MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-Second Session

February 25, 2003

 

 

The Committee on Judiciarywas called to order at 8:30 a.m., on Tuesday, February 25, 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

Ms. Barbara Buckley

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

Mr. Rod Sherer

 

COMMITTEE MEMBERS ABSENT:

 

Ms. Genie Ohrenschall (excused)

 

STAFF MEMBERS PRESENT:

 

Allison Combs, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Deborah Rengler, Committee Secretary

 

OTHERS PRESENT:

 

Elana L. Hatch, Chief Deputy District Attorney, Family Support Division, Clark County, Las Vegas

Judge Scott Jordan, Second Judicial District Court, Department 11, Family Division, Washoe County

Mark Kemberling, Senior Deputy Attorney General, Office of the Attorney General, Las Vegas

Michael Pescetta, defense attorney, Las Vegas

Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney, and representing the Nevada District Attorney’s Association, Reno

 

 

Chairman Anderson made opening remarks and noted a quorum was present.  He remarked that during a work session, the Committee did not take public testimony unless expressly requested by the Committee.  He called attention to the Work Session Document (Exhibit C) prepared by Allison Combs, Committee Policy Analyst.  The Work Session Document contained the bills being brought forward for action with any previously submitted amendments.  He pointed out that several bills would have fiscal notes attached; Ms. Combs would identify those bills to determine the potential economic impact if the Committee chose to move those pieces of legislation.

 

Allison Combs, Committee Policy Analyst, explained Assembly Bill 11.

 

Assembly Bill 11:  Provides increased penalty for certain repeat offenses involving vandalism. (BDR 15-191)

 

Ms. Combs said A.B. 11 was requested by the interim committee to study Categories of Misdemeanors.  The bill changed penalties for repeat offenses of vandalism.  Those who testified in support and opposition were listed in the Work Session Document, as well as any proposed amendments.

 

The first amendment dealt with the protected properties section of the bill, which included existing language from another section of the law that was to be repealed and thus was included in the legislation on vandalism.  There were three proposals within this amendment:

 

  1. Add libraries to the definition of protected properties.
  2. Add parks to the definition of protected properties.
  3. Eliminate protected property provisions, so that all property would be treated equally.

 

Chairman Anderson noted that the City of Reno had submitted an amendment that proposed allowing aggregation of the value of the loss when a person committed multiple offenses.

 

Assemblywoman Buckley said she was not overwhelmingly convinced that the legislation was required.  She expressed concern related to removing jurisdiction from the lower courts, which had more time to oversee community service.  If these cases were taken to the District Court to be included with rapes, murders, and sexual assaults, the cases would most likely be plea‑bargained away. 

 

Ms. Buckley questioned whether legislation was required for second offenders.  She said her preference would be to eliminate “vandalism,” since this was the graffiti statute.  The penalty for the second offense could be added, as well as including libraries and parks.  The remaining amendments were not included in the bill and there were major implications to specify “multiple offenses” that might trigger numerous legal issues.  “There is no such thing as a simple bill,” Ms. Buckley said.

 

Assemblyman Horne recalled there had been discussion regarding a $250 threshold, which seemed extremely low.  Ms. Combs clarified that the $250 level was the current penalty under Nevada Revised Statutes (NRS) 193.155 for a public offense.  It also mirrored the thresholds that were included in the theft statutes.  Mr. Horne asked if that was applied to gross misdemeanors.  Ms. Combs replied graffiti was a public offense under NRS 193.155, which had a penalty for a gross misdemeanor of $250 to $5,000.

 

Assemblyman Carpenter questioned whether a library was already covered as an “educational facility.”  He expressed concern about changing the jurisdiction within the courts and suggested stipulating a “third offense” rather than multiple offenses.

 

Assemblyman Brown concurred with Assemblywoman Buckley; the testimony went to the nature of “taggers,” or graffiti artists.  Calling attention to Section 1, subsection 1, he said it was “so broad” and he particularly had a problem with the last portion of line 4, which said “otherwise damaged the public or private property without the permission of the owner.”  Mr. Brown stated that the legislation was ascribing a criminal penalty to what could amount to a mere accident.  The legislation was addressing graffiti and the serial nature of taggers.  Quoting page 2, line 8, where it stated the “second and each subsequent offense where the value of the loss is less than $5,000,” Mr. Brown suggested amending the language to state that “the loss is greater than $250 but less than $5,000.”

 

Chairman Anderson commented that the Committee did not appear to desire to move on the bill.  There were two choices: indefinitely postpone the bill and take it “back to the board” to be killed at a later date, or pull it back and spend more time on it.

 

Assemblyman Sherer recommended that A.B. 11 be taken “back to the board.”

 

Ms. Combs explained Assembly Bill 27.

 

Assembly Bill 27:  Revises method for adjusting presumptive maximum amounts of child support owed by noncustodial parents. (BDR 11-244)

 

The bill proposed that the Consumer Product Index (CPI) would not apply to the income ranges for determining the presumptive maximum amounts of child support.  One amendment submitted dealt with the calculation of interest, which would delete the provisions requiring the court to determine and include in its order the interest on arrearages and the attorney’s fee for the proceeding.  A copy of the proposed amendment was provided within the Work Session Document (Exhibit C, page 10). 

 

Chairman Anderson admitted he had difficulty understanding why the Division of Welfare could not “pick up the interest payments.”  The person required to pay the interest penalty would probably be of a lower economic status, and less able to make the payments initially, and the chances that there would be an interest penalty could be dramatically greater.  He said the person who stood before Judge Scott Jordan’s court tended to be from the lower economic strata; obtaining the basic payment from those individuals would be the greatest service.  Originally, Chairman Anderson expected the Division to “pick up the interest payments,” but after listening to testimony he said he had changed his mind and he supported the amendment.

 

Assemblyman Carpenter spoke in opposition to the amendment.  He said the court had the ability to determine whether the interest should be paid and waive payment if deemed appropriate.  Mr. Carpenter said he favored A.B. 27 as submitted.

 

Assemblywoman Buckley said she concurred with Assemblyman Carpenter in support of A.B. 27 and in opposition to the amendment.  There might be some low-income, noncustodial parents who might not be able to afford interest, but they might not pay child support anyway.  There were numerous individuals who were able to pay their child support and should.  She cautioned against creating a disincentive to paying child support on time when there was no penalty.  Half of the states in the country assessed interest, Washoe County did it, and the rest of the state should do it as well.  Ms. Buckley said NOMADS (Nevada Operations Multi‑Automated Data Systems) could be fixed or interest could be calculated manually.  Ms. Buckley suggested that when the Senate bill regarding penalties came over, amendments could include penalties being charged against those counties that were not assessing interest.  The statute had been “on the books” for over ten years; Ms. Buckley said it should be followed.

 

Assemblyman Horne asked for clarification regarding the purpose of the legislation—reduction of the costs relative to the administrative task of collecting interest.

 

Elana L. Hatch, Chief Deputy District Attorney, Family Support Division, Clark County, Las Vegas, responded that A.B. 27 originated as a result of a meeting of the Title VI-D program in Nevada.  She stated the concern was trifold:

 

  1. Clark County was overburdened with 79,000 open cases, where current support and payment on arrears must be collected.  Penalties and interest was “icing on the cake,” but with limited resources, the primary focus was placed on what kept the children alive—food, clothing, and shelter.

 

  1. In order to be funded at 82 percent, Clark County was required by the federal government to utilize the state computer system, NOMADS.  Nevada Operations Multi-Automated Data Systems did not carry the functionality to assess interest and penalties.  It was impossible to “pencil and paper” the magnitude of cases per month on penalty and interest questions and policy considerations, especially income withholding. 

 

  1. When a noncustodial parent received a paycheck on the 10th or the 25th of the month, payment on the 25th always came in after the 1st, forcing the assessment of interest and penalty.  It was unlikely that paymasters would be willing to change the pay scheme to accommodate penalty and interest considerations. 

 

Continuing, Ms. Hatch said what had been considered to be most equitable, since the collection of penalties was “on the books,” was to focus on the penalties and not the interest.  Talking to Leland Sullivan, the Chief of Child Support Enforcement in the Welfare Division of Nevada’s Department of Human Resources, and to Judge Scott Jordan, if the Committee was interested in interest, since half the states collected interest, focus could be placed on the collection of interest and the penalties could be removed as a mandatory requirement. 

 

Judge Scott Jordan, Second Judicial District Court, Department 11, Family Division, Washoe County, said he recognized that during a work session the Committee did not take public testimony, but he was willing to answer any questions.  Chairman Anderson asked Judge Jordan to explain why Washoe County was able to calculate and collect interest, while the remainder of the state could not.  Judge Jordan replied that Washoe County had been collecting interest for eight years through the District Attorney’s Office.  He reminded the Committee that whatever policy was enacted regarding this provision, it would affect not only cases that went through the District Attorney’s Office, but also cases such as child support ordered and collected through divorce cases not through the child support enforcement office.  He said he respected what Ms. Hatch had said about the overwhelming numbers in Clark County. 

 

Continuing, Judge Jordan said he agreed with Assemblywoman Buckley’s comments that imposing interest did create an incentive for noncustodial parents to pay child support as ordered.  Washoe County had a child support formula that was intended to set appropriate levels of child support for all income levels of the paying parent.  In response to Chairman Anderson’s comments, Judge Jordan agreed a large number of the families appearing in court were from relatively low‑income levels, both the custodial and noncustodial parents, but he also saw families in all other income ranges.  Some people did not pay because they could not, some because they were angry, and some had other priorities.  He said the interest was an incentive to encourage individuals to pay on time.  Judge Jordan said it was important that judges had the discretion, on a case-by-case basis, to determine in which cases the imposition of interest would be beneficial or detrimental. 

 

Assemblyman Carpenter queried whether the judges had discretion currently.  Judge Jordan replied that current law mandated interest but provided the judges with the discretion to waive that interest in appropriate cases.

 

Chairman Anderson entertained a motion on A.B. 27.

ASSEMBLYMAN CARPENTER MOVED TO DO PASS A.B. 27 WITHOUT AMENDMENTS.

 

ASSEMBLYMAN GUSTAVSON SECONDED THE MOTION.

 

THE MOTION CARRIED WITH MR. ANDERSON VOTING NO.  (Ms. Ohrenschall was absent for the vote.)

 

Chairman Anderson assigned the bill to Assemblyman Claborn to present the Floor Statement.

 

Ms. Combs explained Assembly Bill 33.

 

Assembly Bill 33:  Provides additional penalty for manufacturing methamphetamines in certain circumstances. (BDR 40-817)

 

The measure did not have any proposed amendments.  Background information on the enhanced penalty was provided on page 4 of the Work Session Document (Exhibit C).

 

Chairman Anderson entertained a motion on A.B. 33.

 

ASSEMBLYMAN GEDDES MOVED TO DO PASS A.B. 33.

 

ASSEMBLYMAN CONKLIN SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Ms. Ohrenschall was absent for the vote.)

 

Chairman Anderson assigned the bill to Assemblyman Horne, the primary sponsor, to present the Floor Statement.

 

Ms. Combs noted that A.B. 33 did have a fiscal impact, but not this biennium.  She said she would include that information for the Assembly Committee on Ways and Means.

 

Ms. Combs explained Assembly Bill 40.

 

Assembly Bill 40:  Extends period of limitations for commencing civil action after action has been dismissed under certain circumstances.

(BDR 2-769)

There were two amendments proposed:

 

  1. Jeff Parker, Solicitor General, Office of the Attorney General, proposed an amendment that would replace the language that provided circumstances under which the statute would be applied.  The amendment also specified that the action might be recommended in the proper court.  Finally, it placed a limitation that no action recommended pursuant to the authorization could extend beyond the period of limitations of five years from the date of the original action.

 

  1. Ernie Adler, Washoe County, suggested that the bill be amended so that it did not apply to the state of Nevada or its political subdivisions.

 

While acknowledging Mr. Adler’s proposal, Chairman Anderson suggested moving with the first amendment. 

 

Chairman Anderson entertained a motion of amend and do pass on A.B. 40 with the first amendment proposed by Mr. Parker (Exhibit C, page 12) and agreed upon by the primary sponsor of the bill, Assemblyman Oceguera.

 

Assemblyman Brown said he supported the amendment, but he objected to the six-month period and suggested a 90-day period that would encourage quick movement through the courts.

 

Assemblyman Geddes said he concurred with Assemblyman Brown.  He said six months was too long, the federal limit of 30 days would be an appropriate guideline, but he would accept the 90-day period as well.

 

ASSEMBLYMAN CARPENTER MOVED TO AMEND AND DO PASS A.B. 40 WITH THE [PARKER] AMENDMENT IN THE WORK SESSION DOCUMENT AND THAT THE SIX MONTHS BE CHANGED TO 90 DAYS [LINE 9, SECTION 1, SUBSECTION 1B].

 

If it was the desire of the Committee to amend the bill to read “90 days,” Assemblyman Oceguera said he would rather have had “a little wiggle room” to go to the Senate, but he accepted the “90 days.”

 

Chairman Anderson said he preferred the “six months,” but if the Committee desired “90 days,” he would defer to Assemblyman Brown, who practiced in this area of law.  Chairman Anderson accepted and clarified the motion.

ASSEMBLYMAN SHERER SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Ms. Ohrenschall was absent for the vote.)

 

Chairman Anderson assigned the bill to Assemblyman Oceguera, the primary sponsor, to present the Floor Statement.  Chairman Anderson said he would handle the amendments.

 

Ms. Combs explained Assembly Bill 42.

 

Assembly Bill 42:  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. (BDR 43-109)

 

There was one proposed amendment (Exhibit C, page 13) on this measure from Chairman Anderson, which would revise existing law to allow schools to place portable signs such as cones in the middle lane of the school zones during school hours to indicate the presence of a school zone. 

 

Chairman Anderson said the problem, particularly in smaller neighborhoods, had grown as individuals used side streets to avoid the major traffic jams.  The cones would remind those drivers of the nature of the facility [school].  Chairman Anderson said this was a way to say, “Children are more important than the smooth flow of traffic.”

 

ASSEMBLYMAN GEDDES MOVED TO AMEND AND DO PASS A.B. 42.

 

Assemblyman Geddes remarked he had talked to a number of school nurses in Washoe County, who confirmed that schools utilizing such temporary signs in the lanes had less incidents of children being “brushed” by cars.  He stated he supported A.B. 42 as amended.

 

ASSEMBLYMAN CARPENTER SECONDED THE MOTION.

 

Assemblyman Brown said one child’s death would require revisiting the issue regarding putting cones out; he said he supported the bill and the proposed amendment.

 

THE MOTION CARRIED.  (Ms. Ohrenschall was absent for the vote.)

 

As the primary sponsor, Chairman Anderson accepted the responsibility to present the Floor Statement and handle the amendment.

 

Ms. Combs explained Assembly Bill 53.

 

Assembly Bill 53:  Enhances criminal penalty for committing assault or battery upon certain providers of health care. (BDR 15-826)

 

She noted the list of providers was defined in A.B. 53.  The bill included providers of health care and enhanced penalties under the assault provisions of the bill.  There were three amendments proposed; the first two amendments related to the definition of a “provider of health care.”

 

 

 

 

Chairman Anderson entertained a motion on A.B. 53.

 

ASSEMBLYMAN GEDDES MOVED TO AMEND AND DO PASS A.B. 53 WITH AMENDMENTS TO “SOCIAL WORKER” AND ADDING “LAB TECHNICIAN.”

 

Chairman Anderson did not accept the motion.  He shared his personal experience with a lab technician taking his blood on a regular basis.

 

Assemblyman Mortenson suggested everybody should be included in the bill except the general public.

 

Assemblyman Gustavson voiced his concern that only selected groups of individuals were identified.  If the penalties were to be enhanced, Mr. Gustavson queried why everybody was not included.

 

Assemblyman Conklin concurred with the Committee for the most part.  He pointed out that health care providers took an oath to “keep people alive.”  At times, health care providers put themselves at risk to perform their jobs.  Health care providers had historically been protected, on the battlefield, for example.  While he considered A.B. 53 an important bill, he cautioned that too many amendments or inclusions were not necessarily a good thing.

 

Ms. Combs attempted to provide further explanation regarding the crimes that were included in the statute.

 

 

 

Assemblyman Oceguera said if it would help thinking about lab technicians, every person who had his blood drawn for a charge of driving under the influence might not be “happy” about the situation and might attempt to assault the technician.  He concurred with Assemblyman Conklin that the purpose of the legislation was to enhance the penalties.

 

Assemblyman Horne said it was important to be mindful that these protected groups were individuals that were more likely to be in harm’s way more consistently than an average person.  He reminded the Committee of the enhanced penalties associated with assaulting a police officer. 

 

Assemblyman Brown said that subsequent to the original hearing, he had reviewed the list in an attempt to justify a different treatment.  For the most part, the individuals on the list fell into two categories: the Good Samaritan, and those who had a statutorily created relationship with the person who might assault them. 

 

Chairman Anderson reiterated his understanding of the Committee’s desire for A.B. 53.  He entertained a motion that would remove the word “clinical” from line 13, page 2; add “lab technician” to the list; and amend language so that the battery statutes would mirror the assault statutes.

 

Assemblyman Mabey said he was honored to be a physician and he saw the issue from both sides.  Chairman Anderson, for purposes of disclosure, said the statute would affect Dr. Mabey, as it would Mr. Oceguera.

ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND DO PASS A.B. 53 WITH ALL THE AMENDMENTS INCLUDED IN THE WORK SESSION DOCUMENT.

 

ASSEMBLYMAN BROWN SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Ms. Ohrenschall was absent for the vote.)

 

Chairman Anderson assigned the bill to Assemblyman Oceguera, the primary sponsor, to present the Floor Statement and Chairman Anderson would handle the amendment.

 

Ms. Combs noted that A.B. 53 was a measure with a minimal fiscal impact to the Department of Corrections.

 

Ms. Combs explained Assembly Bill 63.

 

Assembly Bill 63:  Creates exception to hearsay rule for certain testimony offered at preliminary examinations. (BDR 4-317)

 

No amendments were proposed to this measure. 

 

Chairman Anderson entertained a motion on A.B. 63.

 

ASSEMBLYMAN CARPENTER MOVED TO INDEFINITELY POSTPONE A.B. 63.

 

ASSEMBLYMAN GEDDES SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Ms. Ohrenschall was absent for the vote.)

 

Ms. Combs explained Assembly Bill 73.

 

Assembly Bill 73:  Revises provisions concerning certain crimes committed against older persons. (BDR 15-357)

 

The legislation reduced the age threshold of victims in some cases from 65 to 60 years of age, as well as required individuals to pay the cost of investigation or prosecuting the crime.  There were two amendments proposed to the measure:

 

  1. Section 6, page 8, provided that the change of the age from 65 to 60 years would not apply to crimes committed prior to the effective date of the bill.

 

  1. Payment for restitution owed to the victim should be paid before any court-ordered amounts for the cost of investigation or prosecution.

 

Chairman Anderson entertained a motion on A.B. 73.

 

ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND DO PASS A.B. 73 WITH THE FOLLOWING AMENDMENTS:

·        KEEP THE LOWER AGE THRESHOLD [CHANGE IN AGE FROM 65 TO 60]

·        DELETE THE VARIOUS PROVISIONS IN THE ORIGINAL BILL [PAGES 4 THROUGH 6] RELATED TO THE COST OF INVESTIGATION AND PROSECUTION

·        ACCEPT THE FIRST PROPOSED AMENDMENT REGARDING THE EFFECTIVE DATE TO ENSURE THAT THE HABITUAL FRAUDULENT FELON STATUTE MADE SENSE

·        SKIP THE ORDER OF RESTITUTION SINCE THE MOTION DID NOT INCLUDE THE COSTS OF INVESTIGATION AND PROSECUTION

 

ASSEMBLYMAN HORNE SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Ms. Ohrenschall was absent for the vote.)

 

Chairman Anderson assigned the bill to Assemblywoman Kathy McClain, the primary sponsor, to present the Floor Statement with Assemblyman Horne acting as backup.

 

Mark Kemberling, Senior Deputy Attorney General, Office of the Attorney General, Las Vegas, asked if there was to be any discussion on A.B. 73.  Chairman Anderson replied public testimony was not taken during a work session; a hearing had already taken place for A.B. 73 and the Committee had taken action on the bill.  Chairman Anderson asked if Mr. Kemberling had identified an additional problem.  Mr. Kemberling said he had concerns about the deletion of the imposition of the costs of investigation and prosecution.  Chairman Anderson said Mr. Kemberling should bring forth his concerns when the bill was heard in the Senate.

 

Chairman Anderson announced the order in which he would attempt to take action on the death penalty bills:  Assembly Bill 17, Assembly Bill 15, Assembly Bill 13, and Assembly Bill 14.  He commented that additional testimony would not be taken on the bills.

 

Assembly Bill 17:  Makes various changes concerning defense in cases involving first-degree murder. (BDR 1-201)

 

Ms. Combs offered an explanation of A.B. 17 and noted that it was included on page 25 of the Work Session Document (Exhibit C).  The bill proposed to make various changes concerning the defense in cases involving first-degree murder, increased presumptive limits on attorneys’ fees, and required the court to appoint a team in cases of appointed counsel. 

 

There were two proposed amendments to the measure, and a concern was raised related to the composition of the team, but no formal amendment was proposed.  The first amendment would limit the appointment of such a team, under subsection 3, page 3, to only cases in which the death penalty was actually sought.  The second amendment came from JoNell Thomas to raise the hourly fee for appointed counsel, page 1, line 9, which was currently $75, to $125 in capital cases (Exhibit C, page 55).

 

ASSEMBLYMAN CONKLIN MOVED TO ADOPT A.B. 17 WITH BOTH PROPOSED AMENDMENTS.

 

Chairman Anderson did not accept the motion; further discussion ensued on Section 3.

 

Chairman Anderson said he preferred “two attorneys and any other personnel as deemed necessary by the court, upon motion of an attorney representing the defense.”  He concurred with Assemblywoman Buckley’s amendment that proposed to “limit the appointment of a team to cases in which the death penalty is sought.”  He queried whether that amendment would ameliorate his concerns.  Ms. Buckley and Mr. Oceguera agreed it would cover his concerns.  Chairman Anderson also included Ms. Thomas’ amendment regarding raising the hourly rates.

 

Assemblyman Geddes voiced his concern regarding the list of specialists, but noted that Chairman Anderson’s remarks resolved the issue.  Mr. Geddes said it appeared that Section 2 also covered the situation where it stated that the attorney could “employ…such investigative, expert or other services as may be necessary for an adequate defense.”  He queried why the amendment was needed, except for the reference to the second attorney.

Risa B. Lang, Committee Counsel, clarified the proposal to “limit the appointment of a team to cases in which the death penalty is sought,” was a mirror of Supreme Court Rule (SCR) 250, which was limited to cases where the death penalty was sought.  Consequently, the only time a defendant would be entitled to two attorneys was in cases involving the death penalty.  Chairman Anderson asked if the clarification was required.  Ms. Lang responded that in order to be consistent with SCR 250, the clarification would be required.

 

Assemblyman Brown said he concurred with Chairman Anderson’s comments and Ms. Buckley’s amendment.  Mr. Michael Pescetta submitted Exhibit D without testimony.

 

Assemblyman Carpenter said he agreed with Ms. Buckley, Mr. Brown, and Chairman Anderson.  He said he had concerns related to raising the attorneys’ fees to $125 an hour.  Since many counties were experiencing financial problems, Mr. Carpenter suggested that $100 an hour would be more reasonable.  Chairman Anderson said the $75 an hour was the going rate in 1991 when the issue was last addressed.  “Inflation happened,” explained Chairman Anderson, and $125 was not “outlandish.”  Assemblyman Carpenter said he withdrew his concern. 

 

Assemblyman Horne said, as a law clerk, he billed just less than $125 an hour for civil work research.  Thus, he considered the $125 low for a capital case.

 

ASSEMBLYMAN CONKLIN MOVED TO AMEND AND DO PASS A.B. 17 WITH THE FOLLOWING AMENDMENTS:

·        AMENDMENTS 1 AND 2 AS PROPOSED IN THE WORK SESSION DOCUMENT, AND

·        A THIRD AMENDMENT REMOVING IN SECTION 3, PARAGRAPHS 2, 3, AND 4.

 

ASSEMBLYMAN GEDDES SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Ms. Ohrenschall was absent from the vote.)

 

Chairman Anderson assigned the bill to Assemblywoman Sheila Leslie, the primary sponsor, to present the Floor Statement, with Chairman Anderson acting as backup and handling the amendment.

 

Ms. Combs offered an explanation of Assembly Bill 15.

 

Assembly Bill 15:  Prohibits sentence of death for person who is mentally retarded. (BDR 14-199)

 

The bill established procedures to address situations involving someone who might be mentally retarded.  Ms. Combs said numerous amendments were proposed and were listed in the Work Session Document (Exhibit C). 

 

The first amendment dealt with the definition of mentally retarded (Exhibit C, page 21):

 

  1. Recommendation by Assemblywoman Sheila Leslie to use the definition of mental retardation recently adopted by the American Association on Mental Retardation (AAMR).

 

  1. Recommendation by W. Larry Williams to use “a diagnosis of mental retardation from a licensed, qualified professional with extensive experience in mental retardation.”

 

  1. Recommendation by Clark Peterson and Michael Pescetta to adopt Nevada’s existing definition under NRS 433.174, which was the definition of mental retardation for the purpose of Chapter 39 of the NRS, “Mental Health (Exhibit C, pages 45 and 48).”

 

Chairman Anderson voiced his concern about the age of 18 stipulated in the definition adopted by the AAMR. 

 

Assemblywoman Buckley said, if the lead attorney that represented the state and the defense agreed on this definition, the Committee should defer to the ones who would be litigating these issues for the next ten years. 

 

Chairman Anderson questioned whether any Committee member had a problem accepting option “C,” the current NRS definition, as the definition for mental retardation.

 

Assemblyman Geddes said he accepted option “C,” the current NRS 433.174 definition, but questioned whether that definition was replacing the reference to “IQ of 70” in the original document.  Chairman Anderson replied in the affirmative.  Ms. Combs said it applied to subsection 8, page 2.  Ms. Lang said it would be finalized in drafting where “IQ of 70” and subsection 8 would be removed, to be replaced with whichever definition of “mentally retarded” the Committee chose to accept. 

 

Continuing, Mr. Geddes asked if that would also remove the rebuttable presumption.  Ms. Lang replied there was a proposal to remove the rebuttable presumption.  Ms. Combs noted that the proposal to remove the rebuttable presumption was not necessarily required, but it was clearly related to the definition of mental retardation.  Ms. Lang noted the definition in subsection 8 could be handled separately from the rebuttable presumption.

 

The second amendment included multiple choices (Exhibit C, page 22):

 

  1. Limit to cases where a notice of intent to seek the death penalty had been filed.

 

  1. Require motions declaring the defendant as mentally retarded to be filed no later than ten days before the trial date.

 

  1. Holding a hearing to determine if the defendant was mentally retarded when the motion was filed: (i) current language of bill stated “if such a motion is filed, the court must hold a hearing within a reasonable time before the trial, or (ii) modify the language of the bill to state “if the defendant in his motion satisfies the court that there is a doubt as to whether the defendant is mentally retarded, the court shall suspend the proceedings until the question of mental retardation is determined.”

 

Chairman Anderson noted there was agreement for parts A and B.  In part C, there was some digression.

 

Assemblyman Carpenter admitted he had proposed the time limit, which was to be amended to 10 days.  When a defendant waited in jail, there should be a longer period of time to file the motion, such as 30 days.  Chairman Anderson said the question would be whether the resources were available to obtain the information in a timely fashion to make a valid determination as to whether to file such a motion. 

 

Assemblyman Horne commented that 10 days was appropriate; 30 days was “far out.”

 

Assemblywoman Buckley stated that an issue arising so close to trial would postpone the trial date anyway.  Again, she said she would defer to the public defenders and district attorneys. 

 

Chairman Anderson queried whether C(ii) posed a problem for any Committee member.  It meant, if the determination was made after the trial began, the question must be set aside before the trial could continue. 


Assemblywoman Buckley asked whether the defense had an opinion on the two options.  Michael Pescetta, defense attorney from Las Vegas, said he did not have a problem with C(ii). 

 

Assemblyman Oceguera concurred that C(ii) was a better option than C(i).

 

Chairman Anderson read the next two amendments (Exhibit C, page 23):

 

  1. Eliminate “ex parte” hearing under Section 1, subsection 3 of the bill.
  2. Examination by experts: (i) experts selected by prosecution was the existing language of the bill, or (ii) examination by multiple experts, which included psychiatrists, psychologists and/or a third expert. 

 

Assemblyman Brown said he had assumed that the defense would have already conducted its own examination and this proposal would provide the prosecution the opportunity to perform its own investigation or examination.  Mr. Pescetta replied the existing language in E(i) was intended to allow exactly that stated by Mr. Brown.  It would preserve the adversary character of the proceeding.  The defense would have an expert before making the motion suggesting that the defendant was retarded.  The provision would require the defendant to submit to an examination by a prosecution expert.  Mr. Pescetta noted that E(ii) tracked the competence statute in which the court conducted the proceeding.  Once the defense made a motion, the court would hold a hearing, and the adversary process worked.  Mr. Brown said he was content with either option. 

 

Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney, and representing the Nevada District Attorney’s Association, spoke in support of option E(ii), which would have the court appoint psychiatrists or psychologists.  She noted the issue with E(i) addressed the defense’s possible lack of cooperation with the state’s expert.  Chairman Anderson asked how option E(ii) clarified that situation.  Ms. Erickson said the court would appoint two unbiased experts and it did not require the defense to seek out their own expert; it was not an “expert hunt.”

 

Assemblywoman Buckley remarked she supported option E(i) because it was consistent with the legal process.  There was an adversarial process in Nevada where both sides were allowed to choose their witnesses, cross-examine witnesses, expose bias, and then the jury decided who to believe.  Nevada did not have a system where judges selected witnesses.  Ms. Buckley said it made her uncomfortable and she voiced her concern that it violated the defense’s ability to “take their best shot.”  Under option E(i) the defendant “must undergo examination.”  If the defendant did not cooperate, the judge would insist, and possibly preclude their testimony if he continued to not cooperate.

Assemblyman Brown said either option would be acceptable to him.  He questioned if there had been a survey of the 50 states related to this issue.  Nevada already had a system wherein the court made appointments regarding competency rules; there was precedence.  Mr. Pescetta said he had no knowledge of any surveys; Ms. Erickson said she was not aware of any, either.  Chairman Anderson offered to share the extensive materials gathered during the interim study. 

 

Assemblyman Mabey said he was not familiar with the adversarial relationships being discussed, but he preferred option E(ii) because there would be two opinions.

 

Chairman Anderson questioned if the Committee supported option E(i), would the Committee be forced to support option F(ii), since it reaffirmed the cross examination of witnesses. 

 

Assemblywoman Buckley commented that the interim committee that included both Assemblymen and Senators had selected option E(i).  She questioned whether knowing the thought process of the interim committee would assist in this decision.  Chairman Anderson said the interim committee had been concerned that the defendant must undergo the examination. 

 

Mr. Pescetta said the importance of option E(i) was to provide access by the prosecution expert.  If the rebuttable presumption was removed, the incentive not to cooperate would be eliminated.  The defense would not achieve the rebuttable presumption and then decide not to cooperate.  The defense would submit its expert’s analysis that stated the defendant was retarded.  Then the prosecution could have its own expert also examine the defendant, review the records, and submit its evaluation.  At the hearing the judge would decide who was more credible.  In terms of the competency evaluation, it was relatively rare that the two experts did not agree.  When the two experts examined the defendant simultaneously, the results were the same.  Relating his experience in retardation cases, Mr. Pescetta said the prosecution and defense agreed that the defendant was retarded.

 

Assemblywoman Angle said she preferred option E(ii), whereby the defendant was examined by two experts because of the precedent that was set for competency and the possibility of masking tendencies of mental retardation.

 

Assemblyman Brown said Mr. Pescetta’s last comment lent credence to the efficacious nature of the E(ii) option, noting that the two experts worked together.  Mr. Brown reiterated that he supported option E(ii).

 

Assemblyman Carpenter stated that he preferred option E(ii); it could not be much fairer.

 

Assemblywoman Buckley asked Mr. Pescetta’s opinion of option E(ii).  Mr. Pescetta said the difference in the competency hearing was that the court had an independent responsibility to determine whether the defendant was competent where there was doubt.  Assembly Bill 15 was structured so that it was the responsibility of the defense to make a motion and go forward allowing the prosecution access.  He said it would be unheard of for the defense lawyer to make a motion for the hearing under the bill without having already retained an expert and received an opinion that the defendant was mentally retarded.  Option E(i) allowed the prosecution to review the defense’s examination report and if the prosecution agreed, the hearing could be stipulated away.  Option E(ii) then added two more court-appointed experts to perform the same examination, in addition to what the defense might already have, which could incur additional costs. 

 

Assemblyman Brown restated previous comments related to the court resolving doubt in a competency issue.  He called attention to page 22 of the Work Session Document (Exhibit C), which listed procedures for cases involving issues of mental retardation, and the language that the Committee accepted was “if the defendant in his motion satisfies the court that there is doubt…”  A motion brought the issue into doubt or question, and then the competency hearing and the issue of doubt could be resolved in the same manner.  He thought there was reason to look to option E(ii).

 

Assemblywoman Buckley asked if there was a way to compromise.  If the defense hired an expert in order to make the motion in good faith, one expert had been paid.  She suggested amending the language to say, “require the court to appoint a second expert” or “require the court to allow the first one already retained to be one of them.”  Ms. Buckley asked if there was a method to “meld them” and move on.

 

Chairman Anderson asked if Ms. Buckley was suggesting that option E(ii) be modified, that “the court appoint a psychiatrist or a psychologist and if there was no agreement, the court may appoint a third.”  Ms. Buckley replied in the affirmative.  Chairman Anderson said the Committee would modify option E(ii) and read E(ii) from page 23 of the Work Session Document (Exhibit C).

 

Assemblyman Brown said he personally preferred option E(i).  There would always be someone who had predetermined that the defendant was mentally retarded.  There was no benefit of neutrality under option E(ii).  He suggested that the defense and prosecution “duke it out in an adversarial proceeding.”  Chairman Anderson acknowledged that Mr. Brown did not like the Chair’s suggestion.

 

Providing his perspective, Assemblyman Conklin said he preferred option E(i) for the reason that the defense, before it comes to court the first time, already had its psychiatrist/psychologist witness and already had its evaluation.  If option E(ii) was accepted, evidence from the defense could skew the results no matter whom the court appoints.  Once the defense had already chosen an expert and received its information, the fairest and most just system would be to allow the prosecution the same exact opportunity by finding its own witness and thereby protecting the prosecution’s interest.

 

Chairman Anderson asked for an indication as to how the Committee was split on the two options.  He suggested that the Committee accept option E(i).  Assemblyman Carpenter noted if there were problems with option E(i), it could be further amended at a later date.

 

Continuing, Chairman Anderson reviewed the two options under “F,” reading from page 23 of the Work Session Document (Exhibit C):

 

  1. Introduction of evidence: (i) The court must allow the defendant and the prosecution to present evidence, and (ii) The defendant and prosecuting attorney may introduce evidence and cross examine one another’s witnesses.

 

Assemblyman Brown queried whether the Committee was being asked to accept option F(ii).  The full adversarial proceeding would require that ability.  Consequently, he said he supported option F(ii).

 

Chairman Anderson said that if the Committee accepted option E(i), then it should reaffirm that by accepting option F(ii).  He called attention to option “G,” agreed to by both Mr. Pescetta and Mr. Peterson, which proposed to eliminate the rebuttable presumption of retardation at an IQ of 70.  This concept would not be needed since the Committee was adopting the earlier definition of mental retardation.

 

Moving to option “H,” Chairman Anderson read the three options on page 23 of the Work Session Document (Exhibit C) related to the appeal of court’s determination concerning whether a defendant was mentally retarded: 


 

 

 

Mr. Pescetta voiced his concern that the state had to be able to appeal pretrial before jeopardy was attached.  With a finding that the defendant was retarded, thus eliminating the death penalty as an option, the challenge must be completed pretrial.  The defense could appeal that determination at the end of the case, if a conviction and death sentence was imposed.  That was the reason why a finding that the defendant was mentally retarded must be immediately appealable, while a finding that the defendant was not mentally retarded would not be appealable.  Mr. Pescetta said either option H(ii) or H(iii) was basically the same provision.

 

Chairman Anderson questioned whether the legislation needed to be amended.  Mr. Pescetta replied in the negative; his language was an effort at cleanup, in agreement with Mr. Peterson. 

 

Kristin Erickson said she agreed with Mr. Pescetta in that the language attempted to make the legislation as clean as possible to enable the state to appeal if a finding was made.

 

Chairman Anderson asked for Ms. Lang’s opinion.  Ms. Lang deferred to the wishes of the Committee as to whether the language was amended.  Chairman Anderson noted that proposed amendment “H” would not be amended into the legislation. 

 

Ms. Lang asked for clarification from Ms. Erickson regarding the difference between the original language in the bill and that of option H(iii).  Ms. Erickson agreed that the intent of option H(iii) was to give the state the right to appeal pretrial; once the trial began, it was too late.

 

Assemblywoman Buckley queried whether the Legal Division could review the existing language and add “pretrial” to make it clear.

 

Chairman Anderson read option “I,” which dealt with post-conviction inquiries when the death penalty was imposed (Exhibit C, page 24). 


Ms. Combs said two options were presented:

 

 

 

Assemblywoman Buckley stated the Committee had already addressed this issue.  She said she did not want to return to the discussion as to whether the court could appoint doctors to examine a defendant.  She recommended the Committee accept option I(ii).

 

Chairman Anderson said the Committee would discuss retroactive application, which would add a new section to the bill specifying that “inmates currently under a sentence of death have one year…”  He questioned whether this would dramatically limit the current practice.

 

Ms. Combs noted that the effective date of the bill would be October 1, 2003.

 

Mr. Pescetta said this amendment would provide substantial limitations beyond the current habeas statutes.  The thought behind proposing option I(ii) was to cover post‑conviction cases without limitation.  The retroactive application would place a shorter limit than that for filing a habeas corpus proceeding.

 

Ms. Erickson said, although she was not an expert in habeas corpus proceedings, it was a concern of the state that these types of motions would be brought up years later.  This statute was an attempt to limit those motions made five or ten years later.

 

Chairman Anderson commented that this issue was not addressed during the interim study.  Mr. Pescetta stated the presumptive time limit for filing an initial habeas was a year after the conclusion of the case on appeal, after the Nevada Supreme Court had reviewed and affirmed the conviction and sentence.  The legislation would shorten that for any cases that were pending.  The legislation would place those currently on death row on a track to file a motion by October 1, 2004, which would place a burden on the system in addition to the burden of raising those issues in habeas proceedings.

 

Chairman Anderson said that the inmates and the attorneys who defended them would pay attention to this statute.  He asked if they would have an opportunity to make these types of filings anyway upon passage of this legislation.  Mr. Pescetta said if an attorney had not recognized the issue already, a problem might not be addressed during the one-year time period and then be precluded from any relief, even if afterwards everyone agreed that the defendant was retarded and could not be executed.

 

Assemblyman Horne spoke in opposition to the retroactive application.  If a defendant was not tested but was determined at a later date to be mentally retarded, the Committee did not want to execute the mentally retarded.  To determine a person was mentally retarded “too late” was grossly unfair.

 

Chairman Anderson queried whether placing a one-year window “after trial” for the appeal process was appropriate.  The defense bar should attempt to bring all those issues before the court as quickly as possible, rather than having them “waterfall” time and time again, thus carrying out a longer and continuing scenario.  He questioned if that was the argument that the legislation was attempting to avoid. 

 

Mr. Pescetta said that was not an impermissible incentive by any means; lawyers should pay attention to the issues.  Unfortunately, he said his practice dealt with cases where lawyers have not found issues. 

 

Ms. Erickson said the state’s concerns had been expressed.

 

Chairman Anderson reviewed the amendments that were to be included in A.B. 15:

 

 

Assemblyman Horne questioned whether Mr. Pescetta had an objection to Amendment 3.  Mr. Pescetta stated he did not like Amendment 3; the issue should be raised under Amendment I(ii) whenever the evidence arose.  He voiced concern that Amendment 3 would place a burden upon the system.  In terms of taking action on the bill, Mr. Pescetta said the legislation was more important than any part of it.  He said he objected to Amendment 3; he preferred it not be included in the bill.

 

Assemblyman Carpenter quoted from page 3, Section 2, subsection 4, beginning at line 35, “where a court has found pursuant to Section 1 of this act that the defendant may not receive a sentence of death.”  He said that meant the defendant was mentally retarded, but that he did commit the murder.  He said he had a problem allowing that person to be paroled if he was found guilty of murder.  He voiced concern for a mentally retarded individual who was paroled and then committed another murder.  He emphasized that if an individual was mentally retarded and committed a murder, he should not be paroled.

 

Ms. Lang responded that life with the possibility of parole (LWP) and life without the possibility of parole (LWOP) were the options in sentencing for murder of the first degree.  There was also an option of a definite sentence.  She said that Section 2, subsection 4, stated that if a person was not eligible for the death penalty, then he was only eligible for LWP or LWOP as currently specified.  Chairman Anderson asked for verification that the legislation was not removing any current options for the court.  Ms. Lang responded in the affirmative.

 

Assemblyman Carpenter stated that a person who was not eligible for the death penalty because he was found to be mentally retarded should not be allowed to be paroled. 

 

Referring back to the Work Session Document (Exhibit C, page 24), Assemblyman Gustavson voiced his objection to the retroactive application (Amendment 3).


Responding to Mr. Carpenter’s concerns, Assemblyman Horne said he was not ready to make an assumption regarding the recidivism of those found to be mentally retarded.

 

Assemblyman Geddes said he agreed with Mr. Carpenter on the issue.  It was not a presumption that those individuals were more likely to commit murder again, but the entire intent and language leaned toward establishing a pattern of someone learning to deal with their disability, as well as masking and overcoming their disabilities leading up to the crime.  He said the prison environment would not advance those individuals beyond that point.  Mr. Geddes said he supported Mr. Carpenter’s position.

 

Assemblywoman Buckley said Mr. Carpenter had brought up an intriguing point.  She cautioned that there might be a due process concern for first-degree murder cases if it were determined that a mentally retarded person would automatically be sentenced to LWOP.  The jury was allowed the discretion to consider the possibility of parole.

 

Assemblyman Brown said there were absolutely no grounds within the law.  It would have to be determined that some of the causation or intent was actually “wrapped up” in their mental retardation to even consider that type of penalty.

 

Assemblyman Mortenson said he would guess that mental retardation did not necessarily mean that a person was more disposed to violence or murder than a person who was not mentally retarded.  If the group was treated differently, saying they must stay in jail, whereas another person who had committed the same crime had the possibility of parole, that was an uneven situation.

 

Chairman Anderson said he and Mr. Carpenter had disagreed before.  He said he had an inherent fear that the prison would turn into a holding area for the mentally retarded, taking a step back to Bleak House, in another time period where the prisons were full of those who should have been in mental institutions.  Chairman Anderson stated the Committee would move forward without Amendment 3 and let the Senate address the issue.

 

Chairman Anderson entertained a motion relative to A.B. 15 accepting the proposed amendments 1C, 2A, 2B, 2C(ii), 2D, 2E(i), 2F(ii), 2G, 2H(iii), and 2I(ii).

ASSEMBLYMAN HORNE MOVED TO AMEND AND DO PASS A.B. 15.

 

ASSEMBLYMAN CONKLIN SECONDED THE MOTION.

 

MOTION PASSED.  (Ms. Ohrenschall was absent for the vote.)

 

Chairman Anderson assigned the bill to Assemblywoman Sheila Leslie, the primary sponsor, to present the Floor Statement, with Chairman Anderson acting as backup and handling the amendment.

 

Chairman Anderson called a ten-minute recess.

 

Reconvening the meeting, Chairman Anderson said he would postpone taking action on A.B. 13 and A.B. 14 until the next scheduled work session on March 11, 2003, since both bills would involve lengthy discussions. 

 

Chairman Anderson adjourned the meeting at 11:21 a.m.

 

 

RESPECTFULLY SUBMITTED:

 

 

 

                                                           

Deborah Rengler

Committee Secretary

APPROVED BY:

 

 

 

                                                                                         

Assemblyman Bernie Anderson, Chairman

 

DATE: