries would prepare copies of the minutes for all Committee members unless informed otherwise.
In addition, Chairman Anderson explained that after a piece of legislation was passed, a member of the Committee would be assigned to present the bill on the Assembly Floor on behalf of the Committee. Either Vice Chairman Oceguera or Chairman Anderson would handle all amendments on behalf of the Committee. He reiterated that each member would be given an opportunity to stand and present a Floor Statement that had been prepared by the Research Division in explanation of the bill. The sponsor would defend an individually introduced bill, with a Committee member assigned as backup. A new feature this session, every Committee member received a binder to contain all the Committee’s Floor Statements, which was placed on his or her desk in the Assembly Chambers.
In order of seniority, Committee members made opening remarks and greeted those in attendance:
Assemblyman John C. Carpenter said the cast of characters had not changed much, everyone liked to “spend mornings with Bernie.” He said he was honored to return to the Committee, the best committee in the Legislature. It should be an enjoyable experience. Mr. Carpenter told the Chairman that he anticipated the Floor Statements would fill the binders.
Vice Chairman John Oceguera thanked Chairman Anderson for the opportunity to be the Vice Chairman; it was an honor and a privilege. He shared some advice with the freshman legislators: “just because you are asked to speak, you don’t have to.”
Assemblyman Don Gustavson said it was a pleasure to be back with the Committee. He said it was his favorite committee, and he looked forward to working with the members and those in the audience.
Assemblywoman Genie Ohrenschall said she was pleased to return to the Committee. The Committee was user-friendly with everyone on the Committee willing to help. Ms. Ohrenschall complimented Chairman Anderson on being an outstanding chairman.
Assemblyman Jerry D. Claborn said it was a pleasure to return to the Committee. There was much work to complete, he was prepared to start, and “ready for the rodeo.”
Assemblywoman Sharron Angle thanked the Chairman for the opportunity to speak and serve on the Committee. Referring to the cap given to her in the previous regular session, she noted she always looked forward to gifts for the Committee. The cap said “I survived mornings with Bernie.”
Assemblyman Harry Mortenson said he made the decision to leave the Assembly Committee on Government Affairs, where he had been for three sessions, and to begin a new learning curve in the Assembly Committee on Judiciary. He said he would attempt to “not make a pest of himself” asking questions.
Assemblyman David Brown remarked that the anticipation of earning a cap at the end of session was the reason he chose to serve on the Assembly Committee on Judiciary. Seriously, he said it was a pleasure to serve on the Committee. He remarked that he had a particular interest in the exceptional matters coming before the Committee.
Assemblyman Marcus Conklin thanked the Chairman for the opportunity to serve on the Committee. He said it reminded him of the bumper sticker that said, “Get in, sit down, shut up, and hold on.”
Assemblyman Jason Geddes said he looked forward to serving on the Committee. He said he would get through it.
Assemblyman William Horne said he appreciated the opportunity to serve on the Committee; he had been looking forward to it for a long time. He said he anticipated that the Committee would be busy but enjoyable.
Assemblyman Garn Mabey said it was a humbling experience. He admitted he had a tremendous amount to learn. He said he was grateful; it was “a dream come true.” Even as a physician, it was a little awkward. He pledged that he would work hard and do his very best.
Assemblyman Rod Sherer said he was honored to serve on the Committee. He admitted the Chairman’s reputation was well known.
Chairman Anderson announced the next order of business was the adoption of the Standing Rules of the Assembly Committee on Judiciary (Exhibit D). He said the Committee had moved from 14 members to 15 members. Chairman Anderson reviewed a number of the rules specifically, saying that many were restatements of those rules adopted for the Senate and Assembly of the Nevada Legislature.
Assemblyman Carpenter indicated that Rule 11 of the Committee Standing Rules was important. Chairman Anderson agreed and provided a brief explanation of that rule, which addressed consistent voting in Committee and during the Floor Session. He noted that the 15-member Committee operated together as a single entity. If any member had information that would change his or her vote between the Committee hearing and the Floor vote, that member should inform the Chairman. If the information might change the vote of the Committee, he said the legislation should return to the Committee for reconsideration. The other 27 members of the Assembly expected the Committee to perform its tasks well.
Chairman Anderson entertained a motion to adopt the Committee Standing Rules.
ASSEMBLYMAN OCEGUERA MOVED TO ADOPT THE STANDING RULES OF THE ASSEMBLY COMMITTEE ON JUDICIARY FOR THE SEVENTY-SECOND LEGISLATIVE SESSION.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
THE MOTION CARRIED. (Ms. Buckley was not present for the vote.)
Chairman Anderson presented two bill draft requests (BDRs) for introduction by the Committee:
l BDR 10-94 — Makes various changes to provisions governing common-interest communities. (A.B. 43)
l BDR 43-109 — Requires drivers of motor vehicles to stop in obedience to direction or traffic-control signal of school crossing guard and not proceed until highway is clear of all persons. (A.B. 42)
Chairman Anderson noted it was unusual for the Committee to receive BDR 43‑109 but it was a judicial referral. He verified there was a crossover of jurisdiction with the Assembly Committee on Transportation for that piece of legislation, which allowed the Assembly Committee on Judiciary to accept referral of BDR 43-109. Bill Draft Request 43-109, page 2, Section 1, subsection 2, would establish that violation of the provision resulted in a misdemeanor.
Chairman Anderson entertained a motion to introduce BDR 10-94 and BDR 43‑109.
ASSEMBLYMAN CARPENTER MOVED FOR COMMITTEE INTRODUCTION OF BDR 10-94 AND BDR 43-109.
ASSEMBLYMAN CLABORN SECONDED THE MOTION.
Chairman Anderson clarified that voting in favor of introduction did not require that members vote in support of the legislation when or if it reached the Assembly Floor. This was merely a question as to whether the Committee should take time to listen to the two pieces of legislation.
THE MOTION CARRIED. (Ms. Buckley was not present for the vote.)
Chairman Anderson recognized Allison Combs, Principal Research Analyst, Research Division, Legislative Counsel Bureau, as she approached the witness table to make her presentation as the Committee Policy Analyst.
After introducing herself, Ms. Combs read from a prepared statement (Exhibit E). She informed the Committee that she was available to assist with research requests throughout the session. She provided a document entitled “Committee Policy Brief: Assembly Committee on Judiciary,” dated February 2003 (Exhibit F), and gave an overview of the following information included in the Brief:
1. Criminal justice system—Crimes and penalties, criminal history repository, registration and community notification of sexual offenders, parole and probation, juvenile justice, criminal procedure, assault and battery of an officer, sealing of criminal records, Department of Corrections, concealed weapons, domestic violence, and the death penalty—pages 4 through 8.
2. Civil law and liability—Updating Nevada’s corporate laws, limitations on civil liability, common-interest communities, and construction defects—pages 8 and 9.
3. Medical malpractice—Legislature met during the 17th Special Session (2001) and enacted Assembly Bill 1 of the 17th Special Session, to address the issue of medical malpractice. With the filing of an initiative petition on the issue and numerous bill draft requests, it appeared this issue would be revisited this session.
4. Courts—District court programs for the treatment of mentally retarded offenders, increasing judges, and changing court structure—page 10.
5. Domestic relations—Adoption and foster care, child custody and visitation, domestic violence, child abuse and neglect, and child support—pages 11 and 12.
6. Gaming—Internet gaming, gaming work permits, and sports wagering—pages 13 and 14.
§ Selected issues for the 2003 Legislative Session
1. Two interim studies conducted during the 2001-2002 interim recommended changes in Nevada’s laws, which would be referred to the Committee:
· Aggravating and mitigating circumstances
· Competency of counsel
· Three-judge panels
· Defendants diagnosed with mental retardation
· Crimes committed in prison
· Domestic violence
· Outdated laws
· Graffiti
2. Driving under the influence—States must adopt the 0.08 blood alcohol concentration national standard for impaired driving by 2004 or have certain highway construction funds withheld.
Ms. Combs reviewed deadlines facing legislators and committees during the session. In closing, she called attention to the list of key judiciary contacts outlined on pages 19 and 20 of the Brief. Chairman Anderson noted that the March 24, 2003, and April 11, 2003, deadlines might require evening meetings during the week preceding each deadline.
Assemblyman Carpenter queried how the recently qualified “Keep Our Doctors in Nevada” initiative petition concerning medical malpractice would progress through the Legislature. Ms. Combs replied the petition would return to the Legislature and be introduced. The Legislature would have 40 days to consider the petition and choose whether to act upon the petition. If the petition was not acted upon, it would be placed on the general election ballot in 2004 for voter consideration. The Legislature had the option to consider an alternate petition to place on the ballot.
Mr. Carpenter asked if a decision had been made as to which legislative committee would act upon the petition. Chairman Anderson replied the petition would fall under judiciary jurisdiction, but no decision had been reached concerning which legislative house would initially receive the petition.
Risa B. Lang, Principal Deputy Legislative Counsel, Legal Division, Legislative Counsel Bureau, stated that it was her privilege to serve as Committee Counsel for the fourth consecutive session. Reading from prepared remarks (Exhibit G), she said Chairman Anderson had requested that she review case law since the last legislative session and determine which laws had since been held unconstitutional or unenforceable. Ms. Lang called attention to Exhibit H, a summary of such cases. She noted that many of these cases had prompted legislation that might be heard during the 2003 Legislative Session.
Ms. Lang disclosed that as staff of the Legislative Counsel Bureau, she served in a non-partisan capacity, and therefore did not urge or oppose any particular legislation.
Referring to Exhibit H, which included detailed information and references to current Nevada case law, Ms. Lang reported she had separated the cases into topics and offered a brief explanation of the following cases:
Death Penalty
o Atkins v. Virginia—This case held that it was an unconstitutional violation of the cruel and unusual punishment clause of the Eighth Amendment of the United States Constitution to execute the mentally retarded. The U.S. Supreme Court did not provide a universal definition of mentally retarded; therefore, it had been left to the states to determine how to define mentally retarded for the purposes of imposing the death penalty. Nevada law currently did not prohibit imposing the death penalty upon a person who was mentally retarded. Assembly Bill 353 of the 71st Legislative Session proposed to “prohibit sentence of death for person who is mentally retarded,” but it had died in the Senate. The effect of Atkins on Nevada law was that, until the Legislature defined mentally retarded, the courts must determine who was mentally retarded. Because more than one court might need to determine this issue, it could lead to inconsistent results.
o Ring v. Arizona—This case held that a judge, sitting without a jury, could not determine aggravating circumstances in imposing the death penalty because it violated the Sixth Amendment, right to trial by jury, of the United States Constitution. The court found that the practice of allowing judges to determine aggravating circumstances was unconstitutional because it was a factual determination used to impose a higher penalty, and thus was considered an element of a greater offense. Currently, there were two situations in statute where judges were charged with determining aggravating circumstances for purposes of imposing the death penalty: when the sentencing jury in a capital murder case failed to reach a unanimous verdict on the sentence to be imposed; and when the offender entered a plea of guilty and waived his right to a jury trial. The Nevada Supreme Court determined the constitutionality of these provisions of Nevada law in light of the holding of the U.S. Supreme Court in Ring v. Arizona.
o Colwell v. State—In this case the Nevada Supreme Court addressed situations where a judge determined the sentence of a person who entered a plea of guilty and waived his right to a trial by jury. First, it held that Ring v. Arizona did not apply retroactively to finalize cases. Secondly, it determined that Ring v. Arizona did not apply to cases in which the defendant had waived his rights to trial by jury. Thus, the Court held that a three-judge panel was allowed to determine aggravating circumstances and to sentence an offender to death when the offender had waived his right to a trial by jury.
o Johnson v. State—The Nevada Supreme Court addressed situations where a person was sentenced to death by a three-judge panel after a jury was unable to reach a unanimous verdict on the sentence. The Nevada Supreme Court held that based on the holding in Ring v. Arizona, this practice was unconstitutional. To summarize the effect of Ring v. Arizona on Nevada law, the Nevada Supreme Court held that it was appropriate for a three-judge panel to determine aggravating factors where a person had entered a plea of guilty and waived his right to a jury trial, but a three-judge panel would not be allowed to determine aggravating factors when the jury failed to reach an unanimous verdict on a sentence to impose. Until the Nevada Legislature amended the law to change the procedure, the courts must determine a constitutional manner to proceed in cases in which the jury did not reach an unanimous verdict.
o re Kevin Nigel Stanford—The U.S. Supreme Court denied certification to determine whether the Eighth Amendment of the United States Constitution prohibited the imposition of the death penalty upon a person who committed a crime before the age of 18. Because certification was denied, the U.S. Supreme Court did not consider the issue, and therefore the law concerning the age for imposition of the death penalty was not changed. Each state must determine the appropriate age for imposition of the death penalty. Nevada Revised Statutes (NRS) 176.025 allowed the death penalty to be imposed upon a person for a crime committed when the person was 16 years or older.
Chairman Anderson interjected that the issue of the death penalty would be addressed in upcoming hearings.
Plea of Guilty But Mentally Ill
o Finger v. State—The Nevada Supreme Court considered the statutory scheme of the plea of “guilty but mentally ill” as passed in Senate Bill 314 of the 68th Legislative Session, which replaced the insanity defense in 1995. The Nevada Supreme Court met during the 2001‑2002 legislative interim and determined that S.B. 314 of the 68th Legislative Session was an unconstitutional violation of the due process guarantees because it allowed a person to be convicted of a criminal offense under circumstances where the person lacked the mental capacity to form a necessary element of the offense, the intent to commit the crime. The Court acknowledged that similar statutes had been upheld by the Supreme Courts of three other states: Idaho, Montana, and Mississippi. Those courts found that there was no constitutional right to assert an insanity defense. The Nevada Supreme Court also noted that the U.S. Supreme Court had not determined this issue.
However, the Nevada Supreme Court disagreed with the three states and held that S.B. 314 of the 68th Legislative Session should be rejected in its entirety. The Nevada Supreme Court also held that all prior versions of statutes amended or repealed by S.B. 314 of the 68th Legislative Session would remain in full force and effect. The effect of Finger v. State on Nevada was that its statutes did not reflect the current state of the law. The Nevada Supreme Court effectively revived the laws as they existed before the 1995 Legislative Session and the case law interpreting those laws. The Court summarized the law prior to 1995, which was now the law of the state until the Legislature determined otherwise. This meant that the Court had reinstated the insanity plea as a complete defense to a criminal act. To determine who qualified as legally insane, the “M’Naghten rule” was applied. Ms. Lang quoted the M’Naghten rule:
To qualify as legally insane, a defendant must be in a delusional state such that he cannot know or understand the nature and capacity of his act, or his delusion must be such the he cannot appreciate the wrongfulness of his act; that is, that the act is not authorized by law.
The Court further held that the delusion could only be grounds for legal insanity when the facts of the delusion would justify the commission of the criminal act. Thus, according to the Court, when the delusion would not present a legal defense, then the person could not assert the defense. Under this application of the rule, if a defendant claimed his delusion led him to believe that the person who he killed was attacking him and that he was acting in self-defense, he could be found innocent by reason of insanity. However, if the defendant claimed, for example, that his delusion led him to believe that the President [of the United States] was conspiring to kill him, so he shot the President, he would not be excused, because even if that was true, it would not entitle him to hunt down the President or claim self-defense.
In addition to reviving the insanity defense, the Court reinstated the procedural rules applicable to the insanity defense, which meant that insanity was an affirmative defense and must be proved by a preponderance of the evidence. If a person was found not guilty by insanity, he must be committed to a mental health facility, where he must remain until a judge determined he was no longer mentally ill nor a threat to himself or others. The M’Naghten rule was very narrow and the Court noted that few people would qualify as legally insane under the rule. However, the Nevada Supreme Court held that there was no constitutional reason to expand the definition of legal insanity and left that for the Legislature to decide.
Chairman Anderson noted that a BDR had been requested that dealt with the question of the mentally ill, which was not the same as being mentally retarded.
Continuing, Ms. Lang noted that the next two cases dealt with statutes deemed to be unconstitutionally vague.
Manufacturing Controlled Substances
o Sheriff v. Burdg—The Nevada Supreme Court held that part of NRS 453.322, which made it a felony to possess a majority of ingredients required to manufacture a controlled substance other than marijuana, was unconstitutionally vague, and as such violated the due process clause of the Fourteenth Amendment of the United States Constitution. The Court found that the statute lacked an element of intent to possess for the purpose of manufacturing a controlled substance and this infringed on a person’s liberty interest. It further held that the statute did not provide fair notice of the prohibited conduct because it did not list the items that were the ingredients necessary to manufacture a controlled substance. Because of the lack of intent and the ambiguity concerning the required ingredients, the Court held that the statute allowed arbitrary and discriminatory enforcement and thus was void for vagueness. The effect of this case on Nevada law was that the statute making it a felony to possess the ingredients to manufacture a controlled substance was no longer enforceable. To make the statute constitutional, the Legislature must amend the statute to add an element of intent and set forth the prohibited ingredients specifically.
Annoying A Minor
o City of Las Vegas v. District Court—This case held that NRS 207.260, which made it a misdemeanor to annoy or molest a minor, was unconstitutionally vague. The Court found that the statute did not specify the type of annoying behavior prohibited and did not define the term “molest.” It found that there was no fair notice as to the prohibited conduct because it did not state if the offender had to intend to annoy or molest the minor. Thus, the Court found that the statute authorized and encouraged arbitrary enforcement by failing to adequately describe the prohibited conduct. One judge noted that every parent of a teenager routinely violated this provision. The effect of this case on Nevada law was that the statute currently was unconstitutional and unenforceable. To ensure constitutionality, the Legislature must amend NRS 207.260 to add an element of intent and set forth the prohibited conduct more specifically.
Chairman Anderson asked if BDRs had been requested in these areas. Ms. Lang responded that the Assembly Committee on Judiciary had not, but the Senate Committee on Judiciary had submitted such a request.
Continuing, Ms. Lang said the next two cases involved the constitutionality of requiring a suspect to identify himself during an investigatory detention where there was no probable cause for arrest. The Nevada Supreme Court and the Ninth Circuit Court of Appeals reached opposite conclusions regarding this issue in two separate cases during the interim.
Investigative Detentions
o Carey v. Nevada Gaming Control Board—The Ninth Circuit Court of Appeals held the provisions of NRS 171.123, which required a person to identify himself, to be unconstitutional and a violation of the Fourth Amendment of the United States Constitution. The case primarily focused on the liability of an agent who had arrested a plaintiff who refused to identify himself during an investigatory detention. Officers might be sued for monetary damages in a civil rights action in federal court under 42 U.S.C. Section 1983 when it was found that the plaintiff was deprived of federal rights under cover of state law. The officers might claim qualified immunity from such liability.
However, in this case, the Ninth Circuit Court of Appeals denied qualified immunity to the officer. The Ninth Circuit found that the statutes relied on by the officer were unconstitutional. The Ninth Circuit relied on its own precedent in making that determination; it had unambiguously held in two other cases that it was a violation of the Fourth Amendment to compel identification during an investigatory detention because it allowed for an arrest in situations where there was no probable cause for the underlying crime for which the stop occurred.
Next, the Ninth Circuit found that although state officials who relied on statutes were presumed to act reasonably, an official might nevertheless be liable for enforcing a statute that was patently violative of fundamental constitutional principles. Because the two cases of the Ninth Circuit held that it was a violation of the Fourth Amendment to require a person to identify himself during an investigatory detention, the Ninth Circuit found that it was not reasonable for the agent to have relied on those statutes. Therefore, the agent was not granted qualified immunity and was sued in his personal capacity for monetary damages.
o Hiibel v. District Court—The Nevada Supreme Court reached the opposite conclusion. It held that NRS 171.123 did not violate the Fourth Amendment of the United States Constitution. The Nevada Supreme Court stated that the right to wander freely and anonymously without being compelled to divulge information to the government about who people were or what they were doing was not absolute. The Court stated that the Fourth Amendment protected only against unreasonable invasions of privacy by the government. It noted that the issue had not been decided by the U.S. Supreme Court, that there was a split among the federal circuit courts of appeal, and that the Ninth Circuit Court of Appeals had held it unconstitutional.
However, the Nevada Supreme Court found the reasoning of the Ninth Circuit unpersuasive and chose not to follow it. The Court held that requiring identification was a minimal intrusion on the privacy of the individual, which was outweighed by the benefit to officers and community safety. The Court further stated that reasonable people did not expect to withhold their identities from officers. Finally, the Nevada Supreme Court held that the statute was narrowly written and was “good law consistent with the Fourth Amendment.” The effect on Nevada law was that the enforceability of NRS 171.123 was questionable. If an officer was sued for enforcing the statute, different results were likely to occur depending on the court in which the action was brought. If the action was filed in federal court, an officer that enforced the statute was likely to be subjected to personal liability. If the action was filed in state court, he was likely to be found not liable since Nevada’s court had upheld the statute. Thus, this statute was unlikely to be enforced in a consistent manner in the state. The Legislature could choose not to amend the statute to indicate endorsement of the Nevada Supreme Court opinion, or it could take such other action as it deemed appropriate. If unchanged, however, the officers of this state would be left in a difficult situation in determining whether or not they might require a person to identify himself during a routine investigative stop.
Chairman Anderson voiced his concern regarding these two cases relative to homeland security issues. He said he was troubled by a lack of action; he wanted to take an affirmative position relative to homeland security. Chairman Anderson asked whether a BDR should be requested. Ms. Lang advised that if the Legislature wished to address the issue, a BDR would be required. To date, she was unaware of any such request.
Assemblyman Mortenson questioned whether the Legislature could ask the Nevada Supreme Court to make a decision on this matter. Ms. Lang replied that the case could be appealed to the U.S. Supreme Court, which had not occurred to date. Chairman Anderson commented that whether a case would be appealed to the next level was often an economic question. Mr. Mortenson reiterated his understanding of the situation—the officer would be unsure how to carry out his duties not knowing if he could be sued.
Chairman Anderson further commented that the Legislature might choose not to amend the statute. Ms. Lang noted that in this unusual situation, the Nevada Supreme Court had chosen not to follow the Ninth Circuit Court of Appeals. A definitive decision could only be reached if the case was appealed to the U.S. Supreme Court. The Legislature could remove the requirement to have a person identify himself, thus avoiding the situation altogether. If the Legislature did not consider that appropriate, the statute could remain. However, while indicating the Legislature’s desire to retain the statute, it would leave the officers in a quandary as to whether to enforce it. She noted that only occasionally did the Nevada Supreme Court look to the Legislature for direction.
Assemblyman Horne queried whether “probable cause to arrest” and “reasonable suspicion to ask questions” were two separate issues. Ms. Lang replied that the statute dealt with an investigative stop before there was probable cause. Current law compelled such persons to provide identification.
Ms. Lang continued her presentation.
False Allegations of Misconduct Against a Peace Officer
o Eakins v. Nevada—The U.S. District Court accepted a facial challenge to the constitutionality of NRS 199.325, which made it a misdemeanor to knowingly file a false report concerning the misconduct of a peace officer. The Court held that this statute provided a content-based restriction on free speech because it criminalized defamation critical of police officers but not of other public officials. This type of statute was presumptively invalid and, in order to be upheld, must fall within an exception or withstand strict scrutiny. First, the Court found that there were not exceptions that applied. Next, the Court applied strict scrutiny, the toughest standard to overcome in reviewing the constitutionality of a statute. In order to overcome strict scrutiny, it must be demonstrated that the actual means set forth in the statute were necessary to serve a compelling interest. The Court found that the statute failed under strict scrutiny because there were content-neutral alternatives that would serve to deter people from filing a false report. The effect of this case on Nevada law was that unless appealed and reversed on appeal, NRS 199.325 was unenforceable.
Chairman Anderson asked whether a BDR was needed to correct NRS 199.325. Ms. Lang said the Court had found the law to be unenforceable since there were other ways that would be “content-neutral” to handle such situations. For example, the Court stated that if a person was required to provide a statement under oath, then the perjury statutes would apply and it would be content-neutral.
Sale of an Imitation Controlled Substance
o Washington v. State—Two statutes existed that made it a crime to engage in the manufacture, distribution, sale, or possession with intent to distribute or sell an imitation controlled substance:
· NRS 453.323, enacted in 1977, made the punishment for that crime a felony.
· NRS 435.332, enacted in 1983, made it a misdemeanor.
It was found that the later statute effectively repealed the earlier statute; thus, the effect on Nevada law was that the penalty for selling an imitation controlled substance was a misdemeanor. If the Legislature agreed with the interpretation of the Nevada Supreme Court, the Legislature might choose to repeal the felony statute or amend either statute to impose a different punishment.
After being in session for over two hours, Chairman Anderson called for a ten‑minute recess. On behalf of the Committee, Assemblywoman Ohrenschall commended Ms. Combs and Ms. Lang on their presentations.
Vice Chairman Oceguera reconvened the Committee, reminding Committee members that the ambient microphones picked up a number of conversations during the recess.
James J. Jackson, representing the Nevada Attorneys for Criminal Justice (NACJ), Las Vegas, asked that the Committee members add his name to the list of judiciary contacts. He offered his support in answering questions from the perspective of the defense bar in criminal law. He said he had appeared before the Committee since 1991 in various capacities. His past included having been a municipal court judge and juvenile master in Carson City, a Nevada state public defender appointed by Governor Bob Miller, and since then he had gone into private practice with the firm of Thorndal, Armstrong, Delk, Balkenbush & Eisinger in Las Vegas. He said he remained active in the Legislature through contract lobbying and as a representative of the NACJ.
Ben Graham, Chief Deputy District Attorney, Clark County District Attorney’s Office, Las Vegas, appeared on behalf of David Roger, Clark County District Attorney, and as the Legislative Representative for the Nevada District Attorney’s Association. Prior to his regular presentation, Mr. Graham addressed previous questions raised by Committee members. He noted that when a conflict arose with the Nevada Supreme Court or the Ninth Circuit Court of Appeals, actions were limited. If Nevada decided to concur with the Ninth Circuit Court of Appeals, the law could be changed to comply with the Ninth Circuit Court decision. Conflicts among other circuit courts would be heard by the U.S. Supreme Court.
Mr. Jackson noted that these types of conflicts led to “forum shopping,” whereby litigants searched for more favorable forums, either federal or state court. Removal actions could be filed to submit a case to a more favorable forum. Until there was sufficient conflict among the circuits, the case would not proceed to the U.S. Supreme Court. If the U.S. Supreme Court saw inconsistency in the application of those principles, it might review the issue on its own, resulting in one final opinion that would become a federal law.
Mr. Graham shared background information with Committee members. He said he had an undergraduate degree in government and public administration from the American University in Washington, D.C., and a law degree from Willamette University in Salem, Oregon. He was in private practice for a number of years and had been with the District Attorney’s Office for 26 years. Mr. Graham called attention to a summary document entitled “Criminal Law, Jurisdiction & Procedure” (Exhibit I) that he used in courses he taught at the University of Nevada, Las Vegas, community college, and the People’s Law School for trial lawyers. He said the document represented “Criminal Law 101.” He reviewed the following definitions and concepts that were included in his summary:
o Municipal Court dealt with misdemeanors committed within the geographical jurisdiction of the city.
o Justice Court dealt with misdemeanors within the county excluding the municipality. Additionally, the Justice Court would hold preliminary hearings for gross misdemeanors and felonies committed within its jurisdictional area.
o District Court was the court of record for gross misdemeanors and felonies within that jurisdiction. It also heard change of venue motions to take a case to another area where pretrial publicity might not have been significant.
o Misdemeanors involved a day to a year in jail, a jury trial, and a court‑appointed attorney. Nevada reduced the sentence to zero to six months in jail and up to a $1,000 fine; there was no right to the automatic appointment of an attorney unless jail time was intended; and there was no right to a jury trial because it was classified as a petty offense. The convictions could be appealed to the District Court.
o Domestic violence convictions might be discussed this session because consequences were significantly over and above the six month penalty. Some considered those cases higher than the traditional misdemeanor.
o Gross misdemeanors entitled the offender to a preliminary hearing in Justice Court and if probable cause was found, then the case would be bound over to District Court, where there would be a jury trial and a court-appointed attorney during the process.
o Felonies were the highest crime. The District Attorney’s Office dealt with 45,000 to 50,000 felonies over the course of a year in Clark County. Felonies were classified from “A” to “E” with varying sentences from a year in the penitentiary to possible death penalty and/or fines.
o Specific intent was vital, especially in the classification of crimes. For example, a homicide, the killing of one human being by another human being, could result in a penalty from the death penalty down to a gross misdemeanor depending on the criminal intent, the mens rea. The intent in a statute was important to ensure that it covered what was intended.
Mr. Jackson interjected comments regarding specific intent and the insanity defense. Intent was a key element to prove whether a person had the requisite level of mental illness and would not be able to form the intent to commit a crime. When the insanity defense bill was heard in 1995, he said he was a state public defender. A significant amount of testimony was heard regarding the insanity defense from both perspectives on the issue. In Nevada, this defense had little success by criminal defendants. Mr. Jackson reported that in 1995, in Lovelock, Nevada, an insanity defense was attempted in a case where an offender was accused of killing a Nevada Highway Patrol trooper; it was not successful.
Mr. Graham reported another type of insanity defense attempted in California—the “Coca-Cola and Twinkie” defense. The offender in that case had spent three or four days consuming Coca-Cola and Twinkies before he killed a commissioner in San Francisco, California. After the person was released from four years in prison for the killing, within a year he went to Southern California and committed suicide.
Mr. Graham continued his presentation, referring to Exhibit I.
o Preliminary examinations/hearings for misdemeanors and felonies held in Justice Court were conducted if a person was in custody in jail. That person could demand a preliminary hearing within 15 days. If the person was not in custody, a preliminary hearing could be postponed for a number of months, which could be an advantage if the defendant behaved well and did not get into more trouble, resulting in a better bargaining position and a possible lesser sentence.
o Probable cause was required in order to make a lawful arrest and to execute a search warrant. It consisted of the facts and information sufficient to lead a reasonable person to believe that a crime had been committed and that the defendant probably committed that crime. It also applied to preliminary hearings, as well as to a grand jury.
o Grand jury and its indictment were constitutionally mandated. It traditionally met in secret, although Nevada had provisions permitting the defense attorney to participate in the grand jury. There were also provisions for the state to file a motion to keep the proceedings secret for safety reasons until action was taken. Upon indictment, the case would proceed directly to district court. In situations where there was no preliminary hearing, a person was not arrested, it involved an ongoing uncover operation, or it was a sensitive case with young victims, testimony would be heard in a grand jury.
Mr. Jackson noted that there was a difference between a preliminary hearing and a grand jury indictment. Though there were provisions that allowed defense counsel to participate in a grand jury, that was highly unusual. During a preliminary hearing, the defense knew what the prosecution theory entailed. Prior to the indictment, the defendant or his attorney would not know that information.
Mr. Graham continued his presentation, mentioning the concepts of burden of proof for arrest, search and seizure, preliminary hearing, and indictment, is beyond a reasonable doubt in all criminal trials, whether a misdemeanor/petty theft or a felony/homicide. Juvenile court, a part of district court, retained jurisdiction over offenders up to the age of 16. For violent crimes that would be felonies if committed by an adult, the state could seek certification as an adult for the offender.
In closing, Mr. Graham called attention to the “Flow Chart for Basic Criminal Procedure” (Exhibit I), as well as the numerous statutes that acted as background for his testimony. He commented on the sealing of criminal and arrest records. Last session, the window to seal records had been broadened. In some cases, records could be sealed in three years, in seven years for gross misdemeanors, and in ten years for some felonies.
Mr. Graham made comments on each of the following titles of the NRS:
Mr. Graham said he often told people that if the Legislature, police officers, judges, defense attorneys, and prosecutors all performed correctly, the process would be simple. Each was there to keep the system honest and to ensure that the checks and balances worked properly. He said he looked forward to the next 119 days.
Concluding, Mr. Jackson stated his willingness to assist in the Assembly Committee on Judiciary hearings. He concurred with Mr. Graham that the goal was to achieve the best legislation possible. Not everyone would agree because of their respective positions, but all would do their best.
Assemblyman Claborn asked Mr. Graham whether all felons registered with a state entity on a regular basis. Mr. Graham stated there was a requirement for convicted felons to register their addresses with the Las Vegas Metropolitan Police Department or with the Washoe County Sheriff’s Office. There was also a requirement and deadline to register changes of address. Mr. Claborn restated his question, asking whether a parolee or probationer must check in monthly. Replying in the affirmative, Mr. Graham concurred that there were additional requirements for those on parole or probation, but once released from prison a felon only needed to register his address.
Assemblyman Mortenson questioned the justification for sealing records. Mr. Graham gave brief examples of who might want to seal records. If a person had committed a crime in his past and 30 or 40 years later had become an upstanding citizen, the Legislature said that after a certain period of time, that mistake would not be held against the person forever. The record could be sealed on that basis. It was an act of compassion.
Chairman Anderson noted that the Committee would be dealing with sealing records as it pertained to statutes of limitations for particular crimes and to the three-strike rule.
Mr. Jackson agreed that sealing records was an act of compassion requiring a judicial review; it did not occur automatically. The defendant must file a petition for sealing of records, and the state would be given an opportunity to oppose that action if it felt it was not appropriate. A judge made the final decision.
Mr. Graham commented that the Las Vegas Metropolitan Police Department sealed approximately 1,300 to 1,400 criminal records each year. The Clark County, Nevada, Web site contained user-friendly forms and explained the procedure, process, and time factors involved.
Chairman Anderson adjourned the Committee at 11 a.m.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: