MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-Second Session

March 19, 2003

 

The Committee on Judiciarywas called to order at 8:09 a.m., on Wednesday, March 19, 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:

 

Speaker Richard Perkins, District No. 23, Clark County

STAFF MEMBERS PRESENT:

 

Allison Combs, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Carrie Lee, Committee Secretary

 

OTHERS PRESENT:

Bill Young, Sheriff, Las Vegas Metropolitan Police Department

Ellen Knowlton, Special Agent, Federal Bureau of Investigation, Las Vegas

Jerry Keller, former Sheriff, Las Vegas Metropolitan Police Department

Michael Mayberry, Chief, Henderson Police Department

Stan Olsen, Lieutenant, Las Vegas Metropolitan Police Department, and representing the Nevada Sheriffs’ and Chiefs’ Association

Lt. David O’Leary, Lieutenant, Las Vegas Metropolitan Police Department

Richard Gammick, District Attorney, Washoe County

David Roger, District Attorney, Clark County

Jim Nadeau, representing Washoe County Sheriff’s Office

Jim Lopey, Assistant Sheriff, Washoe County

Daniel Grimmer, MGM Mirage, Las Vegas

Lucille Lusk, Cochairman, Nevada Concerned Citizens, Las Vegas

Janine Hansen, President, Nevada Eagle Forum

Laura Mijanovich, Northern Nevada Coordinator, American Civil Liberties Union-Nevada

James Jackson, Nevada Attorneys for Criminal Justice (NACJ), Las Vegas

James Tate, Executive Director, National Alliance Against Racists and Political Repression, Las Vegas

Peter Ediger, Coalition to Prevent the Erosion of Human Rights

Gary Peck, Executive Director, American Civil Liberties Union-Nevada

Benjamin Blinn, Citizen, Carson City

Ron Titus, Director, Administrative Office of the Courts; and State Court Administrator, Carson City

Ron Pierini, Sheriff, Douglas County

Dick Clark, Executive Director, Commission of Peace Officers’ Standards and Training

Jim Kiernan, Northern Nevada Title Company, Carson City

Rocky Finseth, representing Dean Nevada Land Title Association and the Nevada Association of Realtors

Andrew MacKenzie, Attorney, Carson City

Chairman Anderson:

Good morning.  The Assembly Committee on Judiciary will please come to order.  [Roll called.]  Good morning Judge [Max W.] Bunch [Argenta Township, Lander County] in Battle Mountain.  There is a quorum present.  [The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.] 

 

Finally, please note the sign on the table, concerning the legality of misrepresenting facts before this Legislature, or any legislative body.

 

Before we turn to the agenda of the day, I have a Committee introduction.

 

• BDR 40-1281 - Provides additional penalty for selling or providing certain controlled substances in certain circumstances. (A.B. 443)

 

ASSEMBLYMAN CARPENTER MOVED FOR INTRODUCTION OF BDR 40-1281.

 

ASSEMBLYMAN CONKLIN SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Ms. Buckley, Mr. Mortenson, Mr. Oceguera, and Mrs. Ohrenschall were not present for the vote.)

 

Speaker Perkins, we are honored to have you with us today.

 

Speaker Perkins:

It is an honor to be here.  I oftentimes miss the service on this Committee, as it deals with a number of issues that are important to me in another life.  But, be that as it may, I am proud to be here to talk to you about this bill.  I am here today to present to you Assembly Bill 250.

 

Assembly Bill 250:  Makes various changes regarding certain acts relating to terrorism, weapons of mass destruction, biological agents, chemical agents, radioactive agents and other lethal agents, toxins and delivery systems and requires resort hotels to adopt emergency response plans. (BDR 15-49)

 

The tragic events of September 11, 2001, were an attack not only upon the people of the United States, but also were an attack upon the way of life of America’s democratic institutions.  Soon after September 11, and in response to that tragic day of terrorism, I requested the bill draft request that became Assembly Bill 250.  I requested this legislation to provide Nevada law enforcement and other public safety agencies with the necessary tools to combat terrorist activities in our state, and to send a message to tourists coming to Nevada that we are a safe destination.

 

As most of you are aware, I spent a considerable amount of time during the past year working as a member of the National Conference of State Legislatures’ Task Force on Protecting Democracy.  As a result of work on this national task force, I have become aware of other states’ actions to address the terrorism threat.  I believe that the provisions of Assembly Bill 250 are consistent with what has been enacted in many states and what is now being considered in most of the other states.  State policymakers throughout the nation are now struggling with the difficult task of providing their constituencies with a sense of comfort and safety, while at the same time, respecting their civil rights and freedom of movement. 

 

The State of Nevada and its local governments are keenly aware of the importance of homeland security.  Despite budgetary challenges, many of our local jurisdictions have implemented homeland security practices and policies in response to the threat of terrorism.  While our local governments and law enforcement agencies and other public safety agencies have done a great job in responding to possible terrorist threats, it is now time for this legislature to assist them by providing the tools they need to meet the challenge.

 

At the same time, I recognize that it is critical that any policy on terrorism must protect the civil rights of innocent citizens.  Assembly Bill 250 is the first step in providing Nevada‘s Department of Public Safety with the tools it needs to combat terrorism.  There is other proposed legislation to address various components of the terrorist threat, such as bills providing for a public health response to the effects of a biological, chemical, or radiological attack.  In addition, I have introduced another bill that takes a comprehensive approach to protecting the state’s infrastructure, and its citizens, against terrorism.

 

Before I present an overview of the bill, Mr. Chairman, I would like to stray a little bit off of my prepared remarks, and describe to you what September 11, 2001, meant to me.  On that day, it appeared to be a normal day.  It was a little after 6 a.m. and I was preparing for work, when my wife, who rises a bit earlier than I do, came to me and said, “You’ve got to see this.”  She turned on the television to show me that one of the World Trade Center towers was on fire; she told me that it had been struck by an airplane.  When I asked what kind—small, commercial, military—she didn’t know.  We then watched with horror, as a commercial jetliner came into frame and struck the second tower, engulfing it in flames.

 

[Speaker Perkins continued.]  It was at that instant, for me, that the world changed.  With enormous urgency, I finished dressing and went quickly to work at the Henderson Police Department.  During an emergency staff meeting, I traveled into Las Vegas, where most of the public safety agency heads gathered along with representatives of the major utilities, to assess our national and local situation.  With your indulgence, Mr. Chairman, I would like to tell you how proud I am, and how comforted I was, with the coordination of all involved on that day.  While I don’t think anybody was prepared for the despicable acts of September 11, the Las Vegas area was as safe, in my mind, as anywhere in America.

 

After following the events and determining that our area was not under attack, and after American air space was shut down, we all went back to our agencies to plan how to deal with our new world.  Since then, we have learned that many of those September 11 terrorists visited, and may have done some planning, in Las Vegas.  We also know that Las Vegas was a potential target by another set of terrorists who were never able to execute their plan.

 

In 1995, I was privileged to have visited the World Trade Center and viewed Manhattan and its surroundings from the viewing platform, over 100 stories up.  Last year, visiting with the national task force, I was able to visit the hole we now call ”Ground Zero”; you cannot fully appreciate what happened without having had that experience. 

 

Let me recap what happened during the morning hours of September 11, 2001.  Two airliners struck the World Trade Center towers.  One airliner struck the Pentagon, and a fourth, probably headed for our nation’s capitol, went down in Pennsylvania, because some of the passengers would not allow their aircraft to become a missile targeted for innocent people.  Around 3,000 innocent people died in the attacks.  Monday night, the President issued an ultimatum to Saddam Hussein; there has been no positive response from him.  I think we all believe we are headed towards war with Iraq.  That is meaningful here, because there is a great deal of concern that war will spur retaliatory terrorist attacks on America.

 

Assembly Bill 250 includes provisions concerning various crimes and penalties relating to acts of terrorism.  The bill generally provides for criminal offenses and penalties related to terrorism through the use of “weapons of mass destruction, biological agents, chemical agents, radioactive agents, and other lethal agents, toxins, and delivery systems.”  The bill provides an additional penalty for an offense related to terrorism.  It further establishes “as murder of the first degree, murder committed with the intent to commit certain acts of terrorism” and makes it a “death penalty aggravating circumstance.”  Furthermore, Assembly Bill 250 provides there is “no statute of limitations for prosecution of certain acts related to terrorism.”  The bill also creates the crime of assisting a terrorist act, and makes the crime a Category A felony.  In addition, the bill makes it a Category B felony to “knowingly hinder, delay, or obstruct the prosecution of a terrorist.”

 

[Speaker Perkins continued.]  Assembly Bill 250 defines the crime of the use of a weapon of mass destruction, biological agent, chemical agent, radioactive agent, other lethal agent, and any toxin, and provides penalties based upon whether the act causes substantial bodily harm or death.  The bill also makes it a crime to develop, produce, or transport a weapon of mass destruction, and makes it a Category A felony.  Assembly Bill 250 criminalizes the act of making terrorist threats, conveying false information, or carrying out a hoax involving terrorism.  The bill provides that certain property used to commit acts of terrorism may be subject to forfeiture, and it also amends the state racketeering law to include terrorism.

 

Finally, Assembly Bill 250 requires Nevada’s resort hotels to prepare emergency response plans and file them with local fire and law enforcement agencies, and with Nevada’s Division of Emergency Management.  After the tragic loss of lives resulting from the Las Vegas fires in the early 1980s at the MGM Grand and the Las Vegas Hilton, Nevada developed the toughest fire safety standards in the nation.  While I hope that our resort hotels never become the target of a terrorist attack, it is important that they develop a comprehensive response plan before they are needed.

 

Certainly we know that the World Trade Center towers housed a number of people when they were under attack.  Any one of our major resort hotels in this state could house an equal number of people and subject those folks to loss of life in a similar attack. 

 

In closing, I have borrowed a phrase from then-Sheriff Keller, who may be in Las Vegas as we speak, that we “should not glamorize those who threaten our way of life by calling them terrorists.  They are nothing but criminals and thugs who should know that they will not be tolerated in our state.”  Some day in the future, I hope we can all look back with pride and say that the Nevada Legislature took the appropriate steps at the right time to protect our residents and the million of tourists who visit our state every day.  Thank you for considering this important legislation.  I will attempt to answer any questions you may have.

 

Chairman Anderson:

Questions from members of the Committee?

 

Speaker Perkins:

For whatever questions there might be, in between the time the bill is drafted in preparation for this testimony, we were given language, out of the state of Washington, that I think would be helpful.  It has been given to staff.  It incorporates some thoughts that may help allay some of the concerns that some will have about violation of some civil rights.  It is certainly not our intent to do so.  In discussion with the Clark County District Attorney, there were concerns about the definitions of terrorism that are currently in the bill.  The concern is that there is some vague language that might capture otherwise innocent activities when people protest their government.  I think it has been resolved, to some degree, in that the language that has been suggested by District Attorney David Roger, which actually goes back to the United States Patriot Act definition, and, in amending Section 7, page 7, lines 33 through 35, an “Act of terrorism means any act,” striking, “that involves the use or the threatened use or attempted use of sabotage, fear, or violence,” and inserting “dangerous to human life that is a violation of the criminal laws of the state of Nevada and is intended:” and then you have the laundry list of coercion, intimidation, etcetera (Exhibit C).

 

In essence, you have to have both for it to be an act of terrorism.  An act of terrorism has to be any act dangerous to human life as a violation of the criminal laws of the state of Nevada, and is intended to provide that type of intimidation, coercion, etcetera.  I am hopeful that it provides some support for, or allays the concerns of, those who are worried about civil liberties being violated, and certainly, it is a concern of mine.  I will offer that for this Committee’s perusal as well.

 

Chairman Anderson:

Mr. Perkins, do you want to take questions?

 

Speaker Perkins:

Mr. Chairman, if it meets with your pleasure, I would certainly take a few questions now, and I don’t know what the time constraints are on those others who want to testify, but we could certainly try to answer a few of the questions that we have and then move to the other witnesses.

 

Assemblyman Brown:

For this bill, you may be aware that there was one other bill on the death penalty that we discussed here earlier, and it included the definition on the act of terrorism.  We have looked at that, and that is something I have been very interested in and have talked to various parties about.  I appreciate the new language that was brought here, and I would like to maybe sit down with you.  I don’t want to necessarily take time of this Committee on that particular issue.  There is one section that I had a thought on, and it is Section 21.

 

Chairman Anderson:

Page 11 of the bill.

 

Assemblyman Brown:

I apologize, Mr. Chairman.  I printed this off of the computer, so I think it is page 10, line 28, so Section 21.

 

Chairman Anderson:

Section 21 is on page 11 of the bill.

 

Assemblyman Brown:

It is Section 21 and it is subsection 1 (b), part 2, it is just before…

 

Chairman Anderson:

“Under circumstances reasonably likely to cause harm…”

 

Assemblyman Brown:

That’s exactly it.

 

Chairman Anderson:

Then let me draw your attention then to page 11, lines 28 through 38.

 

Assemblyman Brown:

Thank you, Mr. Chairman, for that clarification.  As I go through most of the bill, in fact, I think I have read it entirely, we stick with the intent as we are defining it.  I think we have tried to keep it pretty narrow, that the person has the intent to do the particular act.  This is the only portion that I saw that allows any kind of exception to that, being a reasonable likelihood to cause the harm, and I personally prefer, just for preservation of, and keeping it tight, looking at the civil liberties issue.  I like staying with the intent, and so I just wonder if it might be something we could look at down the road.  It is a lengthy bill, I am still trying to process this and look at various scenarios.  If you have a comment, that is fine, or if anyone else wants to comment, but I think that is the only one that falls outside of that very tight definition of intent.  I don’t want to hook anybody that we don’t intend to hook.

 

Speaker Perkins:

That is certainly not my intent to cast such a wide net that we are infringing upon civil liberties or the ability for folks to redress their grievances against our way of government.  In that particular situation, under “circumstances reasonably likely to cause harm whether or not such harm actually occurs,” a situation could be where there is somebody exploding something just for the purposes of trying to intimidate a government or a country, or that sort of thing.  They may have done it in a fashion they thought was not going to cause harm but just did it in an area that they thought would not cause harm.  If it strayed off course, if this was a missile, I am grasping here as you can tell, but there are situations where people do illegal things that place people in harm, and, by the grace of their own luck, they have escaped that harm, and I think that’s what this is trying to capture.  But, I am certainly not going to get hung up over the entire bill over that particular language. 

 

Assemblyman Gustavson:

I have both a comment, and a question, to the Speaker.  On this bill, we all need to be very mindful, careful, and cautious, as we are, as to not overreact when situations like this happen, as devastating as it is.  You mentioned that we don’t want to take away our freedoms and liberties just because we might feel a little more security in our lives.  The question in the bill is many of these changes in the law are basically, and correct me if I am wrong, enhancements to existing laws and penalties, and most of these acts or changes already exist in the law.  So most of the changes in here are just enhancements for different categories—terrorist and terrorism?

 

Speaker Perkins:

That is exactly correct; that is why even the proposed amendment that came from the Clark County District Attorney suggests that is already a violation of the law, of Nevada law, and then it has this other component.  The reason to bring the bill forward even then, even though there are already laws that address specific acts, is that, in my estimation, the people that do these types of despicable things deserve to be punished more stringently.  We need to send the message loud and clear that we are not going to stand for that and that it is going to carry a more strict punishment than just the regular criminal laws that we already have on our books.  In essence, that is the real purpose for this bill.

 

Assemblyman Gustavson:

Thank you, and I appreciate and understand that.  We just need to be cautious on the other areas of the bill that have been brought up and I appreciate the language change there in the other section.

 

Assemblyman Geddes:

Mr. Speaker, I just have a couple of technical questions.  The current law has references, when you are talking about toxins and biological agents, to the Uniform Fire Code (UFC), and this deletes that and puts in specific definitions.  Why go beyond the federal definitions of those with specific state definitions?

 

Speaker Perkins:

I honestly don’t have the answer to that.  It was something that in working with the Research Division and bill drafting, they thought was more appropriate to the bill.  I can certainly get those questions answered for you and get back to you.

 

Assemblyman Geddes:

The other question, which, I am sorry; it is the chemist in me again.  I think you have alleviated my big concern with it in the newer definition of act of terrorism, but when I go down and I look at 3(b) where it is, “retaliate against a governmental entity” causing damage to the natural resources or environment…

 

Chairman Anderson:

I am sorry, Mr. Geddes, 3(b)?

 

Assemblyman Geddes:

Page 7, Section 7, subsection 3(b), in combination with the definition of chemical agent used in that capacity.  I can think of a case, several years ago, where someone was mad at the power company, who was the water supplier in northern Nevada, and they dumped a box of laundry detergent in the water prior to it going into the water treatment facility.  Based on it being a chemical agent and going into the water system and disrupting the governmental entity, it would meet the definition of “act of terrorism” and maybe that does want to be included in your definition.  I am a little vague there, and I am thinking that “dangerous to human life” put in the definition may cover that.  It is just a concern I have, back on the civil disobedience side; I am not sure it requires an answer so much as just thought.

 

Speaker Perkins:

I appreciate your concern there as well.  I think that you are right, that the “dangerous to human life” does then capture, or at least exclude, that particular act.  Civil disobedience is certainly not what we are trying to capture here.

 

In fact, Mr. Chairman, the other language that we borrowed from Washington, I will just read it quickly:  ”The events of September 11, 2001, have focused our nation’s attention on the importance of preparedness and preventing, investigating, and prosecuting acts of terrorism against its citizens.  The Legislature further finds that to be effective, this effort requires a partnership among the federal, state, and local governments.  In furtherance of this partnership, it is the Legislature’s intent to strengthen the laws of the state of Nevada to better protect the health and safety of Nevada and its residents from acts of terrorism.”  I think the third point is probably the most important here:  ”It is also the intent of the Legislature that this act be interpreted to provide the greatest measure of protection and safety for the people of this state and to preserve and protect their constitutional rights, including the right to petition their governments and to exercise their rights under the First Amendment to the United States Constitution.”  That would be the leading language in the bill; that would be the first thing somebody would read, and I think it sets the tone for all the rest of the provisions.

 

Chairman Anderson:

Mr. Gustavson, did you want to come back again?

 

Assemblyman Gustavson:

Yes, Mr. Chairman, actually it is a bill-drafting question.  It has to do with the restitution section on page 9, actually on page 10, line number 3; it states “…to the State of Nevada or a local government.”  Should that read “and/or a local government” or just “or?”

 

Risa Lang, Committee Counsel:

Typically, we don’t say “and/or” in statute; it would just apply to whichever one is involved in that particular circumstance.

 

Assemblyman Gustavson:

Even if it affected both?

 

Risa Lang:

That’s right, it would just be one or the other, or both.

 

Chairman Anderson:

Speaker Perkins, is it your intent to have me move through Sheriff Bill Young and then Special Agent Knowlton from Clark County?

 

Speaker Perkins:

I think that would work well for your Committee, if it pleases the Committee.  Sheriff Young and the Special Agent in charge of the Las Vegas field office, Ellen Knowlton, can provide you, I am sure, a great deal of information.  I apologize to have to beg leave for a moment.  The Interim Finance Committee is also meeting and determining other budgetary considerations, but as dangerous as it is, I will leave in the middle of the consideration of my bill, but I will return shortly.

 

Chairman Anderson:

Sheriff Young, if you want to come forward, and also the special agent from the FBI, who has permission.  I might mention, for those of us who are here, it is somewhat unusual to have a field agent to appear before us, so welcome, Ms. Knowlton.  Are you going to lead off?

 

Bill Young, Sheriff, Las Vegas Metropolitan Police Department:

I’ll go ahead with my testimony.  Like Speaker Perkins, my partner in law enforcement, on the day of September 11, 2001, was one I will never forget in my career, and I can’t help but mentioning that, in my 24 years as a police officer here in Las Vegas, I had never, ever imagined that we in local law enforcement would be tasked with fighting terrorists here on our soil.  It has been a major change, and a new and different type of work that we have had to do here at Las Vegas Metropolitan Police Department in the last year and a half.  As Speaker Perkins said, we have done a very good job.  I want to compliment our federal law enforcement partners, particularly the FBI.  We have been on the terrorism case and, as you know, 5 of the 19 highjackers that were on those airliners were in southern Nevada shortly before those events at various times.  That certainly causes pause and great concern to all of us in this country, and particularly, those of us here in Nevada.

 

I support Speaker Perkins’ bill wholeheartedly.  I think that I speak for the largest law enforcement agency in the state of Nevada, and that we, in local law enforcement, have partnered well with the feds.  However, I do believe that we should have a stand-alone terrorism law here that we can address those criminals who come to our state to commit horrible acts against this country.  I think one of the defining reasons for that is the difference in numbers between local and federal law enforcement.  While the number of local FBI agents is confidential, it is no secret that we, in local law enforcement, far exceed them in numbers, and if we were to have a substantial number of terrorism acts here to occur in Nevada, I think that our federal law enforcement partners would agree that it would be nice for us to also be able to conduct stand-alone investigations.  That is not to say that the system we are in right now is not working, and working well, but I think this sends a clear message to our nation, and to our world, that we in Nevada are clearly prepared to deal with this crime.

 

As you know, we have an economy here that is almost entirely dependent on tourism.  It has always been my belief, as the head of the Metropolitan Police Department, that we must remain the safest tourist destination in America, and I think Speaker Perkins’ bill clearly articulates, to the nation and to the world, that we here in Nevada are taking this particular crime very, very seriously. 

 

There are quite a few people who would like to speak today, so I will keep my comments brief.  I think that, in essence, this bill takes the homeland security message that we have heard throughout this country and really brings it close to what I believe it should be, and that is our hometown security.  Each of our local chiefs and sheriffs is concerned about our communities, and ensuring the safety of our citizens, as well as the tourists that come and visit here.  I think that Speaker Perkins’ bill does a good job of addressing this particular crime and ensures that no terrorist act will be left unattended in this state.  Thank you very much, and I will be happy to take any questions before I turn it over to Special Agent Knowlton.

 

Chairman Anderson:

Questions for Sheriff Young?  I see none, sir. 

 

Ellen Knowlton, Special Agent, Federal Bureau of Investigation, Las Vegas:

Thank you for allowing me the opportunity to appear before you this morning on behalf of Assembly Bill 250.  On September 11, 2001, I held the position of Deputy Assistant Director for the FBI’s National Security Division at FBI headquarters.  Subsequent to the events, I was asked by our director to direct the investigation of the highjacking of Flight 77, which ultimately crashed into the Pentagon, and I was also responsible for security matters at both Dulles and Reagan National Airports.

 

In the course of my duties in helping to set Washington, D.C., and the country, back on their feet, I also had to interact with the families of those who died, either because they were on Flight 77, or they worked at the Pentagon.  In my 21 years with the FBI, that was the most difficult assignment I have ever had.  On a brief personal note, two of my close friends were killed at the Twin Towers, and my cousin was seriously injured but managed to escape from the Pentagon.  So I had it, both personally and professionally, to deal with, and, like the Sheriff, it is a day I will never forget.

 

So in considering Assembly Bill 250, I did note that it closely mirrors the federal laws pertaining to terrorism.  However, it does have a provision that is not included in any federal statute that I could find, and that is the provision to prosecute individuals, who, for the economic impact and disruption of services as a result of providing false information or making a false allegation about an upcoming terrorist event.  So that is something that would augment the federal laws currently in place.  I think that Assembly Bill 250 would be a very good alternative to allow for state prosecution as opposed to federal prosecution, and I find that it would be an extremely valuable tool to Nevada’s Joint Terrorism Task Force (JTTF).  Therefore, in that regard, the FBI is supportive of this bill, and I thank you very much again for the opportunity to speak today.

 

Assemblyman Conklin:

I am glad we have a field agent with us today, and maybe you can clear up some concerns that I have with regards to this bill.  Section 15, subsection 1, says, “a person shall not knowingly,” and I am very concerned about the word “knowingly.”  Down below in paragraph (c) it says, “Provide material support with the intent….”  “Material support” is then defined, I believe, earlier in the bill.  Is it defined in Section 10? 

 

Chairman Anderson:

“Material support” is defined on lines 14 through….

 

Assemblyman Conklin:

Right, and I call your attention to line 19, which would be subsection 3, “Information, instruction or training of any kind…” and then there is a variety of other things, housing, lodging, etcetera.  I am concerned here that someone might get hung up in this bill, and I don’t want to belabor the point.  As a field agent, I want to know how you interpret the word “knowingly” as it relates to the providing of these things.  We are all aware that certain training was provided to the September 11 terrorists and so on, but there are such things as somebody providing that, maybe semi-knowingly, somebody maybe had said something.  What is the responsibility of the businessman to actually know, or do research to find out, if a person buying something, or requesting a service is a terrorist or not?  I would like to get your opinion on that.

 

Agent Ellen Knowlton:

To me, the term “knowingly” is pretty clear; there is a standard there that has to be reached.  It would have to be proved that the businessman, or the landlord, or the person who sold a car, actually had knowledge of the scheme and intended to participate in it in whatever way, by providing the material support.  It is not enough to say that someone should have known or could have known that there might have been something planned.  There would have to be proof that the person intended to participate and knew.  I could equate it for you to Terry Nichols and his support regarding the terrorist attack at the Alfred P. Murrah Federal Building.  

 

Assemblyman Conklin:

Just for the record, just to put my mind at ease, would you, then, say under this language that it is not possible for someone who did not intend, in any way, to participate in this act to ever be caught up under this law?

 

Agent Ellen Knowlton:

You are asking me to speculate, but we in the federal system frequently deal with people, who, in hindsight, may have wished that they had observed what was really happening but didn’t, and I don’t think those are the kinds of situations that we would use something like this for.  We are talking about people who knew full well what they were involved with, not someone who later on who said, “I wish I had looked into this a little closer.”  

 

Chairman Anderson:

“Provides material support with the intent” in Section 15 would be one of the questions.  Are you concerned of the Dr. Mudd problem?

 

Assemblyman Conklin:

Mr. Chairman, this is a very important piece of legislation, in my mind, and with a tremendous amount of merit, and I just want to make sure that we do protect the rights of those who are sort of on the borderline.  I think we have all been somewhere and heard somebody say when they purchase something or do something silly and they come up with some ridiculous thing and say, “Oh, I wish I had killed that person” or this, that, or the other, in a joking way.  I don’t want somebody to get wrapped up in something that they truly weren’t involved in.  That is not the intent of this legislation, I understand that.  I know that is not the intent of law enforcement either, but it is our job to look at this bill and make sure there is not a way an innocent person can be wrapped up in it.

 

Chairman Anderson:

I think Lt. Olsen will be coming up here in a moment; maybe he will be able to help us.  Is there any other information that Ms. Knowlton would be able to provide for us?  Ms. Knowlton, is there any other additional information that you feel you need to give us?  [Ms. Knowlton indicated no.]  Thank you very much for supporting the piece of legislation.  Sheriff Young, is there any additional thing that you feel necessary to say? 

 

Bill Young:

No, Mr. Chairman, thank you very much.  I do want to point out there are three or four other important witnesses here who would like to speak.

 

Chairman Anderson:

Yes.  I have a list and it was my intention to call next Sheriff Keller and then Henderson Police Chief William Mayberry. 

Jerry Keller, former Sheriff, Las Vegas Metropolitan Police Department:

Chairman Anderson, members of the Committee, thank you very much for listening to an old retired war dog who is very passionate about the issue of homeland security here in the state of Nevada.  [Introduced himself.]  The 5,000 men and women of law enforcement in the state of Nevada need the same opportunity to pursue terrorists and terrorist activity that is afforded the federal government in the Patriot Act.  This omnibus terrorism bill sponsored by Speaker Perkins gives them the tools necessary to ensure that we can prevent the next terrorist act, and further, present for prosecution, those individuals in our state, or who have come to our state, to purport and commit terrorist acts.

 

Federal resources in Nevada are very limited, both in personnel and money, and this allows us to leverage the weight of those 5,000 men and women who live in every community that all of the rest of the residents live in, and find it so important to make a difference; anyone can pick up the pieces.  This tool, this bill, Assembly Bill 250 becomes the maypole around which we can wrap the rest of our efforts, in Nevada, to prevent a horrendous or horrific event, and it must, in its final form, provide the tools to law enforcement to perform the function that is requested and demanded of them by the residents they serve.

 

When we talk about homeland security, when we see Tom Ridge on the television, when we see all of the efforts at the national level, we have to remember that there are no Navy Seals, there is no Delta Force, there is no 75^th Ranger Battalion patrolling the streets of southern Nevada, or any other community.  The onus to ensure that nothing happens in Nevada rests on the backs of the firefighters and police officers who put on a gun every day and go to work and put their lives on the line.  I urge support for this bill, and even though it is a coalition of other laws, it certainly becomes a center post around any meaningful program to allow local law enforcement to fulfill their mission in the issue of homeland security.  I will take any questions.

 

Chairman Anderson:

Sheriff Keller, I am sure that the new sheriff will do a great job, but I surely recognize that it is going to be a great loss to the citizens of Clark County not having you there.  Any questions for former-Sheriff Keller? 

 

Michael Mayberry, Chief, Henderson Police Department:

It is my first time actually testifying on a bill.  I also remember, all too well, the events of September 11, 2001.  My first call from home was to the head of the local office of the FBI at that time Grant Ashley.  He was already in his car and on his way to the office and he was asking all of us to respond for a meeting.  I then called Deputy Chief Perkins, who did respond to that.

 

Since the events of September 11, we in state and local law enforcement have stood by and watched as the federal government passed laws to deal with terrorism.  In the urban areas of this great state, and in the cities all across America, we have joined with the FBI in joint terrorism task forces aimed at directly dealing with the problems of terrorism.  In our rural areas, they, too, are fighting a good fight.  I woke up this morning, as I do every morning, to the news and the first thing I saw was that it was being reported that when the war begins, a war which we all know may be only hours away, there will not may be an attempt of terrorism against America.

 

If we are going to be successful in the fight against terrorism, our best chance would be found in the collaborative effort with local, state, and federal agencies.  While federal laws have already been passed to help us deal with this issue, today is our first opportunity to do something on the state and local level.  I am here on behalf of the Henderson Police Department in support of the bill you have before you.  We need the ability to do this on the state level, what currently, we can only do on a federal level in the JTTFs.

 

Now, from those detectives that serve you on the JTTFs, to the men and women in uniforms who keep us safe each night, we need the ability to take action based on what we discover during a late night traffic stop, as well as a long term surveillance in conjunction with the FBI.  We need to work closely with our neighbors in the hotel industry to make sure that we keep our visitors safe.  Our very existence depends on our ability to keep Nevada a safe place for all to visit and enjoy.  We all understand that importance to our economy.  This bill will assist us in doing just that.  The battle will become known for something else as well:  we will be tourist-friendly but terrorist-intolerant.  I think this bill will help us get there, and it has our full support in Henderson. 

 

Chairman Anderson:

Chief Mayberry, we want to thank you for your support for this piece of legislation, and of course, for the fact that we have such a strong member here that your department has to give up for 120 days, it makes our life easier here so we appreciate your support in that area also.  Questions for Chief Mayberry?

One of the dangers of living in a state like Nevada is that they only allow us around for 120 days every other year, so maybe it is an act of self-preservation for the state not to have us around too often, but every once in a while it would be good to have us here to try to help you guys do what needs to be done.  Lt. Dave O’Leary, and it looks like we are going to get Stan at the same time.

Stan Olsen, Lieutenant, Las Vegas Metropolitan Police Department, and representing the Nevada Sheriffs’ and Chiefs’ Association:

With me today is Lt. David O’Leary, who is with the Homeland Security Bureau of the Las Vegas Metropolitan Police Department, and is instrumental in some of the research that went into the preparation of this bill.  I think it is important to know that in the last 30 years, there have been over 900 terrorist acts committed on U.S. soil, the continental United States; more than 900.

 

Chairman Anderson:

Over the last 30 years?

 

Lt. Stan Olsen:

Yes, sir.  This included 166 bombings, 120 fire bombings, and 118 shootings.  Terrorism has been around for a number of years, and it really came to everybody’s front sight view a couple of years ago, with the attack in New York.  This area is a critical issue for law enforcement; it is a critical issue for all of public safety, and we, with the Nevada Sheriffs’ and Chiefs’ Association and the Metropolitan Police Department, support A.B. 250.  [Submitted a document that included media headlines regarding terrorism, which is (Exhibit D), and a booklet titled H.A.N.D.S.S., which is (Exhibit E).]

 

David O’Leary, Lieutenant, Las Vegas Metropolitan Police Department:

I am in favor of this particular bill, and the reasons set forth are as follows.  In the weeks following September 11, 2001, the Las Vegas Metropolitan Police Department, like many agencies across the nation, immediately recognized the need to protect our community from the threat of terrorism, and we did so by forming the Bureau of Homeland Defense, and then, working in tandem with other agencies, local and state, and federal agencies as well, including the FBI, Department of Defense, the CIA, Customs, Henderson Police Department, Northwest Las Vegas Police Department, and other agencies in the state of Nevada.  With the passing of the Patriot Act, we also see the need to have local authority to identify and prosecute persons engaged in terrorist activities.

 

We know that some of the September 11 planners visited southern Nevada, that they met there, and that they had taken some interest in our community.  I think that we’d all, as Sheriff Young said, take great pause and alarm to know that they actually took the time to visit our community.  I think the communities of Reno and Las Vegas represent to those persons who have an interest in attacking the United States, a culture that they oppose.  I think that puts us in a very precarious situation to protect the interests of our community, and most importantly, our community members themselves.

 

We also understand that this bill is about prevention; the critical aspect of this bill is about prevention.  We cannot wait until we have an actual act occur.  If we have done that, we have failed in our mission.  I think everybody in local law enforcement, federal law enforcement, and certainly everybody in this room today has a vested responsibility to protect the members of our communities that we represent.

 

So in closing, although I can’t tell you the exact numbers because I am not at liberty to disclose that information, we have a very limited amount of resources available to us currently with the JTTF.  This bill enables 500 police officers in this state to take an active part in preventing an act of terrorism in Nevada.  I think we all want to see that. 

 

Chairman Anderson:

Lt. Olsen, is there any other information that you want to give?

 

Lt. Stan Olsen:

If there are any technical questions, and a couple have come up, Lt. O’Leary is probably the better one to answer them; as I have stated before, he is the one that helped with a lot of the research and preparation for this, and works in the trenches on this particular issue.

 

Chairman Anderson:

That would be the clue for Mr. Conklin then?

 

Lt. Stan Olsen:

Yes.

 

Chairman Anderson:

Mr. Conklin, you want to restate your question?

 

Assemblyman Conklin:

I will, just as a point of clarification.  I am not that concerned about this particular piece.  For my own peace of mind, want to make sure that I understand how law enforcement views that particular term.  I think I already have an answer, but I will give you a shot at it, and the term was “knowingly,” in Section 15, subsection 1.

 

Chairman Anderson:

In all due respect, I think that it is probably more important, since I don’t think that the federal agent will be utilizing the state statutes for their enforcement level; it would probably be more important to get the response from people in the field here in Nevada as to how they perceive Section 15 of Chapter 9 in trying to set up the scenario “knowingly” and then the litany of things that are listed following that.

 

Lt. David O’Leary:

I think a good example would be the events of September 11, 2001.  We had these terrorists seek out training in aircraft, becoming pilots, and I don’t think we could hold the owners of those particular businesses liable for the actions of those terrorists, because I don’t believe that it has ever been proven that anybody would have known, or was in a position to know, that the attack was about to occur in our country.  I think the critical viewpoint here is “knowingly.”  I think anybody who has an intimate knowledge of the workings of a particular plan to undermine or attack our community, then, if we can prove that, and we proved that in a court of proper jurisdiction, that we can show that these people had more than a passing knowledge, and that they should have acted accordingly and notified local law enforcement.  They planned, participated, and knew that there were going to be lives in jeopardy or at stake, by actions that they had participated in or provided material support of.  I think that is the standard that we are looking for.

 

Assemblyman Conklin:

I do apologize for belaboring the point.  As a result of having the word “knowingly” in there, is it fair to assume, then, that business has a responsibility to notify law enforcement?  Where does that fall in relation?  Do you understand what I am asking?

 

Lt. David O’Leary:

I understand the question, and I certainly understand the concern.  I think a prudent person, if they knew that the services that they were providing were going to, literally, an attack on our country or attack on our community, where lives would be at risk or in jeopardy, then I think they should be required to come forward with information.  It is one thing to know and to have information, and another to be suspicious of information.  I think a prudent person would call and notify local law enforcement.  What we are looking for here is someone who actively planned, actively knew, actively provided material support on behalf of that type of mission, not somebody who came to them in a passing way and asked them, maybe suspiciously, “Can I have a pilot certification course?”  We may have some underlying opinions, but that does not make them an active participant in that crime, and we are not going to hold them to a standard that they are going to be prosecuted.

 

Assemblyman Conklin:

Thank you, my question is answered and just for the record, if I had any suspicion whatsoever, I would pick up the phone and call you.

 

Assemblyman Horne:

Lt. O’Leary, just to ride on Mr. Conklin’s line of questioning on that “knowingly,” and I see where he was going with that.  Post September 11 though, if I am a flight instructor today, and I give flight instructions to a gentleman of Middle Eastern descent, or if Mr. Geddes teaches a class on chemistry and there is a gentleman in there of Middle Eastern descent in his class, do we have an affirmative duty now to contact law enforcement, just because they are there?  Will we fall into this “knowingly,” or should it have been that prudent person?

 

Lt. David O’Leary:

I think we need to be cautious here that we are not racially profiling; that is not what this is about.

 

Assemblyman Horne:

I think the caution is part of why we are asking these questions.  Under what we said, I don’t think it is a huge stretch.  Since you used that, would a prudent person, if we are post September 11 now, and something were to happen under those circumstances that I described, I don’t think it is a far reach for somebody to say, “Why wouldn’t he know since what has happened in these current events?  Why wouldn’t he contact?” 

 

Lt. David O’Leary:

Again, we say prudent.  I think the issue here is that there are two different things.  One is notification, and there is nothing in this bill about notifying local law enforcement or federal law enforcement about holding anybody accountable for what we should construe as being prudent or having common sense.  I think what we are looking at here is somebody who actively participates in a criminal plan to undermine either the state of Nevada, or who does harm to the members of the community.  I certainly think we should stay away from any profiling anybody based on race or gender, particularly if they are of Middle Eastern descent.

 

Chairman Anderson:

That kind of brings forth an interesting problem.  Given the limited resources that are available to us, and clearly we don’t want to do racial profiling, but the probability scenario becomes one of how do you identify, particularly if this particular group of people, if not through some means of profiling?  Is that not part of the nature of police work to a certain extent, that people who hang out together tend to do wrong things together?

Lt. David O’Leary:

I certainly understand where you are going with your question.  What we look for in law enforcement, part of that is, “Yes,” to an extent, but based on other factors as well.  We don’t use just race alone, and age alone, as an identifier that a person is involved in a criminal activity.  There are other things that go along with an investigation that would preclude, or take somebody out of an investigation, that is based on race or gender.  Again, I think we need to be very cautious about that.  There are other indicators that a person is involved in a criminal activity that we look at.  It is the totality of the circumstances.

 

Chairman Anderson:

I am reminded again that this is a criminal statute.  That means it must be proven beyond a reasonable doubt that the person knowingly did these things, and that is going to lead us to one of our next witnesses. 

 

Assemblyman Brown:

Lt. O’Leary, I think Lt. Olsen had mentioned you had worked technically on the bill in total, is that correct?

 

Lt. David O’Leary:

Yes, I did some of the background and did prepare an initial draft of a document that was presented to Speaker Perkins.

 

Assemblyman Brown:

I want to address the definition of the act of terrorism.  If you have looked at that closely, I would go ahead and ask the question, but if not, I would probably reserve it for someone else.  Is that something that you have been dealing with?

 

Lt. David O’Leary:

I have looked at that; I did not deal directly with the definition of the terminology as far as what a terrorist or a terrorist activity is. 

 

Assemblyman Brown:

I think I will just reserve the question.

 

Chairman Anderson:

I think the one that the Speaker had indicated that he was hoping we were going to substitute the newer definition that had been prepared through the state of Washington.

 

Assemblyman Brown:

I will reserve my question, thank you.

 

Richard Gammick, District Attorney, Washoe County:

I would like to start my comments by addressing some of the areas that have been raised by members here today.  “Knowingly” is defined in Nevada law; it is a definition that means that a person knew what they were doing.  “Knowingly” is used continually with “intent,” because we have to prove intent of the crime too.  As you will see in this A.B. 250, intent is used a lot as to what a person’s specific intent was, which is difficult to prove in the law.  There are questions about duty of people who may know something that is going on.  Unless the statutes specifically require a person to report, such as in our elder abuse crimes and our child abuse crimes, there is no duty that people can be held criminally responsible for.  There may be a lot of other areas, such as patriotism and a duty to your fellow man to come forward and say something, but as far as any criminal liability, it is not there. 

 

There were questions asked about people being caught up by this law, who were on the borderline, or who were innocent people.  Every day I hear that people are innocent—I didn’t do it; I wasn’t involved; I wasn’t there—that is why we have the system.  A.B. 250 cannot be taken just exclusively by itself, we have to remember there is an entire system built in here.

 

Nevada Revised Statutes 171.123 requires reasonable suspicion before police officers can even stop people.  If an arrest is made, there has to be probable cause showing to a judge, and then we go on from there to a jury, if this person still feels that they are innocent and have been unjustly accused.  So, remember, the whole system is built in here to protect people.  What we are dealing with is an ideology that embraces the use of force, fear, intimidation, and even murder, to put their thoughts and their ideas upon all of us.  It is foreign to a lot of us in America because we have a system that is built on the First Amendment [of the United States Constitution], where we all have the right to talk and discuss and express our opinions without resulting to force, fear, and even murder.  We have laws to keep that type of activity from coming down.

 

You cannot totally plan against terrorism, because by its very nature, and by its ideology, it strikes when it is least expected, and where it is least expected.  Right now, all of our attention is on the Middle East, and we are looking at that as terrorism, but terrorism can come from anywhere in the world, and we need to remember that.  As we have learned very painfully over the last couple of years, it can strike anywhere in the world.  This is a bill that will help us in the battle that we need to fight; this is not a bill to replace the federal law. 

 

We have a tremendous relationship in this state; in fact, there are law enforcement personnel who come to this state from other jurisdictions, quite often, and they are pleasantly surprised as to how well we get along with our fellow law officers.  We work well with the FBI, the U. S. Attorney’s Office, the DEA (Drug Enforcement Administration), the [Bureau of] ATF (Alcohol, Tobacco, and Firearms) and all of the rest of those acronyms.  Here in Washoe County, we have a monthly breakfast meeting with all the heads of federal agencies and we all discuss issues that involve all of our different entities.

 

This bill is simply to augment.  It gives us one more tool to go after these people who commit these types of crimes, and to hold them responsible for these types of crimes.  Please remember, we Americans were not given a choice in this area.  This whole idea of terrorism was forced on us in 2001, and we have to react accordingly.  We try very hard not to overreact, but I believe A.B. 250 is a positive step, a positive reaction in that area.  It is a start, as the Speaker said, this is not the entire package, but it is a good start.  It gives us some good tools.  Some of the terminology in this bill will have to be resolved in the courts.  The courts will have to define it, as they do with all bills we have, but I have looked at this bill, believe it is a good bill, believe it gives us a good start, and it is defensible legally.  I would be glad to answer any questions.

 

Chairman Anderson:

The Washoe County District Attorney, Mr. Gammick, is here again, trying to do what we always expect him to do: after we ultimately pass all this, crime enforcement part, and then he has to sort it all out.  This is the guy that you want to ask the questions because it is his office that is going to ultimately be responsible for deciding whether those standards are being met.

 

Mr. Brown, I also have the District Attorney from Clark County.  If you would like, I can get him up here and take his testimony, and then we will have both of them up simultaneously, if that is OK with you.  Mr. Gammick, I don’t want you to run away, not that it is likely that you would do that.  Let me ask District Attorney Dave Roger from Clark County to give his testimony, and then we can turn to Captain McClary of the Homeland Security Bureau.

 

David Roger, District Attorney, Clark County:

Seventeen years ago when I started as a young Deputy District Attorney, I never thought that we would be talking about terrorism in the United States.  It always happened in a far away land, but it is in our backyard now.  I believe that Assembly Bill 250 addresses some of the issues that we law enforcement have in trying to battle acts of terrorism.

 

Assembly Bill 250 alerts would-be terrorists that if they violate the law, they will pay the full price for their criminal conduct.  I have reviewed A.B. 250.  Many of the sections resemble the language from the United States PATRIOT Act.  I concur with the comments of my colleague, District Attorney Gammick; I believe that this bill will pass constitutional scrutiny by the courts.  There was some concern about the definition of “act of terrorism,” but I believe with the amendment offered by Speaker Perkins, it should resolve that issue.  I understand the concerns of Assemblyman Conklin and Assemblyman Horne, with regards to Section 15, which provides that it is a violation of law to aid or assist a person in a terrorist act, but the mental state of the individual, the person “knowingly” assisting a person in a terrorist act, solves that issue.  Under the federal law, the United States PATRIOT Act provides for a civil cause of action for people to challenge those who assist terrorists.  The federal courts have already passed upon this, and the federal courts are very clear, just as us prosecutors are, that a person has to “knowingly” assist a person in a terrorist act; it cannot be an unwitting assistance of these crimes.  I fully support Assembly Bill 250.  I speak on behalf or the men and women of the Clark County District Attorney’s Office, and I would be happy to answer any questions you might have.

 

Chairman Anderson:

Mr. Brown, then let me call on you for your question for either District Attorney Gammick, or for District Attorney Roger.

 

Assemblyman Brown:

I would be happy to receive a response from either district attorney.  I have been concerned about the reference to the government, in the act of terrorism definition.  I have given the definition thought, I tend to think that there are two things that we look at as we go through some of the definitions, which are contained within that.  One is really means and the second is result, but what we tend to stay away from, in the other kind of defining sections of the statutes is the motive.  I think the testimony that will probably come out here, if there is opposition, is the concern of those who wish to protest against the government, and being, somehow, pulled into this definition.  I do appreciate, and think that the amendments offered up make significant headway on this, but I am wondering what your opinion is.  Do you think we water this down if we remove, for instance, under Section 7, definition of act of terrorism, subsection 2, which is “disrupt, affect or influence the conduct or policy of a governmental entity by intimidation or coercion;” or subsection 3, “Retaliate against a government entity or…”

 

My thinking is that, for the most part, the instrumentality of the terrorists is the general public.  I think that is how they manipulate, they create that fear and widespread panic, unrest, etcetera.  I believe that if that is removed, we still have the same result.  I really don’t care what the motive of any terrorist is, but I think we can still pull in any terrorist act, under a definition that avoids that motive-based language.  Do you have comments on that?  Do you think we really eviscerate this if we remove those references?

 

Richard Gammick:

Even though the acts of terrorists are normally addressed, as you pointed out, at people and at crowds and things like that, I believe their ultimate goal is to directly or indirectly affect government and policies and what direction they are going to go and to topple government.  Most terrorists that we are dealing with today would just as soon topple the American government and not even have America here anymore, and that is something we need to understand.  Depending on how big the terrorist group is and how much they are doing, they are anti-American, and in a lot of cases, anti-Christian, and we have those to deal with. 

 

I think it would water the bill down a little bit, only time will tell; I would like to see A.B. 250 passed with the amendments that the Speaker has suggested, since it does tie down the definition better, but at least to take a run at it the way it is now, and then we may be back.  There is never a final act in any of the laws, and I always like to think of it as fluid and moving so we can make changes.  I think at this time, I would like to see it go forward as it is and then if it needs to be worked out later on, we can come back and take another look at it.  I think the language is strong now, and it needs to stay strong.  Did that answer your question, Mr. Brown?

 

Assemblyman Brown:

It does.  I still think, generally speaking, that probably is, at least on the international scheme, the motive of the terrorist.  I mean there may be groups, though, who resort to these types of acts who have their own personal agenda within the United States, and so again, I just am not sure that is essential.  I think if we properly describe it in terms of means and result, that we are probably including everybody we need to, without stepping, perhaps, or creating a shadow, or a problem, with the civil liberty issue in protestation.  There may be those who would raise, for instance, a Kent State, where a protest leads into mob-type or group-type behavior which breaks out into violence.

 

Chairman Anderson:

Is this coming to a question?

 

Assemblyman Brown:

Let me quickly summarize.  I am concerned that there is an argument that can be made that it was dangerous to human life because, frankly, somebody maybe was hurt or killed, and there was a violation of a criminal law, but yet there wasn’t.  There may have been some desire to influence the conduct or the policy, but really it was not terrorist in nature.  That is a concern of mine.  If you have a comment on that, I would be happy to receive it.

 

Richard Gammick:

I have fought for our rights in this country and I am ready to fight for them again.  I believe very strongly in them, but there comes a point in time when civil disobedience and people expressing their opinions goes over the line.  I think that is what A.B. 250 addresses.  When you start intimidating people, when you start hurting people, when you start attacking governments physically, doing murder, doing mayhem, and destroying property, you are over the line, and that is where it needs to be held accountable.  I believe A.B. 250 will address those issues.  Again, we may be back later on to tweak, but we need to start somewhere, and I believe A.B. 250 does lay out well.  The vote is ultimately yours, Mr. Brown, but that is my opinion.  I think we are in a good position, at this time, to start with this bill.

 

Assemblyman Carpenter:

I think that Mr. Brown asked my question and I do have some concern in this area.  Maybe we can tweak it a little bit, but for members of the Committee who do not know, Mr. Gammick is a product of Elko, so we are proud to have him in the western part of the state taking care of business.  The bombing in Oklahoma City that would have been an act of terrorism, right?

 

Richard Gammick:

I believe that would fit this definition.

 

Chairman Anderson:

It happened to be a federal building, and if it hadn’t been a federal building, I think you would have had a response from the federal government anyway, because of the huge loss of life, but there might have been a greater burden upon the local law enforcement agency as first responder.  Since it was a federal installation, I think post offices sit on federal land, as I recall, at least I tell the kids in school that.  

 

Jim Nadeau, representing the Washoe County Sheriff’s Office:

With me is Assistant Sheriff Jim Lopey, who is in charge of operations for Washoe County Sheriff’s Office and is also our terrorism guru, as I like to use the term.  Washoe County has been doing many things since September 11 and has been very involved in trying to protect our community, and I thought Assistant Sheriff Lopey would explain some of those issues.

Jim Lopey, Assistant Sheriff, Washoe County:

I represent the Washoe County Sheriff’s Office, one of the largest agencies in the state, at least in northern Nevada.  I have been involved in homeland security issues since about 1998.  I currently sit as a vice chairman on our Local Emergency Planning Committee, and I was heavily involved in planning, pre-millennium, for what we believed was going to be some terrorist events that we felt were going to occur in the United States during the millennium.  So we have a long history.  We have been very active in Washoe County, the last five years, in acquiring the necessary weapons of mass destruction (WMD) related equipment for our police and fire personnel and, in addition, in acquiring the types of equipment that we would need if and when terrorism reached our jurisdiction.

 

We fully support A.B. 250 for the reasons so stated previously.  I might add that, in addition, we have been talking a lot about Islamic extremism and the September 11 type terrorism activity, but I would remind the Committee that there is a lot of domestic terrorism that takes place in the United States.  We have a long tradition of domestic terrorism, and we must not forget that this bill would also protect us and help us enforce the law when it comes to some of these environmental groups that have been very active.  As an example, recently we had three incendiary devices that were left at a BLM (Bureau of Land Management) facility north of Reno, and one of them went off and destroyed a building, a structure at that facility.  

 

Back in the 1970s and 1980s we had a lot of tradition of domestic terrorism including, but not limited to, the Students for a Democratic Society (SDS), the Weathermen, the Symbionese Liberation Army, the New Dawn Liberation Front; the list goes on and on.  Again, we in law enforcement are very concerned.  We in northern Nevada feel that Nevada is a viable target.  You can argue that southern Nevada is, perhaps, more of an inviting target to the terrorists, that we believe are not only here, but will be coming.  Therefore, we feel that A.B. 250 will help empower us to effectively fight terrorism more efficiently, particularly if for some reason, the feds don’t wish to pursue a terrorist event in our jurisdiction. 

 

I might also remind the Committee that we can keep talking about future terrorism in this great country, but since September 11, there have been numerous Americans murdered overseas in terrorist attacks in countries such as Jordan, Kuwait, Lebanon, Pakistan, Afghanistan, and the Philippines.  The killing goes on, and operationally these terrorists, at least the international terrorists, have had difficulty operating in our country and in our state.  However, there is no doubt that they have sympathizers who are living amongst us, and it is only a matter of time before we have further terrorist events.

 

As you well know, also, the al-Qaida are very resilient; their planning is meticulous; many of their terrorist events take 2½  to 3 years to plan, and they could be planning terrorist events as we speak.  They don’t give up; they will be back.  Some of the targets they missed back East, they are going to be back.  Again, on behalf of the Washoe County Sheriff’s Office, our Local Emergency Planning Committee, and law enforcement in northern Nevada, we fully and enthusiastically support A.B. 250.

 

Chairman Anderson:

Questions from the Committee?  Thank you very much.  I have Mr. Crowley as a signer and supporter of the bill.  Is there anybody else who feels an urgent need to get on record in support?  I have you down here as a neutral on this. 

 

Daniel Grimmer, MGM Mirage, Las Vegas:

I am actually filling in for Mr. Crowley with the Nevada Resort Association.

 

Chairman Anderson:

I don’t find your name on my list here.

 

Daniel Grimmer:

I wasn’t intending to testify, Mr. Chairman, but Mr. Crowley had to step out of the room.

 

Chairman Anderson:

So you want to say, “Me too.”

 

Daniel Grimmer:

Essentially, yes, Mr. Chairman.

 

Lucille Lusk, Cochairman, Nevada Concerned Citizens, Las Vegas:

I am here in support of A.B. 250.  As you know, we have testified in support of a similar bill before this Committee, with a similar purpose.  We absolutely recognize the need for our state to proactively prepare so that we can have local ability to respond, should we become a target for terrorists.  Assembly Bill 250 has a number of protections incorporated within it to try to capture the real terrorists and at the same time, protect the constitutional rights of citizens.  We do have the same concerns with the definition of terrorism with its potential for over-broad interpretation, as we had with the previous bill, and with a bill on the other side of the house.  I have seen the Washington preamble language, and I do believe that helps considerably.  I have not seen what Mr. Roger offered and am anxious to see it.  I have submitted an amendment (Exhibit F), which is similar to the one submitted on the previous bill, which we ask you to take into consideration in the mix as you prepare for passage of this bill.

 

I am just assuming that this Committee will pass either this bill, or one very similar to it, because of the absolute necessity that has been brought forward before us.  I would like to share with the Committee, which you may have already seen, what I found in the fiscal note for A.B. 250, and similar language in the fiscal note for S.B. 38, a very similar bill,  to point up the validity of the concerns about the potential for over-broad interpretation, and the importance of the Committee taking very seriously, the development of that definition.  The fiscal note for A.B. 250 says, “NDOC (Nevada Department of Corrections), research staff is unable to determine how broadly the definition of an ‘act of terrorism’ would be applied by the courts.”  If this definition were applied narrowly, then NDOC has only one instance in its corporate memory of a bombing incident that would qualify for the enhancement.  If the courts were to define an ‘act of terrorism’ broadly, then felonies that may result from acts of civil disobedience such as students occupying offices at a university, political protests and demonstrations that get out of hand, etcetera, may result in additional felony charges.

 

The fiscal note for S.B. 38, which was prepared, also, by the Department of Corrections says, “NDOC research staff is unable to determine how many crimes would fall under the definition of an act of terrorism as described in Section 6 of the BDR.  A broad definition of the term could include, but not limited to, civil demonstrations, acts of civil obedience, police actions, political protests and demonstrations, rioting, and picketing, as well as those who aid and organize these events and causes.”  The concern is not with the intent at all, and most of the language in A.B. 250 is very tightly drawn; the concern is simply with what the courts might do.  It has been recognized that this language is sufficiently broad that the courts might well apply it to acts that are not terrorist acts.

 

Again, I wish to state our support of A.B. 250 and of a similar bill that you have seen previously, and urge your amendment to pull it into as tight a definition as possible and your passage. 

 

Chairman Anderson:

Ms. Lusk, I appreciate that, and I would also remind both, particularly the people who are listening in from the outside, that our research staff, although very, very good, is not the legal part of the box, and while we act here all the time, the judges have a tendency to see things differently than we do.  So everything we do here is subject to the challenge of the judiciary system, and I appreciate your concerns.  [Are there] questions for Ms. Lusk on the issues that she raises?  Let’s then turn to those in opposition, those who have concerns about potential issues raised in the bill.  Good morning, Ms. Hansen.  Thank you for sitting through the hour and a half.

 

Janine Hansen, President, Nevada Eagle Forum:

Here we go again.  I won’t repeat my testimony on the last bill that I testified on, terrorism, with regards to the issues of civil liberties, with almost getting arrested at the Department of Motor Vehicles (DMV) for petitioning, and the problems with the Bureau of Land Management.  However, I want to say I really appreciate and approve of the amendments that have been brought forth today, particularly the one from Washington state, and I might want to go through an addition to that.

 

I think it is very important for us to recognize the First Amendment of the United States Constitution.  However, I think we should recognize those rights as outlined in the Constitution of the State of Nevada.  They would be:  Article 1, Section 4, which provides for liberty of conscience; Article 1, Section 9, which provides for liberty of speech and press; and Article 1, Section 10, which provides for the right to assemble and petition.  I would add to that list because of the broad concerns expressed about the United States Patriot Act, which this is based on, Section 18, unreasonable seizure and search in Article 1 of the Constitution of the State of Nevada, and I think we should recognize those.  Some of those rights are better defined in the Constitution of the State of Nevada than they are in the United States Constitution, particularly the liberty of speech is better defined, and liberty of conscience, although the unreasonable seizure and search is almost exactly the same.

 

So, I would add those to that preamble so that those are specifically defined under the Constitution of the State of Nevada.  I also appreciate the amendment, which was suggested in Section 7 of the bill, on page 7, which would be, “to any act that is dangerous to human life and violates the laws of the State of Nevada.”  However, that does not completely reduce my concerns about the area of Section 2, which says, “disrupt, affect or influence the conduct or policy of a governmental entity.” 

 

Now, let me just go into a couple of reasons that I still have some concern, with regards to that, and certainly I am in favor of protecting us against terrorists.  I am concerned that they be rightfully prosecuted, but I am concerned about the broad reach, and let me just mention a couple of reasons for that.

 

We heard today discussion of domestic terrorism.  We all know we had a very traumatic day on September 11.  About a month after that, I experienced another very traumatic day, which I had not discussed before in this Committee.  I got a call from the secretary my late brother, Dan Hansen, that his office had been invaded by 20 CIB-IRS, that is Criminal Investigative Bureau of the IRS, armed with flack jackets and guns.  So I got my video camera and my son, and we went over to see what was going on because my brother had gone to a doctor’s appointment.  They were there for about four hours; they took about 20 boxes of information.  Later on, we found my brother had had an ongoing political battle, our political party advocates abolishing the IRS for more constitutional taxes instead, and also, we had had an ongoing legal battle in court with the IRS.  They came in after we investigated this, and had an attorney, had an illegal warrant to do this.  They took 20 boxes of material.  I looked at the list of some of the material that they took.  Quite a bit of it included political material.  He was very involved and interested in politics; he was the state chairman of the Independent American Party, and listed on their list was political material that had been confiscated.

 

[Janine Hansen continued.]  This was never pursued.  They had an illegal warrant, and they never pursued this after that time.  Unfortunately, my brother Dan was killed some months later in an automobile accident.  But that night on television, as I was viewing it, I was astounded to see on national television, images, with the same kind of jackets on, CIB-IRS, of those who had guns and flack jackets at my brother’s office, on television, and they said that, “Today there were raids on domestic terrorists all over the nation.”

 

Was my brother Dan, who was a loyal American, an active citizen in this community, a father, a churchgoing man, who had dedicated his life to the betterment of his community as he has saw it, a domestic terrorist?  This is a problem that we have when we try to define these things, because he was a law-abiding citizen, and nothing was ever proved against him that he had done wrong.

 

Last night on television, I saw people in San Francisco lying down in the street, involved in civil disobedience opposing the war.  Were they breaking the laws of the state of California?  Would they have fallen under this definition?  Possibly so, if it had resulted in someone’s death.  So there is a broad sweep that can be brought forward under the idea of domestic terrorism, or civil disobedience.  Certainly, I myself have never participated in civil disobedience, but that doesn’t mean that I might never feel I had the occasion that I needed to, in order to oppose some of the acts of terrorism committed on citizens by the government.

 

There is a national movement all over the country, of cities, dozens and dozens of cities have done this, passing resolutions to preserve the Bill of Rights.  This is in response to the Patriot Act, which was passed nationally, because, in particular, it violates Article 1, Section 18 of the Constitution of the State of Nevada, which is unreasonable search and seizure, and which would be the Fourth Amendment to the United States Constitution.

 

[Janine Hansen continued.]  Many large and small cities have adopted this resolution, in concern of the violations of our Bill of Rights, perpetrated upon us by the Patriot Act.  Are those citizens against terrorism?  Yes, they are, but they are concerned about the preserving of their civil liberties and their rights.  There are a few other issues I think that we need to be aware of.  Nationally, there has been a move to shortcut the right to trial by jury, which is preserved in the Constitution of the State of Nevada, in Article 1, Section 3.  On page 15, Section 25, of this bill, I also have serious concerns about property forfeiture; I am against property forfeiture because it takes place without due process of law, which is protected under Article 1, Section 8 of the Constitution of the State of Nevada, paragraph 6.  So I am concerned about property forfeiture, unless someone has actually been convicted of a crime, because it says in the Constitution of the State of Nevada, “No person shall be deprived of life, liberty or property without due process of law.”  Apparently, if I am reading it correctly, or as we see other property forfeiture laws applied in our state, this can be done without due process.

 

One other issue that may arise is Article 1, Section 11, in the Constitution of the State of Nevada, which provides for the right to keep and bear arms.  We also need to be assured that this right will be protected and will not be jeopardized by any terrorist legislation, and I do not suggest that, necessarily, this current legislation does it, but I bring this up just as an issue to make sure we have covered all the bases.

 

Last year, I was driving away from my home, and I saw a sport utility vehicle (SUV) pull up in front of it, and three men in suits get out of the car.  I was concerned about that, and so I drove around the block and came back up and they were going to my door.  I said to them, “What was it that you wanted?” and they handed me a card from the Bureau of Alcohol, Tobacco and Firearms (ATF), and they said that they were looking for my son.  They said there wasn’t any reason to worry because he wasn’t going to be arrested.  Not knowing what they wanted, and knowing that my son was out of town going to school in Susanville at a gunsmithing school, I told them that he was not available, but that I would try to contact him as he had no phone up there. 

 

Later that day I was able to reach my son at the school and tell him about this.  They had come to my door because my son, who was going to gunsmithing school, had purchased two pistols at the same time.  He had not broken any laws, and they didn’t pursue the matter in any way.  When he went up to talk to them, he found out that just by purchasing two guns, he had triggered this search by the ATF because they wanted to make sure he wasn’t selling these guns into another state.  A month later, the ATF showed up at a friend of my son’s for the same reason.  So you can see it is important that we recognize that government can be a threat to our basic, not only our First Amendment, but other rights as outlined in the Bill of Rights and in the Constitution of the State of Nevada, Article 1, which identifies our basic constitutional rights.  I greatly appreciate both of the amendments that have been brought forth, although I feel there may be some additional amendments, particular in the definition, that may be necessary and I appreciate your time.

 

Chairman Anderson:

Questions for Ms. Hansen? 

 

Laura Mijanovich, Northern Nevada Coordinator, American Civil Liberties Union (ACLU):

I am here to testify on A.B. 250.  There have been some changes, some amendments offered, which changes my testimony a little bit today.  Basically, I was here to support the idea that we need to protect the state against acts of terrorism, but as drafted originally, the bill in our view went too far.  Particularly we wanted to bring up the point arising with the original definition of acts of terrorism, which, as drafted, was so over-broad and vague, that it covered several constitutionally protected activities; just to name a few, the right to free speech, right to dissent, the right to protest, to engage in organized activities in nonviolent ways, the right to impede government, or the right to engage in civil disobedience.  Under the terms as drafted, even Martin Luther King would have been prosecuted under this law, if adopted.  I am asking permission from the Chairman and the Committee, to review the amended version of the definition of terrorism and come up with, maybe at the beginning of next week, a proposed revision, if any, of the amended language.  That is my statement, Mr. Chairman.

 

Chairman Anderson:

Ms. Mijanovich, I appreciate the questions.  I would mention to you that because of the 120 days, this Committee has a deadline of April 11, 2003, for everything to be completed.  We currently have within this Committee 103 pieces of legislation, and so we are going to be somewhat busy here, so you need to act quickly if you are going to review this and try to get it to an amended form, and have any paperwork that you need to get in to us.  It won’t be in this next work session, but it will have to be in one.  I know this Committee is not looking forward to the fact that I am about to move them to night meetings, too.  I don’t want to leave anybody out here. 

James Jackson, Nevada Attorneys for Criminal Justice (NACJ):

I know there has been an awful lot of testimony today, and I will keep my comments as brief as possible.  One of the things I wanted to clarify, on the record, just as I testified on S.B. 38 in the Senate Committee on Judiciary, is that it needs to be extremely clear on the legislative record that this measure, A.B. 250, is to be narrowly defined and narrowly applied.  I have had a number of conversations with Lt. Stan Olsen of the Las Vegas Metropolitan Police Department, and he had intended to state, and gave me permission to state on the record, that this bill and this law, if and when passed, is intended to be applied only to specific acts of terrorism and is not to be used in any manner, shape, way, or form on what would otherwise be considered state crimes, specifically, crimes involving domestic gangs and things such as that.  He made it clear to me that it was never their intention that it would be used in such a way, and I think it needs to be very clear that that is not the intent of this bill as well. 

 

I view the amendments that have been proposed by Speaker Perkins as a giant step forward in making this bill clear as to its intent and as to its constitutional concerns.  I think with the preamble that has been suggested, and the act of terrorism definition as proposed to be changed, takes a big leap forward from where we were with S.B. 38.  I know that there are a number of bills that are, in different ways, touching upon terrorist acts.  I would state for the record that the NACJ certainly supports anything that would provide constitutional tools and abilities to law enforcement and prosecution to protect the citizenry from such acts.  I would close by saying that I think that the greatest thing that could happen with A.B. 250, if and when it is passed and signed into law, is that it is never used, and that no part of this law ever has to be challenged in a court of “incompetent” jurisdiction, because terrorist acts are never visited upon our state.  I think the concerns that have been suggested by Mr. Conklin, Mr. Gustavson, and Mr. Carpenter and others, are very real concerns.  I think that, with respect to the amended language, we have gone a long way in addressing the concerns that I had, and that I know that the ACLU had, with respect to S.B. 38, and we look forward to, using the words of Mr. Gammick, “tweaking” it a little bit more and getting this in a position where it can be acceptable to all.

 

Chairman Anderson:

Questions for Mr. Jackson? 

 

James Tate, in opposition to the bill, or concerns about it?  I am going to have to limit your testimony, sir, I hate to do this, but I am going to, nonetheless.  We have two more bills yet to hear, and I have just been informed that we go to the floor at 10:30, so if you can make your remarks brief. 

 

James Tate, Executive Director, National Alliance Against Racists and Political Repression:

I will make them as brief as I possibly can.  We have some very serious concerns about this bill.  I believe it was the prosecutor from up there in Washoe County talked about “tweaking” the bill, but, he also talked about how one is able to interpret it.  The biggest problem with any law is that it is the district attorneys and the police departments that interpret what the law really means.  The gentleman from the Washoe County Sheriff’s Department mentioned several organizations which he claimed were terrorist.  These are all left-wing organizations, but I noticed that he left out organizations with the longest history of terrorism, such as the Ku Klux Klan, the White Knights of the Camelia, etcetera; those seem to have been forgotten.  Also, it seems to have been forgotten, is the fact that in some cases, elements of the police departments throughout the country have actually conspired with them to engage in terrorist acts, such as the bombing and killing of four innocent black children in Birmingham, Alabama. 

 

I basically think this is a very bad law.  It is substantially the same as the Senate bill.  I am not convinced that it is needed; there are laws now on the books that prohibit the very same things that we are talking about prohibiting here.  It is against the law to fly an airplane into a building; there doesn’t have to be a separate law to deal with that.  That is already against the law.  It is against the law to murder someone, which much of the language in this bill talks about felonies and murder; we already have laws on the books to deal with that.  We also have some real problems with the way terrorism is defined, in spite of the amendments.  We know the history of the Federal Bureau of Investigation.  We know what they did to Martin Luther King.  We know what they did to Malcolm X.  We know about the FBI’s (Federal Bureau of Investigation) COINTELPRO (Counter Intelligence Program), and frankly, we don’t have a lot of confidence that the Federal Bureau of Investigation will honor the United States Constitution, considering they have a history of never honoring it in the first place.

 

Homeland security is a very good idea.  It is like motherhood and apple pie, but it doesn’t give one the right to rape the United States Constitution.  The quote that people who hang out together probably do something bad together is very disturbing, especially considering that your group, the Legislature of the state of Nevada, in its own study has shown that the police engage in racial profiling.  Now you have given them a whole carte blanche to do anything else they want to do.  Clearly, September 11, 2001, was a terrible thing, but it can’t be used to justify every other subsequent action, including invasion of other countries such as Iraq. 

 

You will remember that when the trauma center closed, that many of the doctors were called terrorists by attorneys, because they walked out of the trauma center.  One man’s terrorist is another man’s liberationist.  So, in the deliberation of this bill, the problem that we have is that it is still too broad, it is still open to interpretation, and frankly, considering all the district attorneys and all the police organizations you have had appear before you in support of it,  none of them can give a history of having honestly and clearly been defending the constitutional rights of the citizens of Nevada.  I will answer any questions that you may have.

 

Chairman Anderson:

Questions for Mr. Tate from members of the Committee?

 

Peter Ediger, Coalition to Prevent the Erosion of Human Rights:

I am also staff person for Pace e Bene, which means peace and good.  We are an organization working for nonviolence education and training; we have programs going throughout the country and internationally.  You have an awesome responsibility as a Committee; to make laws is a very, very significant, and awesome responsibility.  With it comes a big temptation, particularly in times of national crisis.  The temptation is, under the guise of national security, to make laws, which do the opposite of securing our liberties.  We need only to look at what happened in Nazi Germany; everything they did was legal.  Everything Stalin did was legal.  Everything every dictatorial regime, or democratic regime, has done has been lawful, but not everything has been constructive to preserve our freedoms.  I have several general, and several specific, questions about this particular act. 

 

First of all, we need to realize that our security, contrary to common mythology, does not rest upon threats.  Our security rests on trust and faith in our capacity to love and care for each other as people.  That is the best of our tradition.  We need to keep that in focus.

 

Secondly, my general question is whether we are too quick, as a state, to follow the national pattern of adopting a patriot act.  That Patriot Act was done under duress in a very brief time, with no opportunity for citizen input.  I do appreciate the fact that you, as a Committee, are offering citizen input here.  Don’t assume that everything in the United States Patriot Act is really preserving our liberties; others have raised legitimate questions here.

 

Under the United States PATRIOT Act, or the act proposed here, not only would Martin Luther King have been a terrorist, Moses would have been a terrorist, Amos would have been a terrorist, Isaiah would have been a terrorist, Jeremiah would have been a terrorist, Jesus would have been a terrorist.  The Boston Tea Party folks would have been terrorists. 

 

Brothers and sisters on this Committee and in our state, we need to think carefully.  I am concerned even about the revised definition, which you are proposing.  “Dangerous to human life” can be very broadly interpreted.  Would, for instance, a proposed nuclear dump in our state now be a terrorist act because, certainly, it is dangerous to human life?  So, would we take the United States to court as terrorists, because they are being dangerous to human life?  That is to illustrate the broadness of this interpretation.  I am concerned, as I have been through the years, that my freedom to raise questions about some of the policies of our government will become defined as terrorism.  I welcome your questions.

 

Chairman Anderson:

Questions for Mr. Ediger? 

 

Gary Peck, Executive Director, American Civil Liberties Union, Las Vegas,:

I will be very brief, Mr. Chairman.  I just want to say that I concur with the comments of Mr. Jackson, Ms. Lusk, Ms. Hansen, and Ms. Mijanovich.  Ours is a state with a very rich, and very honorable, tradition of taking quite seriously individual freedoms, individual rights, and the Constitution, and with a very long and rich and honorable history of being skeptical and wary of the potential for government overreach.  I question no one’s motives in putting the bill forward, but I share everyone’s concerns about the broadness and the vagueness of some of the language.  We will submit our concerns in writing, and any proposed amendments. 

 

I would say, though, that I am disturbed by the suggestion that some have offered up that we ought to pass something and then let the courts sort it out a little bit later.  No, that is not what we ought to do.  I think everyone in this room concurs that what we ought to do is come up with the best law possible, one that will provide us with the best protection, the best chance of enhancing security and safety without trampling on people’s constitutional rights.  Thank you very much, Mr. Chairman.  I appreciate the fact that you held this hearing and gave everyone an opportunity to speak their minds.

 

Chairman Anderson:

Questions for Mr. Peck? 

 

Is there anybody there in Clark County who has not had the opportunity to speak on the bill?  I have gone through the list of people who have signed in and the room looks fairly empty. 

 

Benjamin Blinn, Citizen:

I am absolutely not in opposition to the bill; I express the same concerns that I heard Ms. Hansen, and the last few speakers speak, in protection of our constitutional rights.  I marched as a harmony keeper when the AIM, the American Indian Movement, recently showed up in Carson City.  They are listed as Americans of Native Descent that are considered a terrorist group, according to Mr. Banks’ testimony at the college where he lectured after that march. 

 

Being of Native American descent, I found that interesting that his people were listed.  Part of that is because they are armed and on homelands that are federally controlled, or held in guardianship.  Being a harmony keeper between the two factions, I would again say that I would be concerned about the civil liberties that we have and the narrow definition.  I think you have improved that today; I would support the bill in its form other than putting the “p.s.” as a caution. 

 

Chairman Anderson:

Anybody else who feels that their issue has not been raised by any previous speaker and wants to definitely get on either in favor, in opposition, or neutral, have a legitimate opinion, and everybody’s opinion is legitimate, but has an issue that they feel has not been raised here?  Let me close the hearing on the bill and indicate to the Committee that the intent of the Chairman to move the bill, not this bill, to the third bill on our agenda for the day.

 

I need to make sure that we have a hearing on Assembly Bill 242, so let me open the hearing on Assembly Bill 242.

 

Assembly Bill 242:  Increases amount of certain administrative assessments and requires imposition of administrative assessment when imprisonment or community service is ordered in lieu of fine. (BDR 14-613)

 

Ron Titus, Director, Administrative Office of the Courts, and State Court Administrator, Carson City, Nevada:

I am here today in support of A.B. 242 and I will make my remarks as short as possible. 

 

Assembly Bill 242 increases the administrative assessments, as per NRS 176.059, by $10.  Administrative assessments are applied when a defendant pleads guilty, or is found guilty, of a misdemeanor.  The amount of the administrative assessment varies by the fine.  A.B. 242 also requires the inclusion of the administrative assessments in the sentence when jail time, or community service, is given in lieu of a fine. 

 

The Administrative Office of the Courts (AOC) depends entirely upon administrative assessments to fund its operations.  Also dependent on administrative assessments are all judicial education and statewide court technology efforts.  Judicial education includes funding of NRS mandatory educational requirements for general and limited jurisdiction judges, while our technology efforts include a state sponsored limited and general jurisdiction case management system, and integrating criminal justice agencies so they can share information more freely.  Our senior judge program is also funded exclusively by administrative assessments.  Administrative assessments have been lower than projections for the last two years and have shown no signs of regaining to previous levels.  As of February of this year, administrative assessments are down 16.3 percent from projections. 

 

As mentioned, A.B. 242 proposes an increase in the assessments by $10, and I recognize that a point of concern is the percent of assessment when compared to the actual crime.  You should have been handed out several figures (Exhibit G); I would just go through these figures very quickly, tell you what they are and let you study them at your leisure.  Figure 1 lists the percentages of the assessments, the first two columns there under NRS 176.059, is the current statute.  The next column is NRS 176.0611, which is a facility fee, which was enacted, I believe, in 1995.  Then in the A.B. 242 proposal, you will see there that A.B. 242 would increase the administrative assessment on the $5-to-$49 fine level to $35, which is 71 percent of the $49; I just took all the percentages of the top one.  The last two columns address another bill that is before this Committee, and I will not discuss those columns at this time.

 

Figure 2 on the next page is a list of actual fines, or actual violations, and what the assessment would be, compared with the current assessment and then with A.B. 242, and the percentages.  If you look at the very first one there, in this case, Eureka County, justice courts, the basic speed law, eight miles over, their fine is $80.  The current assessment is $55, which is 69 percent of the fine.  The total is $135; with A.B. 242 that increases the assessment to $65, which is 81 percent of the assessment.  The total fine is $145.  That is only a 7 percent increase over the total fine, so these are the different percentages that you can look at to get a real picture of what the increase is.  If you send in your bail, that is what you would pay in Eureka County, $135 currently, $145 with the enactment of A.B. 242.  If you appeared in court, you may be able to get that reduced and the administrative assessment would be reduced accordingly. 

 

Figure 3 is an estimate of the revenue that this increase would provide.  We estimate an average in Fiscal Years 2004 and 2005, an average of about 477,000 assessments.  An additional $10 for each assessment that would raise an additional almost $4.8 million:  51 percent of that comes to the Judiciary; 49 percent of that goes to the General Fund and funds Criminal History Repository, POST (Commission on Peace Officers’ Standards and Training), NHP (Nevada Highway Patrol) switching network, and, I believe, victims of crime. 

 

[Ron Titus continued.]  Our 51 percent is divided; you will see that down below.  The AOC gets 18.5 percent; USJR, which is Uniform System for Judicial Records technology, gets about 9 percent for judicial education.  The Supreme Court gets 60 percent of that, which is almost $1.5 million and the Retired Justice Duty Fund, which is our senior court program, about 3.5 percent.  It is important to note that the General Fund directly benefits by, not only the 49 percent that goes to that, but also the 60 percent of the Nevada Supreme Court, basically, benefits the General Fund because that is money that the General Fund does not have to use to fund the Supreme Court.  So in all, the General Fund benefits by a total of $3.8 million.

 

We do have a couple of proposed amendments, on the third page.  When the language was initially drafted, it was assumed that the days a person would spend in jail, in lieu of fine, was directly proportional to the fine.  I have found out from various courts that is not the case, and it would be very time-consuming, especially in a fast moving court, to calculate the assigned value as jail time.  So we suggest deleting the words “to imprisonment or” in line 14 on page 2.  Also, it was brought up that there are other assessments, the facility assessment, and the language that we have in A.B. 242, if a “justice or judge sentences a defendant…to perform community service in lieu of fine,“ that that language be incorporated into the other, primarily the facility assessment, and you may want to consider that for A.B. 29 as well.

 

Finally, in Section 3 of NRS 176.059, the second sentence of that section states, “money collected for administrative assessment must be stated separately on a course docket and must be included in the amount posted for bail.”  Most courts, when bail is forfeited, go ahead and distribute those assessments accordingly, but there are a few courts that do not interpret that language that way and do not distribute the bail appropriately.  The assessments are included in the bail, therefore we are proposing adding some language to clarify the intent, which I have included that if bail is forfeited, the administrative assessments that are included in the bail would be distributed pursuant to that section. 

 

As I mentioned several times, we do have A.B. 29, which is an increase in administrative assessment for specialty courts before this Committee; we would propose that we merge A.B. 242 into A.B. 29, so that there is only one assessment bill that would have to go forward.

 

[Ron Titus continued.]  In closing, I would like to note that letters of support have been received from Chief Justice Deborah Agosti (Exhibit H); Judge Dan Ward, the President of Nevada Judges Association; limited jurisdiction judges, as well as from the Las Vegas Municipal Court and the Las Vegas Justice Court.  Those two courts contribute almost 50 percent of all the assessments that the state receives.  A letter of support is also expected from District Judge Dan Papez, President of the Nevada District Judges Association.  I will answer any questions you may have.

 

Chairman Anderson:

Thank you for the suggestion that we might link all these together in a single piece of legislation; that is an interesting concept and I am sure that the Committee will have an opportunity to deal with it, if it were to move forward.  The question of your second proposed amendment, in terms of the assessment is going to be worked off, how then, will the dollars—there won’t be a dollar transfer since this is a work program—how does the Administrative Office of the Court benefit?

 

Ron Titus:

What the language in A.B. 242 is intended to do is to allow the individual to work off the fine but not the assessment, so they would pay the assessment.  There are other sections of the NRS, a little later in the section, that allows the assessments to be forgiven if they are indigent and they would be forgiven under that.

 

Assemblywoman Buckley:

I like these amendments and think it makes it a stronger bill.  I am a little confused about the amounts, though.  What is the total amount if the bills are merged, and what do they go for?

 

Ron Titus:

You are talking about A.B. 242, as well as A.B 29?

 

Assemblywoman Buckley:

Yes; if we are going to merge them, at your suggestion, to have a single administrative assessment bill, what is your request?

 

Ron Titus:

There are several amendments proposed to A.B. 29; I don’t know to what extent the Committee is aware of those, but we are proposing that we reduce the assessment for A.B. 29 from $15 to $5, and then that would go to the Judicial Council to be distributed to specialty courts.  So, if that were the case, and the Committee accepted the $5, as well as the proposed $10 in A.B. 242, then the increase would be a total of $15, and that percentage is represented in the very last column of Figure 1.

 

Assemblywoman Buckley:

That is what I needed to know. 

 

Chairman Anderson:

We will make the letter from Chief Justice Agosti a formal part of the record.  Are there other letters you wish to make a formal part of the record?

 

Ron Titus:

I do have several letters; they were sent directly to the Chairman.  I did not bring copies of those, but I can make sure copies of those get over here.  [Submitted letters from:  Judge Toy Gregory (Exhibit I), Judge Ann E. Zimmerman (Exhibit J), Judge Dan Ward (Exhibit K), and Judge Dan Papez (Exhibit L).]

 

Chairman Anderson:

Questions for Mr. Titus, the Administrative Officer of the Court?  How will this, then, affect…by increasing the amount of administrative assessment by $5, if we merge it, but $10 as in the bill right now, the defendant plead – this is going to aid in the technological innovations of the court?  Is that what you end up with?

 

Ron Titus:

Yes, you will see on figure 3, we have divided it up.  The AOC will receive about $450,000; that is what is estimated.  I left out the section of my testimony, for time’s sake, what we would use that for, but we would use that for several positions to help us with our responsibilities, as well as support for the judicial council to improve the administration and the standardization throughout the judiciary.  

 

The Uniform System for Judicial Records, which is the technology we would have, that would be about $200,000; our technology projects have stalled because of lack of funding.  Like I say, we are exclusively, solely, dependent upon administrative assessments, and we are down several hundred thousand dollars to date.  In fact, the next two columns, with the 2002 shortfall and 2003 shortfall, show exactly what we are down.

 

Chairman Anderson:

Questions for Mr. Titus?  Thank you very much, sir.  I have a couple of people who wish to speak in support of the bill.

 

Ron Pierini, Sheriff, Douglas County:

I am also on the Commission on Peace Officers’ Standards and Training (POST), and I am here to support this bill for any kind of avenue that we can assist POST in trying to meet our goals in providing training, either at the academy level, and also, being able to give enough money in their budget to be able to exist.  I have approached many of you over the last couple months and explained the necessary avenue of trying to attempt to get their budget to a reasonable amount.  If it continues the way it is right now, our POST agency is going to be in huge dire straits to even be in existence.  So, I am just here to support that bill of any kind of avenue to assist them in the overall operations of what they are trying to acquire.

 

Chairman Anderson:

Any questions for Sheriff Pierini? 

 

Dick Clark, Executive Director, Commission of Peace Officers’ Standards and Training:

Respecting the time for the Committee here, I will just make some very, very quick comments here.  I am the Executive Director of the Commission of Peace Officers’ Standards and Training (POST).  I am here testifying in support of A.B. 242; passage of this bill is absolutely critical for our organization.  I have also passed out a fact sheet (Exhibit M) to the Chairman, and to the Committee members, for your preview.  I will just highlight a couple of things so that you can go on with other business. 

 

In 1983, the money that was sent to the state from administrative assessments, when that situation was originated and established, all of that money went, at that time, the Committee on Peace Officers’ Standards and Training, exclusively, and for the sole purpose of the training and education of peace officers.  Since that time, and since there was money in the pool, several agencies had been added.  Our funding was down about 10 percent this last fiscal year, and it looks like about 15 percent this year; we also experienced a severe shortfall in 1995.  Because of that, our training component of the POST Commission, our basic training component, our academy, which is one-third of our operation, is now in crisis.  Because the court assessments were down so low, our request to continue the academy operation was placed in the enhancements, so it is absolutely critical that this bill pass in order to satisfy the need and bring up the court assessments.

 

We provide basic training for about 25 to 30 criminal justice agencies.  We graduate approximately 40 to 50 peace officers annually.  If A.B. 242 does not pass, this whole operation is in jeopardy.  The criticality of that, also, in some of the earlier testimony about difficulties with terrorism acts in the state, a lot of these things, and where law enforcement is able to intervene and prevent these things ahead of time, have occurred, not in the urban areas, but in the rural areas.  We are the only organization that supplies a regional live-in training academy for the rural agencies, and they would be severely affected if this operation were to go away; it is now, in fact, in jeopardy.  So, I am just asking please vote “yes” on A.B. 242. 

 

Chairman Anderson:

Lt. Olsen, you wanted to say, “Me too?”  [Lt. Stan Olsen, seated in the audience, indicated in the affirmative.]  OK, good for you.  Anybody else would like to say, “Me too?”  Anybody in opposition to A.B. 242?  I close the hearing on Assembly Bill 242. 

 

The third bill on the agenda is S.B. 63.  Anybody here for S.B. 63?  I open the hearing on Senate Bill 63.

 

Senate Bill 63:  Permits recording of affidavit of death by surviving spouse who holds homestead in community property or who takes community real property by intestate succession. (BDR 10-247)

 

Jim Kiernan, Northern Nevada Title Company:

Mr. Chairman, members of the Committee, my wife and I are the owners and operators of Northern Nevada Title Company here in Carson City.  We service seven counties in northern Nevada.  Our company has been in operation for over 20 years.  I, personally, have approximately 40 years in the title industry.

 

I will try to make this very brief, as I know your time is limited.  It has become very apparent to us in the title industry that over the past five to six years, as the community continues to age, we are seeing more and more of our elderly citizens needing the equity from their homes to retire into care facilities.  What prompted this bill was an escrow that we had approximately a year ago; it was not untypical of this type of situation.  We had an elderly widow; her husband had been deceased for some five years.  She was in need of health care and had made arrangements to move into a care facility after she left the hospital.  She had sold her home and we had prepared the escrow instructions. 

 

At the time she came in to sign, she came in with her daughter, it was determined that her husband was deceased; we had no knowledge of that.  They held title as community property, and when we told the lady that she would have to probate her estate, even though it was a minor estate and could be done rather quickly, she lost the transaction.  The buyer was in a hurry to close; she also lost the space in the care facility that she was going to move into.  Unfortunately, she was not able to sell the home and move into that facility simply because she had no other remedy.  Unlike joint tenancy, where she could have filed an affidavit of death, she was forced to probate her husband’s estate in order to acquire the title, even though he died intestate, and by law, she was capable of acquiring his property. 

 

This is not uncommon anymore; it is becoming almost a casual and everyday occurrence throughout the state.  I have checked with other companies in the eastern part of the state, and also in Clark County, and they run into this frequently also.  We are not attempting to modify the requirement of a probate.  We are simply asking that you authorize an alternative in those situations where it is evident that the surviving spouse, either because they own it as community property with the death of the spouse, if he dies intestate, or where the property is homesteaded. 

 

Both of those instances under NRS state that the property will vest solely in the surviving spouse as community property under NRS 123.250; the homestead portion is under NRS 115.060.  In both cases, it says the property would vest absolutely in the survivor.  This simply allows an alternative method.  I certainly believe that there are going to be cases where probates will be proper and necessary, but in those instances it is very obvious that the bills have been paid, there are no errors, and/or the errors are there with them, and they want to obtain the equity from their property.  I think this would give them that alternative. 

 

Assemblywoman Buckley:

I am going to pull out the succession statutes.  I know we have some summary administration affidavits that can be filed in lieu of probate, especially for small estates.  So my first question is, is there any such provision that would allow a similar affidavit to be filed for a surviving spouse?  My second question is why would this only be an NRS 111 and 40, instead of the succession statutes?  Then my third question is, it seems really funny and odd to me, to allow someone to inherit by virtue of having a homestead interest.  That is not a real property interest, so you could have someone entitled to inherit by virtue of being on the title, by virtue of being a spouse and in line to inherit under the succession laws.  Doesn’t referring to a homestead just mix up those legal concepts?

 

Jim Kiernan:

No, I believe under NRS 115.060, and I don’t know if you have a copy with you, but it says that, “Except as otherwise provided in a premarital agreement between husband and wife which is enforceable pursuant to Chapter 123A of NRS:  1.  If the property declared upon as a homestead is community property, the husband and wife shall be deemed to hold the homestead as community property with a right of survivorship,” as opposed to simply community property.  It then goes on to say, “Upon the death of either spouse…” you have 1(a).  Then in 1(b) it states, “The property vests absolutely in the survivor.”  The context of having under NRS 115.060, the fact that the property vests absolutely in the survivor, that section doesn’t allow for a constructive way to impart notice to the public, through the recorder’s indices, that the property has been transferred by law to the surviving spouse.

 

Assemblywoman Buckley:

Doesn’t NRS 115.060 deal with what happens in death, if there is a death, and what is the disposition of the homestead, with regard to that death?

 

Jim Kiernan:

As to the interest of the decedent, that is correct.

 

Assemblywoman Buckley:

Correct, but that is what happens if one person dies, what is the effect on the homestead?  Not who should have title to it.  I might just have to mull this over and talk to a real property lawyer and better understand this.

 

Assemblyman Claborn:

My question would be to the gentleman, would a living trust or a living will be able to get around this bill we are talking about?

 

Jim Kiernan:

I don’t believe so.

 

Assemblyman Mortenson:

Did I hear correctly, that if the circumstances are such that there is only one survivor and all bills are paid, that one could file for not going through probate?

 

Jim Kiernan:

No, not currently.  The only time that you would be able to file, currently, is if you held title as joint tenants or as community property with right of survivorship.

 

Rocky Finseth, representing Dean Nevada Land Title Association, and the Nevada Association of Realtors:

I will be brief; both organizations support this bill. 

 

Chairman Anderson:

Are you an attorney, sir?  No.

 

Rocky Finseth:

No, thank goodness!

 

Chairman Anderson:

That was my reaction, too.  Anybody else have questions for either of these gentlemen?  Well, let’s close the hearing then.  Anybody else wishing to testify? 

 

Andrew MacKenzie, Attorney: 

I am an attorney in Carson City, with offices here for approximately 33 years.  In due respect to Mr. Kiernan, I did discuss this matter with him, and I realize what his motivation is to expedite the transfer of properties to the surviving spouse.  However, I think that in attempting to expedite this matter, I think there are going to be some rights going to be trampled on, particularly to creditors, and heirs who do not get notice of these transfers.  As Mr. Kiernan pointed out, I deal with a lot of aging clients, much like myself, who have an occasion to have second marriages, and in the course of those second marriages there are people who do not really understand what their community rights are, and what separate rights are, and many of them have done wills in their first marriage, or while they were single and then they will be married, and they don’t realize that a marriage revokes that will as to that new spouse. 

 

Therefore, if that person dies, should they die with a will, but it is intestate succession because of that new spouse, and this new spouse, they may have been married only a short time, and it is clearly not community property, and there is no way for anybody to prove what is community property, or what is not community property.  That is why we go through the intestate successions to allow the errors to challenge the classification of a property.  As Assemblywoman Buckley pointed out, that should not be the reason that you file a homestead on property, to allow a person to succeed to that property, just because a homestead is filed.  It is just too cloudy as to what is separate property and community property.

 

For years, we worked with the joint tenancy with right of survivorship that worked well, and then, for tax reasons, they enlisted the use of community property with right of survivorship, which knowingly, they have put it in that classification.  It does not state, here, how this intestate succession, whether the name “community” must be in the vesting of the document or not.  It just means that if it is with intestate succession, and it is presumed to be community property; therefore, a person who is married for a very short time could go down and take, usually, what is the principal asset of couples, and transfer it and be gone, before any of the heirs or creditors would know about it.  In trying to expedite this succession of this particular asset, I think we have to be a little careful.  I don’t think this type of expedition language will help anyone, and will just cause more troubles with the creditors and the heirs.

 

Chairman Anderson:

Did you have an opportunity, Mr. MacKenzie, to speak on the other side when the Senate held their hearing relative to this piece of legislation?

 

Andrew MacKenzie:

I did not, Mr. Chairman.  Senator Amodei, who sponsored this bill at the request of Mr. Kiernan, and I spoke with Mr. Kiernan, and I did not get notice of this bill from Senator Amodei, who is right down the hall from me in my law firm.  I asked him first, why he sponsored this bill, and second, why he went ahead with this.  It was his first bill out of committee.  He said, “Nobody showed up to object, so it came out.”  And he also said, “You can go see Mr. Anderson about it.”

 

Chairman Anderson:

I just was kind of curious, Andy; I know where you practice and I know whose office is down the hall from yours.  I was just kind of curious as to how that happened.  Any other questions or concerns? 

 

Assemblywoman Buckley:

I know in previous sessions, we’ve worked pretty hard to try to make things easier where there are small estates, or spouses with limited assets.  In your opinion, is there a need to perhaps, make it easier when the only thing in the estate is a house, by having more of an affidavit or simpler procedure, to speed things up, but still give notice to, perhaps, children who might be heirs and that sort of thing?

 

Andrew MacKenzie:

In response to your question, I think there is a way to do it, and it would be based upon the amount of the asset, as well as shortening the time to do it.  I appreciate the title companies and the brokers who want to expedite these transactions.  However, I think there would be a method where you have to give notice to the heirs, and it doesn’t have to be an extensive amount of time, as well as to notice to creditors, to allow them before somebody… 

 

One other thing I would like to bring up, the thing that we have seen now is that there are predators out there who are preying upon people who have been married for a long time and they come in the form of a caregiver, or things like that.  We are finding, also, they are ending up with assets in their name from elderly people who are lonely and do not have family close by and somebody watching out for them.  I have had several instances where I have come across people who have had their bank accounts cleaned out and the only reason they didn’t get their house was because they had to go to the trouble of getting it in joint tenancy with a right of survivorship, or community property right of survivorship.  I just think that there would be a method through the succession statute to make it much easier and expedite that process.

 

Assemblyman Mortenson:

I think this is very meritorious legislation, but I think you should also add to it, if it is possible, or another bill, “sole surviving siblings,” where there is a small estate, no bills outstanding, no survivors other than one other sibling; that would be very meritorious. 

 

Chairman Anderson:

Thank you, Mr. MacKenzie, for staying through the long hearing this morning, to come for this last section.  Anybody else wishing to testify on S.B. 63?  Let me close the hearing on S.B. 63.  I will also enter into the record the report of the subcommittee on Assembly Bill 28 (Exhibit N). 

 

We are adjourned [at 10:53 a.m.].    

 

RESPECTFULLY SUBMITTED:

 

 

 

Carrie Lee

Committee Secretary

 

 

APPROVED BY:

 

 

 

                       

Assemblyman Bernie Anderson, Chairman

 

 

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