MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
March 13, 2003
The Committee on Judiciarywas called to order at 8:13 a.m., on Thursday, March 13, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4406 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
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Ms. Barbara Buckley (excused)
GUEST LEGISLATORS PRESENT:
Assemblyman Tom Collins, District No. 1, Clark County
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Nancy Elder, Committee Secretary
OTHERS PRESENT:
Jane Nichols, Chancellor, University and Community College System of Nevada
Dr. Richard McCorkle, Associate Professor and Chair, Department of Criminal Justice, University of Nevada, Las Vegas
Daryl Riersgard, Manager, Records and Identification Bureau, Nevada Department of Public Safety
Rick Bennett, Director of Government Relations, University of Nevada, Las Vegas
Lt. Stan Olsen, Las Vegas Metropolitan Police Department, representing the Nevada Sheriffs’ and Chiefs’ Association
Gina Session, Senior Deputy Attorney General, Boards and Commissions Division, Office of the Attorney General
Carol Hanna, Director, Private Investigators Licensing Board, Office of the Attorney General
Suzie Carrillo, Supervisor, Records and Identification Services, Nevada Highway Patrol, Nevada Department Public Safety
Dennis Neilander, Chairman, Nevada State Gaming Control Board
Janine Hansen, President, Nevada Eagle Forum, Sparks Nevada
Rose McKinney-James, Legal Representative, Clark County School District
Mark Nichols, Executive Director, National Association of Social Workers, Nevada Chapter, Las Vegas
Julie Slabaugh, Deputy Attorney General, Office of the Attorney General
Allen Lichtenstein, American Civil Liberties Union, Las Vegas, Nevada
Dr. Richard Simmonds, D.V.M., M.S., Director, Laboratory Animal Medicine, University of Nevada, Reno
Chairman Anderson:
[Roll called. The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.] A quorum is present. Please note the sign on the table concerning the legality of misrepresenting facts before the legislative body either here, in chamber, or at any other place relative to pieces of legislation before us.
I am going to start with Assembly Bill 246 this morning; one of the witnesses has a relatively important engagement off somewhere else. Before I begin, however, with the piece of legislation, I have two Committee introductions.
This is a piece of legislation requested through the Judiciary Committee on behalf of the Sheriff’s and Chief’s Association, I believe.
The second is BDR 40-1284.
This is a piece of legislation that I requested based upon the recommendation of a problem that was brought to my attention by the Speaker, and one that we had requested as one of our additional bill drafts.
assemblyman geddes moved for the introductions
of bdr 16-578 and bdr 40-1284.
assemblyman carpenter seconded the motion.
THE MOTION PASSED. (Ms. Buckley, Mr. Conklin, and Ms. Ohrenschall were not present for the vote.)
We will sign both of those so we can try to get to our 100 bills here within the day, which I think we are trying to make.
Let’s turn our attention to the bills, and let me open the hearing on Assembly Bill 246.
Assembly Bill 246: Recognizes establishment of Center for Analysis of Crime Statistics at University of Nevada, Las Vegas, and provides that Center may accept and expend gifts, grants and donations of money. (BDR 34‑367)
Assemblyman John Oceguera, District No. 16, Clark County:
[Identified himself.] I am pleased to appear before you today as a sponsor of Assembly Bill 246 and thank you for this opportunity to introduce this bill.
Assembly Bill 246 establishes a Center for the Analysis of Crime Statistics within the Department of Criminal Justice at the University of Nevada, Las Vegas (UNLV). Currently, Nevada is the only state in the nation that does not have a criminal justice statistical analysis center. Like all other statistical analysis centers, the statistical analysis center that A.B. 246 seeks to establish would serve two main purposes: first, it would act as a clearing house of state and local criminal justice activities and related data; second, it would conduct and publish policy-relevant research on local criminal justice issues.
Once the statistical analysis center has been authorized by state legislation, it is eligible for federal funding to carry out data collection, analysis of criminal justice themes, and topics of significant interest to criminal justice policy and decision-makers like us. Once it is established, they can submit applications for financial assistance and federal funding in order to carry out the data collection and analysis. The availability of federal funding renders the fiscal impact of this bill zero. Assembly Bill 146 of the Seventy-first Legislative Session sought to establish the same statistical analysis center; however, it died in the august body next door because of a fiscal matter.
It did receive, however, a Do Pass by this Committee last session, but, with that being said, for the last two years Nevada has had the dubious distinction of being the only state in the nation without a statistical analysis center. The Center for Analysis of Crime Statistics to be established under A.B. 246 will be run under the direction of the capable hands of Richard McCorkle, Chair of the Department of Criminal Justice at UNLV. Dr. McCorkle most recently conducted the traffic stop data collection study, also known as the racial profiling bill completed in January of this year. Dr. McCorkle is with us today and he is waiting to testify in support of the bill.
Also waiting to testify in support of the bill are representatives from the Criminal History Repository. Though the Criminal History Repository believes in the necessity and purpose of a statistical analysis center, it is unable to accept the responsibility of operating such a center but wishes to expresses its gratitude toward and support of Dr. McCorkle and his department for making it possible for the center to be established and operated without any fiscal impact on local or state entities.
Your favorable consideration of A.B. 246 will cause two positive things to occur. First, it will end Nevada’s standing as the only state in the nation without a statistical analysis center and, more importantly, it will establish what I am confident will be considered a most necessary and relevant research center for this state. Thank you in advance for the consideration of this bill. Any questions concerning A.B. 246, Dr. McCorkle can handle.
Chairman Anderson:
Mr. Oceguera, you know that this is a piece of legislation that we have felt very strongly about in terms of trying to find information that can be useful to the legislative body in terms of both carrying out its oversight function and the reality of some of the legislation that we have passed in terms of just the gross numbers that are often fed to us without any kind of analytical position or statistical abstract being attached, so, clearly, we hope that there is some opportunity to move forward.
Jane Nichols, Chancellor, University and Community College System of Nevada:
[Introduced herself.] Chairman Anderson and members of the Committee, it is a pleasure to be with you this morning on what is a very minor point that I wanted to make for the record. I am very much in support of this bill. We are delighted when these opportunities come along, particularly, to me, [to serve] a need that is quite evident and the state needs to step forward to.
I think everyone understands that the Legislature in the state has to establish this center to be recognized by the federal government and to be eligible for grants. This bill has no fiscal note because this center will be operated on grants and contracts. We do have a suggested amendment to the bill. I think it is acceptable to Assemblyman Oceguera, and we think it is probably more appropriate language. The language that we suggest in Section 1 is that “The Center for the Analysis of Crime Statistics is hereby established with the Department of Criminal Justice at the University of Nevada, Las Vegas.” Now that is a very minor, nitpicking kind of legalese change; it does exactly the same but we always try to be sensitive to the differing world between the Legislature and the Board of Regents.
The Legislature has to establish this center; we are delighted to have it housed at the University of Nevada, Las Vegas in the Department of Criminal Justice, but this language makes a little clearer the roles that the two bodies have in terms of the Legislature and the Board of Regents. You will approve this center, and the Board of Regents will then approve it within the System as an organizational unit. So, we are more comfortable with that language. I don’t think it changes in any way the outcome of this bill.
The second two amendments (Exhibit C) that we would ask for is a bit of housekeeping that appears to have been done by the bill drafter in Section 2, which indicates that the Desert Research Institute and the Ethics Institute were established pursuant to Nevada Revised Statutes (NRS) Chapter 396. We are more comfortable if that change is not made; it was not in the original language. There is no reason to do that and, in fact, they were established. There is language in those sections, but we are comfortable with the language in those sections. This section appears to say that the Legislature established those two entities and, in fact, the Board of Regents has that power, and did do so. So with these very minor provisions, we are very comfortable and appreciate your support on this bill and moving forward in this very important area.
Chairman Anderson:
We are without the bill drafters today; we have them in the dungeons trying to get the bills out currently, so it would appear that your suggestions are cosmetic, as you say, and reaffirms the right of the Board of Regents to do what the Board of Regents has, and we, of course, are somewhat protective of the rights of the Legislature, also. Questions for the Chancellor? Thank you very much. I’ll indicate to the Committee that, Mr. Oceguera, these amendments were discussed with you?
Vice Chairman Oceguera:
That’s correct.
Dr. Richard McCorkle, Associate Professor and Chair, Department of Criminal Justice, University of Nevada, Las Vegas:
[Introduced himself.] I am a university professor and I am going against my grain this morning; I am going to be very brief. I know you have a lot on your plate and I do appreciate the opportunity to come forward this morning and provide testimony in support of A.B. 246, which again would create a statistical analysis center in the state of Nevada.
I don’t have to tell anyone on this Committee that effective criminal justice policy requires current and reliable information about the extent and nature of the crime problem, as well as of the impact of crime, control programs, and strategies. While a tremendous amount of information is routinely collected by agencies and organizations in the state and in local settings, there is relatively little information-sharing among agencies and organizations in the criminal justice system. Consequently, policy makers, not to speak of academic researchers and also the general public, are often not aware that certain kinds of information even exist because it is scattered and fragmented. Accessing the information that is there is also extremely difficult.
[Dr. Richard McCorkle continued.] In an effort to better link crime information that is collected at the local and state level to public policy, the Bureau of Justice Statistics, which is the research component of the National Institute of Justice, provides financial assistance to states to operate these justice information centers, or statistical analysis centers (SAC). Today, as Assemblyman Oceguera stated, SACs operate in all states except Nevada; even many of the U.S. territories operate these centers, but as yet, not the state of Nevada.
The mission is to contribute to sound criminal justice policy through the collection, analysis, and dissemination of information related to crime and justice. And, again, more specifically, they have two roles.
First, they are a clearinghouse for information related to crime and justice date in the state. This generally includes information on:
A host of information is provided by these centers. It is one-stop shopping for criminal justice information.
As a central warehouse, or clearinghouse, for information supplied by the various state and local agencies, a SAC is able to provide a comprehensive picture of crime and justice in a particular state, something that currently the state of Nevada cannot say that it does. To illustrate the role that is a statistical analysis center, this clearinghouse for information, I would like to call your attention to the home page of the Justice Research and Statistics Association (JRSA). JRSA is a non-profit organization comprised of statistical analysis centers across the country. This organization provides a range of services, including technical assistance for states setting up SACs and the coordination of multi-state research. Their Web page also provides easy access to the forty-nine SACs across the country.
[Dr. Richard McCorkle continued.] For instance, I will start here in Maine [demonstrated how to navigate Web page]; it is accessed directly into their Statistical Analysis Center. I can go to Puerto Rico; Puerto Rico has a Statistical Analysis Center. This is the Web site for the Nevada SAC to demonstrate the void, here, for Nevada; currently, no SAC exists for the state of Nevada. So again, we are the only one who does not have one. Let me show you a good example of the kinds of information that is provided by these statistical analysis centers; I will pick California. We get direct access into California’s Statistical Analysis Center.
This is the home page for a statistical analysis center. I picked California; I could have picked any of the states, but the point here is to show you the kinds of information that’s provided. In one place you have information about statistics, key facts, charts related to crime and justice in California at the local and the state levels. There are detailed statistics provided for arrests and court dispositions. Again, about the people who are under supervision under correctional authorities, detailed information is available just with the click of a mouse; information is available for all components of the criminal justice system.
In addition to providing statistics, information, and facts on one site of all components of the criminal justice system, also provided are publications: all the technical reports that are prepared by various components—agencies in the criminal justice system, local and state levels—all the pieces of research that are conducted by research units and research entities. So you have statistics, you have research reports; it is a wealth of information about what is going on in the criminal justice system in a particular state.
In addition to serving as clearinghouses for information about crime and justice in a state, the statistical analysis centers serve a second function. They conduct rigorous research on a variety of topics of concern to policy-makers, criminal justice practitioners, and the general public. They look at factors such as the effect of sentencing reforms on inmate populations. What are the effects of arrests on the incidents of domestic violence? They do program evaluations of rehabilitation programs or drug treatment programs. That money is supplied by the federal government; the state does not have to supply those monies.
[Dr. Richard McCorkle continued.] Statistical analysis centers are created by Executive Order or state legislation, and once they are created, they receive financial assistance from the Bureau of Justice Statistics. State statistical analysis centers are the only entities that are eligible for these funds under the statute. So there are federal funds that are earmarked specifically for SACs – no other entities in the state can gain access to these monies unless they do so through a statistical analysis center. The [Nevada] Bureau of Justice Statistics will provide information to states to develop the justice information system itself, to put the web page together, to help collect and disseminate the information. In addition, each year the Bureau of Justice Statistics provides hundreds of thousands of dollars to states to conduct policy oriented research.
Last year, funds were provided to states to:
I think there is a clear need for a statistical analysis center in Nevada. Now, there are several agencies that do maintain sophisticated data systems that collect and manage crime related information. For example, the [Nevada] Department of Public Safety collects statewide uniform crime report statistics and publishes those annually. These statistics document the incidents and rate of crimes as reported by citizens to law enforcement agencies throughout the state, yet databases are also maintained by the [Nevada] Criminal History Record Repository, the [Nevada] Department of Corrections, [Nevada Department of] Parole and Probation, district court, the juvenile justice system, [Nevada] Bureau of Alcohol and Drug Abuse, and also many agencies at the local level. They do collect and maintain databases.
Lacking adequate resources, the smaller agencies in Nevada generally do a very poor job of collecting and disseminating policy-relevant information. These agencies simply do not have the personnel necessary to systematically collect information from their target populations, to create and maintain their databases, generate reports, et cetera. Moreover, many of these agencies are in the business of treating offenders or providing services to their victims. And staff view, rightly so, data collection report writing as an unnecessary demand on their limited time. What information that is collected typically remains in the non-digitized format, by that I mean it is not entered into a computer database, and is kept in a file cabinet with only summary activity reports periodically generated to their funding source.
[Dr. Richard McCorkle continued.] So there are many instances where excellent information is collected. That information is fragmented and very difficult to access, but by providing a central repository for crime-related data, a statistical analysis center in Nevada would address these kinds of informational deficits. Existing databases operated by state and local agencies would be collected and integrated into shared formats to permit greater accessibility. Procedures would be developed to regularly collect information from the network of smaller, justice-related agencies that don’t maintain databases. In the state, using Web-based techniques that allow staff to directly input information into the database through a Web-based connection. A statistical analysis center in Nevada would also greatly facilitate access to, and dissemination of, crime and justice data.
In compliance with federal and state guidelines, information from the statistical analysis center would be made available through Web-based technologies. There would be immediate access, as we saw in the example of California Statistical Analysis Center, immediate access to tables, graphs, narrative summaries, and reports on a wide range of topics. Authorized portions of the data set would also be available for downloading in spreadsheet format. In addition to Web-based information retrieval, an annual comprehensive report on crime and justice in Nevada would also be published.
As mentioned, in addition to serving as clearinghouses for crime-related information, statistical analysis centers also can take rigorous research. Over the past 30 years, across this nation, there has been an increasing recognition of the need for information and informing criminal justice policy that that policy be informed by empirical research. Based on my experience in Nevada over the past 13 years, I am absolutely convinced that policymakers and administrators are genuinely interested in what works. Unfortunately, agency budgets are stretched so thin that little money is available to conduct evaluations of policies and programs. The federal funds available under the SAC provisions could be used to conduct this kind of research and provide this kind of valuable feedback.
The proposed statistical analysis center would be housed at the University of Nevada, Las Vegas; however, it would utilize the skills and knowledge of faculty from campuses across the state. It is not something that is particular to UNLV. We are encouraged and will encourage, if it is created, researchers—and academicians from across the state to participate across academic disciplines—not just criminal justice and criminology, but economics, psychology, social work, and substance abuse. One of the most attractive aspects of a statistical analysis center, to me professionally, is the link that it provides from the campus to the community to the state. It makes universities more relevant. The technological aspects of creating and operating a statistical analysis center are considerable and that is why I think the placement in a university is appropriate. Those kinds of skills, those kinds of technologies are available there to pull this off.
I want to thank the Committee again for the opportunity to speak in support of the center, and I hope that you would give it your most serious consideration.
Chairman Anderson:
I appreciate the fact that this is your second trip back here to try to convince all of us that this is the right thing to do. We are hopeful that it will indeed come to be. Questions for Dr. McCorkle?
Assemblyman Horne:
I am a former student of Dr. McCorkle’s, so I like the turn of the tables here.
Dr. Richard McCorkle:
Go easy on me!
Chairman Anderson:
You know the worm turns sooner or later. The problem is sometimes the worm turns back, so you have got to be real careful.
Assemblyman Horne:
Real simple, just to capsulize everything you said. When these crime statistics come in, these various agencies, do they report it, like for instance, to the FBI (Federal Bureau of Investigation) database that takes all these crime statistics from the states and they, in turn, give it to the Bureau of Justice Statistics, which in turn give it to UNLV? And, also how timely is this data? Is it updated every year or are we looking at old data?
Dr. Richard McCorkle:
It would depend. Some of the data is collected and disseminated on a quarterly basis; some of the things like the uniform crime report is on an annual basis, and the mechanisms for the transfer of data have yet to be worked out. I would imagine, for instance, with the uniform crime report, we would go directly to the Nevada Department of Public Safety and get parts of those data and have parts of those data being provided on the Web site. We are not interested in taking over the duties and responsibilities of the state in terms of collecting and disseminating UCR (uniform crime report) statistics; that would not change. What we would do is just use the information they already collect to form a part of the puzzle for the entire state of Nevada.
Chairman Anderson:
Any other questions for Dr. McCorkle?
Daryl Riersgard, Manager, Records and Identification Bureau, Department of Public Safety:
[Introduced himself.] I will try to help. We would like to indicate our support of this bill; we’ve had the opportunity to meet with the bill sponsor. We’ve already indicated our cooperation that we will be happy to use our uniform crime report information and share it. I would like to add one other item. I’ve had the opportunity to do statistical analysis when working at the Pentagon and, based on that experience, I can assure the Committee that my staff at the repository does not have the time, the staff, or the expertise, and it therefore makes perfect sense to use the experts here. Presently, we only have one person assigned to the UCR function in the repository. To put that into perspective, the FBI has two people checking the work of my one person on her input, so that gives you some proportion of our ability here. But, for the record, we support this bill and will cooperate fully with this new SAC.
Chairman Anderson:
Mr. Riersgard, will you be sticking around for other pieces of legislation this morning? There are some other areas of the criminal history repository I want to make sure we have on record.
Daryl Riersgard:
Yes, sir, we have expert testimony on A.B. 155 and I will stay for that.
Chairman Anderson:
If you would, please. Questions for Mr. Riersgard?
Rick Bennett, Director of Government Relations, University of Nevada, Las Vegas:
[Introduced himself.] Jim Richardson, who represents the Nevada Faculty Alliance, had asked me to speak on his behalf if he were unable to get here in time, and that is just to offer his support of the bill as well.
Chairman Anderson:
So even though Mr. Bennett represents UNLV, the Nevada Faculty Alliance…
Lt. Stan Olsen, Las Vegas Metropolitan Police Department; and representing the Nevada Sheriffs’ and Chiefs’ Association:
[Identified himself.] Again, this session, we are in support of this legislation. We look forward to working with Dr. McCorkle and the statistical analysis center. Also, Ben Graham could not be here, but he supports it.
Chairman Anderson:
Anybody else wishing to testify in support of A.B. 246? Anybody wish to speak in opposition to A.B. 246? Chair will close the hearing on A.B. 246. This bill is destined to go to another committee. It would probably be in our best interests to move it along if that is the desire of the Committee, just from the perspective of the Chair; this is a major element, I believe, that has been long missing in the state and one of the great frustrations of most of the committees that I have served on.
ASSEMBLYWOMAN ANGLE MOVED TO AMEND AND DO PASS A.B. 246, INCLUDING THE AMENDMENTS LISTED IN EXHIBIT C.
ASSEMBLYMAN GEDDES SECONDED THE MOTION.
THE MOTION CARRIED. (Ms. Buckley was not present for the vote.)
The Chair will take care of the amending and we’ll see how the bill drafters want to take a look at it, and of course I will take care of the amendment on the Floor and then it goes to the other house where we hope it will come out.
Let’s turn our attention then to the next bill of the day, A.B. 155.
Assembly Bill 155: Makes various changes regarding authorizing background checks to ensure compliance with federal law authorizing Federal Bureau of Investigation to exchange records of criminal history with officials of state and local government for purposes of employment and licensing. (BDR 14-430)
Gina Session, Senior Deputy Attorney General, Boards and Commissions Division, Office of the Attorney General:
[Introduced herself.] I am here today with Carol Hanna from the Private Investigators Licensing Board. This bill was proposed by the Office of the Attorney General to address an issue that was affecting a large number of the boards and commissions that we represent. For many years, all boards and commissions that license individuals have relied upon the FBI to provide criminal history records. When licensing individuals, doing a criminal background check with the FBI is an important component of an agency’s duty to protect the public.
Recently, many of the agencies have been notified that their statutes allowing for background checks were not in compliance with the requirements of federal law. Specifically, federal law requires that individual licensees, or applicants, authorize the state agency to do a background check. The state agencies were notified if the statutes were not corrected, that the FBI would no longer provide records of criminal history.
It would be devastating to these agencies if they were no longer to access the FBI’s records of criminal history. The agencies could no longer be certain that they were making licensing decisions with full knowledge of an applicant’s criminal history.
One of the boards that have this problem that I represent is the Private Investigators Licensing Board. The Private Investigators Licensing Board does an extremely thorough background check before licensing private investigators in the state. Its statutes did not specify that an applicant must provide written permission to forward their fingerprints to the FBI for its criminal history report.
Ms. Hanna, who is here with me today, submitted language to the FBI to ensure that the changes that we made in the statutes would remedy the problem with the FBI and that we would then be able to get their records. The FBI has approved the language used in A.B. 155 to cure the defect in our statutes.
We are not aware of any opposition to A.B. 155. Representatives from several agencies are present today who would like to testify, some suggesting some changes, some minor changes in parts of the proposed bill. But A.B. 155, if it passes, will ensure that licensing boards make decisions about applicants only after they have all the information available about that applicant’s criminal history. In this manner, we can ensure that state agencies are taking all necessary precautions to protect the citizens of Nevada. I am here to answer any questions and if you have any questions about any of the specific boards, I have Miss Hanna here who can address the Private Investigators Board.
Chairman Anderson:
Actually, I think that my question is probably more directed toward the Criminal History Repository in nature and what it does.
Assemblyman Carpenter:
I imagine if a person won’t give permission there is probably something wrong in his background.
Gina Session:
Likely there would be something wrong with their background and if they refused to follow our requirements and our statutes, we would have a basis to deny licensure.
Chairman Anderson:
Ms. Hanna, is there a statement that you wanted to get on the record?
Carol Hanna, Director, Private Investigators Licensing Board, Office of the Attorney General:
[Introduced herself.] I just want to say that we do support this bill. Obviously, we need this language submitted so we can continue doing what we do.
Chairman Anderson:
Ms. Hanna, as director of your department, what is the turnaround time between when you put in the question and you get feedback from the FBI or the Criminal History Repository?
Carol Hanna:
We submit the fingerprint cards, and it takes two to three months for a turnaround.
Chairman Anderson:
And, during that time, are they given a temporary license to do investigation or are they left without?
Carol Hanna:
They are not given a temporary license.
Chairman Anderson:
Do they have to resubmit every time they come up for renewal? Do they come up for renewal on a regular basis?
Carol Hanna:
They come up every fiscal year, yes, sir. They just fill out the renewal form and send in the proper monies and send in all the proper paperwork that is required.
Chairman Anderson:
As part of your process, do you charge them for a background check each and every time they renew, and do you do a criminal history recheck on each renewal?
Carol Hanna:
No, we do not. We do the initial criminal history reports for the actual application that they submit before licensure and then they renew once a year, and every year they fill out a form that states they have not committed any criminal acts within the state of Nevada or elsewhere. We are a small board; we have a small industry that we regulate, so we know fairly well what is going on most of the time in the state of Nevada.
Chairman Anderson:
I realize we have a small but growing population. I guess the question is, how do you verify that within the renewal process? Is there some testing process that you go through to resubmit as a percentage to make sure that their statement is, in fact, valid, and that they have not committed, either in this state or another state, an act that would jeopardize their license?
Carol Hanna:
At this time, we do not have anything in our statute that would allow us to fingerprint at each renewal, so we don’t do that.
Chairman Anderson:
How do you check the validity of their renewal statement, or do you?
Carol Hanna:
We do audits frequently.
Chairman Anderson:
Through our Criminal History Repository or through the FBI?
Carol Hanna:
We just do audits on our own. We audit each licensee and we go around and check their offices, we see what they’re doing, we see how they are conducting business, et cetera. If we have a complaint against them, then we would bring them before the Board for a hearing.
Chairman Anderson:
How about the question of whether they are felons or not in another state?
Carol Hanna:
We establish that at the time they make application.
Chairman Anderson:
But there is no recheck?
Carol Hanna:
There is no recheck.
Chairman Anderson:
Questions?
Suzie Carrillo, Supervisor, Records and Identification Services, Nevada Highway Patrol, Department of Public Safety:
[Identified herself.] The Repository is in favor of A.B. 155. We’ve had several agencies express a concern reference the written permission. Initially, when the FBI advised us that we needed to change our language, they gave us some recommended language to use in changing the statutes and the bill drafter used that recommended language throughout all the bills.
Since then, there have been a lot of agencies, such as Las Vegas Metropolitan Police Department and Washoe County Sheriff’s Office, that are electronically transmitting the fingerprint cards. I don’t think it was the intention to have an actual written permission form coming to the repository or to the FBI, but basically kept at the local level. Some of these agencies have expressed concern that they don’t want to create a new form or to keep an extra form. I do have a phone call [in] to the FBI reference [desk] regarding the written permissions to ask if maybe we could strike the “written” and if just advising the individual that the fingerprint cards are going to the FBI for a report might be sufficient; as yet, they have not called me back.
One of the other recommendations was because in NRS 239B.010 there is no ownership to any one state agency. It is kind of like a statute that allows city and county and state workers, if they desire, to have background checks; this allows them to submit fingerprints through this statute. It also allows for agencies to submit for liquor licenses and for things that are in county ordinances requiring a fingerprint background check. If this statute isn’t passed with the additional language (Exhibit D), then this would no longer allow them to submit prints. So this is the only recommendation that we have, to change the language in NRS Chapter 239B, just the additional amendments. And later, if the FBI approves, to strike “written permission” from the other statutes because there has been some concern with the written and, as I said, we are getting a lot of agencies that are electronically transmitting fingerprint cards to the repository, which makes it very difficult for them to transmit a written permission.
Chairman Anderson:
Ms. Carrillo, I am not sure that you were here the day, the very first week of the session, when we heard testimony relative to the audit of the Criminal History Repository, and I believe that you were in the room.
Suzie Carrillo:
I was there, but I did not testify.
Chairman Anderson:
Mr. Riersgard, I believe that you did testify. One of the major elements of the audit indicated this huge backlog of cards that needed to be worked on.
Suzie Carrillo:
That’s correct.
Chairman Anderson:
If we are not working on those cards in some meaningful way, how is it possible that you can do anything that we can expect you to do?
Suzie Carrillo:
I think that was addressed. We did do a federal grant to take care of 40,000 fingerprint cards to be converted into our database, so currently, we have a very minimal amount of fingerprint cards that have not been actually processed. We have them in there by name and we actually have the fingerprint cards.
Chairman Anderson:
Mr. Riersgard, do you think you are making sufficient progress in that area that the changes in these federal statutes are not going to take away the inner relationship, and the chief responsibility, that we in Nevada expect you to carry out?
Daryl Riersgard:
Mr. Chairman, we don’t see this issue as an impediment to our workload; it simply addresses the concern of the Supreme Court in the Menard case way back in 1971, which addressed the appropriate use of criminal history records for employment purposes. The umbrella language (Exhibit E) that is being discussed here today simply cleans up some of those sensitivities. If it is of value to the Committee, I should share that many states are submitting this same, exact language at the same time. This was discussed in detail in the Scottsdale Compact conference two weeks ago, and this really is a housekeeping issue that doesn’t affect our workload.
Back to the question. One of the things we tried to do at the repository, and I have to keep coming back to the issue that we are seriously understaffed. We are underfunded. We are dealing with backlogs. Even though there was some concern in a joint subcommittee, we do prioritize the civil applicant work cards; the ones that are backlogged are on the criminal side, and there may be some debate as to where the priorities should go. We may be damned if we do and damned if we don’t, but we do show sensitivity to this employment issue and try to do our part as quickly as we can.
Chairman Anderson:
Questions for the Criminal History Repository? So you have this additional amendment that you would like to see brought to the Committee if the bill is to move forward and that is to add to the language “who has applied for a license and requires the county or local ordinance,” and then to further amend “to request and receive information from the Federal Bureau of Investigation concerning a person pursuant to subsection 1, the agency of political subdivision, shall require the person to submit a complete set of his fingerprints, written permission…”
Suzie Carrillo:
And, number 3, which says the “The Central Repository of Nevada records of criminal history serves as the state’s sole source of receipts, fingerprints for submission and responses.” That is the added addition that they want.
Chairman Anderson:
I am still mindful of the audit that was done, and as I indicated initially, I am concerned about the Criminal History Repository taking on additional responsibilities when the basic responsibility has not been 100 percent complied with. The former director has been unjustly labeled, in part, because the audit really took place after his leaving there and it reflected what was happening long after. I know that we have given additional responsibility to the Criminal History Repository over time, and I am mindful that I want us to continue to get from it what its role is, and to make sure that you have the funds necessary to do that. If we are going to keep it alive, I think we have to do this; at the same time, I want to make sure that your functionality is not blamed on somebody else and that we catch up. Two months is a long time to wait if they have to do something on an annual basis. Any ideas on how to fix this, other than adding staff?
Daryl Riersgard:
No sir, the solution is quite simple. Money relates to staff, staff relates to workload, and we certainly agree with you that we are also concerned about the responsibility we have in our ability to perform that.
Chairman Anderson:
Any other questions?
Dennis Neilander, Chairman, Nevada State Gaming Control Board:
[Introduced himself.] We appear in front of you today in support of this particular piece of legislation for the same reasons you have already heard; I am not going to go over those again. We have had some impact, because of the decision by the FBI, that this wording has to be contained within the statutes specifically in order for them to release those fingerprint cards. So what you see in the bill is various sections amending the Nevada Gaming Control Act and you see what you would expect to see, the licensing for corporate officers, directors, and others.
But I would also suggest that we take that same language that you see repeated over and over again and also insert it in NRS 463.1405, which is the general provision that discusses the Board and Commissions’ responsibility for investigating applicants. By doing that, I think we would then, almost a “belt and suspenders” approach, be sure that we cover any other sections in the statute that someone may argue were not covered. That would just give us better coverage in that area. With that, we stand ready to answer questions you may have.
Chairman Anderson:
You would like us to pick up the repeated language relative to making cross reference to NRS 463.045 specifically relative to the requirement by a county or local ordinance, or county local officials, and the Central Repository of Nevada’s mission, and the FBI pursuant to, and then cross-reference in there in any kind of amended language to make sure that the Gaming Control Board and its functionalities are included here.
Dennis Neilander:
Yes, Mr. Chairman, that general provision is NRS 463.1405, and we believe that that umbrella provision would provide us better protection and then there wouldn’t be any arguments about whether we would be covered or not.
Chairman Anderson:
I’m sorry. Do you want to give it to me again, Mr. Neilander? Apparently I was at NRS 463.1405?
Dennis Neilander:
That is correct, Mr. Chairman.
Chairman Anderson:
I know my researcher will help me out if I get lost along the way. I have been blessed with researchers.
Dennis Neilander:
Yes, you have, Mr. Chairman.
Chairman Anderson:
Mr. Neilander was my first researcher. Questions?
Ms. Hansen, you had some concerns about the legislation you wanted to raise?
Janine Hansen, President, Nevada Eagle Forum:
[Identified herself.] I am not sure I completely understand the legislation, and I just had one issue I wanted to have clarified so that I would understand it better. On page 8, line 8, it talks about the concealed carry permit, and I know there was considerable discussion when we were first working on providing for concealed carry permits, and by the way, I do have a concealed carry permit. When we were discussing the issue of concealed carry permits, about how the records would be taken care of, there was concern expressed, and initially, there were provided assurances that this information would not be accessible by the FBI.
I am not sure if this just goes one way, that they ask the FBI for a criminal background check, which is necessary in order to get a concealed carry permit, or if the FBI then has access to the information in the state of Nevada as to who has a concealed carry permit. So that is my question because there was considerable concern expressed that if the FBI had access to that information then people, they would essentially have a list of registered gun permitees in the state of Nevada, which people were very much against. So, I don’t know how that works and I just raise that question.
Suzie Carrillo:
I will answer that question. We forward the fingerprint cards to the FBI. The FBI searches the fingerprint cards, and then responds to the agency that submitted the concealed weapon permit fingerprint card. They destroy the fingerprint cards and then it stops there. They do not keep records of the CCW (concealed carry weapon) or who submitted CCW permits; they destroy the fingerprint card. They just respond back to the agency with the [report of a criminal] record or no record.
Chairman Anderson:
Ms. Hansen, does that clear up your question of how this process works in terms of the destruction of the card and therefore no permanent record?
Janine Hansen:
I appreciate that clarification, Mr. Chairman. When I was talking to Stan Olsen, he said that there was some objective in all of this to provide a system that was better for searching these records for states, because they found the FBI system wasn’t adequate, which would allow an interchange of information between the FBI or another state that wanted to do those. As long as we know that the information of those who have concealed carry permits does not go beyond the state of Nevada, that was my concern.
Chairman Anderson:
Ms. Hansen, it has long been my belief, and I, in fact, often find myself at loggerheads with other groups that would like us to do a broader carry law, that we do not create a list that is going to be utilized by some other outside organization of who does and who does not. I have been very, very careful about that particular issue, and as a result, have often failed to get recognition from them when that question comes up, because that is a major issue for some, that if you have a concealed carry weapons permit in one state, you should have it in all, and in order to carry that forward, it would require a national registry and people don’t, sometimes, understand that, so I appreciate that. That is not our intention here.
Chairman Anderson:
Questions from the Committee for Ms. Hansen?
Ms. Chapman has indicated opposition to the bill but not desiring to speak. Is there anybody who is neutral on the piece of legislation? I see Rose McKinney‑James who is in favor, but didn’t say she wanted to speak, so apparently she does now want to speak
Rose McKinney-James, Legal Representative, Clark County School District:
[Introduced herself.] I am here this morning in support of the bill. The board of trustees, as you might imagine, has a strong interest in ensuring that background checks related to teacher licensure and employment decisions are conducted in an adequate and thorough way and we like to be consistent with the federal provisions. So, consistent with that we are offering our support this morning.
Chairman Anderson:
Are they going to continue to charge the renewal fee to include a license fingerprint charge each time a renewal comes up?
Rose McKinney-James:
I’m not familiar with the fee schedule for licensure. I would imagine that it would be consistent. As you know, the district faces substantial fiscal constraints and to the extent that we are required to do so, I am sure we will continue to.
Chairman Anderson:
Actually, I don’t think the district [receives the money directly]; I think it goes to the [Nevada] State Department of Education, having just renewed my license again for the seventh time and having to pay for the fingerprint card yet again, I thought, “Gee, this is getting a little ridiculous, because licensing is getting a little more expensive to do each and every time.” So, teachers are a little surprised when other groups don’t get charged for that and we do. Of course, we only have to do it every seven years now.
Mark Nichols, Executive Director, National Association of Social Workers, Nevada Chapter:
[Introduced himself.] I just wanted to speak in support of A.B. 155. I have had conversations with a number of the social workers who would be impacted, as I understand, by this law. The social work board had intended to amend our licensure law to include fingerprinting, and as I understand, it was rolled into this bill, as opposed to a separate bill for the Board Examiners for Social Workers. In my conversations with social workers, they are supportive of this bill and their fingerprinting due to the relationship that they have with their clients.
Chairman Anderson:
Are your concerns, then, addressed in the bill, or not?
Mark Nichols:
Yes, I agree that they are.
Chairman Anderson:
Anybody else wishing to testify relative to A.B. 155 that I have not had an opportunity to call forward? In opposition to A.B. 155? Let me close the hearing on A.B. 155.
I would like to call the Committee’s attention to the handouts, particularly the one headed at the top “A.B. 155 Comments/New Additions” (Exhibit D), which deals with the history of the bill and then on page 9 of what it says is 42, it gives the potential amendments as required by county or local ordinance or county or local officials. Then on what they call page 10 of 42, the new amended language would include the requested information from the Federal Bureau of Investigation in addition to the concept of the bill drafter to include a reference to NRS 463.1405. Those, I believe, are the only amendments that I heard.
ASSEMBLYWOMAN OHRENSCHALL MOVED TO AMEND AND DO PASS A.B. 155 WITH AMENDMENTS AS LISTED IN EXHIBIT D.
ASSEMBLYMAN GUSTAVSON SECONDED THE MOTION.
THE MOTION CARRIED. (Ms. Buckley, Mr. Carpenter, and Mr. Claborn were not present for the vote.)
The Chair will assign the bill to Mr. Conklin to defend on the Floor. I will do the amendments, or maybe we will let Mr. Oceguera do the amendments.
Let’s then turn our attention to A.B. 188, from the Office of the Attorney General, Prisoner Litigation Division.
Assembly Bill 188: Makes various changes pertaining to litigation involving prisoners. (BDR 2-431)
Julie Slabaugh, Deputy Attorney General, Office of the Attorney General:
[Introduced herself and submitted written testimony, Exhibit F.] I am in the Litigation Division and I represent the Nevada Department of Corrections (NDOC). Assembly Bill 188 seeks to amend the in forma pauperis statutes in the state of Nevada as it applies to inmates in the state. This mirrors the procedures that are already followed in federal courts that have been in place since 1996, since the Prison Litigation Reform Act (PLRA) passed into federal law. This bill would require [inmates] to make payments on the filing fee for filing civil law suits in state courts, just as they are now required to pay in federal courts. The only difference between inmates paying and law-abiding citizens paying is the inmates would be allowed to make the payments, rather than paying the full filing fee up front.
Since the enactment of the PLRA in federal law, we have seen a reduction in the number of inmate lawsuits filed in federal courts and a corresponding increase in filings in state court. In 1995, in our office, we opened 225 new federal inmate civil law suits. In 2002, we had only 72 federal lawsuits filed by inmates. In contrast, in 1995, in state court, we had 26 lawsuits filed by inmates and in 2002, we were up to 40. What we are seeing is inmates have figured out that it is still free in state courts to file a lawsuit, but they have to pay $150 in federal court, so they are filing virtually the identical complaint in state court. They are even using the federal complaint form; they are simply crossing out United States District Court and writing in the name of the state court.
[Julie Slabaugh continued.] The procedures that would be followed are already in place in the Nevada Department of Corrections because they are already doing this in federal courts. What would happen is the inmate would submit a request for a financial certificate to Inmate Services, which is the division that handles the inmate accounts; every inmate in the Nevada Department of Corrections has an inmate account. The financial certificate is filled out by prison officials with the average monthly balances and deposits for the last six months in the inmate’s account; that is returned to the inmate and submitted by the inmate with his complaint to the state court. The state court judge then reviews it and determines how much the payment towards the filing fee would be for the inmate to file the lawsuit, and that would be 20 percent of the average balances for the last six months. The court then instructs the Nevada Department of Corrections to make monthly deductions from the inmate’s account, based on the average balances of the previous month. If an inmate does not have any money in his account, or has a negative balance, he would not be precluded from filing the lawsuit; he would simply, once he receives funds in his account, begin making payments towards the filing fee.
What we seek to achieve with A.B. 188 is to make the inmates make the same economic decision that any other citizen of this state would have to make when determining whether or not to file a lawsuit. Right now there is absolutely no disincentive for inmates to file lawsuits in state court. Assembly Bill 188 is not intended, and we do not believe it will curtail, inmates from filing lawsuits if they believe they actually have a meritorious complaint or their rights have been violated. This is aimed at the so-called “recreational” litigants, and I have a few examples of cases we currently have.
We currently have a case where an inmate sued after a torn and tattered copy of the USA Today newspaper was confiscated from his cell as trash. He claimed apparently it had a front-page picture of Mark McGuire’s swing that broke the homerun record. He sued Nevada Department of Corrections for $2.5 billion. We have another inmate who sued because he was disciplined and lost his job in the culinary because he was caught stealing food. We have another inmate who sued because he did not receive coffee with his breakfast.
[Julie Slabaugh continued.] In one case, we are finding that inmates are actually trying to band together, actively seeking to abuse the system. We have one case where prison officials, during a cell search, found a letter in an inmate’s cell addressed to other inmates in his unit that stated, “I want all of us to work together and try to tie this system in knots by using the legal system and the administrative grievance process.” The letter was confiscated and the inmate has since filed a lawsuit over the confiscation of his letter. That same inmate has filed nine lawsuits since 1998. In one of his cases, there have been 270 court filings. In another one of his cases in state court, there have been approximately 150 court filings. In his latest lawsuit, this inmate has sued prison officials, claiming he was injured moving his 400 pounds of legal materials.
We have other inmates who are very prolific. We have an inmate who has been in since 1992; he has filed 49 lawsuits. We have another who has been in since 1986; he has filed 98 lawsuits in the state of Nevada. We are also tracking cases that he has filed all over the country, California, West Virginia, other federal courts. I believe he is well over 100, close to about 150, lawsuits.
As you can imagine, the inmate litigation creates quite a drain on the resources of the Nevada Department of Corrections. In speaking with officials from the Department of Corrections, the staff member who assists the Director in responding to inmate litigation estimates they spend about 10 hours a week. The Assistant Director of Operations, Glen Whorton, estimates he spends 10 percent of his total time solely on inmate litigation. The associate wardens of programs in operations out of the Ely State Prison estimate they spend 5 to 10 hours per week on inmate litigation. The secretary to the warden of Ely State Prison has told me that there is no day that she does not spend some time on inmate litigation. Some days it is 75 percent of her time; other days it is 10 percent.
Then we have the officers who are required to attend court hearings, respond to discovery, attend trials—this obviously takes them out of the institution. Many times, they incur overtime if it is not on their shift to attend these court hearings, or they have to bring in an officer to cover the post in the institution, which incurs overtime as well. In addition, NDOC is required to pay for the legal materials such as pencils, pens, copying, postage, et cetera, for indigent inmates, so there is cost there. Remember, 270 court filings and the inmate has to copy all of those documents to send to the court and to our office. All of this creates the incredible drain on NDOC resources, which, I am sure you have heard, are already stretched to the limit.
[Julie Slabaugh continued.] Finally, Section 3 of A.B. 188 deals with emotional and mental distress claims; that [section] also mirrors federal law. Under that section, an inmate would not be able to bring an action solely for mental or emotional distress without first showing a physical injury or impact. This puts an inmate on equal footing with Nevada citizens. In the state of Nevada, in order to bring an intentional infliction of emotional distress claim, there must be some physical injury or impact. An inmate is able to circumvent that requirement by making the claim under the cruel and unusual punishment clause of the Eighth Amendment [of the United States Constitution]. We are simply seeking to close that loophole. With that, I will take any questions.
Chairman Anderson:
Ms. Slabaugh, I believe that the Office of the Attorney General has attempted this particular piece of legislation in the past.
Julie Slabaugh:
Yes.
Chairman Anderson:
The prison is not where you necessarily get to have a cup of coffee when you want it. The question that comes forward is, is there a mechanism in place, through some sort of a grievance process, where legitimate grievances will be handled because there is not a great deal of money in the prison system? We have heard that there are drugs and other contraband in the prison systems, but money is not something that is there. So, how are they going to come up with this wherewithal, unless they have outside support?
Julie Slabaugh:
You mean for the inmates to pay for the lawsuits? [Chairman Anderson confirmed his intent.] Actually, surprisingly enough, many inmates do have money in their inmate accounts. Some inmates will be able to pay the filing fee up front, some will be able to pay as much as $20 or $30 towards it monthly. Inmates work in the prison system, there are jobs in every institution; there are also prison industries. Inmates also get support from their families and friends sending in money to them and, again, we want them to make the same economic decision that anyone out on the street would have to make in determining whether or not to pursue a lawsuit. But there are, actually, funds available to the inmates.
Chairman Anderson:
How about the grievance process? How is that done?
Julie Slabaugh:
The Nevada Department of Corrections does have a grievance procedure set forth in their administrative regulations, Administrative Regulation 740, and it actually goes through multiple levels. It starts in the unit, where they try to resolve these things informally, then it goes to the grievance coordinator, who is usually an associate warden, and then on to whatever section of the prison that the grievance refers to. For instance, if it were a medical issue, it would go on to a medical administrator; if it were a classification issue, it would go on to the classification division. There is actually a provision, for if, for example, property is damaged or they are claiming some sort of a monetary loss; it is built into the grievance procedure that there is the possibility for a monetary award as well.
Assemblyman Horne:
What is the average balance of an inmate’s account? You were talking about the extremes. What is the average?
Julie Slabaugh:
I could get that information for you. It would be a complete guess. We have over 10,000 inmates and I honestly don’t know, but I could get that information for you.
Assemblyman Horne:
In the examples that you gave, a lot of us have heard the examples of the extremes of the frivolous lawsuits out of prison, but the examples you give, are they the exception or the rule?
Julie Slabaugh:
Actually, they are closer to the rule; we run the gamut. A lot of our cases deal, for example, with excessive use of force, and if you read the face of the complaint, it sounds like the actions of the prison officials were very bad. But I have had cases where an inmate claimed he was beaten up and shocked, et cetera, with excessive use of force, and the entire thing was videotaped, and not one word of his complaint is true. So while it may take some digging to find that they are truly frivolous, these are actually more of the rule than an exception.
Assemblyman Horne:
On your argument for intentional infliction of emotional distress a prisoner is incarcerated and he may be subjected to this, he can’t get away from his abuser, so to speak, if it is a genuine claim. Isn’t that why that loophole may exist?
Julie Slabaugh:
I don’t necessarily think that would be why it exists. They have simply found a way to allege it under the Eighth Amendment that takes it outside the complaint. Typically, there is a procedure within the Department of Corrections if an inmate has a complaint against a particular officer. He files the grievance and goes through the grievance procedure, and an investigation is done. If it is deemed to have merit, the officer could be disciplined, or the inmate could be transferred to another institution, to another unit, et cetera, to get him away from that while the investigation is being conducted. They do that for the safety of the inmate, and also for the safety of the officers.
For example, when we are dealing with the emotional distress claims we get, most inmates don’t have any damages. Their food is provided for, they don’t have any economic loss, they don’t have any lost wages, they don’t have a physical injury, and so what can they show? [Their argument is] “Well, I was emotionally distressed.” That is their way of trying to show that they were damaged. For example, back to my inmate who moved 400 lbs., he sent out a letter to a deliberately false address intending it to come back to prison officials, so it was then opened and read, and it was a very abusive letter directed towards officers threatening violence to them and their families, and he was disciplined for that. He filed a lawsuit saying his letter was censored, that they should have given it back to him, and that this caused him emotional distress. Those are the type of claims that we are looking at.
Assemblyman Gustavson:
I was wondering how many of these lawsuits, I know we are talking about frivolous lawsuits, which I am sure many of them are, but how many of these lawsuits actually have been proven to be legitimate? Inmates have really won these lawsuits? Or percentage-wise, maybe a number?
Julie Slabaugh:
I can’t give you an exact percentage. I can say in our office, probably close to 90 percent of them, we win on either motions to dismiss or motions for summary judgment, so not very many of them. If we do end up going to trial, I have been in the litigation division for three years and, I’m not saying it hasn’t happened, I am sure it has, but I am not aware of losing an inmate to trial since I have been there. So, not very many of them.
Assemblyman Brown:
I just want to state that I was a law clerk and saw these kinds of lawsuits come through all the time, and I don’t think I saw one that had any legs on it, so I am in full support of the bill; I think it strikes a good balance, and it is kind of a sad waste of taxpayer money to see the kind of abuses that go on.
Julie Slabaugh:
If I may, I am sorry, I misspoke. Mr. Gustavson, I am aware of one that went to trial where we got a minor award against one officer, I am sorry.
Assemblyman Mortenson:
If anyone intentionally files a lawsuit knowing that it is incorrect and false, prisoner or citizen, aren’t they breaking some kind of law and are they not liable for this?
Julie Slabaugh:
Yes, there is Rule 11 for attorney’s signing, and inmates, when they sign under penalty of perjury. Under Nevada Rules of Civil Procedure, [Rule] 11 does provide for sanctions if it is without basis in the law. There is also a statute in Nevada, and the exact number escapes me right now, where an inmate can be sanctioned for filing a frivolous lawsuit, whether it is habeas corpus, civil, et cetera. What happens is they lose what is called “good time credit” toward their sentence, so they would end up spending a longer time in prison. The problem is, our most prolific litigators and the inmates that we see over and over again, their sentence structures are such where good time credits won’t affect them; they are generally life without [the possibility of parole], or life with [the possibility of parole], where they may accumulate credits but they can’t take it off their life sentence; or they have 10 consecutive 20-year sentences, so it is not going to be a deterrence factor to them whatsoever.
Assemblyman Mortenson:
Maybe your deterrence is not the right one; maybe it should be removing money, or fining them out of their accounts, which would, then, minimize their ability to file these suits.
Julie Slabaugh:
And that has happened in the past. We have had inmates who have been fined, but, again, we do have inmates who, if they know they have fines or charges, simply will not have their family members send any money to their account, so there is nothing to take. It just goes against a charge on their account and we may never see any of it.
Chairman Anderson:
Mr. Lichtenstein, you are the only other person who signed in on this particular piece of legislation and you are in opposition and want to raise some concerns about it on behalf of the ACLU?
Allen Lichtenstein, American Civil Liberties Union of Nevada (ACLU):
[Introduced himself.] We are aware of the problems of frivolous lawsuits and don’t want to diminish that particular concern, but we also have some other concerns about making it very difficult or impossible for inmates who have legitimate concerns and legitimate cases to file them. One of the things that concerns me most, which is not even written in the bill but was in the comments I just heard, was a suggestion that somehow or other this could limit claims based on the Eighth Amendment. With all due respect to the Committee, I am not sure that the Nevada Legislature really has the jurisdiction to determine whether someone can bring a suit under the Eighth Amendment because, obviously, the supremacy clause precludes that. But I thought we were talking about claims under the tort of intentional, or even negligent, infliction of emotional distress.
If you look at the language of Section 3, which is on page 4 of the bill, it doesn’t preclude mental or emotional distress claims, only from situations where that is the only claim being made. It says clearly in Section 1, line 20, “A prisoner may not bring a civil suit for mental or emotional injury.” It doesn’t say “solely.” That in itself is actually going to cost more money because it says that you first have to have a showing of physical injury until you can even bring a claim for mental or emotional distress. The language, as written, requires two lawsuits. It requires one that will establish physical harm, and only then can someone bring a second lawsuit for the emotional distress.
In reality, the way most lawsuits are filed, you have a number of claims. You have one for physical harm, emotional distress, or whatever. Here, the way this language is written, that would not happen. You’d first have to have a showing of physical distress and I guess it would have to be an adjudicated hearing, a lawsuit, and only then could you file a second lawsuit that wastes resources.
It also does not limit the situation to inmates in a suit that would be filed after the person is released. But still, apparently, or arguably, [it would] be pre-concluded because it is dealing with something that happens while in custody, even something that happens while someone is in custody that has nothing to do with their incarceration. For example, someone who is in jail for failing to pay for a traffic ticket who, in a totally unrelated fashion, is libeled, or has their privacy invaded, would be precluded from filing a component of that for emotional distress simply because it occurred while they were in custody. Clearly, that was not intended, but the language in Section 3 here does do that.
One of the other concerns that we do have in terms of the financial aspect of this is, what happens when someone is released? If they still owe money, are they going to have to pay after they get out? The concern here is that part of the problem with recidivism is people leave jail with no money, no prospects, and their only temptation is to go back and commit a crime, so for people who are saving their money so they will have something to use when they are released, this could have a negative impact on that. Again, we are cognizant of the problem of frivolous lawsuits, but by violating the Constitution, by trying to amend the Eighth Amendment, or by limiting people’s rights to file multiple claims in a single lawsuit, that does not really solve that particular problem. It may make it a little bit easier for the prison system to defend certain lawsuits because certain claims will be precluded, but it does not really go to the purpose of what this bill is supposed to be about.
Chairman Anderson:
So, let me understand, Mr. Lichtenstein, you hypothesize that it could possibly endanger, maybe if the Eighth Amendment rights would be lost for the parolee, or in misdemeanor events, even at that level, and your basis is that going to court, or having to pay a fine, would be a traumatic event?
Allen Lichtenstein:
No, that is not what I am saying at all. What I am saying is, number one, is that the rights under the Eighth Amendment are separate rights in and of themselves. The Eighth Amendment says you cannot be subject to cruel and unusual punishment. Anyone who is subject to that has a right under the Eighth Amendment, without claiming emotional distress or otherwise. They don’t have to prove emotional distress; they have to prove cruel and unusual punishment. The suggestion that was made, that is not even written in here, that somehow or other this will curtail a lawsuit under the Eighth Amendment, is very troubling because, frankly, Nevada does not have the ability to amend the United States Constitution any more than you or I would as individuals. So that is one particular concern.
Chairman Anderson:
Thank you, sir, I understand. Questions for Mr. Lichtenstein? You made the reference, Mr. Lichtenstein, to a traffic stop. How you were using this as an example of overreach to a misdemeanor event?
Allen Lichtenstein:
What I was saying was, and I guess I misspoke, if someone could be incarcerated for not paying traffic tickets—it happens all the time in Clark County—they are there for a few days, they go to see a judge or whatever, if they are there incarcerated at that time and a totally different event such as a defalcation or something like that would take place. This bill doesn’t say that the preclusion of filing the lawsuit on emotional distress has to do with events that took place in prison, or incarceration, or in connection with the incarceration. It says “…any claim for emotional distress at the time they are incarcerated.”
Chairman Anderson:
Questions for the witness?
Anybody else wishing to give testimony on A.B. 188? Let me close the hearing on Assembly Bill 188. The Chair is going to bring it back to do a little bit of additional investigation of some of the issues that Mr. Lichtenstein has raised to see if we need to do additional work on the bill. In addition, I want to make sure that it is reviewed by a couple of members of the Committee who are not here. We’ll hang on to A.B. 188.
Let’s move on then to the last bill of the day. I will open the Committee hearing on Assembly Bill 191, Assemblyman Tom Collins’ bill.
Assembly Bill 191: Provides for enhanced penalty for burglary of research facility. (BDR 15-1081)
Assemblyman Tom Collins, District No. 1, Clark County:
[Introduced himself.] I have, and it’s already being passed out, a friendly proposed amendment (Exhibit G) that we will discuss more later. I appreciate your taking the opportunity to hear this legislation. Assembly Bill 191 concerns the protection of our public and private funds invested in Nevada’s research centers, institutes, and facilities. Assembly Bill 191 seeks to amend the Nevada Revised Statutes to specifically include the term “research facility.” Within the extensive list of dwellings, units, and buildings that are protected against burglary, Assembly Bill 191 also provides for an enhanced penalty for the commission of a burglary against a research facility.
At least 13 other states have passed similar legislation; some of those states have incorporated protections for research facilities in two existing penal provisions, while others have enacted separate provisions protecting these research facilities. This bill incorporates protections for the research facilities in Nevada’s burglary statute.
Each year, the North American Animal Liberation Front, or ALF, and the Earth Liberation Front, or ELF, commit numerous illegal actions or attacks against research centers, institutes, and facilities throughout North America. In 2001 alone, 93 percent of ALF’s actions occurred in 24 different states, the District of Columbia, three Canadian provinces, and in cyberspace. At least 19 actions caused more than $100,000 in damages individually, as well as six illegal direct actions that caused more than $1 million in damages per event. The most notable action was taken in 2001 against genetic engineering, directed at the University of Washington Center for Urban Horticulture; the center was set on fire and burned to the ground. The ELF took credit for the arson, and the fire destroyed offices and research facilities in the center’s library. It was the most costly attack on the University of Washington facilities since the Vietnam War protest era; damage estimates exceeded $5 million.
Though there were no actions by the ALF or ELF directorate against Nevada research centers institutes or facilities in 2001, a strong deterrent against such action is necessary to continue the preservation and protection of such facilities. The University of Nevada, Reno, alone operates 31 different research centers, institutes, and facilities. Assembly Bill 191 makes burglary against a research facility a Category B felony. A Category B felony is punishable by imprisonment in the state for a minimum of not less than 2 years and maximum of not more than 15 years, and the fine not to exceed $10,000.
This enhanced penalty will provide a fitting punishment against such heinous crimes. The potential losses, financial and otherwise, our state could experience if one of its centers, institutes, or facilities were attacked, would surely be devastating. I am suggesting we act now, proactively, rather than later in reaction to a destructive event. I thank you for your time.
Chairman Anderson:
Let me help you here. According to my note, Assemblyman Collins, currently a Category B is a 1- to 10-year [sentence] for the $10,000 and the enhancement will take it to a 2- to 15-[year sentence] with the same fine.
Assemblyman Collins:
In closing my portion of the testimony, I first would like to just hold up this large document that is a North American Animal Liberation Front press office 2001 year-end direct Action Report (Exhibit H). This was a dedication to this criminal element group, a dedication to someone who died in prison by starving to death because he wanted to be released, because he wanted to go do more of these crimes.
Finally, having served on Judiciary four times, I know that it is a good thing to make the penalties in Nevada stiff enough that our prosecuting agencies will prosecute crimes, and to deter those who commit those crimes in other states from coming through us if we have a lower penalty. Several states surrounding us have already passed this, including Utah, Illinois, Idaho, and Washington. So it would be good to be proactive and pass this and I would like to let the latest data be presented to you by our expert here.
Richard Simmonds, D.V.M., M.S., Director, Laboratory Animal Medicine, University of Nevada, Reno:
[Introduced himself.] I am a veterinarian and I am the Director of Laboratory Animal Medicine for the University and Community College system of Nevada. I am here today representing not only myself, but with the Chancellor’s authority, to represent the University.
As you are aware, collectively, the components of the university system are probably the largest, or likely the largest, research enterprise in the state. We have both economic impact through the funds, extramural grant funds brought into the state, as well as educational impacts in regard to our research programs, not only within the university and community college system, but also within the pre-college educational system because the dollars we bring in through the research programs help us with our K—12 outreach programs.
I would like to make a couple of significant points in our favor, or urgent favorable consideration, of this bill. Over the last couple of decades, we have seen an increasingly violent series of attacks, as Assemblyman Collins has amply demonstrated. Even before September 11, 2001, the Federal Bureau of Investigation has declared that the Animal Liberation Front and Earth Liberation Fronts are domestic terrorist organizations. Attachment 1 to my printed material that you received (Exhibit I) is testimony from FBI agent James Jarboe, and it indicates that this is, in fact, the case, that the FBI has declared these two groups as terrorist organizations.
Attachment 2 is an Association of State Universities and Land Grant Colleges report that documents the attacks on colleges and land grand institutions. I gave a presentation one time in Las Vegas to a group of research administrators. A gentleman from one of the Texas universities came to me afterwards, thanked me for my presentation, and said his institution did not have a problem. Two weeks later, the Animal Liberation Front burned down two of their buildings. I called him three weeks later and asked him if he still thought he didn’t have a problem. But this is a real problem for not only colleges and universities, but for other research institutions, and as we try to broaden the base of business in Nevada, we are trying to attract outside institutions of research, like biotechnology, and so I think it is really incumbent upon us to take proactive action that is necessary to make people feel comfortable that incidents will be prosecuted.
I am the first to admit that it is unlikely that passing this bill is going to deter an ALF or an ELF activist, or radical or terrorist, if you will. But I think it will do two things. It will deter the misguided animal rights or ecology activist, who thinks breaking into a research facility, releasing research animals or trashing a laboratory, is nothing more serious than a prank or spreading graffiti. And two, I think it raises the legal bar sufficiently to encourage and support law enforcement and judicial authorities and efforts to prosecute offenders. Perhaps with the provisions of A.B. 191 enacting a law, we could achieve sufficient deterrence to prevent an incident, such as those documented in Attachment 3, from occurring in Nevada. I thank you, again, for being able to make this presentation and stand ready to answer any questions you may have.
Assemblyman Geddes:
I have to say, I am fully in support of this legislation, and I think it will help out greatly with the biological labs that we have on the campuses and in the state. I do have a little bit of a question in regards to subsection b, number 1 and 2 on page 2, and I understand the intent of this bill and what we are trying to achieve, but I am just not entirely sure that intent to obtain a record or result or proprietary information is of great concern. While I am quite concerned about anybody having access to the animals or the biological agents that could be in that area, or the chemical agents, I am not sure the bill needs to protect, basically, someone’s corporate issues or the data itself. I am not sure that is a proprietary thing that needs to be in there. If it does need to be in there, and I would like Dr. Simmonds to explain why that is, I am still fine with this legislation.
Dr. Richard Simmonds:
I think if you look at the example in Attachment 2 of the Ohio State University professor, and also, I think, in one of the cases in Washington, the loss of data essentially drove a professor from Oregon State University out of the business and also has certainly caused significant setbacks to major research projects. We would therefore certainly support keeping it in there; at the same time, I would not kill the bill if that is your real concern.
Assemblyman Brown:
Assemblyman Collins, I appreciate your bringing this bill; as you know, I signed on to it. Unlike you, who have had four sessions on the Judiciary, this is my first session. One thing that I am learning very rapidly is that there seem to be a lot of penalty enhancement bills that come through. There is a part of me that says burglary is burglary, and wherever it happens I certainly think we need to penalize the folks that are doing these things. The question that I have is, are you aware of how these are being handled in other states?
Before you answer that, let me just tell you, I would think that numerous charges could be made against an individual who commits this type of crime. If there is arson, you are probably going to get a burglary and an arson [charge], you might even be able to pull in issues of aiding and abetting and conspiracy and things like that. Are they hitting them with numerous counts on which the court would be able to give consecutive penalties that would stiffen this without enhancing?
Assemblyman Collins:
I can tell you that there were, in the year 2001, 5 actions in Arizona, 10 in California, 5 in Idaho, 14 in Oregon, 2 in Utah and 7 in Washington. Being familiar with serving so many times, and watching how prosecutors do both in the AG’s office and the District Attorney’s office, yes they are going to pile them on, because that way they can reduce them to plea bargain and do the other things that they do in order to keep their courts unclogged. However, my opinion would be that [because] many times these are organized and planned in advance and purposefully done, the penalty needs to be severe and we need to at least be as extreme as the other states or they are going to come here and do it anyway, more so. That is partially an opinion and partially an answer.
Chairman Anderson:
My question arises from the same general area. It seems to me that in the first part of the bill where we are just adding “research facilities,” we are really only just adding another name to the long list of physical properties that we can conceivably break into. I mean, it seems to me in a way, the research facility is a warehouse or a shop, a stable, or an outhouse of some sort, or other building—outhouse being away from the main house—that is what an outhouse is. The question in the next part is relative to burglary. Usually we think of the theft of something, or destruction. Why are we going to be moving, if there is vandalism that is done, we would be able to charge under the general law under vandalism.
I am kind of worried here relative to the emotional nature of the people who often find themselves involved in these kinds of organizations. They don’t think of the criminality of their event, and we would like them to, because clearly there is a great deal of research information that is going on there that is of value to society as a whole. But I am concerned about some young person who ends up joining an animal rights group, for want of a better term, and now finds himself doing something, or aiding something, that happened and now find themselves in a B Category, two years in prison, 2- to 15-[years] in prison. Is there a contemplation of that? Because there doesn’t seem to be an out relative to who is in and who is out of this in terms of the District Attorney.
Assemblyman Collins:
On the first part of the research facility being added to the outhouses and other provisions of this statute, it was for the 120-day session expediency, rather than establishing its own chapter in statutes like some other states have done. They have felt the importance of this to make it a separate criminal statute, whereas this would just bring it in with a group of others in similar fashion.
On the second part of your question, before coming to this Committee this morning, I was on the phone trying to help a young man with a felony conviction get a job, so I understand your concerns, Mr. Chairman, that people do make mistakes; they may have to pay for those mistakes, and as I mentioned earlier to Assemblyman Brown, I would speculate that multiple charges would be filed on individuals who did this, and those who are bragging about it that belong to some of these organizations would probably get a stiffer penalty than those who tagged along. That could be determined on a case-by-case basis, but if an individual tagged along, as you described, and were to destroy something, some element in a facility that was about to become the cure for breast cancer or AIDS or whatever the case might be, how serious would that be, and at the same time, how insignificant would that be because that was just a tagalong person. You know there are certain times when responsible actions are needed and I am sure that that would be addressed in a court, I would hope.
Chairman Anderson:
Dr. Simmonds, I note you also have a suggested amendment (Exhibit G) that you would like us to further add to the bill, in some meaningful way, relative to “toxin, toxic chemical, record data, results of any test or proprietary [information].”
Dr. Richard Simmonds:
These suggested and relatively minor changes were made by the associate director for research of the medical school. While we recognize that it may be redundant to put these words in because they might fit in other parts of the suggested amendment to begin with, it was felt because of such incidents like what has happened just two weeks ago or thereabouts in Las Vegas with the gentleman with the ricin, that we probably ought to call these out specifically to make sure that it is clear in the bill that we are talking about toxins, toxic chemicals, and that the facilities that we are talking about are not just medical facilities, but also agricultural facilities, which might include pastures, depending on what the event was. In the case of agronomy, it may be a field of a genetically engineered crop of some sort. So we just felt that further clarified the bill.
Assemblyman Collins:
I appreciate the opportunity to bring this bill forward.
Chairman Anderson:
Any other additional questions?
Anybody else wishing to testify in support of A.B. 191, want to get on the record?
Ms. Erickson, I see that you have checked in in favor of the legislation from the Washoe County District Attorney’s Office and the Nevada District Attorneys Association. Anyone else? Let me close the hearing.
We are adjourned [at 10:16 a.m].
RESPECTFULLY SUBMITTED:
________________________________
Carrie Lee
Transcribing Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: