MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-Second Session

March 11, 2003

 

 

The Committee on Judiciarywas called to order at 8:11 a.m., on Tuesday, March 11, 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.

 

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

Ms. Genie Ohrenschall

Mr. Rod Sherer

 

GUEST LEGISLATORS PRESENT:

 

Assemblyman Josh Griffin, District No. 29, Clark County

STAFF MEMBERS PRESENT:

 

Allison Combs, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Sabina Bye, Committee Secretary

 

OTHERS PRESENT:

 

Fritz Schlottman, Research Analyst, Nevada Department of Corrections, Carson City, Nevada

Bob Romer, State of Nevada Employees Association, and American Federation of State, County and Municipal Employees, Local 4041, Carson City, Nevada

Rex R. Reed, M.P.A., Ph.D., Offender Management Administrator, Nevada Department of Corrections, Carson City, Nevada

Launa Hall, Student, University of Nevada, Las Vegas, School of Social Work

Keith Lyons, Jr., Attorney, representing Nevada Trial Lawyers Association, Las Vegas, Nevada

Leland Sullivan, Chief of Child Support Enforcement, Welfare Division, Nevada Department of Human Resources, Carson City, Nevada

Ben Graham, Nevada District Attorneys Association, Las Vegas, Nevada

Jim Nadeau, representing Washoe County Sheriff’s Office, Reno, Nevada

Madelyn Shipman, Washoe County District Attorney, Civil Division, Reno, Nevada

 

Chairman Anderson:

The Assembly Judiciary Committee will please come to order.  [Roll was called.]  There are 14 members present, 1 absent; a quorum is present.  Mr. Mortenson has a bill in Government Affairs this morning; please note his arrival when he gets here.

 

[The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.]

 

Please note the signs on the table concerning the legality of misrepresentation of facts before the Legislature.

 

We will open with Assembly Bill 109.

 

Assembly Bill 109:  Makes various changes to provisions pertaining to Department of Corrections. (BDR 16-501)

 

Fritz Schlottman, Research Analyst, Nevada Department of Corrections:

[Introduced himself.]  The Nevada Department of Corrections—sorry to start your morning with a sad story—we submitted two bill drafts this fall to the Department of Administration and those two bill drafts were combined into what is now A.B. 109.  Unfortunately, something got lost in the translation, and after careful review of it, we were left with the situation where we would either have to amend A.B. 109 substantially or take our shot next time around and hopefully get a little cleaner piece of legislation.  Therefore, at this time we would like to withdraw A.B. 109.

 

Chairman Anderson:

Your preference then, from the Department, is to entirely eliminate it, or do you want us to keep it on the Board for potential work for some other purpose or would you rather see it entirely disappear?

 

Fritz Schlottman:

The Director [of the Nevada Department of Corrections] indicated that it should be eliminated entirely.

 

Chairman Anderson:

All right, that takes care of that.  Are there any questions for the Department?  [The Chair noted that people had signed in to speak in opposition, and asked if they wished to come forward.]

 

Bob Romer, State of Nevada Employees Association, and American Federation of State, County and Municipal Employees, (AFSCME) Local 4041, Carson City, Nevada:

We’re glad that the bill has been withdrawn; however, our recommendation is and always has been that the position of Inspector General should be under the Office of the Attorney General.  When that position was first created many moons ago, Bob Gagner, our former executive director, testified and recommended at that time it should be under the Board of Prison Commissioners, of which the Attorney General is a member.  That makes a check and balance we feel is better.  Anyhow, that’s all I have, Mr. Chairman, and thank you for hearing me.

 

Chairman Anderson:

Thank you very much, Mr. Romer.

 

We’ll close the hearing on A.B. 109 and bring it back to Committee.  The Chair will entertain a motion.

 

assemblyman oceguera moved to indefinitely postpone a.b. 109.

 

ASSEMBLYMAN carpenter seconded the motion

 

THE MOTION CARRIED.  (Mr. Mortenson was not present for the vote.)

 

We have a Committee introduction this morning, BDR 38-688.

 

·        BDR 38-688 — Establishes procedures for permanently placing an abused or neglected child with a guardian. (A.B. 273)

 

This has been requested by the interim study chaired by Ms. Buckley on Children, Youth, and Family.

 

ASSEMBLYMAN OCEGUERA MOVED FOR THE INTRODUCTION OF BDR 38-688.

 

ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Mortenson was not present for the vote.)

 

Let’s open the hearing on A.B. 209.

 

Assembly Bill 209:  Requires testing of prisoners to detect presence of controlled substance in their systems before consideration for and release on parole. (BDR 16-1069)

 

Assemblyman Josh Griffin, District No. 29, Clark County:

[Introduced himself.]  I appreciate the opportunity to be here today, Mr. Chairman and members of the Committee.  I don’t have a very formal presentation today for A.B. 209; I just thought I’d give you the genesis of this idea from my standpoint. 

 

I think we’ve all heard the statistic; I’m not sure exactly what the statistic is, that 20 percent of the criminals commit 80 percent of the crimes.  That goes to the notion of recidivism.  This is an epidemic that affects lives, communities, and our precious taxed resources. 

 

About 10 years ago, as a graduate student at the University of Nevada, Reno, I remember we had a law enforcement official who came to our public policy class and asked us questions and talked about recidivism and crime and a lot of problems.  I remember a student asked a question of the official, “How do you fix this?”  I know this Committee has dealt with, and will deal with this somewhat indefinitely.  How do you get a handle on recidivism?  His answer was very simple, very blunt: “Fix the prison system.”  Something, certainly, I have not thought of much.  The follow-up question was, “How do you fix that?”  The answer was, “Don’t let the prisoners control the environment.”

 

He went on to talk about drug use in prisons; he talked about gangs.  I didn’t realize that urban gangs developed in prison and oftentimes, when people join a gang, it’s in prison where they actually began joining those gangs.  The conclusion was that criminal justice reform really goes hand in hand with prison reform.  That’s what led me to this bill. 

 

I have talked to a lot of people at the Nevada Department of Corrections.  I think this is an excellent group of people.  I’ve talked to employees; I’ve talked to supervisors; I think they have a very difficult job.  I’m surprised that they are able to do the job with the resources they have.  That’s a question we will be discussing downstairs, today, in fact, on some of the budgets we give the criminal justice system and public safety.  I also want to suggest that I don’t think that this is a unique problem; it is a national problem.  In fact, it’s probably and international problem in terms of what prisons can do.

 

Assembly Bill 209—to get to the bill—I don’t want to pretend it cures any of these ills or all of these ills.  It’s a small piece to, I think, a very large step, a large journey that we need to take.  It really is asking a fundamental question, “How do the nation’s most illegal and scrutinized substances,” which are, of course, drugs, “enter what is perhaps one of the nation’s most controlled environments?” which are prisons.  I don’t know if this completely answers that question, but I think that to start, we must start creating disincentives to the prevalence of drugs.  This bill will start by doing that.  Simply, within 30 days of a parole hearing, if a prisoner were to test positive for drug abuse, we’d cancel that parole hearing.  The length of time of that is not addressed in the bill and may need to be addressed, but it would cancel the parole hearing and would start the process of, hopefully, one more step towards answering the question, “Why are there drugs in prison?”

 

The statistics on the amount of drugs in prison vary.  There are some national statistics that I have now heard that say it’s at the 10 percent range.  I believe there is somebody here from the Department of Corrections that can testify.  There is currently random drug testing in Nevada prisons; that is smaller than that.  To me, that’s not necessarily the issue; obviously, the less the better.  However, I think that this is an important piece of legislation on its own, and it also will lead this body, hopefully, to start being able to probe some of the other issues, which are, “How does this happen?  How do drugs get in to prison?”  I think that’s a long-term question.  That’s the intent of A.B. 209; I think it’s certainly a piece of legislation that can start, in a very small way, answering these questions.

 

That’s my brief presentation.  I can open myself to any questions, Mr. Chairman.

 

Chairman Anderson:

Mr. Griffin, I chaired the study on recidivism rates in the prisons between the 1993 and 1995 sessions, and this was one of the issues we addressed in 1995; legislation was introduced then.  As part of the Committee, I think we looked at this issue several times and I believe it always passed this Committee only to see its demise in something to do with dollars. 

 

Assemblywoman Buckley:

This bill is a little intellectually difficult for me, but I think I support it.  It’s kind of like, “Why can’t we do a better job of keeping drugs out of prisons in the first place?”  That just drives me crazy, that we have to drug test in prison.  Having sat on this Committee for a number of years, I think I already know the answer to that.  We’ve heard Chairman Anderson talk about his work in the 1995 session; we had full presentations on how this happens, but I still think we should do a better job on the front end.  The second thing that bothers me intellectually is, in a tough budget time when we’re talking about cutting drug testing for people on parole, that, to me is a higher priority than this.  Even saying that, I think the goal was good, which is to cut down on drugs in prison.  Those two things do bug me.

 

Assemblyman Griffin:

I totally agree.  Let me answer your second part; I was on the subcommittee that has been looking at these things the last four or five weeks.  I think we are making a huge mistake by reducing that funding.  I talked, just this morning, to somebody from the Department of Corrections on that very issue.  I realize that those budget constraints are often beyond their control.  I think we will be paying far more down the road by cutting that budget now, making it more difficult for the probation officers and the parole to do their jobs.  We need to do a lot more for drug rehabilitation post-release, in my opinion.  I know that this doesn’t necessarily address that in equity.  I personally, to the extent that I can, will not support that level of cuts.

Rex R. Reed, M.P.A., Ph.D., Offender Management Administrator, Nevada Department of Corrections:

[Introduced himself.]  With me is Fritz Schlottman, who is a research analyst, and we’re here to answer any questions that the Committee might have.

 

Chairman Anderson:

Dr. Reed and Mr. Schlottman, it’s good of you to come up.  I know that you have other important parts of your program pending in front of the money committees this morning.  How difficult is this going to be to implement for the prison system?

 

Dr. Rex Reed:

It would not be difficult; there is a fiscal note though.  Let me point out that we currently drug test already.  The system is in place to actually conduct the drug testing.  We test for three different reasons:

 

1. For cause.  If we see someone we think that might be under the influence of drugs, we test that person.
2. We randomly test 5 percent of the population as a way to discourage drug use.
3. We test 10 percent of the population of inmates to comply with the federal VOITIS (Violent Offender Incarceration Truth In Sentencing) Act. 

 

Chairman Anderson:

For those of you who may not recognize the fact, this has an additional fiscal impact of $32,616 in this year, and $33,600 in the following, and $70,000 for the future biennium.

 

Assemblyman Geddes:

Not being here in the previous sessions and having the knowledge that some of the other Committee members have on the problems with drugs getting into the prison system, can you give me a quick “Reader’s Digest” version of how they get in, or what the big problem is?

 

Dr. Rex Reed:

Mr. Chairman and members of the Committee, I am probably not the one to ask for a quick “Reader’s Digest” opinion, because I wrote my doctoral dissertation on the drug war.  I could probably lecture for several hours on that issue.  I will answer in a general sense.

 

One out of three people use illicit drugs some time in his life.  So there is a huge demand.  Whenever there’s a huge demand, there also tends to be a lot of money involved.  So you have people who basically are trying to make money and are always searching for ways to smuggle drugs into the prison system because that’s where they can sell them, quite often at a premium.  Even though inmates don’t have money, they have ways of compensating people who bring drugs into the system. 

 

The quick answer is, it gets into the system because human ingenuity is always looking for ways to make money and it’s a good market; those are two factors right there.

 

The thing you have to remember is that the prison system, and I use this in a technical sense, is a bureaucracy.  Human ingenuity often pits itself against the way a bureaucracy works.  A bureaucracy works with rules and set procedures that are in place, such as scanning all the mail that comes in for drugs.  Human ingenuity knows that, so it’s always looking for the weak point in the system that we have set in place. 

 

We try the best we can, but again, people are always, number one, searching for ways to get around the system and, number two, they think they can.  We catch a lot of people; we do drug tests; about 2.17 percent of people test positive.  That doesn’t mean that everybody else is getting away, but I think that is an indication of how many people in prison actually are using drugs.  I hope that gives you a short, quick answer as opposed to going on and on about the whole answer.

 

Chairman Anderson:

I guess the fact of alcohol and contraband, illegal drugs, coming in and out of the system has been a problem for as long as there have been prisons.  Are they trying to stop it?  Yes.  Are they trying to test on the side?  Yes.  Have we been after them for as long as I can recall?  Yes.  And do they want it to happen?  No.  So human beings are, unfortunately, capable of figuring out the flaws in the system. 

 

Assemblyman Carpenter:  

From a practical aspect, how would you implement this bill?  I think it says it has to be done within 30 days or something.  Would you really catch many of these people that are going to be eligible for a hearing or would they know the drugs are going to be out of their systems in certain number of days?  I’m wondering about the practical aspect of trying to do this.

 

Dr. Rex Reed:

We do catch people that have already been given a parole and are waiting for a parole plan to be approved.  So to answer the first part of your question, the system is in place; we basically use the same process that we use already; we would just do more tests, obviously.  I don’t have my figures in front of me; so I’m going from memory.  We release about 2,500 inmates to parole every year.  Of that, we do catch some with just our random drug testing.  However, if this became known, in regards to the second part of your question, I do think it will affect human behavior in that people who are getting close to parole may have a greater incentive, knowing that they are all going to be tested, rather than just be subject to a random test.  They will change their behavior to some extent, and stop using drugs.  That doesn’t mean they all will, we will probably continue to catch people who are using drugs just before they are being released on parole.  I do think the number will go down.  That’s just a personal opinion. 

 

Assemblyman Conklin:  

Could you hypothesize for me about the percentage of folks, if you tested everyone that went out on parole, you think would fail that test, if they didn’t have advanced warning?  I’m just trying to get a picture of the overall problem.

 

Fritz Schlottman:

As a practical matter, the Department of Corrections has already tried to implement a testing program for paroles.  We just don’t announce it.  The results look very similar to what the overall testing of the population looks like.  The Inspector General’s Office makes a regular report to the Legislative Counsel Bureau that gives statistics for the number of positive tests we get.  That’s the only way that the system is notified.  The inmates, themselves, don’t get an indication that that test is coming; as of right now, they look very similar to the general population.

 

Assemblyman Conklin:  

I’m a little confused.  I guess, maybe I’m looking for the wrong information, but it seems like I heard you suggest that we’re testing right now, based on, quote/unquote, “probable cause,” certain behaviors that might be indicative to drug use, et cetera.  That would lend itself to a much higher rate than actually exists because we’re testing those folks who have a higher probability of failing that test through their actions.  What I’m trying to find out is—with all the paroles or the 10,000 folks in the prison system—can you give me some sort of picture of folks who are actually on it, the casual user who you may never know is using drugs?  We certainly know there are plenty of those folks out there as well.

 

Fritz Schlottman:

We look at this and break out the number of people that we test for cause separately from the people we test from random.  The random number looks more like the general population.  We think that in the random number for paroles, yes, there would be some learning behavior; they would figure out that they are going to be tested, so they’ll clean up their acts.  But the nature of addiction is such that there are going to be some that will fail.  It’s how well you weigh the deterrent effect of that test as opposed to actually trying to find someone who tests dirty.  What you’re going to find is that people that do not have high levels addiction, if they have any intelligence whatsoever, will clean up their acts when they know they’re going out on parole.  Those that are too heavily addicted or just frankly dumb are not going to.  So it serves two purposes: as a deterrent effect, and, it gets those people who have higher addictions who are going to fail when they go out on parole. 

 

Chairman Anderson:

I think that this is not going to see a drop in the random testing sampling that you would do anyway, but the reality then, if we were to pass this legislation, if I understand what you are telling us, is that the predictability of, “Yes, I will be tested within 30 days of this means that I need to definitely get out.”  They know when the possibility of a parole hearing is coming up, because that’s a date certain in their calendar, and they count them pretty carefully as an event they’re looking forward to.  So they know that they are going to be tested within that 30-day window of time.  Do you perceive then, if we were to pass this legislation, that if somebody had passed your random sampling within that 30-day window they would not have to be tested again specifically?  However, if you had tested somebody because of this coming up, that would not remove them from the random sampling.  It is the random sampling that I am concerned about.

 

Dr. Rex Reed:

Mr. Chairman and members of the Committee, if this would pass, one change would be that we would probably take the soon-to-be paroled population out of our pool that we select for random tests.  What would happen is, we would test everybody who was going out on parole, as law would require, but in order to make our random tests go as far as we can, we wouldn’t want to double test anybody.  Again, we have the computer technology to generate the pool from which we draw the random test and we will select out those that are coming out for parole on that because they will be tested anyway.

 

Chairman Anderson:

You then would draw somebody from the random sampling pool.  Once they’ve been random sampled would then . . .

 

Dr. Rex Reed:

No, we can double-test on random, just to keep it random.

 

Chairman Anderson:

Then why would you do that with this particular case, because wouldn’t that defeat the whole purpose of the random sample?

 

Dr. Rex Reed:

We could think that over again, Mr. Chairman.

 

Chairman Anderson:

I would think that I would if I were you.

 

Dr. Rex Reed:

If that’s your preference, we would think about it very carefully.

 

Chairman Anderson:

It seems to me that if the whole question of the random sampling is to remain valid, that it has to truly be a random sample.  You could be “jackpotted” today, and again tomorrow; you could be tested for sure 30 days out and then you could be tested the day before you walk into the room.  If not, the random sample has no validity.  At least, that’s what a random sample means to me.

 

Dr. Rex Reed:

I see your point, Mr. Chairman; we can go and discuss this.

 

Assemblywoman Angle:  

It’s my understanding that about 90 percent of our criminals, our inmates, are in for drug-related crimes.  Is that—that’s something that I’ve heard, anyway.

 

Fritz Schlottman:

If you look at drug usage, it breaks down higher for females and less for males.  Females, depending on how you ask the question, and whether you take their blood, will range from anywhere from 65 to 93 percent.  If you asked them at the time of conviction—well it’s like asking a drunk driver how many drinks has he had.  If you asked them at the time of their arrest, “Have you been using drugs prior to your arrest?”  65 percent will say yes.  If you ask them in prison a little bit later, after they have the chance to sober up to the facts, that number increases.  If you ask them after they’ve paroled, that number increases further.  If you actually take their blood, as they do down in the Adam Project down in Las Vegas, females come out at about 93 percent.  Males also range higher, but the top of the scale tends to be about 75 percent.  They are also more likely to be involved with alcohol.

Dr. Rex Reed:

The phrase “drug-related crime” was used.  And for the question, I want to point out, there’s a difference between a person who uses drugs when committing a crime and actually having a drug-related crime.  When we keep our statistics and we give them to Committee, we want you to understand that when we say there’s a drug-related crime it involves using a controlled substance, trafficking, or possession, and things like that.  In that category of drug crime, we do not include somebody who has gone out and robbed while he was on a drug.  We do keep statistics that there is a drug of choice; so he may be listed as a drug user, but it may not be a drug-related crime that he’s in the system for. 

 

Assemblywoman Angle:  

The reason I asked that question is because I know that the recidivism rate is really directly related to the drug use within the prisons, and I know that there are grantings out there for pre-release rehabilitations.  So now I am concerned about this 10 percent that is federally mandated [for] the drug testing.  How much of that is paid for by the feds?  Is this an unfunded mandate that we’re relying on?  The second part of that would be, do you think that there are any federal funds that might be available for this testing that we want to do prior to parole?

 

Fritz Schlottman:

The federal requirement for drug testing comes from the VOITIS grant, which is a grant that’s basically—the federal government tends to go in two directions at the same time.  The VOITIS grant was a “tough on crime, build more prisons” grant that was several million dollars.  It has paid, and continues to be paid, for part of—for instance, High Desert State Prison was paid for partly by a VOITIS grant.  There still remains funds in that, so we still continue with the drug testing.  Should we fail to drug test, we would, certainly, have to look at the feds trying to come in and get that money.  As grants for drug testing are concerned, we are always looking for money to do more with the inmate population, including drug testing and programming.  We don’t have a grants analyst on staff.  One of the things that we had asked for in the [budget] was someone to look at this full-time and find the funds we need to start programming and paying for some of these things.  Right now the state assumes this responsibility.  Right now it’s “catch as, catch can” among the staff. 

 

[Chairman Anderson asked if anyone else wished to speak in support of the bill, and then asked Ms. Hall to come up for her testimony in opposition]

Launa Hall, Student, University of Nevada, Las Vegas, School of Social Work:

[Introduced herself.] I’m here to speak in opposition of A. B. 209 just because I don’t see how this is going to effectively address the root problem of drugs in prison.  I feel like as long as there are drug addicts in prisons, there’s going to be drugs in prison.  Keeping people locked up because of drug use and drug addiction is not going to solve the problem.  I think it will only perpetuate the problem.

 

I believe that instead of punishing people for being drug addicts, more resources should be aimed at keeping drugs from entering in the first place and at effectively treating people for their drug addictions.  I do believe that drug addiction—I’ve been taught as a student of social work that addiction to drug use is more of an illness and not a crime—I don’t believe it should be treated as a crime.  Thank you for the opportunity to speak in opposition to A.B. 209.

 

Chairman Anderson:

I don’t want you to think we were not paying attention.  The question is, if the prison system were to put in programs that helped to address, tried to pull people off their drug addictive behavior, how would they do so without identifying that this person has a continuing problem, in other words, the testing element?  You would support the random [testing], I presume?

 

Launa Hall:

I do support aims at keeping drugs out of prisons, including random testing, but I just don’t believe that someone who is otherwise eligible for parole should be kept in prison only because of their drug addiction.

 

Chairman Anderson:

For a person coming up for parole, would there be an advantage for the parole board to know what kind of program that they might be heading toward, to know if they still had an addictive behavior?  If you were a parole board commissioner, would you like the reassurance of knowing whether the person sitting before the parole board, even though they might not have been caught in one of the random tests, still had an addictive habit?

 

Launa Hall:

I think that it would be important information to know, but I’m still concerned about the requirement of the legislation saying that if someone should test positive for an illegal drug, that there is no possibility that they can still be paroled.

Chairman Anderson:

So then you wouldn’t be against us putting it in place, but only [against] the fact that that it would become the key factor in retention, rather than a factor to be considered.

 

Launa Hall:

I think that sounds better.  Still, the fact that our state spends so little per capita on drug and alcohol treatment programs I think is something that should be addressed both inside and outside of prison.  If it is being addressed effectively, and comprehensive programs are in place, then I think that people can be better held accountable for their actions.

 

Assemblyman Horne:

Ms. Hall brings up an important point on drug treatment.  I think all of us know the difficulty in overcoming drug addictions.  It’s important to note that in prison, the budgets for drug treatment programs are even less.  On top of that, one of the things you need to have a successful outcome in drug treatment is removal from the environment that aids in the addiction.  In prison, it’s very difficult to do that.  So your success rates are less in prison than they would be on the outside, and that’s something to keep in mind.

 

Assemblywoman Angle:  

When I asked my question of the previous testifiers about the recidivism rate, not exactly the recidivism rate, but the cause of being in prison being drug-related crime—many of these people are in there because they have committed a crime to support that habit, so if we—I want your opinion then—if we release someone back into society still knowing that they have that problem, isn’t there the likelihood of them coming back with crimes like that going to be greater?  I would like your comment on that.  It’s not that we are keeping them in for the drug addiction, but because they are more likely to commit crime if they are addicted.

 

Launa Hall:

I understand that the recidivism rate is very highly linked to drug-related crimes.  However, that brings me back to the fact that our state spends so very little on drug and alcohol treatment programs.  I think that if that problem was addressed more effectively, then someone could possibly be released on parole and be able to get those supportive services in order to keep clean and keep from committing other crimes.

 

Chairman Anderson:

Thank you very much, Ms. Hall.  Does anyone else wish to testify on A.B. 209?  Let me close the hearing on A.B. 209.

 

The Chair is a little concerned about the possibility of closing the door, flat out, to somebody who might be going out.  Relative to the question of, if you have a drug problem and the prison system puts you out on the street, the chances of recidivism are very, very good.  On the other hand, if you don’t take them out of the artificial environment of the prison, and put them on the street where they are really going to have to live and put them into a drug treatment program there, that’s where they need the support.  I agree with the concept of our need for more programs.

 

I’m going to hold onto this one for a while until we see whether we can work out some additional language changes here.  Clearly, I know that we have passed this in the past, and I don’t see any real dramatic problem with it in terms of additional testing before [release].  I think if I were a prison commissioner, I would, surely, want to know whether this person still had a drug problem. 

 

Let’s turn to the last bill A.B. 117 before we go to the work session. 

 

Assembly Bill 117:  Makes various changes to provisions governing withholding of income which is ordered to enforce payment of child support. (BDR 3‑901)

 

The primary person for this is in the south.  Thank you very much.  We’ve kept you waiting this morning, Mr. Lyons.

 

Keith Lyons, Jr., Attorney, representing Nevada Trial Lawyers Association:

[Introduced himself.]  I appreciate the Committee allowing me to speak on this bill.  I think it is an important bill.  I practice in two primary fields; I practice as a lawyer in the fields of family law and in employment law.  This bill has an impact on both of those. 

 

The reality is, no one wants to have a deadbeat dad who isn’t paying child support.  That’s not what this bill is about.  This bill is about the honorable parent, whether father or mother, who is under a child support order and/or obligation, through UIFSA (Uniform Interstate Family Support Act), and is actually paying the child support.  It is about the circumstance where the individual had no idea that he was the father of the child, and all of a sudden he gets served with a petition to go down and take a paternity test, and takes the paternity test, and 3 or 4 years later—and I’ve seen as many as 11 years later—it is determined that he is the father of the child.  And at that point, all of a sudden, if he’s under UIFSA, a UIFSA judge down here [in Las Vegas] will automatically order child support through wage garnishment. 

 

The problem with wage garnishment is that, even though there is a Nevada statute that makes it illegal for employers to terminate someone who has a wage garnishment, speaking as an employment lawyer, I’ve seen that happen time after time.  When you have a father or an obligor who for the first time learns after four or seven years or like in the one extreme case, 11 years, that he is the father of a child, to all of a sudden have a wage garnishment go to his job when he is ready, willing, and able to pay the child support, creates an undue hardship on that particular obligor. 

 

Furthermore, the other problem with the way the system is currently set up is if a person changes jobs, there are automatic notices that go out from the District Attorney’s Office once the initial order is in place advising the new employer whether one [a garnishment] has been ordered by the court.  I know of several instances where the District Attorney notifies the new employer that there is a wage withholding.  And all of a sudden, they start taking money out of this person’s paycheck and he has to go through a lot of problems to get the wage garnishment stopped. 

 

Based on that, I personally would recommend that this bill be passed.  Additionally, I am a member of the Nevada Trial Lawyers Association (NTLA), and we have reviewed this bill.  We also believe it to be a good bill that will be beneficial to citizens of the state of Nevada.  It will also give the judges down here some more guidance as to when they do not have to order a wage assignment.  If there any questions, I’d be happy to answer them.

 

Assemblyman Carpenter:  

By putting these reasons in the statute are we then cutting off what a judge might be able to do on other certain situations?

 

Keith Lyons:

I’m not sure I understand what you’re asking.  What we’re doing here is allowing the court under specific circumstances—for example, if the person has made full payment of his obligations for the previous 12 months, that means that this is a person who is actually paying his or her child support obligation—so there is no need to have wage withholding.  The situation where the obligor simply is unaware of the child, [unaware that] the child was his, that’s an evidentiary issue that judges deal with all the time, whether someone is actually unaware that he has a child.  If he is, once he finds out, then what are his actions once he finds out?  So I don’t think this limits the court in any way.  In any other circumstance, other than the three set forth here, the court, for good cause, can order wage withholding.  So I don’t believe it limits the court.

 

Assemblywoman Buckley:

Mr. Lyons, we considered a bill for a very short period of time yesterday, Assembly Bill 160, which suggested that, in instances of domestic violence wherein a court is issuing an extended protective order that includes child support, an automatic wage withholding be done.  I’m wondering if the premise behind that is that in some domestic violence cases the batterer will continue to use the child support as a leverage tool, and that it takes domestic violence victims so long to actually get enforcement—for those without attorneys—they have to go the District Attorney’s Office, and there’s a long lag time, so the suggestion was, in those cases, that wage enforcement begin immediately.  That would contradict because they’re not yet in arrears; the order has just been made.  Can you talk about that issue a little bit?

 

Keith Lyons:

I think one of the issues that you’re missing with the statute is—if you’re directly before “A,” beginning on line 17 of the first page of the bill—it says, “A finding that the immediate withholding of income would not be in the best interest of the child may be based on evidence that...”  The reason I emphasize that is, first, it is discretionary; “may” is not mandatory.  Second, you’re dealing with “the best interests of the child,” and when you have another statute which I don’t really deem to be in conflict with this statute because the issue is, that is an issue where there is domestic violence, and—I assume they are doing an extended domestic violence order that’s ordering child support—the alleged batterer has been served. 

 

Hopefully, that person has an opportunity to appear in court to set forth what evidence, if any, there is against that issue.  The court can focus and use that statute based on this statute; it’s not in the best interest of the child that a wage garnishment not be ordered, because we are dealing with an issue where domestic batterers can [say], “Unless you do x, y, or z, I’m not going to pay you your child support.”  That’s a different issue, and I honestly don’t think it conflicts with the statute.  I don’t believe, at least, most of the judges I know down here—and I can’t speak for the ones in Washoe County because I don’t know them, or the rest of the state—but at least the judges in Las Vegas—and I practice in front of almost every single family court judge down here—would ever address that, that way.

 

Assemblywoman Buckley:

I appreciate that answer.  My second question is, how much of a problem do you think this is, where folks who are current are getting these orders?

Keith Lyons:

I think with the UIFSA court, it’s an extreme problem.  I think that the easy solution is simply order wage withholding, and the few times I’ve been in UIFSA court, it’s automatically done whether someone is paying their child support or not. 

 

You have to understand, I deal with it two different ways.  I deal with it as a family law attorney, representing both men and women; sometimes it is the man getting the child support, sometimes it’s the woman.  The majority of the time it is the woman who is getting the child support.  I also deal with it on the employment issue, where too many times I’ve had clients come to me that have had a child support order entered, and for one reason or another that employee has just lost his job. 

 

The evidence, typically, is not sufficient; most employers are too sophisticated to come to them and say, “I’m firing you because you have wage withholding.”  If that happens, I hope the employees come see me.  It’s usually done for a multitude of other reasons, which on the surface give the employer free reign to do what they are doing.  The timing always seems to be an issue.  I look at it, first, as an issue that it is a problem when it is automatically done as a matter of course, and without adequate consideration of the impact it can have on the obligor’s life.  And, if he or she worked for an employer that just simply views it as too much of a hassle, and the easiest way to do it is to find a reason to get rid of the employee.

 

Assemblyman Brown:  

I’m trying to understand exactly how this would work.  I don’t practice in this area at all, so I don’t pretend to know very much about domestic law and proceedings.  Is such an order typically going to arise out of a divorce and custody proceeding?  Would it be addressed at that time, or does this contemplate, perhaps, the bringing of a motion or some type of application for relief to the court when an obligor is under such a withholding order?

 

Keith Lyons:

I think I understand your question.  There are two ways that individuals can obtain child support.  One is through a divorce; the spouse who is awarded physical custody is statutorily entitled to child support.  Under NRS 125 and, I believe, NRS 125B, the child support statutes allow the court, for good cause, to order wage withholding through the divorce process. 

 

Furthermore, an individual can come into court and file a complaint to establish paternity, custody, visitation, and child support.  They recognize that they’re in some sort of relationship, a non-marriage relationship, but they have a child and they feel obligated to, first, have specific visitation with the child and they want to pay child support.  In either one of those situations, the divorce or when someone files a complaint to establish paternity, typically in Nevada, courts do not order child support, at least not initially, until the individual is in arrears.  Then the obligee, the person receiving the child support, then comes into court and says the person is in arrears and asks for an order of child support through wage withholding.

 

This statute deals with a third scenario, where an individual goes to the District Attorney’s Office and they apply through the District Attorney’s Office for the collection of child support because they are not receiving it.  The court system involved, UIFSA, is done by hearing masters.  The hearing masters use a slightly different standard and they routinely will order the imposition of wage withholding.  So this is a third way people get in to get child support.  What we’re trying to do, or what the legislation is trying to do, is equalize all three of the methods so that everybody is treated the same whether they go through UIFSA, or through the regular judicial process where they are either getting a divorce and child support is being awarded, or someone has filed a complaint to establish paternity.  I don’t know if that answered your question.

 

Chairman Anderson:

We have Mr. Winne and Mr. Sullivan in the back; Mr. Sullivan has indicated he will be coming forward.  If we need to, we’ll follow up with them; I’m sure they will be able to keep that one in mind when they’re up testifying.

 

Assemblywoman Angle:  

I think, possibly, my question is along the same lines as Mr. Brown’s question.  I understand that there is a discretion here that you don’t have to withhold wages; the court master doesn’t have to withhold wages; he already has that discretion.  So I guess my question is, why do we need this?  And maybe that goes along with the question that was just previously asked.

 

Keith Lyons:

I think the answer is, while the discretion is there, the judges rarely, at least in my experience down here and the experience of other attorneys that I spoke to, exercise their discretion.  If you’ve got an individual who is paying his or her child support, there is no need for a child support order.  Yet, even in that situation in the UIFSA court, they will order wage withholding. 

 

There is an economic cost to every single wage withholding.  First, there is a cost to the employer, and yes, it’s $3 to $5—I think there’s a bill to raise it to $5 in this Legislature—for the administrative cost for the employer.  Now, instead of paying $130 or $500, whatever the order is, you’re now paying $505.  It doesn’t sound like a lot, but depending on one’s income, it can add up over time. 

 

Furthermore, there is a cost to the District Attorney’s Office, Family Support Division.  As more and more orders are being done, it takes more administrative resources to process the checks and make sure the payments get out in a timely fashion.  If you’ve got an individual who is timely paying his or her child support, that individual shouldn’t have to incur that additional cost.  For that matter, society shouldn’t have to incur those additional costs. 

 

One of the things with this bill is we’re trying to tell the people that if you are acting as responsible parents and you’re paying your child support on time, you don’t have to worry about there being a wage withholding. 

 

The other issue is when there is a wage withholding, these things are typically things that will be found out through the workforce; they are not particularly confidential.  Again, there’s the issue that other people are going to know your personal business. 

 

The third reason I think it’s important is in the instances where employers terminate someone because of a wage withholding, or partly because of a wage withholding.  That defeats the purpose of the child support; if the parent isn’t working, they can’t pay their child support and they can’t support their children.  That’s why I believe this bill is necessary and why it’s beneficial.

 

Assemblywoman Angle:  

Why is this “may” and not “must” if it is so important?  Why aren’t we giving them a directive?

 

Keith Lyons:

First, I think in a situation like this, “may” gives the court additional guidance and factors to consider.  Second, there may be other factors that would mandate that it is in the child’s best interest to do it this particular way.  What those factors are, I don’t know.  That way it has the standard of what is in the best interest of the child. 

 

Again, going back to the statute—I believe it was A.B. 160 that was addressed earlier—if there’s an issue of domestic violence, and there’s an issue of an obligor using the child support payment as a control issue for domestic violence, that obligor may have paid every single child support payment, so he is a good parent in the terms of supporting the child.  However, each time he or she makes the child support payment, he or she goes to the obligee’s house and threatens the obligee or attempts to assault the obligee.  Even though he or she has paid child support over the past 12 months, do you really want that individual doing that—just because the statute says he or she has paid child support, therefore you shouldn’t [garnish wages]?  We don’t want to make it mandatory in that situation.  So I think that is why it has to be discretionary, because there are other factors than these three basic factors set forth here that could come under consideration.

 

Assemblyman Carpenter:  

On the second page on line 10, it says, “The obligor has provided full payment of his obligation for support for each of the immediately preceding 12 months.”  If they are paying child support like that on a regular basis, why would we even consider getting a wage garnishment?  I don’t really understand why we need some of these things; I thought that when people weren’t paying is when we were going to go after them and make them pay.  But here, it seems like we’re still going after them even if they’re paying.  I don’t understand the reason for all of this if the court, in fact, can make them do it or not.  So why are we putting all these provisions in here?

 

Chairman Anderson:

Mr. Lyons, let me try to help Mr. Carpenter out.  I guess that’s the reason why the Committee asked for the bill was because we were surprised to find out the number of cases that were there.

 

Keith Lyons:

That is correct, and that’s the problem when you have obligors who are making their payments.  You would think that the court wouldn’t enter a child support order or a wage withholding, yet quite commonly, the courts, at least here in Las Vegas, do.  Based on conversations with other attorneys in NTLA, I assume the same is true up in Washoe County.

 

Chairman Anderson:

Mr. Lyons, thank you very much for coming forward.  I appreciate your supporting the bill and bringing it to our attention; it’s an important piece of legislation.

 

[The Chair introduced Mr. Sullivan from the Welfare Division and noted that he was neutral on the bill.]

 

Leland Sullivan, Chief of the Child Support Enforcement Program, Welfare Division, Nevada Department of Human Resources:

My testimony today is to inform the Committee that federal mandates strictly govern child support income withholding.  Failure to comply with those mandates can jeopardize funding for the Child Support Enforcement Program and the TANF (Temporary Assistance to Needy Families) Block Grant.

 

Assembly Bill 117 does not appear to conflict with these regulations.  Maybe I can provide some clarity as far as what the federal regulations require (Exhibit C).  Federal law [enacted] in 1988 mandated immediate income withholding; however, they allow two exceptions to the immediate income withholding.  One of those exceptions is when there is agreement between the parties; the other one is when the court can make a finding when it is in the best interest of the child not to order the immediate income withholding.  The regulations further require, if immediate income withholding is not required, upon 30 days’ delinquency income withholding would become effective upon that time.  Hopefully that helps.  If you any questions of me or Don [Winne], we’d be happy to answer them.

 

Chairman Anderson:

Mr. Brown had some questions earlier relative to the procedural questions of how this is done and I think Mrs. Angle’s questions were along those lines.  Mr. Brown, did you want to ask a question of Mr. Sullivan or Mr. Winne?

 

Assemblyman Brown:  

Actually, I’m clear on it now; I appreciate it.  Thank you, Mr. Chairman.

 

Chairman Anderson:

Are there any other questions of Mr. Sullivan or Mr. Winne? 

 

Is there anybody else wishing to testify in support of A.B. 117?  Is there anybody wishing to testify in opposition?

 

We’ll close the hearing on A.B. 117.  I don’t see any real problem with the bill.  If somebody wants us to hold on to it while we look at it a little longer, I’ll be happy to do it relative to how it sits up next to A.B. 160.  I don’t want us to conflict with A.B. 160 in any way.  I know that one is in a subcommittee.

 

I need to change the subcommittee; Mr. Sherer, I believe you have a conflict with this subcommittee.  Mr. Mabey, would you consent to sit with the subcommittee on A.B. 160?  So I’ll substitute Mr. Mabey and Mr. Conklin for A.B. 160 in the subcommittee, and that will resolve the conflict in meetings.

 

Is there anything else we need to deal with before we go to the Work Session?  Okay, let’s move to the Work Session Document (Exhibit D).  Let’s take a five‑minute break.

 

Let me call the Judiciary Committee back to order.  Let’s turn to our Work Session Document  (Exhibit D).

 

Allison Combs, Committee Policy Analyst:

The first page of the Work Session Document (Exhibit D) starts out with Assembly Bill 59, which was heard in Committee on February 21, 2003.

 

Assembly Bill 59:  Permits law enforcement agency to inspect certain records pertaining to abuse, neglect, exploitation or isolation of older persons. (BDR 15-277)

 

It would permit law enforcement agencies to inspect records relating to abuse, neglect, exploitation, or isolation of older persons.  Currently, the Aging Services Division and County Office For Protective Services have this authority.  There were no amendments proposed on the bill at that time.

 

Assemblywoman Buckley:

Do you want a motion or do you want discussion first?

 

Chairman Anderson:

Let’s have a little discussion to make sure that we’re all heading in the right direction.

 

Assemblywoman Buckley:

It’s amazing how you can forget bills so quickly.  I’m opposed to this bill.  Obviously, we all want to do everything we can to prevent abuse and exploitation of seniors, but this permits law enforcement to get records without a warrant.  The Constitution of the United States requires law enforcement to get warrants.  What we did two sessions ago to try to help was that we allowed Aging Services to get the records so they could do investigations, get the information, and be able to give records to law enforcement.  I think it would be unconstitutional for us to allow law enforcement to get all of these records without warrants.

 

Assemblywoman Ohrenschall:

I agree with Assemblywoman Buckley.  I think there comes a point where, at the beginning, at least, of any investigation, it’s questionable whether the person being protected is, in fact, a victim or not, and whether in trying to protect that person, you may not simply be opening areas of privacy that perhaps should not be opened.

 

Chairman Anderson:

Is there anybody else?  The Chair, then, will entertain a motion on A.B. 59.

 

assemblywoman buckley moved to indefinitely postpone A.B. 59.

 

assemblywoman ohrenschall seconded the motion.

 

the motion carried.  (Mr. Mortenson was not present for the vote.)

 

Allison Combs:

The next measure, Mr. Chairman, on page 1, is Assembly Bill 60.

 

Assembly Bill 60:  Provides that decision of juvenile court to deny certification of child for criminal proceedings as adult may be appealed. (BDR 5-280)

 

Testimony indicated that currently, a decision to certify a child as an adult can be appealed, but the decision not to certify child as an adult cannot be appealed.  Under the bill, either decision is a final judgment and thus could be appealed.

 

There were no amendments proposed at this point.

 

Assemblywoman Buckley:

I apologize, but was there a reason why—this came in the 1995 “tough on juvenile” session—we didn’t put this in there in the first place?  Was it just overlooked?

 

Ben Graham, Nevada District Attorneys Association:

We reviewed that, and for a while we thought that it would have been appealable, but the court down in Las Vegas ruled that it was not an order that could be appealed, similar to the granting of that.  So that’s why we have asked for this ability, which would be very limited to, maybe, 15 out of 7,000 cases a year.

 

assemblyman brown moved to do pass A.B. 60.

 

assemblyman carpenter seconded the motion.

 

Chairman Anderson:

On the motion of Mr. Brown, seconded by Mr. Carpenter, a Do Pass motion for Assembly Bill 60. . . discussion?

Assemblyman Horne:

I’m sorry to belabor a point that I made during the initial hearing on this.  I believe there is a reason we have juvenile courts as opposed to adult courts.  One of those things that we’re looking out for is the best interest of our juvenile offenders, and hopefully we can rehabilitate them at some point. 

 

When we have these determinations, which I agree are necessary, in whether a juvenile should be tried as an adult or not; I don’t know why we would take that responsibility from a juvenile court judge because we don’t like his determination. 

 

The history of our juvenile courts is to protect the juvenile, and while they do have the right to appeal the decision if it’s adverse to them, the government is now asking for that same right.  The juvenile court is not there for the protection of the government; it’s there for the protection of the juvenile.  I believe to allow them—it almost has a hint of double jeopardy—you have a judge make a determination and the government doesn’t like it—I realize the numbers [of cases] are low in which they seek [to appeal]—but I believe it just undermines that authority we’ve given a juvenile court judge and why we’ve given it to him.

 

I believe I’m going to have to vote “no” on this.

 

Assemblyman Geddes:

I just want to echo my colleague’s sentiment.  I think we’ve established this system when we put in the juvenile judges to make these determinations.  I think this would be a step back in the process of trying to establish a separate court system for the juveniles in treating then as adults and making this appealable.  So I’m with Mr. Horne in going “no” on this one.

 

Assemblywoman Ohrenschall:

I agree with the two predecessors, in fact, to the point that the refusal to certify—I think that if it ever went to the U.S. Supreme Court—would be considered a primary stage in terms of culpability where one would be entitled to normal constitutional rights, such as the protection against self-incrimination and so on.  I don’t believe this Committee has listened deeply enough to the issue and fact patterns.  When we look at cases, such as the Skakel case, which not long ago was on national television, we’ve seen that reopening a case that had a decision of denial of certification when one was a juvenile, can, in fact, make a great difference.  I’m just saying that anything that has that major a consequence, before we just flip it on and off, this Committee should look at more deeply than we have. 

 

Assemblyman Carpenter:  

Looking at this, I believe that if you certify a child as an adult so he can stand trial as an adult, most of the time it’s for a really horrendous case.  So it just seems to me that if they didn’t certify them and the prosecution feels that they should have been certified, they should have the same opportunity to appeal it on the same basis that the other side can appeal it.  It just seems to me it’s leveling the playing field.

 

Assemblywoman Ohrenschall:

Of course, I can’t pretend to speak as your 50 states, but I don’t think that would have been the outcome in the Skakel case.  There it was, reopening a decision from childhood to close a case.  They reopened it, and then certified him to stand trial as an adult. 

 

Assemblyman Horne:

I think it is important to note—Mr. Carpenter mentioned leveling the playing field—if a juvenile has done a horrendous crime, however, we have to remember that this juvenile is, at this stage, only accused; he is presumed innocent at this point, and we’re only trying to determine in which court will the charges be read.  Again, I reiterate that this sets a bad precedent.

 

Vice Chairman Oceguera:

I’m not really seeing the constitutional argument there.  I think that, either way, this is a final judgment; thus, it should be appealable.

 

Assemblyman Brown:  

Additionally, and perhaps we can get a comment from Mr. Graham or someone from the Committee, but is this an issue that can be addressed on appeal at the entire conclusion of the matter?

 

Chairman Anderson:

Mr. Brown is asking for a point of clarity relative to the procedural nature of how this would go.  So does the case go to the juvenile court?  If they decide not to move it up to the adult court, does the District Attorney’s Office then appeal it to the state Supreme Court?

 

Ben Graham:

Actually, the appeal from the juvenile court would go to the division of the district court in Las Vegas.  If the defendant wins, it goes back to juvenile court and there is no more appeal by the state, but if at the juvenile level the state effort to certify is rejected, it stays in juvenile court.  As Mr. Oceguera said, the ruling not to certify is final as far as the state is concerned, and there is no appeal at any time.

 

Chairman Anderson:

So are you going to be moving from one jurisdiction to the second jurisdiction of a district court?  [Mr. Graham indicated yes.]  So it really stays the same, the appeal; the first shot goes to family court or juvenile court district level judge and then the second appeal goes on to a district court judge criminal level?

 

Ben Graham:

Yes, and it is simply a situation where the office feels not only the criminal activity, but there is really nothing left for this person in juvenile court.

 

Chairman Anderson:

If it’s lost in district court, if the reversal goes to district court, is that appealable on to the Supreme Court?

 

Ben Graham:

I’d have to look at that.

 

Assemblyman Brown:  

I recalled some of the testimony; I appreciate your comments.

 

Assemblyman Conklin:  

Mr. Chair, I guess this question is for you.  I understand both sides of the arguments here.  I am concerned about where the appeal process stops if we add this in.  If I win, you go to court.  If you win, I go to court.  If it gets appealed and the appeal wins, then do I appeal the appeal?  I’m a little confused.  If we’re really taking the best interest of the child to heart and trying to rehabilitate him, I don’t know how this process could actually help. 

 

Chairman Anderson:

I understand your dilemma.  It seems to me that, while I appreciate Mr. Carpenter’s very strong argument that there should be a level playing field, it sounds like the kind of conflict you always have between courts at the same level.  It’s like us fighting about who gets a bill on the Floor—if two committees have the opportunity to take it, each of the committee chairs wants to have it. 

 

If the nature of the crime, however, is such that the juvenile court says, “Yes, this is in my case,” the state wants to say, “Wait a second, I really believe it is the other case because there is a criminal nature to this.”  The criminal court [judge] is going to look at it from his perspective—“Of course there’s a criminal activity here, and I can do this.”  So, both of them are looking at the question of whether the nature of the crime is a juvenile matter or whether it should be looked at from the adult point of view. 

 

The nature of those two judges is slightly different.  Therefore, it seems to me that the juvenile judge, at least in this state, has put forth the theory that we are operating in the best interest of the child.  If we are operating in the best interest of the child, then we hope that that we’re going to give the juvenile justice district court judge that opportunity to utilize his jurisdiction.  If it is appealable, not up to a higher court, but to another district court, I think that’s wrong, just as I believe that it would be wrong if the adult cases at 17 or 18 years of age were appealable to a juvenile court judge to take jurisdiction away from him and send it the other way.  So we’ve drawn a fine line because of age.  Some young offenders have juvenile behavior even though their chronological age put them on the other side of that line; so you are an adult because of an age; you’re a juvenile because of an age. 

 

The Chair has entertained a Do Pass motion.

 

Vice Chairman Oceguera:

The question for Mr. Graham to answer is, what if the judge in his decision in this final judgment on whether the child is a juvenile is certified, made some type of procedural or some type of judgment error; is there any appeal of that decision?

 

Ben Graham:

If the juvenile judge grants certification because of the nature of the offense and the nature of the subject, that is appealable to court.  That’s appealable.  They can send it back to juvenile court.  One half of the analysis was that they couldn’t and this half says, “Yes, it goes back to juvenile court.”  If the judge says to leave it in juvenile court; it stays in juvenile court regardless of the merits, but that’s it.

 

Assemblyman Brown:  

From the prior scenario that was drawn out, I think what we’re talking here, if I’m not mistaken, is an appeal to the Supreme Court.  If we have a juvenile court that says, “no,” and a district court that says, “yes,” each based upon their jurisdictional bias, then I think it’s appropriate to send it up to the Supreme Court, which would have neither of those kind of institutional biases looking out for the juvenile court nor the district court.  I feel like this is appropriate; we do need that appellate body to make that final determination without anything clouding their judgment.  So, again, I am for the proposed bill.

Assemblyman Carpenter:  

I may be mistaken, but I believe that a district judge who is the juvenile judge is the one that would be making this decision.  Then would it be appealable to the Supreme Court?

 

Ben Graham:

To affirm what Mr. Brown said, actually, it does go to the Supreme Court; it does not go to another district court judge.  I apologize.

 

Chairman Anderson:

Let’s go back and clean up the record here.  It makes a major difference in the way my thought process works.

 

If the family court says the preponderance of this is criminal activity, it should be addressed at the adult district court level, not in the juvenile court.  Then it could be moved up and it is appealable to the Supreme Court, before the trial itself.

 

If the juvenile court says, “No, it’s ours,” does the District Attorney ask for the opportunity of the appeal to be to the Supreme Court?

 

Ben Graham:

Yes, it would be to the Supreme Court, just as the juvenile would have.

 

Chairman Anderson:

Thank you for clarifying the record.  Mr. Brown, I think we have already been through this a couple of times, and usually we . . .

 

Assemblyman Brown:  

Additionally, I think we have victims to look out for.

 

Chairman Anderson:

I think we are always trying to look out for the victim; we also look out for the best interest of the child.  It is always a particularly difficult thing, dealing with this area.

 

Assemblyman Horne:

That still didn’t address my concern.  My concern wasn’t so much where the appeal went, but that the appeal occurred, taking that choice from the juvenile judge in protection of the juvenile, because the system is in place to protect the juveniles, not in protecting the government.  I’m not opposed to these determinations being made, just this appeal process in our system of juvenile courts.

 

Assemblyman Geddes:

I just want to reiterate, we have these juvenile court judges who are dealing with the juveniles every day.  I think they are the best people in the system to make a determination if somebody should be tried in their court or should be moved up to the adult court.  Even if it is appealable, I still think these are the people who see it every day, deal with it every day, and are the best people to make the judgment if somebody should be in the juvenile court or moved up.  I think if they make that determination, then that’s where it should stay.  The prosecution should not be able to move that out of there.

 

Chairman Anderson:

Are we all set?  We are going to have a roll call vote.  [Roll call vote taken.]

 

the motion carried with ASSEMBLYWOMAN ohrenschall and Assemblymen Conklin, geddes, horne, and sherer voting no.  (Mr. Mortenson was not present for the vote.)

 

On the vote of 9 to 5, the bill has passed.  Mr. Oceguera, I will assign the bill to you. 

 

Allison Combs:

The next bill in the Work Session Document (Exhibit D) is on the top of page 2.  It is Assembly Bill 61, which was heard on February 19, 2003.

 

Assembly Bill 61:  Makes various changes to provisions governing testimony and evidence of witness who is granted immunity in criminal proceeding. (BDR 14-281)

 

The testimony focused on Nevada currently having “transactional” immunity under which a witness is given “complete and absolute” immunity even if evidence of a crime is gathered from other sources.  The bill would move Nevada to the “derivative use immunity” under which evidence gathered from independent sources may be admissible.

 

The Committee also asked at the time of the hearing what the laws were as far as other states were concerned.  Based upon the information I was able to find, it looks like the states are fairly evenly split with approximately 19 states with “transactional” immunity, including Nevada, and approximately 24 using the “derivative use immunity.”  I was not able to check each state’s statute individually; a lot of case laws were also involved.  So this is a summary I found from another court case.

 

There were no proposed amendments at this time.

 

Additionally, a memo (Exhibit E) concerning the other states’ statutes was handed out today with the Work Session Document (Exhibit D).

 

Chairman Anderson:

There’s the memo there for you.  The Chair is not convinced that we need this particular piece of legislation at this time.  Rather than have it sit around on my desk, it seems to me that we would be best served to move it along its way so we don’t have to pay attention to it.

 

The Chair will entertain a motion.

 

Assemblyman conklin moved to indefinitely postpone A.B. 61.

 

assemblyman sherer seconded the motion.

 

the motion carried.  (Mr. Mortenson was not present for the vote.)

 

Let’s look at A.B. 95.

 

Assembly Bill 95:  Makes various changes to provision pertaining to authority and discretion of court to suspend sentence and grant probation in certain cases. (BDR 14-284)

 

Allison Combs:

Assembly Bill 95, also on page 2 of the Work Session Document (Exhibit D), makes various changes to the provision granting the authority of the court to grant probation in cases involving Category E felonies.  Currently, Category E felonies generally are—the court must grant probation in those.  The bill revises the exceptions to that. 

 

There was an amendment proposed on this bill to clarify that persons on parole are also included.  If you look on the blue attachment, the proposal from Mike Ebright, with the Division of Parole and Probation, is attached.  He provides some suggested language of where “parole” would also go.  It would coincide in the statute with where “probation” currently is. 

 

For example, if probation was previously revoked, it would also then include probation or parole.

 

 

Chairman Anderson:

[Chairman Anderson entertained a motion to Amend and Do Pass A.B. 95.]  The amendment is the suggested addition of “or parole” after the bill drafter decides how it should fit in.  While I appreciate the effort of Public Safety to be our bill drafter, we prefer our own.  We’re dealing with it conceptually. 

 

assemblywoman buckley moved to amend and do pass a.b. 95.

 

assemblyman geddes seconded the motion.

 

the motion carried.  (Mr. Mortenson was not present for the vote.)

 

Let’s take a look at A.B. 108.

 

Assembly Bill 108:  Makes various changes concerning investigation and prosecution of certain persons who sell or distribute alcoholic beverages to person under 21 years of age. (BDR 15-436)

 

Allison Combs:

The next measure is A.B. 108 on page 3 of the Work Session Document (Exhibit D).  This measure would provide that the Office of the Attorney General has concurrent jurisdiction with law enforcement agencies to investigate and prosecute the sale and distribution of alcoholic beverages to persons under the age of 21. 

 

There were two amendments proposed on the bill.  The first one was proposed by the Nevada Sheriffs and Chiefs Association to clarify the intention of the measure.  There is some language suggested to add to the bill stating, “The Attorney General shall not exercise his authority under this subsection,” meaning the new subsection on page 2 of the bill, “in any jurisdiction unless the appropriate law enforcement agency files with the Attorney General a declaration permitting the Attorney General to do so.”

 

The second amendment was proposed by members of the Committee,  Assemblyman Carpenter and Assemblyman Anderson, to include provisions that are currently in law, or to mirror those provisions that are currently in law for compliance check with the sale of tobacco products to minors.  A copy of the statute is provided on green paper.  Of course, this would be modified by Legal if the second amendment were adopted by the Committee.

 

Chairman Anderson:

The Chair is a little concerned about the question of allowing the Attorney General to do this.  It seems to me that we should make sure that the Attorney General, and I think that we should, absolutely, be able to do so regardless of whether the local law enforcement agency may or may not want that particular event to take place.  It isn’t a level of distrust of the local law enforcement agency that we currently have in place, but rather a historic view of some of the questions that have taken place in the past.  Some law enforcement agencies have seemed reluctant to hit or go to certain stores and certain communities and thus have not provided for uniformity of enforcement.  That raises a high level of concern. 

 

I know that the Sheriffs and Chiefs Association clearly sees it as a jurisdictional question for their agencies.  However, I think, even as we have with the tobacco products, we would be well advised to allow the Attorney General to move forward when they recognize there’s a problem, so that the people who are running stores recognize that it’s not just the local law enforcement agency that has this responsibility, but also the Office of the Attorney General that needs to do this.

 

Secondly, of course, Mr. Carpenter and I still believe very strongly that operations of this nature need to be done in a uniform fashion so that deception is not being practiced on the store clerk or the community.  I think in smaller communities, where you know everyone, it becomes really vital that the young people who might be going into these stores would have fit the same form that we’ve done with very successful sting operations that have been run by the Attorney General’s Office on the tobacco enforcement program.

 

Assemblyman Carpenter:  

I don’t think there is any question that there has to be some guidelines.  I have had a number of inspections in my establishment, and it’s whether you pass or don’t pass; 99 percent of the time we pass.  One time we did not pass and that was a situation where the clerk just forgot, which happens.  There are pretty stiff penalties that come with this.  I don’t think there’s any question—no store owner wants to be selling cigarettes or booze to underage people, but there’s got to be some guidelines.  Otherwise, it can get out of hand; it’s a real undercover sting operation, if you want to call it that.  So I think with the guidelines that will be in place it’s—although basically down deep I think it kind of goes against my grain and against the grain of a lot of people, but if we’re going to have them, then we need some real guidelines.

Chairman Anderson:

It is my understanding that if we amend into it the guidelines that we’re suggesting, the guidelines will be applicable not only to the Attorney General’s operations, but also to those of the local law enforcement agencies that would be carrying out such sting operations in terms of their enforcement of this particular statute to bring about a greater compliance.

 

Assemblywoman Buckley:

I certainly would go along with the amended version that you all have worked on.  I guess there is still a lingering question in the back of my mind about whether the Attorney General should be doing this.  We have so many—it’s not that teen smoking is not an important issue; it is, but we’re in a budget crisis.  We have so many important issues that the Office of the Attorney is working on.  I still have that lingering question in the back of my mind.

 

Assemblyman Gustavson:

That question has been bothering me since this bill first came up.  I’ve been asking myself, “Does the Attorney General’s Office really need to be doing these types of activities?”  I think it should be left up to local law enforcement; I know there are guidelines specified in the bill, but next session, what’s going to be next?  What are they going to want to do next?  I do have a problem with this; I do think we should leave it up to local law enforcement; that’s my opinion.

 

Assemblyman Horne:

Wasn’t there testimony that the Office of the Attorney General was going to act when law enforcement couldn’t, or at the request of local law enforcement agencies?  It wasn’t that they would be usurping any local authorities.

 

Chairman Anderson:

I think the testimony we heard indicated that the Office of the Attorney General found that some jurisdictions were so short of staff and lacked juvenile personnel in order to fulfill this obligation, in light of the successful operation they had done with tobacco enforcement, that they felt that they would be able to easily do it.  The Sheriffs and Chiefs Association clearly did not disagree with that part of the concept and that was the reason why they had suggested their amendment.  I see Mr. Nadeau over there anxiously waiting; Mr. Nadeau, do you want to come forward and help Mr. Horne with his question?

 

Jim Nadeau, representing Washoe County Sheriff’s Office:

[Introduced himself.]  We’ve worked diligently with the Attorney General on these sting operations.  We feel our cooperation in working with them has worked fine.  I think, in my discussion with them, their only concern was that there are certain rural counties that they were unable to commit to work with.  Their whole objective was to be able to work with them, and that’s why we thought the amendment was appropriate.  We do work with them on a regular basis in cooperation with them, that type of thing.  We understand the concern as far as sending in a ringer or something along that line.

 

Chairman Anderson:

It shouldn’t be a reflection on any of the sheriffs when the communities are unwilling to carry out some of these operations because of lack of personnel or expertise to do it.

 

Assemblyman Claborn:  

I have never liked sting operations anyway, especially if we’re just going to get down there for smoking cigarettes.  I think our law enforcement should be doing something else like catching real criminals.  I will not be supporting this bill.

 

Assemblyman Carpenter:  

In reality I don’t think they do anything to stop kids from smoking or drinking.  I don’t know where they’re getting [cigarettes and alcohol].  They are not getting them out of my place; I don’t know whether they’ve got a real black market going on or what’s happening.  You see kids smoking all the time, so they have a way to get them; you see young people drinking all the time, so they know how to get the booze.  We probably could spend our money in a better way, but when you get right down to the nitty-gritty, they’re really not affecting what people really want to do.  To keep underage people from drinking or smoking, it’s just kind of a “feel good” deal, really.

 

Chairman Anderson:

I think it’s an important piece of legislation.  The reason is because it does set up a standard by which those kinds of operations that—going to stores will recognize that somebody is not going to be altered to make them look 40 years of age when they’re 17 or 18.  They are not going to look 25 or 35 or whatever, so that they can get by here.  I think it’s an important factor that we put this in.  The reason why we did it for the smoking is, because it was mandated by the federal government when we came up that we would have to do these kind of operations in order to make sure that stores were not selling to teenagers.  I know that we’re going to be dealing with some other smoking bills here next week, and probably will be dealing with some of the real issues about when kids really have cigarettes and not when they buy them.  Which, maybe, is what the issue really should be.

Assemblyman Brown:  

I totally agree with the Chairman.  This is an important piece of legislation; I think, at least, in individual cases it may have a very real impact; it isn’t just “fuzzy warm.”  We’re talking patterning after the cigarette [stings].  I do see a difference between alcohol and cigarettes. 

 

We sit in this Committee and hear about the crimes and deaths and injuries related to alcohol and it is unbelievable.  If this results in businesses limiting access to underage youth, and that turns around and saves lives, I think it is very important.  I think we need to move on it, and I appreciate having this bill in front of us.

 

Chairman Anderson:

The Chair awaits the pleasure of the Committee.

 

assemblywoman angle moved amend and do pass A.B. 108.

 

assemblyman brown seconded the motion.

 

Chairman Anderson:

Mrs. Angle, do you want to state the amendments you are intending to place in the bill?  Do you wish to place both amendments, as suggested, or only the green piece of paper [from the Work Session Document (Exhibit D)]?

 

Assemblywoman Angle:

Both amendments.

 

Chairman Anderson:

Does Mr. Brown agree?  [Mr. Brown indicated yes.]

 

We are going to be moving then on A.B. 108 with the two amendments being along the lines of the language suggested by the Sheriffs and Chiefs Association that the Attorney General shall not exceed his authority under this section in any jurisdiction unless the appropriate law enforcement agency is permitting.  Then we are going to, as it comes out from bill drafting, ask the bill drafters to pick from the current statutes of NRS 202.2496 those elements that would make up the appropriate level for the operations, which includes a sting, and include it in this section so that they would be able to know how this operation is going to take place, since it currently does take place.

 

The local law enforcement agency does these.  In fact, in the Reno area I think they did 15, weekend before last, that were noted in the newspaper.

 

Is the Committee ready to vote on the Angle/Brown motion of Amend and Do Pass A.B. 108?

 

[A voice vote was called; a roll call vote was required.  The roll call vote was taken.]

 

the motion carried with chairman anderson, ASSEMBLYWOMeN Buckley and Ohrenschall, ASSEMBLYMeN Carpenter, Claborn, and Gustavson, voting no. (Mr. Mortenson was not present for the vote.)

 

The bill has passed on an 8 to 6 vote.  Mrs. Angle, I guess I have to assign the bill to you, on this very narrow vote.

 

Assembly Bill 132:  Provides that certain proceedings concerning abuse or neglect of children are presumptively open to public. (BDR 38-689)

 

I still have a little concern about A.B. 132, but I would like to get it out here in front of the Committee and see what we want to do with it.

 

Allison Combs:

Assembly Bill 132 is on page 4 of the Work Session Document (Exhibit D).  There are two proposed amendments on the measure: 

 

1.      Proposed by Washoe County during the hearing, it would keep the protective custody hearing, proceedings up to that point, the 72-hour hearing, confidential and then authorize the judge to open subsequent hearings.  On the last two pages of the Work Session Document (Exhibit D), on the ivory-colored pages, is some suggested language from Washoe County, as well as a chart that provides an overview of the hearings involved.  This proposal on the last chart would be as Washoe County is proposing to amend the bill.

 

2.      The second proposed amendment would, instead of the first one, provide that the proceedings prior to and including the protective custody hearing are presumptively closed, and then provide that all subsequent hearings would be presumptively open. 

 

Chairman Anderson:

I think that we strike a good middle ground with the second proposal.  Ms. Buckley, do you want to talk a little bit about your bill?

Assemblywoman Buckley:

Yes, thank you, Mr. Chair.  This issue is one that states are grappling with across the country.  It challenges the assumption that children are protected by keeping proceedings closed.  The middle ground set forth in amendment number two was reached through discussion with Judge McGee and Judge Hardcastle. 

 

Basically, what it would do would be to keep a presumptively closed standard through adjudication when they make a decision on whether the charges are substantiated.  And at that point, from then on, the hearings would be presumptively open.

 

Since our hearing, I asked Ms. Combs to do some research because some of the testimony was that at these hearings children were revealing personal private information that would be very embarrassing for them to reveal.  So I asked Ms. Combs to do a survey of how many times children have actually testified in these hearings.  The answer she got back was no one in the system could recall the last time it happened in Washoe and in Clark counties.  In the rural communities, I don’t know if we got the survey back yet.  She sent feelers to the rural communities as well. 

 

The National Council of Family and Juvenile Judges recommended that the hearings be open.  There is a growing trend; all the states considering this are moving toward openness.  It’s because in most of these hearings, at the back end, they end up being about what is happening to that child.  The child is locked up in a facility because of behavior.  When are they going to get out?  These are tough questions; the child’s voice isn’t being heard.  When we see the multiple moves and children being locked up in inappropriate settings, the interim committee felt very strongly that the system was only protecting the system; it wasn’t protecting children. 

 

That’s the recommendation and that’s the reasoning.

 

Chairman Anderson:

We would still leave it to the judge’s discretion whether to close it or to open it if went the other way, if they felt it was necessary in some other way?

 

Assemblywoman Buckley:

Correct.  It allows the discretion, in tough cases, for them to close it.

 

Chairman Anderson:

The Chair is ready to move.  It seems to me that we’re ready to go and we’ll entertain a motion on Assembly Bill 132, and Amend and Do Pass with the amendment being those suggested in number two, “Provide that proceedings prior to and including the protective custody hearing (72-hour hearing) are presumptively closed.  Provide that all subsequent proceedings are presumptively open.”

 

assemblyman carpenter moved to amend and do pass a.b. 132

 

assemblyman Oceguera seconded the motion.

 

On the Carpenter/Oceguera Amend and Do Pass motion, the amendment being that as suggested on page 4 of subsection 2.  Are there questions from members of the Committee?  [A voice vote was called.]

 

the motion carried.  (Ms. Ohrenschall abstained from the vote.  Mr. Mortenson was not present for the vote.)

 

Ms. Buckley, since you were the chair of the legislative committee, is it your desire to take the bill to the Floor?  [Ms. Buckley confirmed.]

 

Ms. Ohrenschall is recorded as an abstention on the last bill.  The bill still passes 13 to 0, with one abstention.

 

Let’s turn to A.B. 133.

 

Assembly Bill 133:  Revises provision governing duties that may be performed by masters in district courts. (BDR 1-602)

 

Allison Combs:

There was one proposed amendment.  Although it wasn’t a formal amendment it arose in discussion concerning the bill.  Assemblywoman Angle and Assemblyman Gustavson raised some concerns—an amendment to place the duties of the masters into statute instead of allowing, as the bill currently provides for, the Supreme Court to establish those duties by rule.  Then if the counties so desire they could authorize those locally.

 

Chairman Anderson:

Mr. Oceguera, I believe you were chairing during this.

 

Vice Chairman Oceguera:

I was, and the testimony was as is indicated; however, I feel that the Supreme Court would be in a position to take care of their own rule-making process, and I think they have done so in the past.  I don’t have any problem making rules for them; however, I think, in this case that they should make the rules for the masters.  I would not be in agreement with the proposed amendment.

 

Assemblywoman Angle:  

My only concerns with this had to do with relatives fighting over different things and accusing people of different things.  I suppose we have to trust the courts in these matters, so I have no objections to the bill.

 

Assemblyman Gustavson:

I’ve thought more about this bill after the hearing and I do pretty much agree that we should leave the discretion to the judges of the Supreme Court and not legislate.

 

Chairman Anderson:

The Chair will entertain a Do Pass motion for Assembly Bill 133. 

 

assemblywoman buckley moved a do pass on a.b. 133

 

assemblyman carpenter seconded the motion

 

the motioned carried unanimously.

 

Let’s look at A.B. 151.

 

Assembly Bill 151:  Authorizes public guardian to appoint deputies and revises provisions relating to term of office of appointed public guardian. (BDR 20-580)

 

Allison Combs:

Assembly Bill 151 is also on page 5 of the Work Session Document (Exhibit D).  It authorizes the Public Guardian to appoint deputies and it revises provisions concerning the Public Guardian’s term of office, to provide, that rather than a term of 4 years, the Public Guardian serves at the pleasure of the Board of County Commissioners.  There were no amendments proposed.

 

Chairman Anderson:

Ms. Shipman, is there a problem here that we need to see?  I see that you have dropped off documents (Exhibit F).  We don’t usually open up the work session, but if there’s a problem, please come forward.

 

Madelyn Shipman, Washoe County District Attorney, Civil Division:

[Introduced herself.] I wasn’t aware it was going to come up; I quickly [prepared] an amendment that I thought would meet Mr. Carpenter’s concern.  I believe it was either going to be distributed or not distributed or held until the next workshop; I’ll be happy to work with that.  I believe that through the amendment the concern was eliminating the four-year term appointment.  What I’ve done is put that back in but kept the pleasure of the Board to remove it if the appointment or appointee wasn’t performing.  Essentially, it’s a combination of both.

 

Chairman Anderson:

Mr. Carpenter, do you want to see her amendment or would you rather put it off for another work session?  It’s your pleasure, sir. 

 

Assemblyman Carpenter:  

Thank you, Mr. Chairman.  I believe, if I understood what Ms. Shipman was saying, that it’s fine.  Public guardians have a great deal of trust and so . . .

 

Chairman Anderson:

Mr. Carpenter, why don’t we distribute Ms. Shipman’s amendment so that you can see it?  Then we’ll [determine] if there’s a possibility that we can amend the bill and get it out the door; the Chair would rather do that.  Therefore, we can make sure that after the bill drafters are through with their current tasks, they have a sufficient amount of work.

 

Mr. Carpenter, I believe Ms. Shipman drafted this to try to answer your concerns so do you want to make sure it comes close, or do you feel that an amendment is necessary?

 

Assemblyman Carpenter:  

I believe the amendment takes care of my concerns.

 

Chairman Anderson:

Ms. Shipman, so then we’re talking about the County Commissioners appointing these guardians to serve for a period of four years.  After they serve—reaffirm the fact that they’re serving at the pleasure of the Board.  So even if a board is at the end of, maybe—has a dramatic change in it as a result of an election—it would have the opportunity to appoint new guardians, and they would have to serve for a period of four years from that point forward, and the next board would take that question up, and then bring it forward, and, again, any additional guardians would also serve at their pleasure for a period of four years?

 

Madelyn Shipman:

In terms of explaining what the background of this is, in Washoe and Clark [counties] the guardians used to be appointed.  Essentially, it was the Public Administrator that was performing that function, ex officio.  Public guardianship is an extremely complex and very, very sensitive position for the oversight of people’s lives.  They are wards of the county because there is either no one willing or no one available to take care of them and they are unable to take care of themselves.  So this is an extremely important position.  The attempt was to make it as a separate department in both counties.  They have removed those functions from the Public Administrator and have made separate professional public guardians overseeing the departments.  It’s important for that background.  Your question is whether there would be the ability.  I suppose under the most onerous circumstances, there would be the ability to remove and replace, but that really isn’t the intent of this amendment.  Traditionally the guardians have been appointed; as long as they were performing their functions and their jobs, they were left in place.  This requires a reaffirmation every four years that the person is doing the job that he was appointed to do.  I don’t think you’ll see people being removed.

 

Chairman Anderson:

The second amendment that you’re suggesting, however, is in a different area.  That is the replacement of the district court that may designate any qualified person to serve as an acting public guardian until a vacancy is filled.  You’re going to take that responsibility away from the district court judge in the event that, for some reason, there is no guardian there at that particular moment in time.  Is there a possibility in some of the smaller counties where they may not have a great many public guardians at work, that there could be a problem?

 

Madelyn Shipman:

District court judges, under no circumstances, large or small county, do not appoint the public guardians.  Those are all appointed by the county commission.  Sometimes they’re appointed in the smaller counties, ex officio, your district attorney’s office or by some other elected official.  We took it away because it’s only consistent.  In fact, when Washoe County lost its Public Guardian, we did a search, and it took a long time to find someone who we felt was professionally capable and competent to assume that function.  Our Assistant County Manager took over as an acting [guardian] and, to be honest, we never really looked at the law.  The district court does not get involved in guardianships except to receive the reports and the financial records and sometimes make decisions regarding the wards.  I don’t believe the district courts under any circumstance have ever appointed someone. 

 

Chairman Anderson:

Have the district judges taken a look at this question? 

Madelyn Shipman:

No, they have not, and I would be happy to run it by our district court judge.

 

Chairman Anderson:

Before we move on this amendment, let me ask you to get the Nevada Judges Association to take a look at it.  I don’t see any real problem with it and I believe it does solve Mr. Carpenter’s problems.

 

Are there any additional questions or issues that should come before the Committee?

 

So I will hold A.B. 151 over and ask Ms. Combs to place this amendment into our Work Session Document for our next hearing.

 

We are adjourned [at 10:52 a.m.].

 

RESPECTFULLY SUBMITTED:

 

 

 

                                                                       

Sabina Bye

Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Assemblyman Bernie Anderson, Chairman

 

 

DATE: