MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
March 20, 2003
The Committee on Judiciarywas called to order at 8:14 a.m., on Thursday, March 20, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Danielle Christenson, Subcommittee Policy Analyst
Risa B. Lang, Committee Counsel
Sabina Bye, Committee Secretary
OTHERS PRESENT:
Kristin Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney’s Office, Reno; and representing the Nevada District Attorneys Association
Jim Nadeau, representing the Washoe County Sheriff’s Office, Reno
Michael Pescetta, Attorney at Law, Las Vegas
Ben Graham, representing the Nevada District Attorneys Association
Chairman Anderson:
[Called meeting to order and roll was called.] Please mark Ms. Ohrenschall present when she arrives; she is giving testimony in another committee. Fourteen members are present; a quorum is present.
We are in work session today. For those of you who are listening on the Internet, we are not taking testimony. We may call people forward who might be able to aid in our discussion. If you’ve signed in that’s helpful so that I know that you’re here and potentially would like to speak on some of the issues. We are going to be looking at several different bills.
We’ll start with A.B. 16.
Assembly Bill 16: Provides for genetic marker analysis of certain evidence related to conviction of certain offenders sentenced to death. (BDR 14‑200)
Allison Combs, Committee Policy Analyst:
The first bill in the Work Session Document (Exhibit C), page 1, is Assembly Bill 16. It is the last bill from the 2001-2002 Interim Legislative Commission’s Subcommittee to Study the Death Penalty and Related DNA Testing. It provides for a genetic marker analysis of certain evidence related to the convictions of offenders who are under the death penalty.
The measure mirrors a bill from last session. Several amendments were proposed that involved a couple of word changes. There’s a mock-up in the Work Session Document that includes all of these proposed amendments. It’s right before the blue attachment to the Work Session Document; it’s on white paper and has blue and red and green ink on it, entitled “Proposed Amendment to Assembly Bill 16.” The amendments are from Mr. Pescetta and the Washoe County Sheriff’s Office.
On the first page of the mock-up of the bill there’s some language in Section 2 proposed by Mr. Pescetta, which would specify that the remedy provided by this section—in other words, for someone who is under sentence of death—to seek genetic marker analysis. That remedy is in addition to any remedy the inmate may have under other provisions of the law to obtain testing of evidence for genetic marker analysis. As noted in the box to the side, methods in non-capital cases to obtain testing through other legal proceedings exist and are currently possible under Nevada Revised Statutes (NRS) 34.780(2).
Chairman Anderson:
This amendment might be necessary to clarify how the DNA (deoxyribonucleic acid) testing would take place if we are going to proceed with the bill.
Allison Combs:
I think that is the intent of the sponsor of the amendment.
The second amendment on page 2 refers to Section 2, subsection 4(a). It is proposed by the Washoe County Sheriff’s Office and the Las Vegas Metropolitan Police Department, and would specify, essentially, that other agencies may hold the evidence necessary for the testing. They suggested clarifying that the inventory would reference all available evidence that may be in possession of the state, which the bill currently references, as well as, perhaps, an investigating agency and the court.
Chairman Anderson:
On its face it appears okay to me. My concern—if we can get the Nevada District Attorneys Association to clarify for me—I just want to make sure that if we were to add this section—maybe my legal staff will help on this too—we’re not going to create a situation where we are looking for the original notes of the investigatory officer. I’m not looking to expand this to be all the way back to “day one” of the investigation, only those things that were available or should have been available at time of trial. Is that what this amendment is intended to accomplish?
Kristin Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney’s Office, Reno; and representing the Nevada District Attorneys Association:
[Introduced herself.] Yes, that is my understanding. By the time a murder case does go to trial, they already have a copy of everything within the state’s possession. It should not be anything new. It should be information that has already been provided to the defense.
Chairman Anderson:
So you don’t see any particular problem with this language, even though it is suggested by the Washoe County Sheriff’s Office and the Las Vegas Metropolitan Police Department?
Kristin Erickson:
No, Mr. Chairman, I don’t.
Chairman Anderson:
Do they need it? Is it essential language?
Jim Nadeau, representing the Washoe County Sheriff’s Office:
I think it is necessary because it directs a couple of things: the available evidence and evidence that may not have been used in court.
It specifically addresses DNA evidence, if I am reading this section correctly.
Chairman Anderson:
Does anybody have a problem with that amendment?
Assemblyman Brown:
I’m not sure if Mr. Nadeau is suggesting—I just heard his quick comment—you’re suggesting that this relates only to DNA evidence, and really, that’s what we’re looking at here. Does it limit that inventory to the DNA evidence? I’m not sure that we need to go out and get every piece of evidence that was to be admitted. If not, would it make sense to include such . . .
Chairman Anderson:
Let me draw your attention to line 12 of the language of the bill “that may be subject to analysis.”
Assemblyman Brown:
Thank you, Mr. Chairman.
Assemblyman Horne:
I have a question regarding, “all available evidence in the possession of the state.” When wouldn’t evidence be available?
Kristin Erickson:
Evidence, virtually, is always available prior to trial. We have a listing; the defense receives everything in the state’s file. We usually always do an evidence viewing with the defense attorney, so they can physically look at every single piece of evidence that we have. Realistically, it would always be available for them to look at. Once the trial is over, the evidence is secured into a vault and that is within the district court’s authority.
Assemblyman Horne:
So then why the need for the language of “all available evidence”?
Chairman Anderson:
Ms. Erickson, let me call on our legal counsel to clarify.
Risa Lang, Committee Counsel:
Currently, the way this is drafted requires the prosecuting attorney to prepare an inventory of the evidence that is within possession or custody of the state. Adding this language, I’m not sure that “all available” evidence—I think that the intent was to indicate by some of the evidence, for whatever reason, might not be available anymore.
The other part, adding an investigating agency in the court would require the prosecuting attorney to include in the inventory any evidence that’s within the possession or custody of an investigating agency and the court. So the prosecutor would have to determine what the investigating agency and the court may have in their possession that is outside the possession of the state. Otherwise, if that’s not the intent, I’m not entirely sure why we are listing those. That’s the way it is written.
Chairman Anderson:
As I recall from the original testimony, Assistant Sheriff Means indicated to us that it was possible that between this time and the time of the trial that some of the evidence may have been destroyed as a result of contamination from other materials it may have come in contact with initially. Although it was available at the time of trial, it may no longer be available.
Assemblyman Horne:
Yes, I remember that testimony. When I read it again it seemed to me as if, perhaps, it was with another jurisdiction—the FBI crime lab. If ten years from now someone requests to retest some evidence and they say, “It’s not in our possession; it’s still with the FBI,” under this, if not in their possession, would they not have to test it?
Chairman Anderson:
Do you think it does the bill harm?
Assemblyman Horne:
I don’t see a great need for it.
Chairman Anderson:
Do you think it does the bill harm?
Assemblyman Horne:
I would like to see it removed—the “all available” evidence, and just leave “the evidence.”
Chairman Anderson:
So then we have some problems with this one. We will have to come back to it. Let’s move on to the next one.
Allison Combs:
The next amendment is proposed by Mr. Pescetta to Section 2, subsection 5, and goes to the hearing the court would hold. Currently, the bill provides that the court may hold a hearing on the petition; Mr. Pescetta’s proposal would change the “may” to “shall” to require a hearing.
Assemblyman Mortenson:
I’m puzzled by the words before that, “at its sole discretion.” It sounds like we have a contradiction. It has discretion and yet it’s “shall.”
Chairman Anderson:
I think it’s a drafting question and we’ll have to take it up with Ms. Lang. Is there a problem here?
Risa Lang:
I think in preparing this document, Allison was trying to incorporate the suggestions and the actual language. Of course, when we put it through drafting, it will all be consistent.
Chairman Anderson:
In other words, Mr. Mortenson, if we decide to go from “may” to “shall” we’ll make sure the agreement takes place.
Does anybody have a problem with the change from “may” to “shall?”
Michael Pescetta, Attorney at Law:
I just wanted to point out that in the proposal that I submitted, I had removed the “in its sole discretion” along with “may.”
Chairman Anderson:
The bill drafter will take care of that. We’re trying to do it on this mock-up copy that we have so we can try to move this. We have a member who is going to be leaving shortly and we’re trying to move this one along.
Allison Combs:
The next change, also proposed by Mr. Pescetta, involves Section 2, subsection 6(a), which currently reads, “The court shall order the genetic marker analysis if the court finds that a reasonable probability exists that the petitioner would not have been prosecuted . . .” and the section continues. The word change would be changing “probability” to “possibility.”
Chairman Anderson:
This is a little bit broader; moving from “probability” to “possibility,” we’ve expanded the definition rather dramatically. Is everybody okay with the word change? Okay.
Allison Combs:
The next change is proposed by the Washoe County Sheriff’s Office and the Las Vegas Metropolitan Police Department to Section 2, subsection 6(b). Currently the language reads, “The evidence to be analyzed exists and is in a condition that allows genetic marker analysis to be conducted as requested in the petition.” The proposal would strike the condition language: “and is in a condition that allows genetic marker analysis to be conducted as requested in the petition.”
Chairman Anderson:
Does anyone have a problem with that?
Allison Combs:
The next change is under Section 2, subsection 7(a), from the Washoe County Sheriff’s Office and the Las Vegas Metropolitan Police Department who proposed to strike the word “promptly” under the order that the analysis be conducted promptly under reasonable conditions. There was a note that “promptly” may imply a request is a “rush analysis” in the eyes of the court.
Chairman Anderson:
If we drop “promptly” and leave it open do we need to give a specific time line or is that the same thing? I’m not sure I’m willing to leave it just to eventually do it.
Jim Nadeau:
The court order is going to give us the direction and, certainly, it is not our intention or desire to upset the court by not being responsive to their orders. So I think the court order will provide sufficient expediency.
Assemblyman Carpenter:
I like it the way it is. It says, “Order the analysis to be conducted promptly under reasonable conditions.” I believe, at least that’s what I would be looking for, that it would be handled. I just think we need to leave the word “promptly” in there.
Chairman Anderson:
Let’s move to the next section on lines 42 and 43.
Allison Combs:
This change is also proposed by the Washoe County Sheriff’s Office and the Las Vegas Metropolitan Police Department and it would delete the reference to CODIS (the FBI’s Combined DNA Index System) that is currently in the bill. You can see that reference at the top of the next page, page 3, and replace that with: “meeting quality assurance guidelines established by the FBI.” The notation was that the reference to CODIS needs to be removed because if either of the Nevada labs decides that the sample warrants another type of DNA analysis, which can’t be performed in-house, the labs want the ability to send it to an external lab, but the lab would have to be one that meets the quality assurance guidelines established by the FBI.
Chairman Anderson:
Does anybody see a problem with that suggestion?
Assemblyman Geddes:
There are two things that I would suggest. Section 2, subsection 7(b)(1), says the lab must be operated by the state of the political subdivision. That requirement couldn’t be met if they had to send it to an outside laboratory. I would suggest we take that out to meet the intention. There’s a technical part, “or exceed” probably should come out. If you satisfy the quality assurance standards, that’s all anybody can be certified for is to satisfy the standards. There is no qualification to exceed the standards. I would just recommend pulling out “or exceed” and also pulling out number 1 [under subsection 7(b)] so that if they do have to go out-of-house they do have that option.
Chairman Anderson:
Let me ask the bill drafter. Is Mr. Geddes’ question relative to the point in number 1, “be operated by this state or one of its political subdivisions,” preclude the use of outside testing laboratories?
Risa Lang:
Actually, when I looked at this last night I had the same question about how it would get sent to an external lab. If that is the intent it may be a good idea to take out subparagraph 1 and allow them to send it wherever they want. I think in the original drafting of this bill part of the reason for that was just for, potentially, cost-containment in having it sent to one of the state-operated labs, but I don’t know that for certain.
Chairman Anderson:
Maybe we could amend it so it shows, “be operated by the state or a contracted agency of one of its political subdivisions” which would give them the opportunity to do both, but show a preference for one of the state-operated laboratories. Is that possible? Can we work on the language there to give them the option of doing both?
Risa Lang:
I think it’s possible to do that or maybe even in subparagraph 1, just have it sent to a lab operated by the state or one of its political subdivisions, when possible, indicating that if they are capable of doing it, you send it to those labs.
Chairman Anderson:
Is that in subsection 7(a) you mean?
Risa Lang:
Subsection 7(b)(1).
Chairman Anderson:
I thought that the standard for the forensic DNA testing is something that the FBI sets as a floor rather than a ceiling and so it would be possible to have a higher assurance standard above that.
Assemblyman Geddes:
You could, but they only certify the floor.
Chairman Anderson:
Are you suggesting that we don’t have that language at all?
Assemblyman Geddes:
I’m suggesting that we pull out the “or exceed” because when they satisfy the standards, that’s all they could be certified for.
Chairman Anderson:
Ms. Lang, does that create a drafting problem?
Risa Lang:
No. That’s fine, Mr. Anderson.
Chairman Anderson:
The intent there would be okay. Are we okay with the other suggested changes and removing the language suggested by the Washoe County Sheriff’s Office and the Las Vegas Metropolitan Police Department? Let’s move to Section 2, subsection 7(c).
Allison Combs:
In Section 2, subsection 7(c), at the top of page 3, is a proposal from the Washoe County Sheriff’s Office and the Las Vegas Metropolitan Police Department to add language on line 5 with regard to ordering “the forensic lab selected pursuant to paragraph (b) to perform . . .” and adding some additional language, “an evidence review and then,” and continue on with, “a genetic marker analysis of evidence.”
Chairman Anderson:
Does anyone see a problem with that? It seems okay.
Assemblyman Carpenter:
I would like to know why we need the “evidence review” in there. I didn’t know that the laboratories would be doing something like that. I just need an explanation of why that would be added.
Jim Nadeau:
I believe that the evidence review is to ensure that it can, in fact, be tested, and that there is sufficient DNA to perform the test. I think that’s part of the justification there.
Assemblyman Mortenson:
It seems superfluous because when they go to perform the test then they will determine whether there is sufficient material.
Assemblyman Brown:
I certainly see some justification for it because they are provided with an inventory of evidence; so I think there should be an initial review of that inventory. From there, they may select acceptable pieces or types of evidence and then perform the genetic marker analysis on those acceptable pieces; so I think there is some justification for that.
Chairman Anderson:
I think that, while I don’t disagree with Mr. Mortenson, it aids their comfort and where they are going to be going with the evidence that’s in front of them. I don’t think it harms the bill in any way. If it aids their comfort level in the forensic laboratory, I think we should probably do that.
Allison Combs:
The next one is Section 2, subsection 7(d), also from Washoe County Sheriff’s Office and the Las Vegas Metropolitan Police Department. It raises a question with regard to the ordering of the production of the reports. There was a question of who would be the recipient of the reports, and whether that may need to be specified. It appears that the recipient would be the court, but I would certainly defer to our legal counsel or any of the counsel in the audience.
Risa Lang:
I think that this is all under subsection 7, which covers orders of the court. If the court is ordering them to produce reports, I’m assuming it would be for the court that is going to be making the determination in these cases.
Chairman Anderson:
It should be fairly clear that the language in subparagraph (d) should be left in if it doesn’t cause any harm to the bill, and since the court ordered it, I’m sure that they’ll be able to get it back. We appreciate the Washoe County Sheriff’s Office bringing it to our attention.
Allison Combs:
The next change, proposed by Mr. Pescetta, is to Section 2, subsection 10, and relates to the proposal to require the court to hold a hearing. It was discussed earlier on page 2. This change would provide that the order of the court granting or dismissing the petition be subject to judicial review. Currently, the bill provides that it is final and not subject to judicial review, and there’s a reference to a statutory section suggested by the sponsor of the amendment.
Chairman Anderson:
Shall this order be open to judicial review? Sounds okay, since they are dealing with somebody’s life.
Ms. Lang, would the court’s order tell them what to test in subsection 7? Do you think this is probably not necessary? Do you have an opinion that the court has already told them what needs to be done?
Risa Lang:
Are we going back to . . .
Chairman Anderson:
Mr. Pescetta changed Section 2, subsections 5 and 10.
Risa Lang:
Is that going back to (c), the one we discussed earlier?
Chairman Anderson:
Does this cause us a problem? Is there a problem with opening this up for judicial review? It seems to me that it’s okay if we’re dealing with somebody’s life.
[Several Committee members responded positively to the proposed amendment off microphone.]
Allison Combs:
Section 2, subsection 11(a), revises the reference to the specimen to be taken and it provides new language: “Submission of a biological specimen from the individual to determine the genetic marker information.” It would delete the references to, just simply, “specimen,” as well as to a “sample of blood.”
Chairman Anderson:
Ms. Lang, in Nevada Revised Statutes (NRS) we use the term “specimen” and I think in the Nevada Administrative Code (NAC) they use the term “biological specimen.” Is that what’s happening, is there a difference between the two bodies of work?
Risa Lang:
I think that is a different “biological.” On this one we do use “biological specimen” in NRS for other places where we talk about genetic marker information. I think previously it was always done by blood and, as they’ve moved to different types of DNA testing, we’ve changed it to “biological specimen.”
Chairman Anderson:
So this does no irreparable harm to the bill? So that one is an “okay.”
Allison Combs:
The next one, also proposed by the Washoe County Sheriff’s Office and the Las Vegas Metropolitan Police Department, proposed to add a reference to where the information would be released, which would be into CODIS. They suggest specifically referencing the CODIS, the FBI’s Combined DNA Index System.
Chairman Anderson:
There’s no problem with that.
Allison Combs:
The next one raises a question more than an amendment. The expense of the analysis is a charge against the Department of Corrections and so there was a question as to how the labs would get the money from the Department of Corrections, but it appears that may be addressed in other areas, but I will defer to our legal counsel on that.
Risa Lang:
I think that there shouldn’t be any difficulties with this. It says in here that it is charged against the Department of Corrections upon approval. So they would be billed and they would process the bill the way they ordinarily pay for things.
I have a question on subsection 11 and was wondering about paragraph (b) where they’ve requested to add [information] into CODIS. Subsection 11 is talking about a person who files a petition “shall be deemed to consent to the release and use of genetic marker information.” I’m not sure if it is only for releasing it to be placed into CODIS. I think part of it was just saying that they’re authorizing to have the DNA testing done at all. I’m just not sure if limiting it to saying that releasing it to be placed into CODIS would be accurate.
Chairman Anderson:
So you think that we need it broader than that; therefore, the amendment wouldn’t be acceptable?
Risa Lang:
It looks like Mr. Nadeau wants to comment on that but I would think that it is probably not necessary.
Jim Nadeau:
I think one concern we had is that it is not limiting us from putting it into CODIS. If for some reason it has not already been placed into CODIS, we would just like to be able to put it into CODIS. So I guess we’re looking at making sure that CODIS is one of the places it could be released to.
Chairman Anderson:
So adopting the suggested change is to expand it to make sure that CODIS is included but not limited. Can we draft it in such a way to do that, Ms. Lang?
Risa Lang:
Sure, Mr. Anderson. We can say that it’s including the release to have it put into CODIS, rather than saying it’s only for that purpose.
Jim Nadeau:
We might add, just for the legislative record that it is okay, if this language is broad enough under . . .
Chairman Anderson:
So, clearly, if we state the fact that this does not limit the ability of the Department to put this into CODIS in any way it is . . .
Jim Nadeau:
Mr. Chairman, we assume that because of the conviction that it is already in CODIS, but I think we just want to make sure it can be put in if it is not there.
Assemblyman Conklin:
We’re still under the instructions of the court, so I would assume the court would decide if this belongs in CODIS and in the other place it needs to go; I’m sure they are going to say yes.
Chairman Anderson:
I think the concern of the Department is that this does not limit the ability to have the information in CODIS. It is clearly not our intention to take away the ability of the Department to ensure that it is entered into CODIS as a result of the fact that the court order has taken place. It also gives the ability of the Department to put the material into CODIS if it were not already there. So even though it is a court order, and the Department is now conducting the test, they can put it into CODIS. So we don’t need the amendment because we have it on the record.
Subsection 12 we find has no problem because they are going to send them a bill.
Let’s jump to Section 5, which is the last.
Allison Combs:
The last question raised by the Washoe County Sheriff’s Office and the Las Vegas Metropolitan Police Department is on page 4 of the mock-up bill. There was a concern raised regarding the amount appropriated and whether that would sufficiently cover the costs involved. So, there was a proposal to remove this amount and authorize payment based upon the cost per sample.
Chairman Anderson:
This is an ongoing problem with the Department.
Jim Nadeau:
Our concern is making sure the bill is paid and that there’s adequate funding. It’s very difficult at this particular juncture for us to figure out what the costs are going to be because we haven’t encountered this type of cost and have no historical record to base what the costs are going to be. I’m in a dilemma, too, because we really don’t know what to put in as a fiscal note.
Chairman Anderson:
When you do those for the District Attorney’s Office and for the prosecution the state pays for them. Are they fully reimbursed?
Kristin Erickson:
I have no idea who pays for the genetic testing; I’m sorry I can’t help you there.
Chairman Anderson:
It seems to me that I recently read a story relative to the fact that while the forensic laboratory is more than pleased to be the repository of the evidence, it is becoming something of an economic burden upon the county to carry on this activity.
Jim Nadeau:
I think if it is a normal investigation, we do have investigative funds that pay for the cost of that. Our lab contracts with 13 other counties in the state and is paid for services based upon their investigations and that type of thing. Again, those various entities’ budgets are based on historical perspective as far as what has happened and that changes again year after year, depending on the budget and past experience. We do have investigative funds that do pay for this in Washoe County and the 13 other counties that we service.
Assemblyman Oceguera:
It would seem to me that this would be an appropriation and if you took it out of the bill they wouldn’t get anything.
Jim Nadeau:
It would be my suggestion that we leave the amount as it is, then, based on historical reference, we just—if we exceed that or need additional funding—then we go for some type of a funding augmentation. How’s that?
Assemblywoman Buckley:
I don’t know who normally pays for this, but when I saw the fiscal note I e‑mailed Assemblywoman Leslie. Since there was an appropriation in the original bill, it has to go to Ways and Means anyway. She indicated that she was going to strip out the appropriation and make the Department of Corrections pay it out of their own budget because of all the new positions they’ve requested.
Chairman Anderson:
It would appear that we should take the suggestion of the Washoe County Sheriff’s Office.
Jim Nadeau:
Mr. Chairman, if I may, I know that this is just a minor correction and I know it’s strictly a typo but on page 1 of the mock-up bill on line 12 it says “genetic market” and we might want to change that to “genetic marker.”
Chairman Anderson:
We appreciate bringing that to our attention and let me indicate to you that the mock-up is just that, for us to “mock it up.” Our Legal Division will make sure that all typing is correct. I’m sure Ms. Lang appreciates that being brought to her attention.
Are there any questions from members of the Committee?
It looks as if we are going to move with the amendment as follows:
§ Section 2, subsection 1, page 1 of the mock-up as proposed by Mr. Pescetta
§ Section 2, subsection 5
§ Section 2, subsection 6(a)
§ Section 2, subsection 6(b)
§ Section 2, subsection 7(b), the language change with additional clarification as suggested by Mr. Geddes
§ Section 2, subsection 7(c)
§ Section 2, subsection 10 as proposed by Mr. Pescetta
§ Section 2, subsection 11(a) as proposed by the Washoe County Sheriff’s Office
In Section 2, subsection 12, we didn’t find a problem; we clarified their problem so we are not doing Section 2, subsections 11 or 12, and we are removing Section 5 from the bill.
Ms. Lang, are we okay?
Risa Lang:
We are okay. Are we not going to do the suggestion in subsection 4?
Chairman Anderson:
I’m sorry; did I miss one?
Risa Lang:
Subsection 4(a) takes out “all available” and then adds “an investigating agency and the court.”
Chairman Anderson:
I wasn’t sure; did we agree that we were going to do that? I see a bobbing head or two, so yes, we are doing that one also.
I thought Mr. Horne was of the opinion that “all available” was not necessary. Mr. Horne, is that correct?
Assemblyman Horne:
It should be, “Shall prepare an inventory of all the evidence within the possession or custody of the state,” et cetera.
Chairman Anderson:
All right. So we’re going to take out the word “available.” We’re just making it “all the evidence within the possession or custody of the state.” We’ll wait for the bill drafter’s intent there, to make sure that’s all in agreement.
Assemblyman Carpenter:
I was looking at subsection 7(a), “Order the analysis to be conducted . . .” They were going to take out “promptly”; I would like to see “promptly” remain in there.
Chairman Anderson:
We’re not removing “promptly”; we’re keeping it.
Assemblywoman Buckley moved Amend and Do Pass A.B. 16.
Assemblyman Carpenter seconded the motion.
On the Buckley/Carpenter motion of Amend and Do Pass for Assembly Bill 16, are there any questions?
[Called for a voice vote.]
The motion carried. (Ms. Ohrenschall was not present for the vote.)
We’ll assign this bill to Mr. Geddes.
Let’s turn to Assembly Bill 106.
Allison Combs:
If I could clarify with regard to the mock-up before we move off A.B. 16. When the Committee sees these in the future, I would like to clarify that they are prepared by Research and the language in them will reflect what the sponsors are proposing and not what will ultimately come out of Legal—just to avoid any confusion.
Assembly Bill 106: Revises penalty for driving under influence of intoxicating liquor or controlled or prohibited substance and revises qualifications of person who may apply to court to undergo program of treatment for alcoholism or drug abuse. (BDR 43-606)
Assembly Bill 106, located at the bottom of page 1 [Exhibit C of the Work Session Document], revises the penalty for driving under the influence of liquor or a controlled or prohibited substance. It was a measure that came out of the Nevada Supreme Court’s mandatory minimum sentencing review commission. The testimony indicated the changes and number of community service hours were intended to provide a greater incentive for offenders to complete the treatment programs.
There were no amendments proposed to the bill. There was a potential conflict with federal law raised with regard to the changes in the penalties. I contacted the Office of Traffic Safety, who contacted the federal government, which reviewed the bill and indicated that there would not be a problem with compliance.
Chairman Anderson:
Are there any problems with the bill? The Chair will entertain.
Assemblyman Carpenter moved to Do Pass A.B. 106.
Assemblyman Gustavson seconded the motion.
The motion carried. (Ms. Ohrenschall was absent for the vote.)
We will assign that to Mrs. Angle. I don’t think I’ve assigned you a bill yet. [She indicated he had.] This is your second then.
Assembly Bill 107: Provides additional penalty for committing certain crimes in violation of temporary or extended order for protection. (BDR 15-285)
Allison Combs:
Assembly Bill 107, located at the bottom of page 2 of the Work Session Document (Exhibit C), is a bill that provides an additional penalty for committing a felony in violation of a temporary or extended order for protection (TPO). There was no opposition in the testimony. The testimony indicated the measure was designed to target the most violent offenders when the course of conduct continues after the initial restraining order is issued.
There are two proposed amendments from Ms. Silver in the Clark County District Attorney’s Office:
§ Add “attempted murder” to the list of offenses on page 2 of the bill for which the court shall not grant probation or suspend the sentence. Currently, the bill includes attempted murder resulting in substantial bodily harm and other types of crimes, but she would like to add, just simply, “attempted murder.”
§ Delete existing penalties for violations of temporary or extended protective orders. These penalties are now in Sections 3 and 4 of the bill. Her amendment is included in the Work Session Document on the yellow paper in the back.
Chairman Anderson:
Let me get Mr. Graham up here in case . . . Mr. Graham, apparently—just to clarify the record on A.B. 107—at the time of the testimony Ms. Silver was under the impression that you had received this and, apparently, it had come directly to my office and not to you. Is that what happened?
Ben Graham, representing the Nevada District Attorneys Association:
Yes; it took several more days and numerous inquiries for me to get a copy.
Chairman Anderson:
Are there questions from the Committee; does anybody have problems with Ms. Silver’s document? Her document is a little long. We added “attempted murder” for which you can’t get out, but she would like us to delete a violation in one of the sections.
Assemblywoman Buckley:
I think Ms. Silver makes some very good points with regard to the issue of “lesser included” when the conduct is a felony. I particularly like how she did her amendments. I think she makes a really good point that, especially in domestic situations, you don’t want the jury getting confused when there is an underlying felony being committed. So, I think she makes a good point and I would be comfortable with an Amend and Do Pass if the Chair wants it.
Chairman Anderson:
If I am to understand the mock-up that Ms. Silver is expecting, we will retain Section 1 of the bill, with adding “attempted murder” at page 2, lines 9 and 10, “The court shall not grant probation or suspend the sentence of any person convicted of attempted murder which involved the use of a deadly weapon, attempted murder which results in substantial bodily harm . . .” And then she would like to delete from Section 3 of the bill the existing statutory language of lines 2 through 19 of existing NRS, renumber Section 4 to become a new—I’m sorry, that’s the end of Section 3.
Ms. Lang, would you explain how this would work?
Risa Lang:
On page 2, subsection 2, according to her amendment, instead of specifying the two types of attempted murders, we’re just going to refer to any type of attempted murder and that would prohibit the granting of probation or suspending the sentence of a person who’s been convicted of attempted murder while violating a temporary or extended order for protection.
Her [Ms. Silver] next two amendments, one is in Section 3 and one is in Section 4, do the same thing. Basically, it’s removing the enhanced penalty that would apply to a misdemeanor so that the person is just guilty of a misdemeanor and they will no longer be subject to these enhanced penalties.
Chairman Anderson:
Are we removing the TPOs?
Risa Lang:
We’re not removing the TPOs, we’re just removing the language on page 3, lines 1 through 19, and in Section 4, it will be lines 34 through 44 on page 3, and lines 1 through 8 on page 4.
Chairman Anderson:
I was afraid her suggestion was that we were removing statute, but she’s just removing the new suggestion.
Risa Lang:
Well, it is actually deleting the existing language on those lines.
Chairman Anderson:
Ms. Buckley, for the purposes of Amend and Do Pass . . .
Assemblywoman Buckley moved Amend and Do Pass A.B. 107.
Assemblyman Carpenter seconded the motion.
The motion carried. (Ms. Ohrenschall was not present for the vote.)
Ms. Buckley, we will allow you to explain that one on the Floor.
Let’s get back into the Work Session Document (Exhibit C), A.B. 163.
Assembly Bill 163: Makes various changes to provisions concerning financial practices. (BDR 7-383)
Allison Combs:
Assembly Bill 163 is a measure that requests various changes concerning financial practices. It was requested to strengthen Nevada’s laws with regards to legal corporate practices. There were three amendments proposed to the bill.
One involves page 2 of the bill regarding the illegal action that the bill addresses. And there was a recommendation from Assemblyman Brown to amend Section 1, subsection 2, of the bill on page 2, lines 7 and 8, with regards to not willfully destroying, altering, erasing, obliterating, or concealing books, papers, documents, or records, to clarify that that would include acts performed personally or through another.
The second issue raised by Assemblyman Oceguera was to be sure that the reference to a record would also include electronic records.
There was a third amendment proposed by the Gaming Control Board with regard to Section 5, on page 3 of the bill, that affects their operation with respect to their regulations precluding internal audits by the same independent accountant hired to perform audits. They want to clarify that with regard to their operation. The documents governing this are not necessarily included in the regulations, the regulation that authorizes the chairman to adopt standards. So there are suggested changes to delete the reference to regulations and reference such provisions. This phrase may, of course, be changed in drafting should the Committee decide to go with this amendment.
Chairman Anderson:
Mr. Oceguera, you chaired this particular committee during this time period.
Assemblyman Oceguera:
I think that this is a good bill. It protects consumers and businesses. All of the proposed amendments would be fine, as far as I’m concerned. The last one by Mr. Neilander was a cost-savings measure. If they had regulations in the bill they would have to draft those regulations, which would cost them, so I don’t have any problem with that. The amendments all look good to me.
Assemblyman Carpenter:
On page 2, line 35, where it speaks about the fine of $100,000, I don’t have much sympathy for these corporate crooks and it seems to me that even if they go to jail they come out with big bucks and they are still able to go on. I know it speaks about restitution, but I would like to see that fine increased. I would think we could go a little higher and still get restitution.
Chairman Anderson:
Let me take a look at the maximum fines and see if we can find a better number. The max, currently, for a Category B crime is $100,000; the maximum fine range is from $5,000 to $100,000 for a “B.” So, you think there should be an inflationary factor for this one, Mr. Carpenter, is that what you’re saying?
Assemblyman Carpenter:
Yes, and my neighbor over here said it should be an enhancement. So, maybe we can enhance the $100,000 by about at least ten.
Chairman Anderson:
Well, we could move it to a Category A; that would give us a $500,000 fine. Mr. Carpenter is suggesting that we move for a $500,000 fine and leave it at a Category B. Is that correct, Mr. Carpenter?
Assemblyman Gustavson:
That is for each count, each violation, too. So it can be more than that if there’s multiple charges.
Chairman Anderson:
We would be moving it to a half million dollars as a maximum amount. So it’s not more than a $100,000 fine for each violation. Mr. Carpenter, Mr. Gustavson points out that it’s for each violation, not that I think he’s trying to be kinder to corporate crooks, but I don’t think that’s his intent, he was just pointing it out to the Committee that we’re talking about “per violation.” What would you like, Mr. Carpenter? If you want to send a message here, we can do it.
Assemblyman Carpenter:
[It is] the most that we can do, sir.
Chairman Anderson:
We just fixed Mr. Goldwater’s bill. We’re going to send a very clear message. We’ll tell Mr. Goldwater that his penalty bill was a penalty. So then the suggestions would be on A.B. 163, an Amend and Do Pass motion to include:
§ The clarifications suggested by Mr. Brown, “personally or through another” at page 2, lines 7 and 8
§ On page 2 clarify that a record includes electronic records as suggested by Mr. Oceguera
§ Further clarify that reference to the governing documents as suggested by Mr. Neilander on page 3, lines 31 and 34
§ Change the dollar amount of the penalty per violation from $100,000 to $500,000 per violation, as suggested by Mr. Carpenter. That would be at line 35 and other places found in this and as suggested by the bill drafter.
Assemblyman Carpenter moved Amend and Do Pass A.B. 163.
Assemblyman Claborn seconded the motion.
The motion carried. (Ms. Ohrenschall was not present for the vote.)
I’m sure Mr. Goldwater will be delighted to take care of the bill on the Floor. And I’m equally sure that Mr. Claborn will be happy to be his backup.
Let’s look at Assembly Bill 189.
Assembly Bill 189: Makes various changes to provisions concerning false imprisonment. (BDR 15-960)
Allison Combs:
Assembly Bill 189 is on page 4 of the Work Session Document (Exhibit C). It revises the penalties for false imprisonment to provide that if a person uses someone as a shield, the penalty is increased to a Category B with a minimum penalty of 1 year and a maximum of 15 years. There was discussion raised by Assemblyman Conklin concerning the penalties and some discussion to include mandatory consecutive sentences or something along those lines. Mr. Conklin may want to discuss that proposal.
Chairman Anderson:
Mr. Conklin, I know that you are concerned about this issue and I only want to bring to your attention—and I’m sure that you’re aware of this as are Mr. Oceguera and Mr. Brown—but you only get to have one enhancer, so if a guy is using a gun that is going to give him one enhancer, so yours is not going to count. Discussion please.
Assemblyman Conklin:
My only concern here is when a person commits a felony act and he is caught red-handed, that he doesn’t get concurrent sentences if in the pursuit of that felony act he used somebody as a human shield to escape. If you go into a bank and you’re on camera and you have a gun, you bring a child or woman or anyone in front of you to block out the police, fire, or anything like that, I don’t believe that this should ever be a concurrently served penalty. That’s my only concern. I will support this bill in its current form. I have talked to Ms. Lang at length about it; I don’t know if there is a solution to that because we certainly do not want to take away too much discretion from the judge and the court. That was my only concern with this bill, but I will support it in its current form.
Chairman Anderson:
Ms. Lang, is there anything we can do here to help this bill?
Risa Lang:
I did discuss it with Mr. Conklin, and I think I mentioned to you as well, that when I looked into whether we have had other places where we’ve required in a particular statute that any other crime be served consecutive rather than concurrently, the only ones that I found were the additional penalties which are provided in NRS 193. For example, if a crime is committed using a gun or on school property, there is an additional penalty, and that penalty is served consecutively.
The only other crimes that I found that have consecutive sentences specified by statute were crimes that are committed while a person is imprisoned, and it says that if they commit the crime while they are in prison, they don’t start the next term while they’re in prison; they have to do it after the expiration of their current term of imprisonment. That’s not to say that we couldn’t specify something like that in here; it’s just not something that is common in the statutes.
With the additional penalty, if this were to change, instead of being just a heightened penalty, changing it to an additional penalty would be an option and then it would apply to anytime someone is used as a shield during the commission of a crime; however, as you mentioned, it would be only one enhancement. So if a gun was involved, or it fell into one of those other additional penalties, there would be the one enhancement. I’m not sure if it would apply in all those situations that you would be looking to cover.
Assemblyman Conklin:
Under the current circumstances I recommend that we pass this bill as is rather than convolute the issue.
Chairman Anderson:
The Chair will entertain. Are there questions from the Committee?
Assemblyman Conklin moved to Do Pass A.B. 189.
Assemblyman Horne seconded the motion.
The motion carried. (Ms. Ohrenschall was not present for the vote.)
That brings us to subcommittee reports. We’re going to the Floor at 10:30 a.m. so let us take a ten-minute break.
[Reconvened at 9:44 a.m.]
Mr. Conklin, let me ask you about the subcommittee regarding A.B. 160.
Assembly Bill 160: Makes various changes to provide protection to certain persons. (BDR 3-160)
Assemblyman Conklin:
The subcommittee on Assembly Bill 160 will meet this afternoon at 3:30 p.m. in this room and will videoconference to Las Vegas. At this time I am hopeful that we’ll get through most of the hearing today, and then it’s my intention to meet in work session with the Committee prior to the next work session and bring something before everyone.
Assembly Bill 28: Provides procedure for parties to adoption to enter into enforceable agreement for post-adoptive contact. (BDR 11-207)
Chairman Anderson:
Mr. Horne, I had asked that your subcommittee report (Exhibit D) be submitted to the Committee yesterday and I appreciate your hard work and the hard work of our staff. Where is Ms. Christenson? If you need to come to the table that would be okay.
Assemblyman Horne:
The Subcommittee met on February 26, 2003, and March 12, 2003, to hear additional testimony and to discuss proposed amendments to A.B. 28. The Subcommittee received testimony in favor for and against A.B. 28. The following parties presented an amendment on March 12, 2003:
§ Myra Sheehan, Attorney on behalf of the Nevada Trial Lawyers Association
§ Kathy Baker, Attorney and private practitioner, who represents adoptive parents in adoption proceedings
§ Cynthia Lu, Office of Washoe County Public Defender
§ Helen Foley, a private citizen
§ Lucille Lusk, Cochairman, Nevada Concerned Citizens
§ Michael Rasmussen, Attorney at Law as a private citizen
The proposed amendment changes the words “natural parent” to “biological parent” throughout the bill. I would like to say that also while the mock-up of the bill (in Exhibit D) makes that change, the Nevada Revised Statutes (NRS) uses the term “natural parent” throughout. The change was made; adoptive parents had a problem with the term because they believed that they were natural parents in every sense of the word. So it was changed to “biological parent.” However, it’s important to keep the NRS consistent throughout and so while—I think the language was taken out of the Nevada Administrative Code (NAC), the term “biological,” in order to keep consistency in the NRS, we will have to keep it at “natural parent.”
Chairman Anderson:
Is that for the Committee to decide?
Assemblyman Horne:
Yes. The amendment also deletes subsection 4 of Section 1 in its entirety and adds new language to the bill. The additional new language limits the time period in which biological parents can bring an action of enforcement of a post‑adoptive contact agreement and provides that only adoptive parents can seek modification of an agreement. The amendment also included a new Section 4 that provides that the measure does not create any presumption or public policy in favor of open adoptions or post-adoptive contact agreements. It further provides that the bill does not create an affirmative duty upon a placing agency to advise the biological parents of post-adoptive contact agreements or of the enforceability of the agreements. I will address that portion in more detail at the end of my presentation.
During its deliberation of the proposed amendment, the Subcommittee determined to include new language to the bill consistent with NAC 127.210(4)(c) clarifying that only parties to an open adoption may enter into enforceable post-adoptive contact agreements and authorizing the court to consider the reasonable preference of a child in modification proceedings if the child has a preference and is of sufficient maturity to express a preference. On motion from Mr. Anderson, seconded by Mr. Sherer, the Subcommittee voted unanimously to recommend to the full Committee to Amend and Do Pass A.B. 28 with the amendments and corrections of typographical errors in the amendments proposed by Myra Sheehan’s group and the amendments proposed by the Subcommittee.
As for Section 4 in the bill, if you look at the mock-up, in the portion that states, “Nor does this statute create an affirmative duty upon a placing agency to advise the biological parents of post-adoptive contact agreements or the incorporation of the same into the order or decree of adoption . . . ” while the subcommittee voted to Amend and Do Pass, I, for one, have had reservations about that particular language.
Chairman Anderson:
Let me indicate that you have finished the report from the Subcommittee. The Chair thanks the chairman of the Subcommittee for having served on this Subcommittee. I know that the staff has put a good deal of time into trying to set out the issues relative for all of us. I thank you for the recommendation from the Subcommittee.
Are there questions relative to the Committee?
Assemblyman Mabey:
As I have reviewed the bill and received numerous e-mails, my concern regards the newborn. Was there ever any discussion on making a cut-off date? For example, when a child is a couple of years old, anything before that wouldn’t be included in this; that would be an exception.
Chairman Anderson:
Ms. Christenson or Mr. Horne, do you want to field that one for us?
Danielle Christenson, Subcommittee Policy Analyst:
It’s my recollection that specifically, Michael Rasmussen, a witness appearing in Las Vegas at both subcommittee hearings as well as the original hearing before the Committee, did make that suggestion; however, it is addressed, in a sense, by the amendment. New language is included in the amendment that will provide that if the post-adoptive contact agreement does not specify a termination date, it will obviously terminate when the child is emancipated or turns 18, whichever occurs first. The parties to the contract do have the ability to make any specification for termination, or that it will not occur, meaning commence, until after the child has attained a certain age. Those are all things that can be negotiated by the parties and included in the contact agreement.
Chairman Anderson:
Dr. Mabey, does that solve your dilemma?
Assemblyman Mabey:
I don’t know; I need to study that more. I might not understand it as well as I need to, but the way it’s written now, this includes everybody from the minute they’re born until they’re 18, even if they got adopted when they were 17. So what if it was possible to make it so that a newborn would not be included? They could be exempted.
Chairman Anderson:
We could draft it in such a way to do that. However, that is one of the very groups that we’re trying to deal with. The problem has come forward on several different areas. I’m sure the chairman of the Subcommittee has a strong feeling about it.
The problem comes when there’s an expectant mother who has thought of putting her child up for adoption at birth and is reluctant to do so. The agency says, “You can do an open adoption by which you can maintain contact with your child.” Whether the contract will have them call every year at the birthday or every other year or every six months or whatever, that particular contract is agreed to. The parents agree that they will do that and then the birth parent agrees that they will do that. Then they go off and the new adoptive parents who are, in fact, the parents of the child, decide that worked out okay for the first six months but now they’re no longer willing to do that from their point of view, for a wide variety of reasons. The birth parents want to know why the contract has not been followed and want an opportunity to come to court. That’s what we are trying to accomplish, to clarify.
The reason we feel the necessity to do this is because of the Supreme Court decision that indicated that there was no need. However, in the bill as it’s written, and I want to make sure we’re all in the same place, that if the birth parent brings an action to court and the court says, “Yes, you’re correct, you’re supposed to have contact,” that does not end the adoption; nothing ends the adoption unless the court, for some other reason, determines there is some reason to terminate. That has to be based upon another factor other than the fact of the violation of this contract.
Mr. Horne, let me allow you to answer the question for Dr. Mabey.
Assemblyman Horne:
I believe that such an exemption on this, excluding infants, would be like saying that post-adoptive agreements couldn’t be—this category couldn’t be included in those agreements. This is a voluntary agreement; so, those parties wishing to do so, would not be permitted to do so. I don’t think that putting such language in there was the intent of the bill, nor was [the intent] of the Supreme Court ruling when it said these types of agreements needed to be put into adoption decrees in order for enforceability. So they put language in there to exclude a particular group; I don’t think we accomplished that.
Danielle Christenson:
It just occurred to me, Dr. Mabey, because this bill does not require the use of open adoption contact agreements, a child-placing agency that, perhaps, specializes or emphasizes infant placements, that agency could certainly create a policy where they do not use open adoption contact agreements. There’s nothing in this bill prohibiting an agency from creating such a policy. Prospective adoptive parents who wanted to adopt an infant who were not subject to an open adoption arrangement or agreement could learn of that agency and seek out that agency just for that reason.
Chairman Anderson:
In other words, there’s no way that we can mandate that; the only way you’re going to do this, is with an open adoption agreement. We’re just saying that if an open adoption agreement is used it has to follow a certain set of guidelines.
Assemblyman Geddes:
Are we open to any section of this mock-up?
Chairman Anderson:
We are. The bill itself is under full consideration. The purpose of the Subcommittee was to continue the hearings, and make sure that all interested parties had the opportunity to participate and to do it in a more open forum, which Mr. Horne and the Subcommittee did. The Committee now has full control of the bill.
Assemblyman Geddes:
I just had a question on page 3, Section 3, subsection 2. Is there a statutory definition of “if the child is determined to be of sufficient maturity to express a preference,” or is that left up to the court?
Danielle Christenson:
That language is taken specifically from NRS Chapter 125C, Mr. Geddes. It exactly mirrors language in NRS Chapter 125C. I apologize, I don’t have the specific cite for you. I also apologize for not including it in the Subcommittee report. It allows the court to make a decision, which has always been the policy in the state of Nevada, as is my understanding, to meet privately with the child. Based on the meeting the court will decide whether the child is of sufficient age or maturity to express a preference, if the child does have one. It’s simply a case-by-case analysis. I’m not aware of any judge who has a “bright line” insofar as what age a child must be. Certainly they could have that subjective opinion, but the way that these two provisions are written in this bill, and in NRS Chapter 125C, the court just makes a case-by-case decision.
Risa Lang:
I think it could be done either way, give an age or, as Ms. Christenson said, we do what’s in NRS Chapter 125C.050 dealing with petition for right of visitation of certain other relatives. They talk about a child being of sufficient maturity, and in that case it would be the court that would determine whether a child had that maturity.
Assemblyman Geddes:
Which court is that? Is it district court or family court or what?
Chairman Anderson:
It depends upon the jurisdiction. I believe only in Washoe and Clark Counties, the Second and Eighth Judicial Districts are the only two that have family court programs. The district courts at the other level move into a family court situation so that would be done appropriately at those district court levels.
Assemblyman Brown:
This bill causes me more inner turmoil, I think, than any bill we’ve heard or considered today. That’s not to say that I don’t support it. I just really struggle with this whole issue. I think we are trying to make easy something that I’m not convinced can be made easy. The termination of parental rights, whether it be through the state or voluntary, is harsh. I feel greatly for anyone in that situation.
I believe the burden of accepting parenthood as an adoptive parent is as heavy a burden as, probably, surrendering those rights. I truly tried to evaluate this bill in terms of what is best for the child. I appreciate the Chairman’s reminding us of that during the hearing. Ultimately, I think what is best for the child in all cases is a stable and loving home. So I try to look at this bill in those terms.
I guess I struggle with the post-adoptive contact as a whole. Parenting is such an all-or-nothing endeavor and I appreciate the sacrifice of those who give up those rights because I believe they’re doing it out of love for the child. I equally appreciate the adoptive parents because they have just taken on a lifetime burden, which happens to be a burden of love and is filled with joy, but is also filled with torment.
I hate to wander on like this but my feelings are quite deep on this subject and I’m really trying to figure out what’s best. I do believe that we need some rules on this, but in all instances I want to promote what is best for the child. I feel like with a . . .
Chairman Anderson:
I think I know how you feel about this; I share your concerns and I think we all do. If you’re . . .
Assemblyman Brown:
. . . making a point?
Chairman Anderson:
Yes. It’s okay.
Assemblyman Brown:
I’m not sure of my point. It may, ultimately, be that it’s just a tough, tough issue.
Chairman Anderson:
Let me indicate to my colleague from the south that when people first approached me about this issue I, like you, said, “I don’t think we want to go there because this is an issue that’s just too difficult to deal with.” The family court judge has the most difficult of all worlds, in my opinion, in trying to place a child and to operate in the best interest of the child.
The only question that should be placed in front of us legislatively is, if we are going to have an open adoption or what is constituted as an open adoption, we must clarify in some way that it exists, that it has some reality to it.
The testimony in the Subcommittee indicated very clearly that somebody felt it should be placed in contract law and not in the adoption question. It should be treated as a contract, just simply that.
However, I don’t believe that it really puts the burden where the burden needs to be. These agencies are coming along and saying to birth parents that this is going to happen as a means of enticing them into these adoption agreements to alleviate their fears that that is right if they do not have the intent. If they don’t come in with full knowledge that it should be made part of the court order, the Judge should know that.
I believe if we put this forth statutorily and we have the assurance from the agencies—not the adoption agencies but from the state agencies, we’ll have to oversee these—that they will ask that question before they come along. So that aided me reaching the decision that this is a good course for us to take.
Where the state removes control of a child, that is, it moves in and finds that there’s reason to take a child away from a parent, they terminate the parent’s rights and the natural birth parent no longer has the child, the child is now the state’s child. Therefore, in those kinds of situations, open adoptions do not exist. So that type of an adoption, where the state has moved forward, does not exist because we’ve already terminated that parent’s rights because of abuse or whatever problem.
The only group that we’re talking about is where a parent, for a particular reason, decides that she wishes to give up her child and does so through one of these agencies, and then for whatever reason, the parent says she wants to have some sort of continuing relationship. Shall we allow that? If we do allow that, under what conditions shall we allow that? And that’s what the purpose of the open adoption agreement is and that’s the reason why I think that this is a necessary piece of information.
Mr. Brown, if that eases your conscience in some way—I don’t know whether it does and I, like you, am still wrestling with this particular dilemma of what’s in the best interest of the child and what happens to the birth parent because, clearly, the new parent takes on full responsibility of the real obligations of parenthood. That is the loving, caring, nurturing attitude of an adoptive parent—where the real trick of parenting is. The real trick, as the doctor who delivered my children explained to me, is not the cost now, it’s the ongoing cost that’s going to take place for the rest of your life. It never ends, even when they get older.
Assemblyman Brown:
I think we share the same feelings towards this. If I may, I would make one more comment and then I actually do believe I have a question related to this. I am evaluating this in terms of, perhaps, whether this promotes the post-adoption contact. Particularly, I believe it is an appropriate contract in instances where the parental rights are being terminated and the child is older. In the infant adoption, I guess, and maybe it’s presumptuous of me to assert myself into the shoes of the parties involved in the adoption, but it seems to me that for the biological parent it’s almost like slow torture or getting into very cold water one toe at a time. Sometimes—I’m concerned that they need to move on in their lives and, again, I apologize—that may be very offensive to some people. Again, I evaluate that in terms of the child because I think, perhaps, the continued interaction with the child, whether that just be photographs, et cetera, continues to engender, absolutely, what is natural to a parent who has borne a child and that is to want to love and to be with that child. Yet they have surrendered that obligation to another who needs to be able to run with it. That, I guess, is a struggle.
Now my question, I don’t think I’m going to get any resolution personally on that issue, but . . .
Chairman Anderson:
If that is the case, then what you would say is that we should not allow for the question of open adoption at all. There should be this and nothing else because where the state takes control of the child there is no opportunity, currently, for an open adoption. That is not an option open to a parent. So, with an older child, that [situation] is not even within the framework of the existing structure. And that’s my point, too. If we’re going to do this, we either should statutorily say it should be included as part of the judicial process and should be filed and some parameters set, or we should say, “Forget it; it shouldn’t take place.”
Let me move on to the other four people who would like to get involved in our discussion.
Assemblyman Carpenter:
Mr. Chairman, I have to go to a real life situation. I, like you and Mr. Brown, have struggled with this and lost more than a little sleep over it. I have a grandson who is adopted and, therefore, he is my grandson. I know that if his had been an open adoption this boy would not have been adopted. It seems to me, that’s what I’ve heard from most adoptive parents. They were so fearful of something like this. I think, in Section 4, the penalties on the adoptive parents, maybe it’s under Section 2 on this, and then in Section 4, it doesn’t create this presumption or public policy, but I think in reality it will. So, with my real life take on this situation, I don’t think that I can support the bill.
Assemblywoman Angle:
I have had some personal experience with these kinds of things on both sides and particularly with contracts that were made with open adoptions and within the case of newborns. Also, I’ve received many, many e-mails from adoptive parents frightened by this kind of legislation. I think there are some good points that are being made. One is that we need to presume that the adoptive parent is acting in the best interest of the child. That has always been the presumption when you give up your child; you are presuming that you are doing the very best thing for that child, so when you give them over to an adoptive parent, that’s the presumption. I don’t see it any place in the law here in our discussion. I would like to make that perfectly clear, that we’re presuming that the adoptive parent is going to do the very best thing for that child.
Secondly, I don’t see within our discussion here a safeguard for the adoptive parent. Once a contract is entered into—and we’re going to assume that these are contracts that are going to be made with both parties entering into it in full agreement, that these are permissive things, that if the adoptive parent does not want to have an open adoption, he doesn’t have to; this law is strictly permissive. If that’s the case where both parties agree that this should happen then there needs to be in that contract—once that contract is made—the birth parent cannot come back and ask for more parental rights.
We get into foster care and divorce situations where there is a presumption that you can come back to court all the time and get more rights. Well, I think that once the contract is made, then the birth parent understands that these are the parameters of this agreement and they cannot come back for more rights, thus protecting that adoptive parent.
The third thing I would like to see us really consider is that many birth parents, when they give up a child it’s because they don’t have the financial resources to take care of that child. If they don’t have the financial resources and the court is going to allow them to keep coming back with petitions, they don’t pay for those court costs to do that and so they don’t feel that that is a burden to them and they may just keep coming back, petitioning the court, drawing the adoptive parent back once more again and again into this situation. I don’t think we want to set that up for the adoptive parent either.
Chairman Anderson:
I point out to you, again, the language that was suggested here, the sanction shall be limited to a judgment in favor of the—we would probably go with natural parent—which may be a monetary award and/or judgment ordering the adoptive parent to comply with the agreement that was originally set. In other words, such a monetary award shall not exceed a fine of $50 per occurrence and up to $1,000 maximum. So the agreement has to be the agreement that was originally drawn up and nothing more or greater. So that addresses that particular problem.
Mr. Conklin, I would suggest to you that we’re trying to meet the compliance of the 10:30 a.m. [Floor session].
Assemblyman Conklin:
I will be very brief, Mr. Chair. I would like to point out to my colleague in the north [Mrs. Angle] that Section 3 clearly identifies that this agreement may only be modified by adoptive parents. I think that may answer one of your questions because I had the same concern.
I have one important question for Mr. Horne or for a member of the Committee. I have constituents who have a concern about the number of times these things may be brought before them. I recognize that if the adoptive parents are not following the agreement, a biological parent should have the right to bring that to the court. However, what is there to protect the adoptive parents from the frivolousness of just bringing it up again and again? As Mr. Brown has pointed out, we’re encouraging them to maintain contact. If there is such a thing in previous statute—I understand there’s Rule 11 of the Federal Rules of Civil Procedure–can we incorporate that language into this bill? That would certainly bring me a lot of comfort in moving forward with it. Thank you.
Chairman Anderson:
I would point out to you, and I’m sure that Ms. Christenson could do this, too, but at line 21 of the suggested amendment, “within 60 days of . . .” the occurrence for a particular event. So they have a time frame there.
Assemblyman Horne:
I’d like to point out that I don’t think the issue is whether or not open adoptions are proper. We have them; they are common practice. The thing is, if the parties choose to go into open adoption and if they choose to have a post-adoption contact agreement, we’re going to enforce it. To do that, you have to put it into the adoption decree.
This in no way mandates anyone to go into these agreements. Oftentimes, these agreements are used to entice a birth parent to give a child up for adoption. For instance, there is an action going forth on a termination of parental rights and it’s used to say, “If you don’t contest this, we can go into this agreement.” In not contesting it, they go into this agreement; they don’t contest the termination. But later we want to say that it’s okay; we don’t hold the adopting parents accountable for the agreement they voluntarily entered into.
I believe that the provisions in this piece of legislation, except for one I have a problem with, are good. I think the modification language that only adoptive parents can modify the agreement is good; it’s appropriate. I believe that, as Mr. Conklin said, yes, there are other provisions. As in the practice of Rule 11, a judge at any time he sees frivolousness occurring can give sanctions.
I do have a problem with the language that states that it doesn’t create an affirmative duty upon a placing agency to advise a biological parent of a post-adoptive contact agreement. I don’t like that language because we don’t advise them; it’s almost underhanded. The biological parents don’t have to go into this agreement anyway, but yet the placing agency wants them to; they know it’s there; they don’t want to advise the birth parents.
Oftentimes, probably, the birth parent doesn’t have an attorney and is in dire straits. There are a lot of reasons why they’re there, but I assure you, an adoption agency probably has one [an attorney]. The adopting parents have one. The adoption agencies have all kinds of affirmative duties that we give them. I’m not proposing that we put it in here that they have to tell them that they do not have to enter into an agreement, but I think it’s improper to put language in here saying that they don’t have to tell them. I think they should tell them that agreements are available, but they don’t have to agree to go into those agreements. I think this is a good bill, but I would like that language stricken.
Chairman Anderson:
I’m trying to get us to the Floor by 10:30 a.m. I want us to have a full discussion of this piece of legislation. On the other hand, if we leave it alone, I just firmly believe that we’ve done the wrong thing here. If we just let it wander along, it’s going to be one of those issues that comes back again and again. We either have to affirmatively say, “yes” if there is an option for these open agreements—it should be that the option to include it should be offered to the person—or not. If they choose it “not,” that’s fine.
Mr. Brown, I see your light on; I know you wish to speak to the bill again and let me indicate that I do want to get going here.
I’ll thank the Subcommittee again, the chair of the Subcommittee who looked at it and thank you, Ms. Christenson, for your hard work. I want to indicate to the Committee that I want to make sure we have fuller discussion of this particular issue.
Additionally, I wish to indicate that we’re going to be moving to an earlier start time on Monday. It has been suggested that I move to a 7:30 a.m. start time for this Committee; I’m a little reluctant to do that, but I am contemplating some evenings that we may need to work. [The Chair was handed a BDR and read the summary to the Committee.]
I apologize, this has not been distributed to you.
Assemblywoman Buckley moved for introduction of BDR 3-869.
Assemblyman Brown seconded the motion.
For the introduction of BDR 3-869, a construction defect bill . . . [The Chair called for a voice vote; Ms. Ohrenschall had returned to the meeting.]
The motion passed unanimously.
With that, I’ll have them write up the report and we’ll get it to the Floor.
We are adjourned [at 10:30 a.m.].
RESPECTFULLY SUBMITTED:
Sabina Bye
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: