MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
March 5, 2003
The Committee on Judiciarywas called to order at 8:26 a.m., on Wednesday, March 5, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
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
Sabina Bye, Committee Secretary
OTHERS PRESENT:
John Sande, representing Nevada Bankers Association
Alan B. Rabkin, Bank Counsel, Nevada Bankers Association
Kathryn Burke, Washoe County Recorder
Michael Pescetta, Attorney at Law, Las Vegas, Nevada
Kristin Erickson, Washoe County District Attorney’s Office
Ben Graham, Clark County District Attorney’s Office
Chairman Anderson:
[Called the meeting to order. The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette. Roll called.] A quorum present. Ms. Ohrenschall should be excused. I understand that Ms. Ohrenschall will be back with us tomorrow. There are 14 members present, one excused.
Good morning to Judge Bunch in Battle Mountain.
We have one bill on the agenda for the day and then we will be going to a work session. Yesterday, I indicated that we would be doing work session on several bills. Now, I am going to remove them from the work session. I think a couple of them may even be in the Work Session Document. We are not going to be looking at Assembly Bill 54; there are some problems, and we want to make sure that the definition in the proposed amendment is going to work for everybody. I was under the impression that we were at that point; we’re not quite there yet.
Assembly Bill 100 still has a couple of issues that apparently are still in the air, so we need to hold back on A.B. 100. And Assembly Bill 151, the public guardianship bill, still has some questions; we need to make sure that everybody’s concerns are met, and we have not yet reached that point, so I want to make sure that we can do that. If you had prepared for those pieces [of legislation] today, I apologize; we will try to get to them in our upcoming hearing.
Again, I would remind the members of the Committee that if there is a piece of legislation that we previously heard that you have not heard me talk about and you feel strongly that we should have it here in front of us, please indicate your desire to try to get it to the work session, because if you do not I will assume that it gets to stay on my board and mellow until we reach that maximum point.
Let’s then turn our attention to Assembly Bill 92.
Assembly Bill 92: Makes various changes to requirements governing filing and form of certain documents. (BDR 8-271)
Chairman Anderson:
Open the hearing on Assembly Bill 92. Mr. Sande, I presume you are going to bring Mr. Rabkin up.
John Sande, representing the Nevada Bankers Association:
[Introduced himself.] Thank you, Chairman Anderson and members of the Assembly Committee on Judiciary. I am here today representing the Nevada Bankers Association on A.B. 92, which is a bill that we requested. It has to do with Article 9 of the Uniform Commercial Code, Secured Transactions, something that a lot of people would not like to even know about, me included. Therefore, I brought Alan Rabkin today, who is an expert in that area and can explain everything; he goes home at night and that is what he does instead of watching TV. So at this time, I would like to turn it over to Alan Rabkin.
Alan B. Rabkin, Bank Counsel, representing Nevada Bankers Association:
[Introduced himself.] Good morning. Fortunately, this year I presented a bill that is much less weighty than in prior years. Just a quick background—we pretty well completed the revisions to the Uniform Commercial Code (UCC) over the past five sessions and we modernized the code in accordance with national standards. Things seem to be working pretty well, so I think we all did a good job of modernizing it.
Although there are a few Article 9 technical changes we would like to make here, there are also a couple changes to other statutes too. This will be very brief. I can get through this very quickly and then I will answer questions.
The first change deals with the section of Article 9, which is found in Chapter 104 of the Nevada Revised Statutes (NRS), and would propose to add a section to NRS 104.9516. This was prompted by the Secretary of State, who frequently receives filings against public officials that are not backed up by true debts. In other words, somebody unhappy with a judicial decision or with a legislator might file a UCC-1 Financing Statement intending to be evidence of a debt and simply make some sort of statement that they are unhappy with the decision of the court, or some other grounds that are not well grounded in Article 9. The Secretary of State requested that Article 9 be changed to make it clear that, if the Secretary of State requests proof that there is an underlying debt, the person attempting to file that UCC-1 financing statement would have to prove that there is an underlying debt. There is actually a section already in Article 9 specifying what an underlying debt is. That’s the first change.
[Alan Rabkin continued.] The second change is equally simple, I think, to explain. In 1999, we changed Article 9 to conform to national standards. We made some additional changes in 2001, to conform to national standards. Unlike most states, we actually embedded the forms that were intended to be used directly into the statute, which is not really standard practice. Because the forms are embedded into the statute, it takes two years to change them should there be a change to the national forms. The Secretary of State’s office has shown a willingness to change our form to meet up with the national form as quickly as they are introduced—after all, they are national forms—but that would be precluded by the statute because we are always two years away form changing from any form when they are embedded in the statute.
So what is being proposed by the second change is that the actual forms come out of the statute, and we simply reference the fact that the Secretary of State will use the national form. The Legislative Counsel Bureau (LCB), when they drafted this, took out some of the specifics that would say that. I am going to need to put those back in to make it very clear that we will be using the national form, but those are minor additional changes to the bill draft as drafted by LCB.
The third change does not affect Article 9 at all. It affects the section soon after Article 9. In the last session of the Legislature, you approved what is called a “producer lien,” which was designed to deal with the situation where a farmer or a producer of raw materials allows those raw materials to be incorporated into another product, kind of commingled. For instance, cotton being put into a cotton co-op and then commingled—you can’t really tell whose cotton it is—and then it is passed along the production chain. It provided the producer of that cotton in my example to have a lien against the whole bulk of cotton so as to ensure they will be paid. This is especially important if that cotton moves out of state.
You approved that. The problem is that you directed that the filings be made at the Secretary of State, which they accepted. However, we didn’t make it clear on what form that that filing would have to be made. The Secretary has proposed, through the bill I drafted, that the same form that is used for Article 9 Financing Statements be used for purposes of this producer lien and the same system Article 9 be used to document that producer lien, making it pretty transparent to the Secretary of State. All they have to do is file it like any other Article 9, UCC-1 filing. That is this third change.
[Alan Rabkin continued.] The fourth change deals with a change you made in the last session dealing with county recorders recording certain documents in certain format. One of those documents was our UCC-1 financing form that doubles for accounting purposes for what we call a “fixture filing.” An example of that would be if you are lending to a hotel, and on top of the hotel is a large air conditioner; it is not quite clear if that air conditioner is equipment or whether it is a fixture, whether it is part of the real estate. Oftentimes the way you cure that problem is to simply double up and you file an Equipment UCC-1 with the Secretary of State, and you file using a property description, a fixture filing, which is much like a deed of trust with the County Recorder.
It has always been the practice that you use the same form to do that. The problem now is that the Secretary of State has adopted the national form, and in the last session the county recorders had a specific size and shape of the piece of paper. The concern of lenders, including banks, are that those forms will move apart and that you will have a different national form than the specific requirements set out in the statute. So what has been proposed to remedy that situation is that we simply add another category of acceptable documents, being the national form.
Again, when this was drafted it came out a little more general than I would like. I think the county recorders have a legitimate concern that they want to know exactly what additional form would be acceptable if you were to pass this statute. I am certainly willing to work with LCB and the Committee to amend that back to my specific verbiage.
The final change was requested, primarily, because there are two statutes saying the same thing, dealing with the repossession of cars. As you likely know, we have both specific statutes dealing with repossession of cars and we have a general statute, again, our NRS Chapter 104, Article 9. Article 9 basically says here is how you repossess personal property. This specific NRS Chapter 482 says how you repossess a specific type of personal property being an automobile. We are trying to square those two statutes because in NRS Chapter 482 there is a provision that says, “Here is the notice you need to send out,” but in NRS Chapter 104 it says, “Here is the notice you need to send out,” and those notices are slightly different.
So what we did for consumer protection, and other reasons, was choose the more complete and informative notice that would be given to a consumer or any other party. We didn’t choose the weaker of the two; we chose the stronger of the two. It includes things such as, “This is the amount you need to pay us to pay off the debt. Here is what we will do if we need to sell the car,” et cetera. We simply incorporated NRS Chapter 104 and their notice over the notice in NRS Chapter 482.
Chairman Anderson:
Okay, it was much clearer. The amendments that you are suggesting, do you have them in writing?
Alan Rabkin:
I do. Originally, they were in my Bill Draft Request (BDR) 271. I would propose that we take another look at the original BDR and try and reincorporate the original statutes that I mentioned in the BDR, if possible.
Chairman Anderson:
I am sorry, I guess I was under the impression that you had had an opportunity to review the BDR report. It came back, but we didn’t note these?
Alan Rabkin:
Unfortunately, I did draft the BDR myself, but I did not see the bill before it was actually enrolled and placed before you. I will certainly take any questions, but this year it’s more of a technical cleanup.
Assemblywoman Buckley:
The only question I have is about Section 5. What provision in NRS Chapter 104 did you say duplicates this language?
Alan Rabkin:
The original Section 482.516 contained a notice. NRS 104.9613 and NRS 104.9614 have a similar notice. I did bring copies of those if you need them.
Assemblywoman Buckley:
No, I have them right in front of me, thank you. Regarding the language in Section 5, I guess one reason I am concerned is because it says it has to be provided on a form and made available by the Secretary of State, as opposed to saying it has to contain the language in NRS Chapter 104. I guess I just want to ponder this, and the reason I want to ponder it is because what is set forth here is the only consumer protection that helps someone who gets his car repossessed. There are common sense things they say: “Here is how much you owe; here is how you get your car back; this is what you’ve got pay,” and this is in the car dealer’s statute which car dealers look at—they really don’t look at NRS Chapter 104 very often, the Uniform Commercial Code. I just want to make sure that we are doing the right thing here and I want to compare the provisions, if I have time to do that; in my real life, we talk to people who have their cars taken away from them all the time. If they don’t have the right to redeem their cars, they can’t get to work and this is a big deal to a lot of people.
Alan Rabkin:
Fortunately, in response to that, the language in Section 5 is not my language in the BDR. I simply reference the form to be the same as NRS 104.9613 and NRS 104.9614. I didn’t say it would be on a form prescribed by the Secretary of State; my second change down in subparagraph 3, was worded differently than it came out as well, which relates back to my need to go back to my BDR form. I absolutely agree with you. It is not the Secretary of State that is driving this form, it is the statute, NRS Chapter 482. We’re simply referencing the same language as you would use to repossess a toaster or an account of somebody, so we want to have consistency but we are only referencing the same verbiage as used by the Secretary of State but the Secretary of State is not providing that form.
Chairman Anderson:
Ms. Buckley, I am not sure Mr. Rabkin caught the drift of what I think your concern was and that is that you, if we are to move in this area, that we want to make sure that we have the duplication of this particular section both in the Uniform Commercial Code and in the section dealing with motor vehicles. I don’t think that that was your intention, Mr. Rabkin, in requesting this.
Alan Rabkin:
No; in fact, the statute that we are referencing now by this proposed change would be more inclusive, not less inclusive. I am looking at it right now. For instance, NRS 104.9613 states the method of intended disposition; it states that the debtor is entitled to an accounting of the unpaid indebtedness; it states charges, if any, for an accounting. It is actually more consumer-friendly, I believe, than the current statute. So if anything, I believe, it would meet or exceed what NRS Chapter 482 now provides.
Assemblyman Gustavson:
I share the same concerns as Ms. Buckley and yourself too, that this language—I have NRS Chapter 104 in front of me here right now—I am not quite sure what the specific language is in there. If it is just requiring a form, I have a problem with that because I would like to see this language in Section 5 stay in there. It specifies the criteria that must be done before we can repossess a car. I just want to make sure that language stays in the statute.
Alan Rabkin:
In response to that, that is the intention, to keep the language at or to exceed the language simply to unify it and not have two separate notice provisions.
Chairman Anderson:
Other questions from members of the Committee? Mr. Rabkin, Mr. Sande? Ms. Burke, did you wish to [speak]? I see a question mark there.
Kathryn Burke, Washoe County Recorder:
[Introduced herself.] The recorders’ concern, of course, was the way the bill did come out giving a prescribed form by the Secretary of State and the recorders not knowing what that prescribed form is. We have an issue with that right now because we are accepting the national form. The national form doesn’t have a signature; it did meet all the criteria. Actually, the statute that was passed last session [stipulates]: 8˝” x 11” with the one-inch margins—in fact, it was perfectly designed to fit their form. But after talking to Alan—he is correct that if they change the national form, would they then not meet the standard? That would never be the intent of the recorders, for that not to happen. So if he gets back to his bill draft language, that would then include the national form and then at least we would know which form that we are trying to direct our customers to use. We will get phone calls—“Kathy, we need to record a UCC and where do we get the form?” Currently, we are sending them to the Secretary of State’s Web site and they are producing those forms, the national forms, on their site. However, if they are going to remain in the statute, that might not be the place where they really need to be. Some people will take them out of the statute, but Alan is correct, the minute the national standard changes, then what does it do to our state statute? So I agree with him there.
He has also agreed to work with the recorders on this issue to resolve some of the issues that arise for us. All we want to know is, “What do we need to do; how do we take a UCC; which ones can we take; which ones can’t we take, or should or shouldn’t we be taking.” The current fee that we are charging for the UCCs is the fee based on NRS Chapter 104, which is not the same as our real estate document-recording fee. So that, as far as I am aware, would remain the same. I guess we are asking for answers. This happens to be the first time that we have become aware of this bill.
If you have any questions for me, I would be happy to answer them. I think we will work with Alan and try to resolve these and when he comes back with the corrected language, hopefully we will be right with him.
Chairman Anderson:
Any questions for the Washoe County Recorder? Is there anybody else who wants to be heard on Assembly Bill 92, either for, questioning, or against?
It would appear that what we need to do here is ask Mr. Rabkin to put into writing the—I know you have already done this in part—what you thought we were going to do. I am a little concerned—not that I don’t trust the Secretary of State to come up with the right form—but I am a little concerned about the Secretary of State coming up with the right form. I am not willing to necessarily abandon the legislative prerogative. I am not necessarily sure that I like the idea of surrendering it off to a uniform area out of state either, but it appears that that has the most commonality with the Uniform Commercial Code, which we really do want to try to hold ourselves next to other states in terms of friendliness. So I think it is imperative that we make sure that we provide a business-friendly environment.
Mr. Rabkin, if I could ask you to try to work over the next—I am not going to put this on the work session document for the next work session, but will try to do it over time. Does anybody else want to be heard on A.B. 92?
Let me close the hearing on A.B. 92. We will give you about two weeks time to work out whatever language you think would straighten out the bill without doing some dramatic things to it. Recognize that we want it to conform to our statutes, too, so you need to make sure you work with Ms. Lang, and I am sure that she will be happy to help. Make sure that in Section 5, of course, the motor vehicle question is taken care of.
Let’s turn to the Work Session Document (Exhibit C). While that’s being passed out, I need to do a little clarification on a piece of legislation that we’re already done.
I’d like to call your attention to Assembly Bill 55, which we’ve already taken a position on.
Assembly Bill 55: Provides for collection of biological specimens for genetic testing from certain persons. (BDR 14-330)
We previously moved to Amend and Do Pass Assembly Bill 55 already in this Committee and I want to make sure that I am carrying out the intent and that I am giving the correct instructions to the bill drafter.
Since the time of the hearing, it has been pointed out to the Chairman that one of the new provisions, on page 3, line 15 of the bill, would require all felons, Categories A through E, to provide a specimen if they failed to register. You may recall, this is the intent of this particular piece of legislation, requiring those people from out of state [to register]. Section 1 of the bill had been removed in its entirety; this would apply to persons convicted in Nevada and persons convicted in other states for a felony, who come to Nevada, so [it includes] all felonies Categories A through E.
My concern was based upon our discussion here in Committee. It would be the intent of the Committee to delete the sections that would require a person who is convicted of a Category D or E felony to provide a biological specimen if they fail to register. Now the problem comes about, and I want you to think about this for a second, is here you are a Category D or E type felon. You were living in Reno or in Washoe County and you move here to Carson City and you failed to register here as a Category D or E felon. You were not required to give a specimen in Washoe County; now you are found here and—Categories D and E are things like unlawful practice of law, attempted—these are Es—a misconduct of a public official; selling or displaying of advertising goods with false trademarks, most of them are in the elections; unlawful use of a Schedule IV controlled substance; manufacture and delivery, sale or possession of drug paraphernalia, probably the biggest thing on there; and fraudulent possession of a prescription drug.
Category D offenses tend to be payment or acceptance by a natural parent for adoption; unlicensed placement of a child; failure to register for a crime against a child; failure to register as a sex offender. Some of these are already covered in our statutes specifically, so you would have to do those anyway. Perjury is one of the things; oppression under color of office; forcing or the threat of force; fraudulent appropriation of property valued at $250 or more; perjury, as I mentioned.
In the past, we have not taken samples [from Categories D and E felons] because of the cost in part, but also because of the cost of storage, and therefore my concern in drafting this was that it seemed to be the intention of the Committee that we were not trying to get at those particular people when they moved from county to county and they failed. We are clearly trying to get at those people who are Categories A, B, and those specified Category Cs who come from out of state or move from county to county and fail. So I want to make sure I gave the correct information to the bill drafter. I think I am, but I want to make sure. I don’t like to do things twice.
Assemblywoman Buckley:
It is your bill. I think it goes forward in collecting more if you are worried about the fiscal note in going too far; I just suggest that we defer to you since it is your bill, on your recommendation.
Chairman Anderson:
It seemed to me that when I put this bill in, at the request of law enforcement, they tried to clear up the problem; they had tried to, in Section 1 of the bill, to broaden the biological specimen question. When they withdrew Section 1 of the bill, it seems to me that we would also, as a natural consequence of that, withdraw from Categories D and E type felonies and those Category Cs that are not specified, to be consistent. I was disappointed that they chose to do that, but they chose to do that, and I think that was in deference because they did not want to fight about how far and outreaching this bill might be because it would be picking up the placing and collecting of specimens in the same category as fingerprints. That is, when you are arrested, you pick up fingerprints and those specimens are going to be picked up at the same time, which is probably where they are going to be eventually, but they are not there yet.
So, at the pleasure of the Committee, my recommendation is that the bill be amended so that we clarify that question, that we are not planning on Categories D and E or those Category Cs from county to county, so that we have consistency in the way we are treating people.
Assemblyman Carpenter:
So that I understand it, Category D—and I am reading from that list at the top of page 3—is that what you were talking about also?
Chairman Anderson:
Correct. Currently we pick up or provide for Categories A, B, and C involving the threatened use of force or violence against a victim, or crime against a child, as defined in NRS, sexual offenses as defined, abuse and neglect of an older person. We are not changing that list in any way. That will remain constant whether they are Categories A, B, C, D or E. We are not lessening the standard there; we are just making sure that we are not—if we are not doing it for people coming from out of state on Categories D and E—it would be ridiculous to be doing it for people who move within the state when we don’t do that for them currently. We don’t pick up a specimen from them, currently, for Categories D and E, except those on the list that we already provide.
Assemblyman Carpenter:
You don’t think we are going to miss somebody that we might want the specimen later on to compare for—it says a crime against a child or—we are not going to . . .
Chairman Anderson:
We are not going to lessen that statute in any way. What we would do is treat people who are moving within the state similarly to the way we currently treat people who stay in the same place in the state. So, if you stay in Washoe County when you come out, we already have your DNA. If you move from Elko to Reno, there isn’t a higher standard for you in Washoe County than there was in Elko County.
Assemblyman Carpenter:
So, they wouldn’t have taken a sample in Elko?
Chairman Anderson:
If they were required to take a sample in Elko, they would still be required to have that sample in Washoe County. If they had not taken a sample, if they didn’t fall into one of the categories in Elko County and now they come to Washoe by the fact of merely not registering—and the reason they weren’t sampled in Elko County was because they were a Category D or E and now they come to Washoe County, the fact that they did not register for one of these Category D or E type crimes, which perjury is—most of them are kind of paper-type crimes that you would not be required to, even though you were arrested again, if it was for a Category D or E, in all probability, would not have to be tested. You wouldn’t have to be sampled.
Assemblywoman Buckley:
I think to put it another way, the Chairman is saying that we want to move forward in capturing more DNA, but at the same time we want to be consistent. We only require it from those folks moving in from out of state if we would have required it if they did it here. For example, if it is a Category C felony, they did it here, then we are going to get them when they come in from out of state. But, if it is a Category E felony from out of state, and we don’t even get it from our in-state people, we should have it be on the same playing field as we move forward, and we should let technology catch up a little bit so we make sure we can store all this stuff and use all this stuff before we have an inconsistent playing field with folks from out-of-state—saying the same thing, just a little differently.
Chairman Anderson:
Ms. Lang has a potential solution for us. I just wanted to make sure the Committee was comfortable in what we were doing here. Ms. Lang, you wanted to indicate to them the possibility that we could make the change? It is not apparently difficult; it is just that I wanted to make sure you are all comfortable.
Risa Lang, Committee Counsel:
Right, I think, Mr. Anderson, what you are suggesting is that we remove paragraph (i) from the list, which is on lines 15 and 16 on page 3, so that the rest of the list would remain the same. So we are not really diminishing the existing list in any way; we are still capturing in paragraphs (j) and (k) those people who moved to the state who have committed crimes that otherwise would have been required to submit DNA, so we have that when they come to the state; then we still have the other ones who are currently listed. It just removes from the list those people who fail to register who were not convicted of crimes that would otherwise be required to register.
Assemblyman Conklin:
Maybe I am missing something or maybe I am on the ball with this. The question isn’t whether they should register as Categories A through C felon in certain crimes as children when they come to this state, we are talking about people who come here and fail to register initially as Categories A through C, plus a few extra crimes. Then once they fail to register and we find out they failed to register, is that where the loophole is? Is that what I am understanding?
Chairman Anderson:
Correct.
Assemblyman Conklin:
Thank you, and I agree with you on your initial analysis, Mr. Chairman.
Chairman Anderson:
I just wanted to make sure; I didn’t want to send the bill drafters off—this is a Committee work product and I am very, very careful of the Committee’s rights, overly so, I know, at times. I feel more comfortable in instructing the bill drafter. I think we are in OK shape
Let’s turn to the Committee workload, Work Session Document (Exhibit C).
Assembly Bill 13: Eliminates panel of judges in certain penalty hearings in which death penalty is sought and requires district attorneys and district courts to report certain information concerning certain homicides to Supreme Court. (BDR 14-197)
Ms. Combs, should we start with A.B. 13?
Allison Combs, Committee Policy Analyst:
The first bill on the Work Session Document (Exhibit C) is Assembly Bill 13, one of the bills from the Death Penalty Study. This is the measure that deals with the elimination of the three-judge panel and also requires the collection of information from district attorneys and district courts and development of a questionnaire by the Supreme Court.
There was an amendment submitted at the time of the hearing and then some amendments following the time of the hearing that are included in the Work Session Document, so I will go through those.
The first one appears to be, primarily, what is characterized by the proponent, Mr. Pescetta, as a technical change to the statute to include a reference to one of the four sentencing options under the death penalty that does not exist under NRS 175.554. This amendment is set forth at the bottom of page 1, under number 1; he notes that that statute does not include a reference to one of the four sentencing options that the Legislature authorized back in 1995, which is a definite term of 50 years with parole after serving 20 years. So, it involves giving some instructions to the jury and that sentencing option is not in there. So it would be a technical change to referencing an existing sentencing option for the jury.
Chairman Anderson:
Does anybody have any questions or concerns about that particular proposal? I think we are okay with this one.
Allison Combs:
The second proposal raised by Mr. Pescetta is under number 2 on page 2 and involves the data collection requirements for the district court and the Supreme Court. The Supreme Court, under the bill, is required to develop a questionnaire to provide a variety of information, which the district courts will then use. In his proposal, Mr. Pescetta noted that the Committee may wish to consider deferring consideration of these two sections until the Supreme Court acts on the legislative interim study’s recommendation that the court conduct a proportionality review in capital cases and require collection of data in homicide cases by trial courts. This recommendation that the Committee so chose to take out Sections 4 and 6 would also reduce the fiscal impact of the bill at this time. And that was one that was submitted subsequent to the hearing.
Chairman Anderson:
Mr. Pescetta, I have a question, since this is part of the information in looking at the bill, whether a psychiatric evaluation was performed on the defendant. If so, whether the evaluation indicated the defendant is capable of distinguishing right from wrong. It goes back to an earlier discussion; this is on page 3, lines 42 through 45 of the bill. Would we, since we have already dealt with that kind of question be just removing the requirement as a check-off thing for what needs to be included in the form, and therefore, are you of the opinion that the court can do this without our desire here?
Michael Pescetta, Attorney at Law, Las Vegas, Nevada:
[Introduced himself.] The whole questionnaire, the whole form, was originally intended to aid the Supreme Court in conducting proportionality review. The interim subcommittee decided not to include in A.B. 13 a provision mandating proportionality review and instead wrote a letter to the Supreme Court saying that the Supreme Court should consider adopting proportionality review. Since Sections 4 and 6, including the items that you mentioned, involve data collection through this questionnaire from the district courts on homicide cases, those sections are really superfluous at this point since they go to a proposal for proportionality review that is no longer in the bill. So the data that is asked for in these questionnaires was directed at something that ultimately the interim subcommittee just didn’t propose as legislation.
Chairman Anderson:
One of the frustrations that the Assembly Committee on Judiciary has had over time is the problems with the Court in determining the load and statistical information that needs to be gathered in some fashion by somebody so that we can begin to do that, not just in death penalty cases, but in the questions as a whole. I guess I am hopeful that the courts are going to move in that direction.
Michael Pescetta:
Section 3, which is the District Attorney reporting section that Mr. Peterson indicated they had no objection to, is what we regard as the first step at the beginning of the case where the homicide is first charged where it is appropriate to start gathering that data and maybe at some future date we could pick up the remainder of it. The concern that we had was that Sections 4 and 6, since they really relate to something that was not in the bill that was proposed, may be superfluous at this point.
Chairman Anderson:
So, if we remove Section 6 in its entirety then we would be deleting pages 3,4,5, and 6, is that correct? Is that really the biggest part of this particular legislation?
Michael Pescetta:
Mr. Chairman, it is [Section] 3 that we were proposing keeping; that is the District Attorney reporting, and 4 and 6 that we were suggesting might be removed since that is the district court reporting.
Chairman Anderson:
Thank you for the clarification. Are their any questions from anybody?
Assemblyman Carpenter:
Yes, thank you, Mr. Chairman. I was looking at Section 3; it seems to me it covers a lot more than murder cases—voluntary manslaughter, involuntary manslaughter—I thought we were trying to get the reporting that would apply to murder cases. Certainly, if these other things are in there, I think that the District Attorney is going to have a lot more work to do; I have some question on that part of it. Also, down at the bottom of the page, where it wants the identity of everyone that decided that there should be a death penalty sought, even any person outside of the office, I am just wondering how that will help us in the reporting of data. I think that we need this data, but I question why these other things will help. Then when we include manslaughter and involuntary manslaughter, I don’t know how that fits into the scheme of things.
Chairman Anderson:
It looks to me that, in part, manslaughter from a death from an automobile accident, the District Attorney shall exclude from the report any changes for manslaughter that result from a death in an accident or collision involving a motor vehicle. So those are already taken out in lines 18 through 20, so this is the deaths. Mr. Pescetta, do you want to clarify that for us, and answer Mr. Carpenter’s concerns?
Michael Pescetta:
The intent of this provision was to capture all of the non-negligent homicide charges, because part of the difficulty in gathering data on the death penalty cases is gathering the data on the cases that could have been death penalty cases but were not charged as death penalty cases. That is why we are trying to get all of the non-negligent homicides. It is my understanding that there are very few homicide charges that start out as involuntary manslaughter. Most homicide charges that are charged other than as vehicular manslaughter start out as murder or manslaughter. Involuntary manslaughter is almost exclusively a conviction that is rendered by the jury after a higher offense is charged. The idea behind this is to gather the information on all the homicide cases other than vehicular manslaughters. I would have to agree that the number of involuntary manslaughter charges that actually start out being charged that way is so small that that’s probably not a critical portion of the reporting that I think could be removed without serious difficulty.
The portion of A.B. 13 about the identity of the people who contribute to the capital sentencing decision, that is the decision whether or not to charge as a capital case. Frequently, in Clark County at least, I cannot speak for any other county, the District Attorney has what is called a “non-trial dispositional memo” which records who was talked to about whether a negotiated plea should be accepted. That is typically Metro officers; sometimes it is the victim; sometimes it is somebody else. When the decision is being made to go ahead and take a homicide case and prosecute that as a death penalty case, it is important for us to know the identities of everybody who contributed to that decision because part of our problem in terms of what we view as the arbitrariness of some of these charging decisions is that sometimes the District Attorney asks the victim and the victim’s family; if the victim’s family is opposed to seeking the death penalty, then they don’t. Sometimes it does matter what the victim’s family wants and it goes into the analysis by the District Attorney’s office. That may or may not be problematic when it results in similar cases, one is charged as a death penalty case and one is not. That is why we want this system of how that decision is made to be as transparent as possible so that everybody knows who is weighing in at the point where the District Attorney makes that decision.
Assemblyman Carpenter:
I guess I am still troubled by it. I don’t know whether it is really germane to the statistics we are looking for. I have a little problem with that—I don’t know; I am troubled by it.
Assemblyman Brown:
I share some of the same troubled feelings as Mr. Carpenter and I was wondering where the District Attorney’s Office was on this. I am concerned about identifying individuals by name, because I think there comes an individual scrutiny, and I don’t want to say any kind of witch hunt, after somebody who may be perceived as overly aggressive by certain persons or entities. That is some of my concern. I don’t know if you are inclined, but I am just curious and certainly can talk to the District Attorney’s Office later; I imagine we are going to vote on this.
Chairman Anderson:
Let me try to remind Mr. Carpenter and Mr. Oceguera, who both served along with me on the hearing on the death penalty discussion; one of our concerns historically deals with the fact of who is initially charged in these kinds of cases and whether there is a determination that was made at the initial hearing and how that determination was made. Whether there was an attorney, what their economic condition was—because there seemed to be both in the national study of the broken system and in other documentation that was given to the study committee on this—if you were well represented at the initial hearing, in all probability at the time of arrest, that being initial contact with the law, you would not be in the death penalty area. You would be charged with murder but it would not be a capital case. The critical issue, then, was how you were treated at the very first instance, and that we needed some tool to demonstrate statistically what was happening there; there is no bright light that shines in that area. So the purpose of this request was to demonstrate that very question.
Mr. Pescetta, did I hit it pretty close? Did I hit it in the general area?
Michael Pescetta:
I completely agree with you, Mr. Chairman.
Chairman Anderson:
Mr. Oceguera, did you have something you wanted to add to that? [He indicated no.] Mr. Carpenter, do you recall our discussion about this particular issue?
Assemblyman Carpenter:
I got bumped off that committee so I wasn’t there; sad, but true.
Chairman Anderson:
Oh, that is right, Mr. Nolan was on it. Mr. Brown are you satisfied, in part?
Assemblyman Brown:
At least in part, I don’t know, not fully, but I won’t belabor the point.
Assemblyman Geddes:
I am sorry to belabor the point. I just got a little more confused in the answer that was given. You said the District Attorney’s Office is where the district courts now prepare these documents that include everybody who was involved in the process from making the decision to go with the penalty or not. If so, if that is already documented, then is all we are doing is forwarding that information at this point? It sounds like the data is out there to me; I just got a little confused there; and I guess I would like to hear what the District Attorney’s Office thinks of that specific provision.
Michael Pescetta:
There is a form that the Clark County District Attorney’s Office uses. We do not normally have access to that form and the information on that form is not reported. So, they do keep this information, they do keep information about who is on their charging committee, but it is not available to anybody except through formal discovery where a judge forces them to disclose it. There are instances where we are trying to show a pattern of discriminatory charging based on race. Under the United States Supreme Court authority, a case called McClesky v. Zant, we have to try to identify the individuals who may be discriminating, not just to show a statistical pattern that may involve many different decision-makers. So the information that was provided to the subcommittee by the District Attorney’s Office in Clark County did have much of this information on it in terms of characteristics of the case. What we need to have is the information as to the characteristics of the case itself and who then makes the decision, “Yes, we are going to go forward as a capital case, or no, we are going to negotiate it; we are going to charge it as a first-degree murder without seeking death or when charged with something else.”
Chairman Anderson:
[Continuing with A.B. 13.] Mr. Jackson and Mr. Graham, I know we are at a work session and this does deal both with two large counties relative to the reporting requirement. I note that we are doing this not at the time of the trial, but after the trial, February of the following year, so it is a review of all the capital cases of the previous year, so this is not an instrument that would be provided ahead of time, is that right? Ms. Erickson, did you wish to—I know that you are not from Clark County and Clark County was the one made reference to, but . . .
Kristin Erickson, Washoe County District Attorney’s Office:
[Introduced herself.] With regards to Washoe County, we staff every single murder case that comes in the office as to whether we will seek the death penalty. For the vast majority of cases we do not seek the death penalty but we staff each and every case. Staffing consists of every chief deputy from the District Attorney’s Office who is available, as well as the police officers who investigated the case.
It should also be noted that the District Attorney’s Office just cannot choose to seek the death penalty on just any defendant for any murder. There has to be aggravating statutory circumstances and it is those circumstances that are looked at. Do they exist? And if they do, are there mitigating circumstances? We analyze each and every case as to whether the death penalty would be appropriate and only after a full analysis of all the facts of that particular case is a decision made. So it would be quite extensive.
Chairman Anderson:
I don’t think that is the question. I am sorry, the question is, do you currently gather these kinds of facts?
Kristin Erickson:
No, we don’t because it would be very extensive and difficult for us to do so.
Chairman Anderson:
And, in Clark County, you do, Mr. Graham?
Ben Graham, Clark County District Attorney:
[Introduced himself.] Since the administration of Stewart Bell and, I assume, with David Roger, that we at least, keep some statistics in some form, I am not certain that it would be adequate to answer the needs here, but we do keep some statistics on this.
Chairman Anderson:
Mr. Pescetta, are we okay?
Michael Pescetta:
Yes, Mr. Chairman. Mr. Graham, Ms. Erickson and I, if we spent ten minutes, could come up with a form that could get checked off on this without much difficulty.
Chairman Anderson:
I like it. We move to point three. This is the real heart of the bill.
Allison Combs:
Yes, this is the part that is a little more involved with regard to the three-judge panel. Currently, A.B. 13 provides that in cases in which the death penalty is sought, the bill eliminates the use of the three-judge panel after the trial jury is unable to reach a unanimous verdict at the initial penalty hearing. The penalty hearings are the place at which there is a determination of aggravating and mitigating circumstances. The bill currently provides that in place of the three-judge panel, the trial judge sentences the defendant to life without the possibility of parole or impanels a new jury for a second penalty hearing.
There are two proposals for new procedures dealing with the penalty hearing stage in light of three-judge panels. To summarize, if I could, before going through all the pages, essentially there is a proposal from Mr. Pescetta which would take out all use of the three-judge panels, both in the case of the jury trials as well as cases in which there is a guilty plea.
And the proposal from the Nevada District Attorneys Association would allow the defendant the option of selecting either a three-judge panel or a jury. So that is the fundamental, to make it very simple, difference between the two proposals. So, I will go through them, Mr. Chairman, if that is what you would like, in detail.
Chairman Anderson:
Pleasure of the Committee?
Assemblyman Oceguera:
I think that Ms. Combs succinctly defined what was in the two proposals. We could go through them but I don’t think that we really need to.
Chairman Anderson:
Ms. Buckley, do you have a suggestion?
Assemblywoman Buckley:
I suggest we spend less time on this than we did on data collection.
Chairman Anderson:
I suggest that we cut right to the chase.
Assemblywoman Buckley:
I think that the U.S. Supreme Court is saying that we’ve got to use juries; that is our constitutional system; they have said the word and that is what we need to do. It bothers me a little bit to say when there are deadlocks we are going to send it to the panel, and it would be nice to have less than nine alternatives. I don’t think I like the one where you get to choose to go to a three-judge panel because that seems like we are getting right back into the same constitutional problem that we had in the beginning. So, I think that part is clear but I am not sure about the rest.
Allison Combs:
I would just like to make one other addition. Under Mr. Pescetta’s proposal, it also deals with what happens after the initial penalty hearing. Currently A.B. 13 provides that the judge can impose a sentence of life without the possibility of parole or impanel a new jury. That proposal proposes to require the judge, simply, to impose a sentence of life without the possibility of parole and not impanel another jury.
Assemblywoman Buckley:
Mr. Chairman, if you are just looking for suggestions to move this along, I guess I support that. I think we get in trouble when we say the jury panel couldn’t decide so we are going to do another one. I think at that point, the judge should just sentence the person to life without parole or whatever they think is the toughest sentence—what we have in our statutes already—but move on. If a jury couldn’t decide, you don’t get multiple times at trying to pick another one.
Chairman Anderson:
Clearly, we no longer have the three-judge panel.
Assemblyman Geddes:
I like the language in the bill as written, inserting “or accepted guilty plea,” that Mr. Pescetta brought forward. I think it is fine to leave it with the judge; if he thinks there is a reason that the jury did not come to that and he would like to see a new jury, to bring it forward and if he is comfortable, to send it to life without [the possibility of parole], I think the original language is best.
Assemblyman Horne:
I have to concur with Ms. Buckley on this. I have a problem with eliminating—I think that is what it does when we have a three-judge panel—we are eliminating the jury’s voice. I think a hung jury was an answer. It may not have been the answer that was sought, that the people were looking for, but it was, and I remember the testimony when we were hearing this. Reference kept being made during the Dante Johnson trial about a rogue juror. I really don’t think there is such a thing. I think that one juror is entitled, after hearing the evidence like the other 11 jurors, to say no, life without [the possibility of parole], and disagree with the other 11. If we come to that point, I think that the judge should say life without the possibility of parole, because the jury of your peers did not sentence you to death. To enable the District Attorney to send another jury in, I think, becomes problematic because you have this jury now that has been out there and if it has been a high profile case like many of them in our state have been, I think they have been tainted and you have that problem. I think we should just—if a jury comes back and they are hung, I think life without the possibility would be the fairest thing. I think that is what we were looking to do in the first place.
Assemblyman Conklin:
I will be brief. I also agree with Ms. Buckley on this issue. When you retry and retry a penalty phase of a hearing I think we are opening ourselves up to some constitutionality issues. Furthermore, I think I will speak on behalf of Ben [Blinn], who is not here, our resident friendly former felon, that the stiffest penalty you can offer anyone is life in prison without the possibility of parole. If that is what they get, so be it. That is probably what they deserve.
Assemblyman Brown:
This is, clearly, a difficult issue. I think I would concur with Mr. Geddes on the original language. I do have a problem with the prospect of impaneling jury after jury, but I tend to think that would not take place. I think there may be a second jury. I don’t know if there is any appetite to limit it to two juries, but I tend to think if a jury hangs multiple times that there is probably at some point going to be a negotiation on the sentencing between the District Attorney and the defendant. So, I am not sure that we are going to get into a case where we are looking at jury number 10. My position would be to stick with the language as drafted.
Assemblyman Mabey:
I just want to let you know how I feel about this. I don’t have a lot of additional words. I think it has been well said, but I agree with Ms. Buckley.
Chairman Anderson:
We are going to move by the tough question right away. It sounds to me like we are going to keep with the language as drafted; Ms. Buckley, is that . . .? [She indicated no.] Tell me, again, how you are going to fix it.
Assemblywoman Buckley:
My suggestion was that if the jury hung, let the judge sentence.
Chairman Anderson:
Have we reached consensus, then? So we are looking to Number 3B, retain the language of the bill [A.B. 13] eliminating the three-judge panel and require the trial judge to sentence the defendant to life without the possibility of parole. Delete the option under the new language of the bill that impanels a new jury for a second penalty hearing. Penalty hearing following a guilty plea under the existing law—we don’t need to do anything there.
The penalty hearing following a guilty plea—to conduct the initial penalty hearing—if the death penalty is sought, eliminate the three-judge panel, impanel a new jury to conduct the initial penalty hearing. If the death penalty is not sought, keep existing law under which the judge who accepted the plea conducts the penalty hearing. So then we would go with (a) there, on page 3 of the document?
And, (b) if the new impaneled jury is unable to reach a unanimous verdict, the initial hearing where the death penalty is sought, require the trial judge to sentence the defendant to life without the possibility of parole. Correct? Okay.
Nevada District Attorneys Association following the procedural change to the penalty… So do we have to make a choice here in C, too? [Ms. Combs indicated no.] So we are out of that. So that’s the end of the bill. I like this.
It sounds to me like we are going to clarify the existing sentencing option of a jury as in number 1. We are going to revise data collection requirement for the district court and the Supreme Court to eliminate that, but we are going to leave it in place for the district attorneys to do that and they believe that they are going to work out a form that hopefully everybody is going to agree to. We are going to involve the use of three-judge panel and penalty hearing on page 2 of the Work Session Document to do B1: The penalty hearing following the jury trial—if the jury is unable to reach unanimous verdict in the initial penalty hearing in the case in which it is sought, retain the language of the bill and eliminate the three-judge panel and require the trial judge to sentence defendant to life without possibility of parole.
Following a guilty plea, they enter the initial proceeding when the death penalty is sought, eliminate the three-judge panel and impanel a new jury to conduct the initial panel hearing. If the newly impaneled jury is unable to reach unanimous verdict in the initial penalty hearing when death penalty is sought, require the trial judge to sentence defendant to life without the possibility of parole.
And we are through.
Assemblyman Horne:
One thing we talked about it in the hearing, in Section 7, the language on page 6 of the bill talking about report and analysis of information submitted by the Supreme Court, I think we need to remove that to be consistent if we are going to delete Sections 4 and 6, because it calls for the same thing.
Chairman Anderson:
I think that since the Supreme Court has received the report from the Nevada District Attorneys Association, this would guarantee that the Legislature would also receive the reported information. While the Supreme Court may not be doing analysis of more than one document anymore, it still has the requirement to tell the Legislature what is happening so that the reported document doesn’t become embargoed someplace.
Assemblyman Horne:
Doesn’t this analysis language call for the Supreme Court to conduct an analysis of the information?
Chairman Anderson:
In the analysis section?
Risa Lang:
Section 7 will be changed somewhat to conform to the fact that Sections 4 and 6 are being removed, but they still would be reporting the information that is collected pursuant to Section 3, so during drafting we will make it work with what remains in the bill.
Chairman Anderson:
In other words, the analysis question may come out. Okay, thank you for bringing that concern to us, Mr. Horne.
Assemblyman Carpenter:
I thought that Mr. Pescetta said that, maybe, either one of these, and I don’t remember if it was voluntary or involuntary manslaughter, could come out so that the District Attorney is not having to be concerned with those things. I would like to remove both of them, but we could reach a compromise on which one he said could be removed. I will have to say that I think the three-judge panel should be removed in all situations, but I like the way the bill is written. I hate to take that discretion away from the judge to impanel one jury—another new jury, not two or three or whatever—and I can see that if there is a guilty plea, why then we should have just the one jury, but if there is not a guilty plea, I like the way the language is in the bill.
Chairman Anderson:
We will be eliminating the three-judge panel in its entirety with this piece of legislation.
Mr. Pescetta, I was under the impression that your reference was to manslaughter-type cases where motor vehicles, is already excluded. Would you have any problem including those few cases in? I am a little curious as to what you are going to be taking out of the report the district attorneys are going to be doing here.
Michael Pescetta:
If we remove the charters of involuntary manslaughter, as well as vehicular manslaughter, which is a kind of involuntary manslaughter, I don’t think it would make a lot of difference to the number of cases. That is a category of cases that we are not interested in.
Chairman Anderson:
Is it going to increase or decrease the number of reports the District Attorney has to fill out?
Michael Pescetta:
If we take out involuntary manslaughter, it will decrease.
Chairman Anderson:
Mr. Carpenter, do you want us to take those out for you?
Assemblyman Carpenter:
Yes, Mr. Chairman, I would like that, and if the Nevada District Attorneys Association can come to a form that is here, that’s fine. I still have a problem with line 3 [Section 3, subsection 2(j)(4)], on page 3, [of the bill], “each person outside the office”; I don’t know what that adds to it. I don’t want to make victims think that just because they go in and say, “This is a hideous crime and we should have the death penalty,” that this is going to put some kind of impairment there. I think they are the ones who have to do most of the suffering, so I have a little problem with that. I think the attorneys—and that’s fine, that’s what they are getting paid for, but these other people—I have a problem with line 3 [Section 3, subsection 2(j)(4), on page 3 of the bill].
Chairman Anderson:
Maybe it is my interpretation of reading [Section 3, subsection 2(j)](4), line 4, on page 3 [of the bill] is, the “consulted” question; it seems to me we are talking about somebody who called up from the district attorney’s office that you specifically spoke to, not the victim of the crime or the victim’s family; the victim of the crime doesn’t exist. The victim’s family—I would agree with you, Mr. Carpenter; I don’t think we recognize that people who are going to be emotionally charged are going to be concerned about the other, and I am sure that is what we are concerned about here in reporting. Mr. Pescetta, let me ask the bill drafter what the question is here. Would this be taken to include those other people, or is it only people that the District Attorney has consulted with in obtaining it?
Risa Lang:
Is it [Section 3, subsection 2(j)](4), line 4, we are looking at on page 3? Is that what you are talking about?
Chairman Anderson:
Yes, that is right.
Risa Lang:
This would be anyone that the District Attorney consulted who is not within the Office of the District Attorney; it would be, perhaps, experts or other people who they may seek advice from—I don’t know any circumstances.
Chairman Anderson:
Would it include the victim’s families—conceivably?
Risa Lang:
It is not limited. I don’t know who they typically consult with but my understanding, and I could be corrected, was that the intent was to capture people who would be assisting in determining, perhaps, aggravating circumstances or mitigating circumstances and that type of thing.
Michael Pescetta:
Mr. Chairman, my view is that this would capture everybody. If the district attorney affirmatively goes and consults with the victim’s family, that would be covered by this.
Assemblyman Claborn:
I will have to go along on the lines with Ms. Buckley. I am sure all verdicts in court cases would be subject to the appeals; I will have to go along the lines of Ms. Buckley.
Chairman Anderson:
There may be a need then to further amend line 4 of the bill [A.B. 13], on page 3 [Section 3, subsection 2(j)(4)], to specifically provide that immediate-family victims be excluded; because I don’t believe we want to get to that particular group.
Assemblyman Horne:
I thought the purpose of this was just obtaining information in order to determine whether there is any discrimination or anything like that going on in the process of making a determination whether the death penalty should be sought. In [Section 3, subsection 2(j)(4)], on line 3 of the bill, we add that anybody they speak to outside of the District Attorney’s Office; I don’t think that directs—to say that this is—you are accusing them or anything like this; it’s just data collection so we know who is being interviewed in this process. I don’t think it is disparaging or anything like that to these people; I think that even if we had a form and the victim’s family was on there, I think it is common sense to think that they would be there and nobody would object otherwise.
Chairman Anderson:
I don’t think it is a major hangup in the bill and I don’t want to take up too much more time with it, but I agree with you, Mr. Horne. You have convinced me; I don’t know if you have convinced Mr. Carpenter.
Are we ready to go? The Chair is about to accept a motion, which would be an Amend and Do Pass as follows:
· Eliminate the panel of judges in certain penalty hearings in which there is the death penalty
· Clarify existing sentencing options for a jury as outlined at Number 1 in the Work Session Document, as suggested, to include the 50 years
· Revise data collection to eliminate the requirements of the district courts to report to the Supreme Court in view of the fact that the Supreme Court is about to do that on their own merit and how they are proceeding
· Further amend the bill at 3B of the Work Session Document to provide for the elimination of or empanelment of a new jury
· Penalty hearing following the jury trial—procedure when trial jury is unable to reach a unanimous verdict in the initial penalty hearing in cases where the death penalty is sought
· Retain the language of the bill, but delete the option to pick out a second jury. In cases where there is a guilty plea, conduct the initial penalty hearing; if the newly impaneled jury is unable to reach a unanimous verdict in the initial penalty hearing when the death penalty is sought, that would require the trial judge to sentence the defendant to life without the possibility of parole.
That we would appeal from judgment of death after plea of not guilty in Supreme Court, set sentence aside—I am sorry we would not do that. That’s it.
Then at page 2, line 17 of Section 3, subsection 1, of the bill, eliminate the District Attorney’s requirement of voluntary manslaughter reporting requirements as outlined by Mr. Pescetta.
assemblywoman BUCKLEY moved amend and do pass a.b. 13.
assemblyman conklin seconded the motion.
The Chair entertains the motion from Ms. Buckley of Amend and Do pass; seconded by Mr. Conklin. What about part A for the victims? We are going to leave that alone. Mr. Conklin convinced me.
On the Buckley/Conklin motion, as I have attempted to outline, Amend and Do Pass, the Chair will place the question.
Assemblyman Carpenter:
I think I have to vote against the motion; I know I do, but I may change my mind on the Floor because Section 3, subsection 2(j)(4), on line 3 on page 3 troubles me. I want to talk to people about that and I want to talk about whether a new panel should be imposed or not.
Chairman Anderson:
A second panel?
Assemblyman Carpenter:
Yes.
Assemblyman Brown:
I understand that we have to make some amendments here for the reasons I have stated or the concerns that I have stated before. I will go ahead and vote no at this time, but I do recognize that this bill must go forward and I appreciate the work that the Committee has done on it. It has been a good work session.
Assemblyman Conklin:
With all due respect to my two colleagues here, one from Las Vegas and one from the north, I wanted to clarify an issue. We took out the three-panel judge because the three-panel judge historically has been biased. Why would we think if we took just one judge and gave them the opportunity to have a retrial to sentence to death, that one judge wouldn’t be biased as well? I think that is a curious point, with all due respect.
Chairman Anderson:
This will be a roll call vote. [Roll call vote taken.]
the motion carried with ASSEMBLYWOMAN Angle, ASSEMBLYMAN brown, ASSEMBLYMAN carpenter, ASSEMBLYMAN geddes, and ASSEMBLYMAN gustavson voting no. (Ms. Ohrenschall was absent for the vote.)
The bill has passed, 9 to 5; it takes 9 affirmative votes to pass the legislation; we made it by one. The Chair will take the bill.
[Chairman Anderson called a brief recess.]
Chairman Anderson:
Members of the Committee, I have a Committee introduction for us. [The Chair read the summary.]
· BDR 14-613 — Increases amount of certain administrative assessments and requires imposition of administrative assessment when imprisonment or community service is ordered in lieu of fine (A.B. 242).
This is a bill requested on behalf of the Supreme Court. The Chair will place the question.
Assemblywoman buckley moved for introduction of bdr 14-613.
assemblyman conklin seconded the motion
the motion carried. (Ms. Ohrenschall was absent for the vote.)
Let us return to the Work Session Document (Exhibit C). Let’s see if we can do a little bit better with this one.
Assembly Bill 14: Makes various changes to penalty hearing when death penalty is sought and revises mitigating circumstances for murder of first degree. (BDR 14-198)
Allison Combs:
The next bill is Assembly Bill 14 on page 5 of the Work Session Document (Exhibit C). It is also a bill out of the death penalty interim study. It makes various changes to the penalty hearings when the death penalty is sought and revises the aggravating and mitigating circumstances for first-degree murder. There were no amendments proposed during he hearing on the bill; there were some amendments proposed subsequent to that from Michael Pescetta, that are outlined at the bottom of page 5 and 6. Both amendments deal with the aggravating factors in the bill. The bill, as written, deletes an aggravator on page 3 of the bill, Section 4. This proposal would eliminate additional aggravating factors as are listed on page 6 of the Work Session Document.
The second alternative proposal to this amendment of deleting the additional aggravating factors would be to revise these aggravating factors. To look at what is proposed on that, you need to go to the pink sheets in the back; it is the last two pages of the Work Session Document. It is entitled “A.B. 14, Section 4, Proposed Amendments Version 2.” Essentially, the amendments proposed are eliminating additional aggravating factors and in lieu of that, revising those same aggravating factors as set forth on the last two pages on pink of the Work Session Document (Exhibit C).
Assemblyman Oceguera:
Serving with you on this committee, this area was fairly contested. I would say it didn’t come out of the committee with 100 percent support; it came out so that the rest of the body could hear it. I think after hearing the testimony that we have heard on this bill already, it is my opinion that there would not be a whole lot of appetite to eliminate the aggravating factors, especially under Number 1; I, specifically, would have no appetite for that. I would not really have a huge appetite for Version 2 as well, although I would support changing Section 3 of the bill, which would change the order in which the attorneys would speak. I would not support the aggravating or mitigating circumstances being changed at this time. I just wanted to put that out there. I think that’s probably a good sense of where people are at this time.
Assemblyman Carpenter:
My take on it is—I don’t have any problem with having the defendant having the last bite of the apple. I think we heard that these mitigating circumstances are probably already in writing. I believe the mitigating factors should be left alone because, if I remember during the last 18 years, most of these were brought up for specific circumstances; it seemed to make sense. On the last page, where it says the defendant suffers from mental illness or has a history of psychological disturbances and then Section 5, subsection 8 says any other mitigating . . .I don’t know, I guess I would hear some testimony on how people felt on that one, but I think that is where I am coming from on the bill.
Chairman Anderson:
Before we take a motion, I believe, unless there is some other big thing that somebody wants to hear, I have to agree in part with Mr. Oceguera that while we could continue to debate the basic issues of mitigating circumstances, the question, I think, is really all found up in Section 3 of the bill; that’s where we should move. I would be comfortable in doing that also, and want to make sure that, hopefully, that is what we are looking for in terms of a motion.
Assemblywoman Buckley:
I am sorry if I am a little impatient. The Speaker gets mad if I don’t get down to the Floor and I just saw how many bills we still have yet to do, so I apologize if I was jumping the gun there.
I would move that we Amend and Do Pass A.B. 14. The amendments being that we would keep the revisions in Section 3 that we would delete the deletions in Section 4, meaning aggravating circumstances would remain the same as they are under current law. I was going to include in my motion the change in Section 5 just because I think the jury can already consider these things under subsection 8, which is any other, but I think that just by mentioning it, it makes it clear that anything can be considered and rejected. So that was going to be my motion if the Chair would accept that motion.
Chairman Anderson:
So, we are going to be eliminating Section 1 of the bill? Is that correct? And we are only going to be moving with Section 3?
Assemblywoman Buckley:
No. It included Sections 1 and 2—I think that is the conforming language that implements Section 3.
Chairman Anderson:
1, 2, 3, and 5.
Assemblywoman Buckley:
It takes out 4.
Chairman Anderson:
All right.
Assemblywoman buckley moved amend and do pass A.B. 14.
Assemblyman Horne seconded the motion.
Discussion?
Assemblyman Brown:
I was hoping to make a comment just before the motion. I think this would be merely clarification, but as far as the order of argument is concerned, if we are going to include or allow that I wonder if it may not be beneficial, and I think that the concern is, in fact, the rebuttal and surrebuttal that we might be going outside the scope of the prior argument. Frankly, I would like to see something that states something to the effect of “the defendant or his counsel may then conclude the argument,” and surrebuttal, which must be limited in scope to the facts or circumstances or issues perhaps raised by the state in its rebuttal. I think if that were the case, then it would probably be fair to include in the District Attorney’s rebuttal argument the same limitation and scope. That is what the rebuttal and surrebuttal is for, but I think there was testimony and concern that attorneys go outside of that scope. That would be my comment for the Committee and I would like to put that out there for possible discussion.
The final issue, I don’t have a problem in Section 5 with the listing of the additional mitigator in terms of the mental illness, but I do feel that the history of psychological disturbance is such a broad description that I would have some problem with that. Those are my comments and if there is an appetite to discuss that I would appreciate it.
Assemblyman Geddes:
I am in support of the motion. I am not sure I concur with Mr. Brown on that last mitigator as far as the history of psychological disturbance. I just need a clarification. When we are talking about the aggravators, are we leaving them as is or are we considering the change that is on the pink worksheet page 5, where they tweak the language a little bit in 3?
Chairman Anderson:
I don’t believe that the motion deals with the pink sheet at all. I think we are dealing with the bill itself.
Assemblywoman Buckley:
I just wanted to address Mr. Brown’s points. I agree that surrebuttal should be limited to the rebuttal, but I don’t think we need to clarify it because that is the definition of surrebuttal. You are right, sometimes counsels stray. It is the judge’s job to say that we are counsel, and are beyond the scope, and pull back—I don’t know if we should be telling the judge what the definition of rebuttal is. But I understand your point, which is valid, and they do stray and that is not right. That is my only comment on that.
On psychological disturbance, I don’t think it matters one way or the other, to be quite honest with you. If it is in any other mitigating circumstance, if the person didn’t have a mental illness but was abused in ten homes, it is psychological treatment. That is going to come up anyway, and the jury gets to consider everything, and then they make a decision. I think it states what the law is now, but I think if it is major heartburn, we could take it out. It is not like it is a defense; it is not like we are saying it is a new definition of insanity where people can get off by claiming some psychological disturbance. This is just on the list; right now it is anyway.
Assemblyman Gustavson:
I pretty much agree with the motion and Ms. Buckley. I still have a little problem with the psychological disturbance part—I feel the history of that is very vague. I don’t know if we should really have that in the law, so I would just ask the Committee to reconsider that.
Assemblyman Mabey:
I do have a little bit of heartburn on Section 5, subsection 7, regarding the history of psychological disturbance; otherwise, I agree with Ms. Buckley.
Assemblyman Brown:
That is basically what my analysis was. Sometimes when I reemphasize, and in case they don’t have their Black’s Law Dictionary available—it sometimes is a problem—I thought that perhaps just by statute, we could emphasize that these are the limitations that you have on this and you are supposed to stick with it. It is certainly not any kind of deal breaker here. I thought that may be worth considering.
Chairman Anderson:
I think that is the reason why the Committee, several years ago, gave me a Black’s Law, in the hopes that I might start reading it a little bit more frequently instead of flying with Anderson definitions.
Assemblyman Oceguera:
My comment actually was going to be the exact two comments that Ms. Buckley gave. However, seeing that there is some trepidation with Section 5, subsection 7, would Ms. Buckley be inclined to alter her motion to remove that?
Chairman Anderson:
Or put a period at the end of “illness.”
Assemblywoman Buckley:
Sure, either one, whatever the will of the Committee. If we put the period after “mental illness” and put it in our record that you know any other, if they can prove it, they can present it. So, if the Chair wants me to I will amend my motion, or not, if the Chair doesn’t want me to. I serve at the pleasure of the Chair.
Chairman Anderson:
And we are both trying to get to the Speaker without him killing us! Does anybody else wish to speak on the issue before I put in front of the Committee? Ms. Buckley, why don’t we put it, “defend suffering from mental illness,” and a period at the end of that; that takes of it, and I think we will have reached greater consensus within the committee.
Mr. Horne, you are the seconder; are you okay?
Assemblyman Horne:
I am okay with that.
Chairman Anderson:
Any other questions on the Buckley-Horne motion of Amend and Do Pass of Assembly Bill 14. I don’t detect any negative votes and so I won’t have to call for a roll call. [A voice vote was called.]
the motion carried. (Ms. Ohrenschall was absent for the vote.)
I will see if Ms. Leslie will defend that on the Floor and I will ask Mr. Oceguera to be backup to it.
Let’s turn our attention to Assembly Bill 78.
Assembly Bill 78: Revises penalty for certain sexual offenses committed against children and prohibits suspension of sentence or granting of probation to person convicted of lewdness with child. (BDR 15-1031)
Allison Combs:
Assembly Bill 78 is on page 7 of the Work Session Document (Exhibit C). It is measure that revises the penalty for committing a sexual assault against a child under the age of 16 as well as lewdness with a minor to provide that if a person has been previously convicted of those two respective crimes, or a similar offense, then the penalty is bumped up to a Category A felony.
There were no amendments proposed during the hearing on the bill, but subsequent to the hearing there was a concern raised with the Nevada District Attorneys Association concerning an additional change I didn’t just reference, but with lewdness to a minor. It is on page 3 of the bill; the current penalty is a Category A. The bill adds the option of a Category B felony with a term of 2 to 20 years. That would create essentially an anomaly in the statute. In most crimes, the penalty stays within one category of felony unless there is something differentiating the crime such as the use of a weapon or substantial bodily harm. So to correct that, the Nevada District Attorneys Association proposes simply to keep the penalties of the Category A felony; keep the existing penalty of life without possibility of parole; and add a definite term of 20 years with the possibility of parole after 2 years. So that is the first proposed amendment.
The second proposed amendment from the District Attorney’s Association would broaden the application of the bill with regard to the penalty for someone who has been previously convicted of one of these two crimes. It would broaden it to include any prior conviction for an offense on a child that is sexual in nature; this is outlined on page 8 of the Work Session Document.
The language on the green sheets would be the new language proposed by the Nevada District Attorneys Association. If the Committee chooses to go with broadening the application of the bill, it is noted by staff that the term “on a child which is sexual in nature” would be probably too broad; I will let Ms. Lang address this if need be. So, we pulled in some language that currently exists in statute as an example of how a sexual offense against a child may be defined in other areas.
The example provided down below, and it is not something the Committee would necessarily have to go with, but lists certain crimes that would constitute a sexual offense against a child. This is the statute involving cases in which interception of a wire or oral communication might be authorized. Again, that is just an example.
Chairman Anderson:
I am always concerned about this section of the law, I guess it is because of the students that I work with, because they are at a very difficult age because they are about to move into the legal justification of the law; they are just turning from 17 to 18 and it always surprises me to find that many of them would indeed, and of course, it is a different world as compared to the one that I grew up in. They are much more sexually knowledgeable than I was at this age.
My concern here is that where we have relationships between young teenagers, the District Attorney occasionally decides to move somebody up to be charged as an adult under the statutory rape sections because the parents are concerned about the relationship between the 13 or 14-year-old girl and the 16 or 17-year-old boy. As a result, he now has a record, and now he could end up being caught up as one of these having to report. So, I am a little concerned about this; I don’t see Mr. Graham here to kind of work this out for me.
We could make sure that the definition includes only offenses committed by an adult and that might take care of some of our concerns in this regard. Ms. Lang has indicated that we would probably be able to do that. Ms. Lang, do you have some suggestions for us?
Risa Lang:
Mr. Anderson, my suggestion was just if you were concerned about making sure that the offenses were only offenses that were committed by adults that we could just add that language into the definition so it would read something like, “’sexual offense’ against a child includes any act upon a child committed by an adult constituting. . .” one of these crimes.
Assemblywoman Buckley:
I like the bill and I like the amendments. I think these folks that commit sex crimes against kids do it over and over again and we are letting too many of them out of prison. I think you raised a legitimate concern and so maybe we eliminate statutory sexual seduction, too, under (f) on page 8 of the Work Session Document (Exhibit C), where we list it. Anything that is like incest, assault, molestation, the rest of them, still stay on the list. I don’t know if this will get through the Assembly Committee on Ways and Means because I think it is going to have a pretty big fiscal impact, but I think it is a good bill.
Chairman Anderson:
I agree that it is a good bill and I think we need to move in the area. I only bring forth those questions because of the other people and their problems I see on a regular basis. They don’t think I pay any attention to them. The Chair will take a motion of Amend and Do Pass.
Assemblywoman angle moved amend and do pass a.B. 78.
assemblyman geddes seconded the motion.
The amendment being those that are outlined on page 8 of the Work Session Document (Exhibit C), page 2, lines 33 through 42; adding, “on a child which is sexual in nature and whether in the state of Nevada, or an offense committed on a child of a sexual nature,” in addition, on page 3, lines 13 through 25, to amend the bill further. And take out the reference to statutory sexual seduction NRS 200.368. Additionally, there is a life without the possibility of parole for a minimum of 10 years and definite term of 20 years with eligibility of parole beginning with a minimum of 2 years having been served.
Chair will place the question.
the motion carried. (Ms. Ohrenschall was absent for the vote.)
We will assume that Mr. McCleary would like that bill and we will ask Ms. Buckley to be the backup for it. Any other questions?
Not wanting to upset the Speaker anymore than I have these last couple of weeks, let’s move away from the Work Session Document back into the Committee and see if there are any other issues that need to come before us.
With that, we are adjourned [at 10:53 a.m.].
RESPECTFULLY SUBMITTED:
Sabina Bye
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: