MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-Second Session

March 10, 2003

 

 

The Committee on Judiciarywas called to order at 9:08 a.m., on Monday, March 10, 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

Mr. Rod Sherer

 

COMMITTEE MEMBERS ABSENT:

 

Ms. Genie Ohrenschall (excused)

 

GUEST LEGISLATORS PRESENT:

 

Assemblywoman Kathy McClain, District No. 15, Clark County

 

STAFF MEMBERS PRESENT:

 

Allison Combs, Committee Policy Analyst

Carrie Lee, Committee Secretary

 

OTHERS PRESENT:

 

Robey B. Willis, Judge, Carson City Justice/Municipal Court

John Tatro, Justice of the Peace, Carson City Justice/Municipal Court

Larry Sage, Judge, Second Judicial District, Washoe County

Anne Langer, Chief Criminal Deputy District Attorney, Carson City District Attorney’s Office

Scott N. Freeman, Esq., Attorney, Law Offices of Freeman and Routsis

Steve McGuire, State Public Defender, and member of the Mandatory Minimum Sentencing Review Commission

Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence

Myra Sheehan, Esq., Nevada Trial Lawyers Association (NTLA)

Amanda Vertner, Vice President, NOW—Southern Nevada Chapter

Joni Kaiser, Executive Director, Committee to Aid Abused Women

Vickie LoSasso, State Cochair, Nevada Women’s Lobby

Ben Graham, Legislative Representative, Nevada District Attorneys Association

Cheryl Kosewicz, Deputy District Attorney, Office of the District Attorney, Clark County

Abbi Silver, Chief Deputy District Attorney, Clark County 

Wendy Kameda, Citizen

Caroline Muscari, SAFE (Stopping Abuse in the Family Environment) House, Inc.

 

Chairman Anderson:

Good morning.  The Assembly Committee on Judiciary will please come to order.  I would like to remind everyone that our meetings are now broadcast on the Internet.  Good morning, Judge [Archie] Bunch [Sixth Judicial District, Lander County, Argenta Township] in Battle Mountain [Nevada].  [Roll called.  The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.]  There is a quorum present. 

 

We have a fairly good agenda for the day, and we welcome those visitors to the Legislature and hope that you have an understanding of the process that your voice counts. 

 

Let us take a look, then, first of all, at Assembly Bill 97.  I open the hearing on Assembly Bill 97.  It’s from the Judges’ Association…Supreme Court…domestic violence.  We have Karen Kavanau from the Judges’ Association, no?  Robey Willis, is this your bill?  Judge Willis, good morning.

 

Assembly Bill 97:  Makes various changes to provisions pertaining to domestic violence. (BDR 3-608)

 

Robey B. Willis, Judge, Carson City Justice/Municipal Court:

[Introduced himself].  I’m also the chairman of the Mandatory Minimum Sentencing Review Commission sanctioned by the [Nevada] Supreme Court.  The Commission has been in effect since January 1, 2000.  Its members are comprised of three components of the judiciary, the people that work within the judicial system:  the judges, the prosecutors, and the defense attorneys. 

 

Our purpose is to review mandatory minimum sentencing at the misdemeanor level, identify areas of concern, and recommend changes to the law.  Handout number one that I gave you (Exhibit C) was the editorial that came out of the Nevada Appeal after the misdemeanor commission (Assembly Concurrent Resolution 2 of the 17^th Special Session) that Assemblyman Carpenter requested and was held.  The day after it finished this spring, Chairman Anderson was on [the commission], there was a big editorial in the Nevada Appeal, “Our View:  [Some] room for discretion” (April 24, 2002).  It says, “Laws that tie the hands of police, prosecutors and judges assume…people aren’t capable of doing their jobs.  If that were the case—and we don’t think it is—then…” we should get somebody else to do it.  And it goes on to say why we should have discretion in these matters.

 

Also, there is [handout] number two (Exhibit D), the members of the Commission from all over the state; prosecutors, judges, and defense attorneys that are on our Commission that we work so hard on.  Last Thursday we reported a few changes in the DUI (driving under the influence) law that are needed and there was no opposition, in fact the representative from the MADD (Mothers Against Drunk Driving) organization actually supported one of our suggested changes.  My reason for mentioning this is we made strong efforts to both consider and include, where possible, the opinions and concerns of all interested parties.  Unfortunately, this issue is one of a more contentious matter than others, but we strongly believe that our proposal is necessary, fair, and just.  We are all in favor of rights for women, and this is not a man/woman issue as people are going to get into in a little while—Judge John Tatro, Anne Langer, and others.

 

The DUI law works well because in every case there’s a consistency that is the blood alcohol level; an individual is either drunk or not.  Unfortunately, when the domestic battery law was created and patterned after the DUI law, it didn’t take into account the many variables and degrees of guilt that are present in these situations.  The domestic battery law, which is certainly well intentioned, is so inflexible that it’s caused continuing problems in its applications in many situations.  As judges, we sit helplessly, unable to use any discretion to provide justice in these cases.  If you’ve got a picture of page three (Exhibit E) of the judges with their hands tied, and then the cartoon, number 4 (Exhibit F), with the “Center For Abdication of Decision-Making” on “Three Strikes” and You’re Out, “Mandatory Minimum Sentencing,” and “Zero Tolerance”—things that just don’t work usually. 

 

Judge Tatro and I will give you the judges’ perspective.  The Nevada Judges Association and the Nevada State Judicial Council, which represents judges from every level, endorse this bill unanimously on both instances.  The Judicial Council, as you are aware, is comprised of judges of all levels and is chaired by [Nevada] Supreme Court Chief Justice Deborah Agosti.  Chief Justice Agosti is sending you a letter shortly on the support from the State Judicial Council.  Our testimony will be followed by Anne Langer, Chief Criminal Deputy from the Carson City District Attorney’s Office, and Scott Freeman, a Reno defense attorney, and they will address the difficulties prosecutors and defense attorneys have been having with this law.  Before beginning the testimony I referenced, I would like to give you a brief overview of the first two proposed changes that Judge Tatro and I and Judge Sage will get into, the first two proposed of the three changes.  Ms. Langer’s testimony will address the third aspect that deals with prosecutorial discretion, which is almost lost without that discretion, and any prosecutor worth their salts needs that discretion to do their job.  

 

In Section 1, line 5, of A.B. 97, we propose deleting the language “person with whom he is or was actually residing” as part of the definition of a domestic situation.  This language is too broad in scope.  It’s taken from a civil definition for TPOs (temporary protective order) and placed into criminal statute.  This isn’t a criminal definition.  And results have been many people have been charged that do not meet society’s understanding of what constitutes a domestic battery.  Now it seems unlikely the Legislature intended arresting and prosecuting siblings, such as brothers on brothers, who are roughhousing and it got out of control, or construction workers who are roommates and fighting over the TV remote, as we’ve been getting that type of cases.  It just goes on and on.  These and other similar situated individuals, though, are being arrested, prosecuted, for domestic battery; they’re also being convicted and sentenced under the same “cookie cutter” sentencing requirements that a wife beater, for whom we believe this law was intended, should have been sentenced under.

 

[Judge Robey Willis continued.]  Adding to the woes of the fighting brothers, construction workers, and other similarly placed people, is that they lose the right to bear arms, the right to join a police force, the right to join the military, when two brothers get to fighting or two sisters.  In page 5 there is, as we were informed by one of the women’s groups, that they didn’t like taking that part out.  This was a civil matter.  We agree it’s a civil matter; we have given you in handout number five (Exhibit G) a criminal amendment; if people wish to go with a criminal amendment that Noel Waters, our district attorney, drew up a few years ago, that says domestic violence is “an act of force or violence by a person against or upon his spouse, former spouse, a person with whom he has had or is having a dating relationship, or a person with whom he has a child in common.”  That would take that out of the civil statute that’s being relied upon for domestic battery right now if you decide to go take that step further. 

 

The second proposal in Section 4, lines 37-38, would change the sentencing for a first domestic batterer from a 2-day minimum and [imprisonment] for not less than] 48 hours [of community service], it says, and now 48 hours and [not more than] 120 hours of community service to one or the other.  This would appropriately comport with the sentence on a first DUI, which the domestic battery law was patented after.  The reason for this proposal is there are so many degrees of seriousness on domestic battery; we, as judges, are able to discern the differences.  We can tell when there’s a difference between one type of domestic battery and another.  For example, the instance of a Saturday night pushing contest with no injury whatsoever to the person contrasts seriously with the person who beats his spouse, and under this proposal, in the first case, if the offender has a clean record, he or she could be given the 48 hours of community service like they do on DUIs.  In the second case, the offender can, and should, be given the maximum 6 months in jail and the other penalties that you can do on a domestic battery.  It doesn’t do anything with that.  We would still slam those people in jail the way they need to be.  We as judges are supposed to be taking the person in front of us and taking into account the seriousness of the offense and prior criminal history and sentencing; under the current law, this cannot happen.

 

It’s gotten to the point that, in one case, a local attorney took his client to the district court and had him plead guilty to a gross misdemeanor child abuse rather than a domestic battery because of the collateral effects of the domestic battery [charge].  What happened, rather than going two days in jail, losing his right to bear arms and all the other stuff, [the defendant] got up to the district court on pulling his daughter’s hair and ended up with a $500 fine.  So this is pretty backwards, when people are willing to plead to a more serious charge because of the penalties on this charge, the collateral fallout.  We’ve given you the judgment of conviction form [handout six] (Exhibit H) with all the things that we have to go through on a domestic battery, and that would be our last exhibit, two pages of sentencing on a domestic battery. 

 

[Judge Robey Willis continued.]  We want to ensure everyone convicted on domestic battery has a taste of jail, as some of our opponents think that taking that 48 hours of community service won’t put them in jail.  I would like to point out that under this proposal they still will.  Every defendant arrested will still spend at least 12 hours in jail and a cooling-off period.  That’s saved millions of lives, or at least hundreds of thousands across the country, and we’re not talking about removing that.  That could be challenged constitutionally in the [Nevada] Supreme Court, but we think it’s saved too many lives to ever fool with that.  A large percentage spends much more time than that, and still would, because they can’t make this mandatory bail amount that’s in the bill originally.  In conclusion, we in the judiciary, along with all other responsible citizens, abhor domestic violence.  The current law, though, is inequitable and in need of change. 

 

John Tatro, Justice of the Peace, Carson City Justice/Municipal Court:

[Introduced himself.]  First off, I want you all to know, I want everyone in this room to know, that I absolutely support the domestic battery law, the domestic violence law.  Nothing is more rewarding to me in court than, for instance, on a domestic battery case where there’s an abuser that’s been abusing someone for over a period of time, controlled them, manipulated them, nothing’s more rewarding than seeing the woman have the strength to come to court and testify against him, and see that the system cares and that the system is going to follow through and do something to help her in a situation that she otherwise thought she would never be able to get out of; and I say she because 95 percent of the victims are women.  I totally support having the domestic violence law in effect. 

 

The thing that I want to talk to you a little bit about is the discretion on the part of the district attorney.  Judge Willis, I think, hit the relationship portion of it sufficiently.  Without discretion, this law occasionally hurts the people that it’s designed to help.  And occasionally, I see it on a monthly, or maybe a bimonthly basis in Carson City, and I’m sure that in Las Vegas and Washoe County, they see it a lot more.  As an example, I had a woman who had been abused by her husband for 6 to 7 years.  He moved her from their home in the South to Nevada, isolated her from her friends and her family.  He beat her repeatedly; she was afraid to call the police.  She got pregnant, he beat her, of course, when she was pregnant; she had a baby and the baby was extremely ill.  It was premature and there was a question whether the baby was going to make it.  They let the baby come home from the hospital.  This couple had no money; he didn’t work, he gambled and drank, and she did what she could to make ends meet.  She got a little bit of money from her mother, who would sneak her money, because if her husband saw it, he’d take it. 

 

So she’s at home with this sick baby, and if you saw her, she was this frail person that had just been through childbirth that was suffering herself.  She is just living from hour to hour, trying to eke by and hoping her baby lives.  She has no money, nothing to pay the bills with, and most importantly, not enough money to buy the medicine that’s needed for the baby.  I’m not exaggerating one bit on this story.  Then she walks into her bedroom and her husband, who’s been beating her for years, is going through her purse, taking the money that she just got from her mother that would afford her the opportunity to buy medicine for her child, and is going to go gamble with it.  And he’s drunk, so she, after all this time, and under that pressure, reacts.  She jumps on him; she jumps on his back and she hits him on the face and she scratches him.  Of course, he knows the system, because he’s been arrested and he’s been convicted; he’s been through it.  He calls the cops.  The cops come, the police come; they don’t have any choice.  She admits she did it.  He’s got a scratch, it’s bleeding, and they take her to jail. 

 

Now the baby, this drunk guy’s going to take care of.  They have to send the baby, this very sick baby, to Child and Family Services.  She sits in jail for 12 hours, this victim of domestic violence.  She comes to court; the case goes to the district attorneys.  The sheriff hates arresting her, the district attorney doesn’t want to prosecute her and says that, in court, to me.  I’m sitting there thinking, “Oh, my God.”  I have no choice, under this law, but to convict her, to send her to jail for 2 days, to order her to complete 48 hours of community service, and worse than any of it, I have to order her to domestic violence counseling.  She has to sit in a room full of people like her husband, and be a victim, because in that counseling, she’s still a victim, and it’s doing her no good; it’s doing no one any good.  In the meantime, her child…I was able to get her into other counseling and work with some advocates whom, thank God they’re around, to get her help.  But she had to go through all that. 

 

The district attorney should have the discretion in a case like that to say this isn’t right, we’re not going to prosecute her; she lashed out at a guy that’s been abusing her.  And it happens and I see a case a month.  We don’t have them in here today to testify, because their self-esteem isn’t exactly to the point where they’re ready to walk into this room and tell you about it.  They’re not going to come here, but they’re there.  We see them in court every week.  The district attorney desperately needs discretion. 

 

Chairman Anderson:

Judge Sage, and then I’ll open it up for questions from the members of the Committee.

 

Larry Sage, Judge, Second Judicial District, Washoe County:

Mr. Chairman, I’d like to yield to Judge Tatro or Judge Willis.  I’m just here; I’m not a member of the Commission that Judge Willis mentioned, but I am a member of the Nevada Judges Association.  I’d like to yield to them.

 

Assemblyman Horne:

I understand the need for discretion in these situations, and the story Judge Tatro gave to us was very compelling.  However, having seen domestic violence up front, I’m very skittish on taking any steps to weaken a law.  Is there any way we can do this without the extremes of inserting a discretionary clause in here, at the same time keeping tough penalties?  Also, particularly in your Section 4, where you’re lessening either/or, basically, the difference, I think, between DUI and domestic violence, is that in domestic violence, generally it happens in your home, the one place where you should feel the safest.  And it’s perpetrated by someone you should feel safe with.  I think this is one of the reasons why we have tough laws on this, and why we’ve expanded it beyond spousal abuse, because nowadays we have all types of relationships in there.  I recognize that siblings can fight and all kinds of things like that, but there should be some way we can keep it strong, and at the same time insert a discretionary clause. 

 

Judge Robey Willis:

Assemblyman Horne, that’s exactly what we’re trying to do.  You ask for a discretionary clause; that’s what we want to give the DAs so that…and we see so many cases.  Judge Tatro’s seen a couple of those kind a month, but we see so many others that are caught up in this trap who aren’t spousal abusers or anything, so that’s why we want to give them discretion.  But the spousal abusers, people in the home that are hurting others in the home, we want them to go to court and get their due.  This 48 hours for, like I told you, they are already arrested, they already go to jail, yet they’re innocent at that point until proven guilty, but they still go to jail and most of them don’t bail out within 12 hours, let me tell you, because there’s a mandatory minimum of $3,000 bondable bail.  We can work on discretionary language that some of you feel is better than what we have, that’s fine with us, but you’re right.  Discretionary language is needed because of the cases that are being pointed out.

Assemblyman Horne:

Also, I believe with discretionary language we can keep in your deletion of “a person whom he is or was actually residing.”

 

Judge Robey Willis:

Absolutely.

 

Assemblyman Horne:

I think that’s important. 

 

Judge Larry Sage:

Just one point for the Assemblyman; the community service that’s required that we use must be done on a sheriff’s work crew so we have to support that, because most of the nonprofit organizations that allow community service that have the insurance for worker’s compensation for volunteers will not accept any form of violence.  So the community service that is sentenced has to be the sheriff’s work crew; we’ve got to support it.

 

Assemblyman Brown:

Mr. Conklin and I are thinking along the same lines as Mr. Horne.  The notation that I had under the exact same section was, can we not do something just like an “and/or?”  Does that exist in the statute?

 

Judge Robey Willis:

Assemblyman Brown, that would be perfect for us, the “and/or.”  We could still do both if we wished if you put in an “and/or.”  I just wanted to add one thing.  Assemblywoman Buckley came and spoke to the State Judicial Council last year on legislation and told us please bring forward any legislation that was not working and let you know, and this was the one that was working the least of anything. 

 

Assemblyman Brown:

Just one, minor technical thing on…

 

Chairman Anderson:

I’m kind of curious as to where you’re putting the “and/or,” if you could be specific where you’re trying to make a reference to.

 

Assemblyman Brown:

Section 4, line 38, is the one that Mr. Horne was looking at.  I believe there is a similar…

Chairman Anderson:

Line 38 of which?

 

Assemblyman Brown:

Section 4 on page 5.

 

Chairman Anderson:

So you’re indicating that your suggestion is they would be able to imprison “in the city or county jail or detention facility of not less than 2 days, but not more than 6 months ‘and/or’ perform not less than 48 hours?”  That’s what our total amendment should be?

 

Assemblyman Brown:

That’s correct, on that particular issue.  The only other question that I had is just of a technical nature.  On page 6, line 11, starting at line 10, “or in lieu of a fine, by an order to perform an equivalent number of hours of community service.”  I was reading that somewhat in conjunction with the fine of “not less than $750, but not more than $1,000”; I wasn’t sure if the equivalent number of hours referred to those figures or to the preceding paragraph.

 

Judge Larry Sage:

Assemblyman Brown, many of the people we sentence cannot make a fine payment, so we convert their fine payment to community service, so that’s not in addition to.  That’s if we fine them $750 and they cannot afford the payments so they switch it to 80 hours of community service.  They work their fines off, in many cases.  Most courts give that option for fines for people who cannot afford payments.

 

Assemblyman Brown:

I understand that.  Then, is the equivalent number of hours…the 100‑200 [hours] that’s referred to on line 7? 

 

Chairman Anderson:

Maybe this is in your testimony, Judge Tatro; maybe you were going to touch on the reason for moving to the $750 from $500?  Currently, the law is $500‑$1000.  Why the increase to $750?

 

Judge John Tatro:

It matches a DUI second [offense penalty].  We’re just trying to have them the same, or similar.

Chairman Anderson:

I thought we were concerned about the financial impact upon the family in trying to put that family back together, or try to hold it together if we can, and that was one of the reasons why we had done…is that the only reason for the $750, is so that it would match, economically, to the DUI statute?  I mean, there’s no justification other than that?

 

Judge John Tatro:

That’s basically it.

 

Assemblyman Carpenter:

I have a real concern about taking out “person with whom he is or was actually residing.”  You know, you mentioned the deal about the brothers or whatever, but there are a lot of true-to-life deals out there.  I think if you took a survey that there’s probably more people in this “residing” situation than there is anything else.  If we can put something in there, unless “related by blood” or something, but to take that completely out, I am not in favor of that.  I just want to make one statement.  A few years ago, when I first started coming here, not the D.A. that we have now, or the judges that we have now, they would not do anything in regard to domestic violence.  I don’t want to go back into that situation again; we can go the other way if we start taking little steps backwards here.  We need to be very careful.

 

Judge Larry Sage:

I think by the education of the public, Assemblyman Carpenter, the public would not allow a prosecutor, who answers to the public at election, or the judges who answer to the public, to get away with that again.  There’s been a lot of education to the public and I just don’t think the public would allow that.

 

Chairman Anderson:

Any additional questions for the judges?  Thank you very much, Your Honors.

 

Anne Langer, Chief Criminal Deputy District Attorney, Carson City District Attorney’s Office:

[Introduced herself.]  As Judge Willis pointed out, we were appointed to this committee (Mandatory Sentencing Review Commission) to try to look at the domestic violence bill to see if there’s anything, as a prosecutor, that’s worked with this bill since its inception, to see if there was anything different that might make it better for the victims, because that what’s we’re here for.  When you talk about the discretion of the prosecutor, the discretion for the prosecutor, I think, in this situation, is actually going to be something that helps the victims. 

 

Last year, when we were here, the opposition to this bill talked about lazy prosecutors and the fact that some jurisdictions in the state of Nevada are going around this particular bill anyway, because of it just being a way of charging documents and things like that that they actually have discretion with.  But after the Legislature put this bill into effect, I don’t know who wouldn’t be following it, because I think that everybody in the prosecutorial aspect of it is trying to follow it as closely as possible.  I’m thinking that giving the discretion to a prosecutor would not be weakening a bill; it would be strengthening it because the problems that we’re running into is that this is the only crime, that I know of, where the victim actually is siding with the defendant.  I get more calls from defense attorneys saying that they’ve talked to the victim before the victim will talk to me, because of the fact that they don’t want to come to court, that these women that have been in violent situations for years, decide that they are going to lose their house, they’re going to lose their financial support, they’re in an abusive cycle, that they’re not necessarily always going to change.  And we’re always concerned with this person that this is going to be the person that ends up in a homicide down the line. 

 

And as far as the definition goes, we believe that the definition could actually stay the same if the prosecutor was given discretion, because what we’re running up against are victims that recant, victims that lie, victims that don’t show up.  So with the people that really need the help, it’s not working the way that we believe the Legislature intended it, to give victims rights, to make sure that the victim had a voice.  And with discretion, we don’t have to tell the victim when they call, “You have to come to court, we have to prosecute this, our hands are tied, we have no discretion.”  It’s largely different than the discretion in the DUI bill.  When you talk about a DUI, you’re talking about a very mechanical bill in the sense that if there’s probable cause, and you’ve reached a per se in the amount of alcohol that you’ve had, it’s over; it’s a mechanical bill.  Many times, as cases get resolved very quickly and very easily, but when you’re talking human emotion, in every single case, human emotion changes it.  Human emotion is what causes these people not to come forward. 

 

We have advocates now who come in every day and watch every case that the prosecution does.  They are the watchdogs to make sure that the prosecution is doing their job, and we welcome them.  We welcome them; they have helped us, in certain situations have found victims, but that’s our biggest concern.  With giving the discretion back to the prosecutor, we believe that we are actually empowering the victim.  We believe that we can finally help these victims, and for those that don’t believe that this is a good idea, I think that if there’s some sort of issue, even on this bill, that even to look at a sunset, to try it different this time, for a minute, because from the very beginning, we’ve had the same law in effect that there’s been no discretion.  So I guess what I would say is try it, see if there is a change, see if more people get the help that they need, because based on what you did to start out with, I believe it was 1999, there have been substantial changes made.  But in looking at the bill and working at it for the past four years, and truly trying to come before you to tell you what, as a person that’s in the trenches, what this bill is actually doing, this would be the one change that we would ask you to make, and if it’s something that you’re not kind of wondering what the effect would be, give it a sunset for a few years and see if it makes a difference. 

 

Chairman Anderson:

Are you under the impression, then, that this domestic violence law is only 4 years, 3 sessions old?

 

Anne Langer:

It was 1997.

 

Chairman Anderson:

In 1997 we took discretion away.

 

Anne Langer:

Right.  That would be six years.

 

Chairman Anderson:

But the domestic violence statute had been in place long before I arrived here, and I arrived here in 1991, so I’m, like Mr. Carpenter, of the opinion that the reason that we moved this way was because it just wasn’t being enforced.  While we gave you discretion in the past, it hadn’t worked out, so I’m a bit confused when you say “We’re going to put a statute of limitations on it and give it back to us and we’ll see if we do well.”  Particularly for page 7, Section 4, subsection 7, of the bill, where we’re going to be giving the prosecutors…I understand the argument about judges; I’m a little more concerned about the prosecutor side of the question.  That’s not been well enforced at all.  Here in Carson City, maybe things are going well, but this is a statewide issue.  I appreciate…any other questions from the members of the Committee?  I’m a little concerned about what we were doing before 1997 to back up what you say.

 

Anne Langer:

Chairman Anderson, I’ve been a prosecutor since 1989, so I’ve been prosecuting domestic violence cases for years.  I understand when I’m talking about the change in the statute, it’s in 1997, and once that’s done, I think the thing that is in place that wasn’t in 1997, because the way that I look at this, is this was a reaction, I think, from the O.J. Simpson case, where all across the nation everyone was able to watch that case on Court TV and see the abuse that took place regarding Nicole Simpson, prior to her being murdered.  I think, with that in mind, right around that time, there were stricter provisions put in place with judges and legislators, or excuse me, with prosecutors, in their job.  Along with that, I believe that there was a lot of federal grant money where advocates were put into courts every day, and those are in every jurisdiction.  So there have been substantial changes made, even giving the discretion back to prosecutors, that you will still see that this statute will have the impact that it was designed to do.

 

Chairman Anderson:

Thank you, Ms. Langer, very much. 

 

Scott Freeman, Esq., Attorney, Law Offices of Freeman and Routsis:

[Introduced himself.]  I’m in private practice in Reno; I’ve been practicing criminal defense since 1984 in northern Nevada.  I was selected as the criminal defense attorney in private practice for the Mandatory Sentencing Review Commission, and I’m a member of the board of the Nevada Attorneys for Criminal Justice, which is a statewide criminal defense organization, also in favor of this bill. 

 

I’ve been asked to address the issue related to prosecutorial discretion, because I think I come from a very unique angle.  If you seriously consider not giving prosecutorial discretion back to the prosecutors to decide these cases, as a criminal defense lawyer, you will make my job very easy.  In this circumstance, I would share with you, and echo Ms. Langer’s comments we have, as a criminal defense bar, made some significant insights into the suggestions that are made by the Commission.

 

The reality of the situation is this:  we have victims that call me first and say, “I don’t want to testify.  What do I have to do to avoid a subpoena?”  And, of course, ethically, I advise them what I need to advise them, but the reality of the situation is that’s how people are getting around the lack of prosecutorial discretion.  As Ms. Langer said, you’re making victims twice; victims in terms of being forced to try to avoid an inflexible criminal process, as well as trying to avoid a potential prosecution.  There’s a number of different ways the prosecutor has the discretion to be able to bring the victim to court, and/or to resolve a particular case in a very productive way, which is justice, and that is really what this [Mandatory Sentencing Review Commission] is about.

 

This is not a criminal defense committee, this is not a prosecution committee; we were appointed by the [Nevada] Supreme Court, by the judges, for the judges, to talk about how we can make some of the bills and the language in the bills work from a practical, day-to-day practitioner standpoint.  Respectfully, we’re not trying to weaken the law; we’re trying to make it work better for justice, for everyone, because under the current situation, it is absolutely an all‑or-nothing type of case, type of charge, and type of prosecution.  I will tell you, more likely than not, in the close calls, it’s going to be nothing, and has been nothing, since I’ve been defending people in these types of cases.  So what we’re suggesting is some type of modification to give people the opportunity, especially prosecutors, to look at the right case and say, “Hey, wait a minute; maybe we can do something other than domestic battery in the particular matter, or maybe we can plead to a domestic battery with certain types of options.”

 

The judges have talked about some modifications; it doesn’t mean we’re going backwards.  What it means is we’re going forward to make this work.  Obviously, with the climate that we’re experiencing and the number of pages of those wishing to speak (Exhibit B) that Assemblyman Anderson has indicated want to talk about this bill, it’s a hotly contested topic.  But the reality of it is this:  we are in the trenches every day as prosecutors and defense lawyers doing these cases.  And I’m telling you, that if you don’t change and give prosecutorial discretion, you will continue to make my [job] easy in these cases.  I’m suggesting to you that you make it harder, and I’m suggesting to you that you reach a compromise that is appropriate for the judges, for the prosecutors, and for the defense attorneys. 

 

Assemblyman Carpenter:

I thought we’d changed this so that the victim doesn’t have to testify; that if the police have the pictures and everything that you don’t have to have the witness come in and testify.

 

Scott Freeman:

Well,that’s not the way it is, and I make them come every time.

 

Assemblyman Carpenter:

I can understand, on your side, because you want to get them off, but I think we ought to…I for the life of me cannot see how changing this is going to help the victims. 

 

Scott Freeman:

To answer your question how you help the victims, quite frankly, and I echo Ms. Langer’s comments, taking my criminal defense attorney hat off for just a moment, I would suggest to you this:  If there is a way to tie up the defendant in something other than a mandatory minimum push type of case, you could get convictions for batteries; you could get convictions for different types of disturbing the peace with 6 months county jail, 6 months county jail suspended, I could go on and on about the different varieties that could occur.  But if you have a case that doesn’t fit in the most egregious manner, or the type of case, which is very clear-cut, it will result in an acquittal.  And as a result, you require the victim be present, subject them to cross-examination, and sometimes aggressive cross-examination, and in those circumstances, it ends up in a plea of not guilty.  And you’re right, in those circumstances the person gets off. 

 

Assemblyman Carpenter:

You haven’t convinced me.

 

Steve McGuire, State Public Defender, and member of the Mandatory Minimum Sentencing Review Commission:

[Introduced himself.]  I’ve prosecuted domestic violence as district attorney in White Pine County [Nevada] and defended it for many years at the State Public Defender’s Office.  I get those calls from the defendants, who would sometimes be called victims, but the defendants, the women who are surprised and shocked when they find that the incident where the police were called and where there was some kind of thing with the husband or the boyfriend, and some kind of contact that they regard ultimately as not that serious, find that it’s considered domestic violence.  They’re just surprised and sometimes shocked that they don’t have any say in resolving this thing and in putting their lives back together.  Sometimes you see victims recant because of fear or intimidation, but you often see it because they’re aware of the consequences, both to their lives in practical terms of having a wage-earner gone, and income gone from the household, and often because they want this relationship to continue, just to continue on better terms.

 

That’s something that I think that the law, with the teeth that it has, can help promote.  It can force people into counseling, it can put them in jail, but right now it is just too blunt an instrument for any of these sort of productive things.  Right now there simply isn’t any option, and we do have people who are avoiding service, who are recanting their testimony, who are contradicting their statements to the police.  What has become an all‑or‑nothing situation, with the return of discretion to the prosecutors, can return to a more sensible, more nuanced way of dealing with a very complex and difficult situation.  I think that the key to all of this is the return of discretion to the prosecutors and watching them as closely as you want and complaining in specific instances where you see that discretion abused. 

 

But there really has to be some kind of answer for the woman that Judge Tatro described, or the person who gets in an argument and a rubber band is shot or there’s a push, and all of a sudden they’re caught up in this “meat grinder” and they don’t want to be.  They don’t see any necessity for it to be this way.  There’s got to be some answer for that, or we’re going to continue to have month after month the sort of, I think it’s fair to call them horror stories, that you see in Judge Willis’ handout, a prime example of which Judge Tatro has given to you.  So there really isn’t any way to do that except with discretion, and I would urge you to return that to the district attorneys and then the public can watch them like hawks. 

 

Chairman Anderson:

Given the statewide nature of your job, how many cases of domestic violence would you say you’ve done this last calendar year?

 

Steve McGuire:

Well, of course, we do seven rural counties, rather than the whole state the way the public defender is provided.  I would say, roughly, we probably have done about 600-700 domestic violence cases in the last year.

 

Chairman Anderson:

And how many do you think would not have happened if there had been discretion in the district attorney’s office?  How many of those cases would not have ended up seeking your services had there been discretion in the district attorney’s office?

 

Steve McGuire:

You’re asking how many people would have been deterred from their act?

 

Chairman Anderson:

How many do you think would have been eliminated from having a court appearance, from going through the process if they had gone through; of the 600 cases, would 50 percent have fallen out because the prosecutors would not have sent them there, or 20 percent?

 

Steve McGuire:

I would say probably between 5 and 10 percent.  The vast majority of domestic violence cases are right in the center of what we think of as domestic violence.  They’re somebody slamming somebody up against a wall, somebody blackening an eye, somebody who is engaged in repeated pushing or shoving or intimidation, so the cases that we’re talking about are not the majority, but a minority of the cases, that has to cause us true concern. 

Chairman Anderson:

Questions from members of the Committee for this, the final panel?  Thank you very much.  You now have heard 6 speakers in favor of the piece of legislation, so I’m going to move to the other side of the argument. 

 

Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence:

[Introduced herself and provided (Exhibit I).]  Good morning.  I am here today to speak in respectful opposition to A.B. 97.  Over the last 20 years, the Nevada Legislature has considered, and passed, a number of statutes that deal with domestic violence.  Beginning in 1985, with the passage of statutes creating [non-warrant] arrests and orders of protection against domestic violence, this Legislature has sought to enact legislation to move forward Nevada’s efforts to stop domestic violence.  Today you have a bill that would move us backwards in those efforts.  Before I get into the specific concerns we have with the bill, I would like to emphasize that there are two key concepts when considering the criminal justice system’s response to domestic violence:  victim safety and offender accountability.  Research, experience, and common sense concur that we must work to make victims of domestic violence safe, and we must work equally to ensure that abusers are held accountable for their battering behavior. 

 

There are three areas of concern in this proposed legislation:  the definition of protected parties, mandatory sentencing provisions, and prosecutorial discretion.  Section 1 of A.B. 97 proposes to eliminate an entire category of people from the list of those who are eligible for protection under domestic violence.  The bill proposes to remove individuals who are living together:  “a person with whom he is or was actually residing.”  Eliminating this group of relationships from the statute will result in abuse victims being unprotected.  Examples include caretakers of elderly and disabled individuals who are not dating; gay and lesbian partners who choose not to reveal their relationships; and immigrant families who live in the same household but are not all related by blood or marriage.  I’m sure there are other instances as well.  Removing this group of relationships from the domestic violence statute also means that many domestic violence offenders will not be held accountable for their abusive and violent behavior.

 

The definition of protected parties was passed almost 20 years ago, in 1985, and included the language currently suggested for removal.  The only change to the definition has been to add dating relationships in 1995.  When this definition has been in place, and successfully protecting victims for so long, we see no good reason to change it now.  We also see this change as an opportunity for abusers to say, “Oh no, we’re just roommates; we’re not [dating],” and evade appropriate punishments.  The question becomes, do we change the definition and exclude whole classes of individuals who should be covered by this statute, or do we maintain the definition and ask judges, if we believe prosecutors don’t have that discretion, to use their discretion in those cases in which they believe that the intent of the statute does not apply? 

 

Section 4 of this bill proposes two changes to the mandatory sentencing provisions that apply when a person is convicted of domestic battery.  The first proposed change would remove the requirement for jail time, currently 2 days for the first offense, and allow the judge to order community service in lieu of jail time.  We believe jail time is a vital part of holding abusers accountable for their battering behavior, and we believe it is important to maintain the current statutory requirement that a person convicted of the crime of domestic violence must spend 2 days in jail. 

 

The second proposed change to the mandatory sentencing provisions would raise the fine from $500 to $750 and allow the court to order community service in lieu of the fine on a second conviction.  While we generally support the imposition of a fine upon conviction, we also recognize that some offenders are indigent and may be unable to pay it.  Thus, we have no objection to either the increase in the fine or to the proposal to allow community service in lieu of that fine. 

 

Lastly, Section 4 also proposes to remove crucial language concerning prosecution of domestic battery cases.  Part of the reason this change is being proposed is that prosecutors believe that they have no discretion in bringing domestic battery cases, that they are forced to proceed with cases that involve parties who are not in a true domestic violence relationship, and we respectfully disagree.  The law currently provides that “if a person is charged with committing a battery which constitutes domestic violence pursuant to NRS (Nevada Revised Statutes) 33.018, a prosecuting attorney shall not dismiss such a charge in exchange for a plea of guilty, guilty but mentally ill, or nolo contendere to a lesser charge or for any other reason unless he knows, or it is obvious, that the charge is not supported by probable cause or cannot be proved at the time of trial.”  Under the express terms of this existing law, a prosecutor retains discretion not to charge in the first place.

 

Furthermore, even after a prosecutor brings charges, the prosecutor has the discretion and ability to dismiss or reduce the charges if the prosecutor learns that they cannot be proved at trial.  So if that is true, what discretion do prosecutors need?  The discretion to dismiss or plea-bargain a case that they have charged correctly and can prove?  I know the answer is much more complicated than that question implies.  I also know that this statute was enacted because prosecutors, in the past, would routinely plead or dismiss domestic battery cases that were both correctly charged and provable.  Our knowledge about prosecutorial discretion is only anecdotal, and we can, unfortunately, match anecdotes for anecdotes, because there is currently no statistical or other data recorded about the dispositions in domestic violence cases including explanations of the outcomes.

 

We can tell you how many reports were received by law enforcement, we can tell you how many arrests were made in a case, and we can tell you the reasons why arrests didn’t happen.  But we can’t tell you on a statewide basis what occurs after arrest. 

 

We believe that this Committee should not make any decisions to change the definition of protected parties, the mandatory sentencing requirements, or the provision regarding proceeding without more empirical data.  If statistics support the position of those who would eliminate certain relationships from the domestic violence statutes and add more prosecutorial discretion, then we would certainly consider supporting legislation to address those concerns.  In short, the laws in this proposed legislation do not need to be amended.  This piece of legislation would undo much of the progress that Nevada has made over the past decades in domestic violence prevention and intervention efforts, and we encourage you to reject it.  Thank you for listening to these concerns, and I am available to answer any questions you might have.

 

Chairman Anderson:

Thank you, Ms. Meuschke, for your continuing advocacy on this issue. 

 

Assemblywoman Kathy McClain, District No. 15, Clark County:

[Introduced herself.]  Mr. Chairman, this is my third session and I’ve been on the Judiciary Committee the last two sessions; I’m always a very big supporter of strong domestic violence law.  The two biggest reasons I moved to Nevada in the first place was to get out of an abusive relationship and go to graduate school.  I can tell you if there had been any kind of laws like these in the state I came from, I would not have suffered through some of the things I did.  At one point, even, I was the one that was arrested because I was being beat up, but he left the house and so I was the only one available to go to jail.  It was unfounded, obviously, but it made me think.  Just that one incident was enough to say, “You know, this is really stupid what you’re letting happen to yourself.”  And there wasn’t anyplace to get any help where I came from, or at least I didn’t know about it, so I really applaud the domestic violence network.  They do great work in educating women and any person that’s been battered; it’s not just women.  It could be a mother of a teenage son that’s ten times bigger than her.  There’re several different kinds of abuse and battery that goes on.  So obviously, I am absolutely for strengthening every domestic violence bill we have; I am absolutely against weakening them.

 

I think Nevada is pretty progressive in this area and, in fact, in my first session I was labeled in the press as being inflexible, and it was on a domestic violence bill, and yes, I am inflexible on it.  They need to stay strong, and I don’t think giving discretion is; the discretion should come in the courtroom when both sides are heard, and then you can decide and filter it out and get these people help.  My abuser was raised in an abused family and it was a nightmare.  They didn’t have any help; it’s a continuum through generations and it has to be stopped.  I would absolutely disagree with weakening any of our bills. 

 

Chairman Anderson:

Thank you for coming out of your committee to come over here on this issue, and I know that you have strong feelings on it.  Questions for Ms. McClain?

 

Myra Sheehan, Esq., Nevada Trial Lawyers Association (NTLA):

[Introduced herself.]  As you know, I always listen very closely to everybody who speaks and I try to weigh what everybody is saying, and as a lawyer, one of the things that we have learned is that you have to have good arguments, and when you have good arguments, you don’t contradict yourself and you support the position that you have.  With the greatest respect to everybody who has testified, and I want to thank everybody who is supportive of domestic violence laws, which everybody who has come up and testified says they are; I think it’s important that we challenge some of the ideas and thoughts that were brought forward to you today.  They said “siblings fighting.”  I heard “construction workers fighting.”  “Let’s get rid of ‘person with whom he is or was actually residing.’”  Well, you’d also have to get rid of “related by blood,” so let’s just get rid of that argument.  It’s fallacious and it doesn’t work.  Siblings fighting is still covered under “related by blood.”  So what we’re really doing is knocking out a whole group of people, or groups of people, when we say take out “persons with whom he is or was actually residing,” so I’m a little confused with their argument there.  As far as construction workers go, I have horror stories, too, because I’ve been an advocate for domestic violence victims, and at one time my practice was exclusively representing women and children in domestic violence situations.  So what finally tilted the scales?  What finally brought you here?  What finally made you say, “I’m going to come forward?” 

 

My horror story is this:  a woman who had been a domestic violence victim couldn’t get out, she couldn’t afford it, she was beaten and beaten for years and years and years and she finally came forward and got a domestic violence protection order.  I said “Why?  Why did that happen?  Why now?” because I want to know what motivates these women to finally come forward.  And she said, Jimmy, who’s 8 years old, took a butcher knife to his father and said, “You touch my mother again, I’ll fucking kill you.”  That’s what made her do it.  I said “Good,” because what we’re doing is teaching our children to be violent.  I saw Johnny and his mother three months later in juvenile court, and I said, “What’s this about?”  And mom had a black eye and Johnny was there because he beat up his mother. 

 

No, I don’t have any patience for construction workers that beat up each other over the TV changer.  Excuse me, that is not a proper way.  Nobody has the right to touch another person when they don’t want to be touched; nobody has the right to commit acts of violence against the other person.  That’s what domestic violence laws are about.  If this woman, who has a horrible story, where she got arrested because she finally did something in protection of herself, used violence, then it was wrong.  Violence is wrong.  That’s what we’re saying today, and that’s what Nevada has said—domestic violence is wrong no matter who acts out. 

 

The thing about the discretion under Section 4, “and/or” certainly does help that as far as saying that the court should have some discretion on either imprisoning or not imprisoning.  If the court wants discretion, then don’t just put “or.”  It’s not one “or” the other—give the court discretion—“and/or” I agree with.  The other thing about the arrest and saying that everybody will go to jail if they’re arrested for domestic violence, that’s true if they are arrested, but they have to be arrested within 24 hours.  If they’re not arrested within 24 hours, they’re not arrested.  Often, many of the batterers are not arrested because they do know the law also, and they can avoid it and they don’t get arrested.  And so prison time or jail time may be important for the court to order and the judge should have the discretion. 

 

On page 6, we talk about increasing the fine to $750.  I’m sorry, I’m a little confused; their argument originally was that this was modeled after the DUI laws, it wasn’t right, it wasn’t consistent, and yet, when we come raise the fee to $750, it’s to be consistent with the DUI laws.  I’m just a little confused with the thinking there.  It seems to me that what we need to do if people cannot afford is to actually reduce the fine because the fine is really just to punish.  So if it’s a $250 fine or if it’s a $100 fine maybe we’re making the same statement.  It seems to me that it should be reduced, but it shouldn’t be “in lieu of,” it should also be “and/or in lieu of a fine,” that the court has discretion if that’s what the court wants, and I trust my judiciary.  I trust it a lot.  In fact, I went before Judge Sage, who I admire a great deal because I represented a woman who was arrested for domestic violence.  I will not go into the whole story, but it was a bad arrest.  She was arrested for domestic violence; the prosecutor said, “I have to prosecute,” and I defended her in front of Judge Sage.  And I will be happy to say that Judge Sage did use his discretion and my client was not convicted of domestic violence. 

 

[Myra Sheehan continued.]  In ending, then, I would say that the judges do have discretion.  They can learn from family law, NRS 125.4808 and NRS 125.500; dealing with child custody, dealing with child support, there’s discretion.  When the court is going to do something different than what the law says, then the court must put in their decision the reason for its denial.  These judges can do the same. 

 

Chairman Anderson:

Questions for Ms. Sheehan?  Thank you for coming forward on this particular issue.  I have several other people who have indicated their opposition to the piece of legislation; I don’t want to cut off anybody’s access that feels strongly that they need to get on the record relative to this question.  I think that we’ve had a fair hearing on it, and I want to make sure that if there’s a piece that you feel would be essential for us to have, this is the time to speak before I move to the other bills. 

 

Amanda Vertner, Vice President, NOW—Southern Nevada Chapter:

[Introduced herself.]  I just want to voice my opinion, because I think that any provision to the bill that would limit what domestic violence is is unfair to the victims of domestic violence who have to undergo that for years and years.  I think that domestic violence offenders need to take responsibility for their actions and we should not limit what we consider domestic violence is. 

 

Joni Kaiser, Executive Director, Committee to Aid Abused Women, Reno:

Mr. Chairman and Assembly Judiciary Committee members, you have my testimony (Exhibit J); I just want A.B. 97 killed. 

 

Chairman Anderson:

I think we’re trying to get that handed out.  You need to come back and identify yourself for the record. 

 

Joni Kaiser:

I apologize, Mr. Chair.  We need to laugh more in this Committee.  [Identified herself.]  I am a constituent of Chairman Anderson’s.

 

Chairman Anderson:

Ms. Kaiser is Chair of the Committee to Aid Abused Women (CAAW). 

Vickie LoSasso, State Cochair, Nevada Women’s Lobby:

[Introduced herself.]  Chairman Anderson and members of the Judiciary Committee, I’m here to speak in opposition to A.B. 97.  My arguments have already been made very well by Ms. Meuschke, Ms. Sheehan, and Assemblywoman McClain, so I’ll just leave it at going on the record with our opposition to this bill.

 

Chairman Anderson:

All of you who have signed in in opposition and checked off your opposition to the bill, that is recorded and will be made part of today’s record.  Anybody else who feels the need to be heard neutral on the bill?  Let me close the hearing on Assembly Bill 97. 

 

How many people do we have on the second bill?  Would you please stand up if you’re intending to speak on the second bill; if we only have a couple of people speaking, we’ll get it out of the way quickly.  This would be A.B. 107. 

 

Assembly Bill 107:  Provides additional penalty for committing certain crimes in violation of temporary or extended order for protection. (BDR 15-285)

 

Ben Graham, Legislative Representative, Nevada District Attorneys’ Association:

[Introduced himself.]  It’s really kind of awesome to sit here this morning when we’re dealing with domestic violence and to bring what is a relatively short bill but, to the point, as the Committee and the Chair have indicated over the last years, we’ve tried to tighten up and tighten up and make the domestic violence cases and charges work better and to solve certain needs.  I’d like to think that we’ve found a reduction from time to time in certain cases of domestic violence, hopefully, because of what we’ve done in tightening it up and getting notice out to people that it’s no longer acceptable to settle matters with their fists or worse.  Especially, as I‘ve told you before, my experience with domestic violence has strictly been as an observer, because it’s just something that’s been totally foreign to any upbringing that many of us have had, but it is a deep and abiding concern. 

 

I have Cheryl Kosewicz, who is a deputy in our office, Clark County District Attorney’s Office here; she’s a deputy, she works in the domestic violence unit and what she is here today to discuss with you briefly is a bill that will potentially enhance penalties, as opposed to lessening situations where domestic violence people are slipping through the cracks with misdemeanors.  And hopefully, by elevating continued violence to a higher level, we would receive some reduction in this; that’s really the background on this. 

 

Cheryl Kosewicz, Deputy District Attorney, Office of the District Attorney, Clark County:

[Introduced herself.]  I’m in the domestic violence unit.  Three things I want to talk with about today concerning this bill from a prosecutor’s perspective are the restraining order process; the purpose of this bill and how it affects the restraining orders; and the cost.  For the process of protective orders, there’s three ways that you can get them.  If they’re in jail, in custody, for domestic violence, you can get an emergency temporary restraining order (TPO) within 48 hours.  The other two more common ways are through the family court system, where you get a domestic violence restraining order; the third way is through justice court, where there’s the harassment/stalking protection order from justice court.  The last two are in effect for 30 days; within those 30 days, you can file for an extended protected order, either through justice court or family court, and receive the one-year extended order. 

 

What this bill is going to focus on are those violations of those protective orders that, if violated, would just be a misdemeanor.  We need to focus on these violators that are the violent ones, the violent offenders.  I think this act is limited to get those violent offenders; it’s to give the victim added protection against these violators, as the reason there’s a protective order against them, initially, is because of their course of conduct.  We have a course of conduct; it is the stalking, the harassment, that type of conduct that when you initially get the restraining order, it doesn’t automatically stop.  That course of conduct continues after the restraining order.  We see in most cases, and this bill will help the victims to fight against that, to help stop these perpetrators from continuing that course of conduct. 

 

So we’re looking at crimes, you know, the home invasions, the coercions, those types of felonies that if they were made in conjunction with a violation of a TPO, instead of being guilty of a misdemeanor, they would have this enhancement.  That’s what we’d be looking at.  As a prosecutorial tool, it’s going to be useful for the mere fact that when you have a violation, right now it’s just a misdemeanor.  Right now, when you have a violation, that’s usually all that’s charged, and it’s all or nothing.  You either charge them with a misdemeanor or it goes away.  With this added enhancement, it’s going to give the prosecutors a tool to enforce these violations instead of the all or nothing.

 

Cost:  hopefully this is going to be a deterrent for the offenders, so we would have less of a cost if they were going to be imprisoned.  However, if they are imprisoned, I think the cost would be worth it to the taxpayers, because it’s going to be the minimum, the minimal few, who are the violent offenders that the victims need to be protected from. 

 

Ben Graham:

Mr. Chair, if I might, whatever questions the Committee might have we certainly would entertain. 

 

Chairman Anderson:

Questions from members of the Committee?  Anybody else wish to testify on A.B. 107? 

 

Abbi Silver, Chief Deputy District Attorney, Clark County: 

[Introduced herself and submitted Exhibit K.]  I am formerly the chief of the Special Victims Unit, Domestic Violence Division of the District Attorney’s Office in Clark County.  I’m speaking for the bill; I actually wrote the bill.  Last year I tried three different domestic violence murder cases.  In two out of three of the murder cases, the women had TPOs against domestic violence when they were murdered.  One of the women was actually telling the [emergency] dispatcher she had a TPO against her husband as she was being stabbed to death, so I decided to write this legislation after hearing that last tape, because all too often, this is what occurs. 

 

We in law enforcement, and many of the advocates, advise victims to seek orders for protection.  These perpetrators go to these hearings and the judge warrants the perpetrator to stay away.  Despite the warnings and the court order TPOs, perpetrators commit new felonies against victims.  When they do this, a violation of TPO is merely a misdemeanor.  Victims, time and time again, ask “Why do I bother getting a TPO?  Why do I take off work?  Why do I do all these things to get these orders for protection and it’s only a misdemeanor?”  Quite frankly, the answer is there’s really no point for any victim to get the TPOs when a new felony crime is committed, because the misdemeanor doesn’t mean anything with the felony crimes, because our Nevada Supreme Court last year said that felonies and misdemeanors cannot be tried together, so they would be severed anyway. 

 

I wrote this because, like firearms legislations, we know that when victims leave a perpetrator it becomes three times more deadly for the victim.  For example, if you commit a robbery, and it’s 2 to 15 years in Nevada State Prison if you use a gun in the commission of that robbery, our Legislature and our laws provide an enhancement to the crime, to add an additional 2 years, consecutive 2- to 15-year punishment.  When a third of all of our homicides are domestic-related, we need to have legislation that reflects a seriousness of the crime, and not just a misdemeanor that is either never filed or never prosecuted.  Like enhancements on firearms and crimes committed against the elderly, we need to send out a message to perpetrators that they better think twice before committing a new felony in violation of a TPO. 

 

I want to highlight one case in particular, although many of these go on, just for illustration.  One case saw State v. Reeter, which has been upheld on appeal; after years of abuse, a victim finally got a TPO during the pending of a divorce.  This defendant snuck up behind the victim while she was getting her toddler out of the car seat at day care, and she was attacked by the defendant; he threw her back into the car.  We had three different 911 tapes from bystanders saying a man had kidnapped this woman.

 

He took her out in the desert; he took her into Arizona, and the whole time he said that he was going to kill her and the baby, and then himself.  I had an aggravated stalking, a kidnapping, a burglary, and a robbery, burglary with a vehicle and robbery of the vehicle as well.  And after a full day of pleading for her life, ultimately, after having about 130 police officers trying to look for her, she was smart enough to tell the perpetrator she loved him and she convinced him that she would take him back.  He finally let her go, and then she called the police.

 

I tried him for all of those crimes and he was convicted, but the bottom line is, he had violated a TPO as well, and that violation was only a misdemeanor.  As I stated, that violation could not even be charged and tried with his other felony counts.  So what’s worse is, he committed four new felonies despite a judge’s warning not to go near her and the toddler.  This bill will make these acts an equal and consecutive sentence, like using a firearm or committing a crime against the elderly. 

 

I do want to also state that “attempted murder” should have been added; for some reason it wasn’t, in Section 1, number 2.  Why that crime was left out, I don’t know, because it talks about a lot of different crimes, like battery with a weapon, et cetera, for enhancement, but it doesn’t say just “attempted murder,” and that should have been added.  I also would have redacted Section 3 where it says, “Except for a violation…” and I would have redacted a, b, c, and d, and subsection 2.  Because if you start giving misdemeanor penalties…I wrote Section 1, but I don’t think that Sections 3 and 4 should apply to this, because what it does is it gives a misdemeanor kind of punishment on what would otherwise be a felony enhancement statute.  So I think that needs to be deleted.  I did delete it from the bill; I don’t know how it was added, but if you give misdemeanor sentencing where there is violence, all that’s going to happen is a defense is going to come in at a trial and put in a lesser misdemeanor included in a felony case.  In conclusion, I think that this enhancement, it doesn’t change anything.  If somebody makes a phone call, or just is following a victim around, that’s still a misdemeanor violation of a TPO. 

 

Chairman Anderson:

Ms. Silver, let me ask, did you have an opportunity to review the legislation…were you the original submitter through the Nevada District Attorneys Association?

 

Abbi Silver:

Yes, I reviewed it and I made corrections on that and it doesn’t appear that those corrections were made.  I just wanted to voice my opinion.

 

Chairman Anderson:

And you noted on page 2, subsection 2, lines 9 and 10, “attempted murder” is included there.

 

Abbi Silver:

The crime of attempted murder is not actually there.  So for example,…

 

Chairman Anderson:

I think it’s kind of…we’ll see.

 

Abbi Silver:

It says, “attempted murder …with substantial bodily harm…” but for example, if [someone] strangles her…

 

Ben Graham:

I’m not sure what happened with regard to the final drafting, but if today she would please e-mail me the noted situations that need correcting, we’ll certainly work closely to see that what needs to be done will get done. 

 

Chairman Anderson:

So we won’t be able to process the bill today, is that the idea?  Questions for Ms. Silver? 

 

Anybody else speaking in opposition in the south?  Is there anybody else that needs to get on record in support of this piece of legislation up here in the north, in Carson?  Anybody speaking in opposition?  Let me close the hearing on A.B. 107.  Although the Chair would have preferred to move with this piece of legislation, it would appear that there are some additional amendments that need to be examined by the Committee before we can do so, and so we’ll be moving the process along.  Hopefully that’ll be into our work session. 

 

Let me indicate to members of the Committee that it’s the Chair’s intention to have a letter (Exhibit L) from Rebecca Thomas with the Committee on Domestic Violence to be entered in the official record of the day.  There’s a letter (Exhibit M), also, to me, as the Chair of Judiciary, from Ms. Berning in the Reno City Attorney’s Office, in opposition to A.B. 97.  Then, let me turn to the larger bill of the day, believe it or not, A.B. 160. 

 

Assembly Bill 160:  Makes various changes to provide protection to certain persons. (BDR 3-160)

 

Assemblywoman Barbara Buckley, Assembly District 8, Clark County:

I’m pleased to be the sponsor of Assembly Bill 160; unlike the first domestic violence bill we heard this morning, this one has merit.  This bill contains three different ideas to help domestic violence victims.  One, it tries to get child support to domestic violence victims quicker.  Second, if a domestic violence victim wants to change their name, it allows them to do that without them being tracked down by their batterer.  And third, it helps domestic violence and sexual assault counselors from being able to give counseling to their victims without these nonprofits being dragged into court; it creates a privilege.

 

Those three different topics will be discussed with you by a couple of folks who are very knowledgeable and have done a lot of research in this area.  Sue Meuschke, with the Nevada Network Against Domestic Violence, will talk about the privilege; Wendy Kameda, in Las Vegas, will talk about the assignment, the enforcement, as well as the other issue regarding publication.  And we’ll try to do that quickly; we had ten people who wanted to speak.  Obviously, that will not be possible, because we will need to leave here within 15-20 minutes.  Fortunately, both Wendy and Sue are not only bright, they are succinct, and so that will serve us well.  So with that, Mr. Chairman…

 

Chairman Anderson:

I apologize, Ms. Buckley, I hadn’t realized that I had lost that much time.  I thought I still had an hour. 

 

Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence:

[Introduced herself.]  Chairman Anderson and members of the Committee, you should have copies of my testimony in front of you (Exhibit N), and last week you received a packet of materials (Exhibit O) on the issue of privilege and advocate.  I am the Executive Director of the Nevada Network Against Domestic Violence, and I’m here today to speak in favor of A.B. 160.  As you are aware, this bill covers three very important areas:  wage assignment; name changes; and extending privilege to cover communications between victims and advocates, and that’s what I will comment on.

 

First, I want to clarify that these provisions cover only those advocates, either paid or volunteer, who work for private nonprofits, and does not include advocates who are employed by either law enforcement or prosecution agencies.  The roles and requirements are different for each type of advocate, hence the need for different levels of confidentiality.  Second, this is not a radical concept; 24 other states currently provide privilege for communication between victims of domestic violence and their advocates, and additional states also provide that privilege for victims of sexual assault and their advocates.  This particular bill covers both kinds of advocates.  They understood how critical it was to protect the confidentiality of these communications.

 

Nevada currently affords testimonial privilege to psychologists, social workers, and marriage and family therapists, all of whom might be very helpful to victims of domestic violence if they have the funds to pay for them.  Victims are often denied access to financial resources by their abusers, and one study showed that 27 percent of battered women had no access to cash, 34 percent had no access to a checking account, and 51 percent had no access to credit cards.  Victims of domestic violence are more likely to seek help and counseling from an advocate of a nonprofit shelter or nonprofit domestic violence program because their services are free.  This being the case, one could conclude the privileges are conditioned on the victim’s economic status or ability to pay, rather than the need to have confidential conversations with advocates; we believe that this is an erroneous conclusion.

 

Finally, each victim of domestic violence has different needs for services and support, but all need confidence that the advocate to whom they turn in a crisis will be able to maintain their confidentiality.  Without such confidence, victims would no longer feel safe in seeking out services.  A recent court case, that information was included in your packet (Exhibit O), reminded us of just how vulnerable we are to being forced to breach confidentiality.  We are asking for your support to maintain the confidentiality of our communications by passing A.B. 160.  I would be happy to answer any questions you might have.

 

Chairman Anderson:

Ms. Buckley, let me first of all apologize personally for taking up a bill that we’ve heard in the past and not hearing your bill first.  If it is your desire, I’ll put together a subcommittee, or I’ll continue the bill over to a second day for additional testimony, if you feel that that would be helpful to make sure that the bill is thoroughly explained. 

Assemblywoman Buckley:

Thank you, Mr. Chairman, I appreciate that; it’s no problem on the timing and maybe we can just see how far we get.  If it would be OK with the Chairman, I’d like to go to Ms. Kameda next.

 

Wendy Kameda, Citizen:

[Introduced herself.]  Until I retired in December 2002, I was a domestic violence attorney for the Clark County Legal Services Program.  My position was funded through a Department of Justice Civil Legal Assistance grant to assist low‑income residents of Clark County whose protection orders are being violated by their abusers.  I’m here today to speak in favor of those provisions of A.B. 160 that would allow a Nevada court to waive the existing publication requirement for a legal name change under certain circumstances, and would require that a wage-assignment be issued at the time child support is ordered in an extended order of protection against domestic violence.

 

In 1999 the Social Security Administration articulated its policy to assist victims of family violence in obtaining new social security numbers, stating, “Sometimes the best way to evade an abuser and reduce the risk of further violence may be to relocate and establish a new identity.”  NRS 41.280 currently requires that an applicant for name change publish his present name and the name which he desires to bear in the future in a newspaper of general circulation in the county, once a week for 3 successive weeks.  For survivors of domestic violence, changing names may be a means of last resort to escape continued abuse or harassment.  Requiring the publication of a victim’s current and future name in the newspaper allows an abuser to track the victim from county to county and state to state.  Therefore, victims are discouraged from using this process and turn to other means, including simply assuming false identities.  One obvious problem with an assumed identity is that a victim who cannot provide proof of identity suffers difficulties or delays in receiving the very federal and state services intended to benefit victims.  This morning you will hear testimony confirming this by a letter from one such survivor and domestic violence advocates.  A.B. 160 would give Nevada judges the discretion to waive the publication requirement upon a showing that such publication would place the applicant’s personal safety at risk.  In enacting this provision and safeguarding the identity of such applicants, Nevada would be acting in a manner consistent with the Social Security Administration and Arizona, California, Colorado, Michigan, New Mexico, New York, and Washington.  I have included with my written testimony (Exhibit P) relevant excerpts from those state statutes.

 

Going on to wage assignments.  In support of child support awards in extended protection orders, NRS 33.030 gives a court the authority to order a non‑custodial parent to pay child support in extended protection orders against domestic violence.  However, some non-custodial parents are using court‑ordered child support payments as economic leverage to continue their harassment and manipulation of a victim.  At present, any method available to victims to enforce a child support award after payment is not forthcoming, such as retaining an attorney or trying themselves to have the non-complying parent held in contempt, or applying for the services of the local child support enforcement agency, entails time, expense, and delay.  This inability to initiate quick enforcement of child support awards undermines the validity of the protection order for the non-complying parent, while subjecting the victim and the victim’s children to untold financial and personal hardship.

 

I understand that A.B. 160 raises a host of concern for both the Child Support Enforcement (CSE) program and various employer groups.  However, these concerns related to the manner in which child support is calculated and the wage assignment is carried out, and not to the underlying issue of whether a wage assignment should issue concurrently with the order for child support.  I have spoken with representatives for both groups; to address their concerns, I propose the amendments to A.B. 160 contained in Exhibit B (Exhibit P) of my written testimony.  However, I believe we are in substantial agreement on the following:

 

• The income assigned for child support should be sent to the State Collection and Disbursement Unit; the Child Support Enforcement program of the [Nevada] State Welfare Division will assist the court administrator in the development of a simple application form that the Clerk of the Court, TPO office, or other entity, can then make available to a victim to quickly open an enforcement file in NOMADS (Nevada Operations of Multi-automated Data Systems).

 

• The income assignment notice form should be consistent with the federal and state income withholding notice; the CSE program again will work closely with the court administrator to develop any appropriate modifications to the form so that it can be made available to victims as well.

 

• Finally, to avoid ambiguity, provisions concerning the calculation of child support and the obligations of the recipient of the notice, most likely the employer, and penalties for non-compliance, should refer to or mirror the relevant existing provisions of the Nevada Revised Statutes.

 

Thank you for your consideration of my testimony and I will be pleased to answer any of your questions.

 

Assemblywoman Buckley:

I don’t have anything more to add.

 

Chairman Anderson:

There’s another witness there at the table in the south. 

 

Caroline Muscari, SAFE (Stopping Abuse in the Family Environment) House, Inc.:

[Identified herself.]

 

Chairman Anderson:

Ms. Muscari, we’ve been called to the Floor, the bell has already rung, so we’re going to take testimony from you and that will probably be the end of it.  Depending on how Ms. Buckley feels, we have additional time.  Please proceed.

 

Caroline Muscari:

[Read from prepared testimony, pages 5-6 of Exhibit P.]  I am a domestic violence victim advocate employed by SAFE House, which is a domestic violence service provider in Henderson [Nevada].  I am before you today to provide testimony regarding the issue of wage assignment for child support at the TPO phase of a victim’s desire to separate herself from an intimate partner who has been perpetrating abuse against her.  On a daily basis, I work with victims of domestic violence who are faced with a myriad of barriers to overcome in their desire to escape the violence and abuse inflicted upon them. 

 

As you well know, one step in this arduous process is to secure a TPO.  This legal tool is designed to assist victims in securing distance and safety from their abusers, the value of which cannot be overstated.  However, for so many married women with children, the issue of the financial responsibility of the perpetrator for his children is not addressed appropriately at this juncture.  Consequently, the inability to secure appropriate and necessary child support becomes a tremendous barrier for women who are making the first, and usually most difficult, step in escaping the violence.

 

For example, in a recent case the perpetrator was ordered to pay my client $350 per month for 3 children.  Over the past 6 months, he has paid the support only 3 times, each time in open court in front of the judge.  Several weeks ago he informed my client that he would simply no longer pay the support.  His refusal to follow the court order leaves her with no support for her children and forces her to again initiate the court process to hold him in contempt of a court order.  As we know, this process can take several months, and meanwhile, she is left destitute.

 

Based on my experience of working with victims of domestic violence and their children, I strongly urge you to consider child support issued in a TPO hearing to be enforceable immediately through wage assignment at the time of TPO issue.  In addition to providing necessary and appropriate support for women attempting to care for their children in safety, it reduces additional and unnecessary steps involved in navigating the system to provide this support.  For so many women, the barriers of ongoing court paperwork and hearings and waiting incurs additional and tremendous burdens for them to overcome just to obtain financial support for their children.  In so many cases our clients—these victims and their children—are penalized via their ongoing navigation of the judicial system and the time they are forced to invest—time away from work, additional day care costs, or securing transportation, just to name a few—to obtain relief and support in their desire to secure safety and stability for themselves and their children. 

 

These additional burdens and barriers to secure child support are unnecessary, particularly when there is a potential mechanism in place—immediate wage assignment at the time of TPO hearing and approval.

 

I urge you to consider the best interest of the lives of victims and their children and make the appropriate decision to ensure that child support is issued at the level of TPO to be enforced immediately through wage assignment.

 

Chairman Anderson:

Let me indicate to everybody what’s going to happen here.  First of all, I’m going to include officially as part of today’s record:

 

• Testimony submitted by Ms. Kameda, Caroline Muscari, Kathleen Katz, and Tamara Utzig (Exhibit P) that includes a letter from Brenda Hamm
• A letter of support from the Committee to Aid Abused Women from Ms. Kaiser (Exhibit Q)
• A statement by Leland Sullivan from the Nevada State Welfare Division (Exhibit R)
• The amendments to change from Kathy Jacobs, Sexual Assault Support Services Program (Exhibit S)
• Written testimony from Mary Terzian at SAFE Nest (Exhibit T)
• A letter from Ms. [Nancy] Hart at the Office of the Attorney General (Exhibit U)
• Written testimony from Kristina Ricker (Exhibit V)
• Written testimony from Estelle Murphy (Exhibit W) 

 

In addition, I have, in hand, the proposed changes by Ms. Silver (Exhibit X).  I am going to appoint a subcommittee to continue the hearing on A.B. 160.  Mr. Conklin will be the Chair, and I ask Mr. Conklin to schedule at least one additional meeting, not less than, to make sure that anybody who didn’t have their testimony submitted may get their testimony submitted.  I will ask Mr. Sherer, also, to serve on this one; he’s serving on another one currently.

 

I appoint Mr. Claborn to be the third member of the subcommittee with Mr. Conklin as Chair.  Mr. Horne, I know, is working on his subcommittee and they’ve got one more meeting to go.  Is there anybody who needs to get something on the record who didn’t have [an opportunity, and] this is their one and only time to be here and they’ve made special arrangements for today and are afraid that they’ll not be here again?  This is an opportunity to come forward at this particular moment.  If you have written information I would ask that you send it up to us up here, or in the e-mail.  We are probably going to have to move our work session from Wednesday to Tuesday, so tomorrow I’m anticipating that we’re going to be doing some things in work session.  Anything else to come before the Committee?  We’re adjourned [at 10:59 a.m.]. 

 

RESPECTFULLY SUBMITTED:

 

 

                                                           

Carrie Lee

Committee Secretary

 

APPROVED BY:

 

 

                                                                                         

Assemblyman Bernie Anderson, Chairman

 

DATE: