MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-Second Session

March 28, 2003

 

 

The Committee on Judiciarywas called to order at 7:40 a.m., on Friday, March 28, 2003.  Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada.  Exhibit A is the Agenda.  Exhibit B is the Guest List.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

Note:  These minutes are compiled in the modified verbatim style.  Bracketed material indicates language used to clarify and further describe testimony.  Actions of the Committee are presented in the traditional legislative style.

 

COMMITTEE MEMBERS PRESENT:

 

Mr. Bernie Anderson, Chairman

Mr. John Oceguera, Vice Chairman

Mrs. Sharron Angle

Mr. David Brown

Ms. Barbara Buckley

Mr. John C. Carpenter

Mr. Jerry D. Claborn

Mr. Marcus Conklin

Mr. Jason Geddes

Mr. Don Gustavson

Mr. William Horne

Mr. Garn Mabey

Mr. Harry Mortenson

Ms. Genie Ohrenschall

Mr. Rod Sherer

 

GUEST LEGISLATORS PRESENT:

 

Assemblyman Joshua Griffin, District No. 29, Clark County

Assemblywoman Peggy Pierce, District No. 3, Clark County

 

STAFF MEMBERS PRESENT:

 

Allison Combs, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Sabina Bye, Committee Secretary

 

OTHERS PRESENT:

 

Lieutenant Stan Olsen, Government Liaison, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department; and representing the Nevada Sheriffs’ and Chiefs’ Association

Kristin Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney; and representing the Nevada District Attorneys Association

Major Robert Wideman, Deputy Chief, Northern Command, Nevada Highway Patrol, Nevada Department of Public Safety

Gary Wolff, representing the Nevada Highway Patrol Association

Alan Rabkin, Nevada Bankers

Nancy Hart, Deputy Attorney General, Office of the Attorney General

Larry Stout, Project Consultant, Law Enforcement Protocol and Training Project

Veronica Frenkel, Domestic Violence Ombudsman, Office of the Attorney General

Jim Nadeau, representing Washoe County Sheriff’s Office and the Nevada Sheriffs’ and Chiefs’ Association

 

 

Chairman Anderson:

[Roll was called and the Chair noted that a quorum was present and that anyone arriving late should be marked present.]

 

The first bill on our agenda today is Assembly Bill 335 and at approximately 10 a.m. we are gong to move to Assembly Bill 448.  So we are going to do this bill then go to a work session, and then we will come back at 10 a.m. to hear A.B. 448.

 

Assembly Bill 335:  Increases penalty for evading peace officer when evading peace officer results in death or substantial bodily harm to another person. (BDR 43-1118)

 

Lt. Olsen, I guess you get to be the “designated hitter” for A.B. 335, a bill put forward by Assemblyman Mark Manendo and signed onto by many of the distinguished members of this Committee.

 

Lieutenant Stan Olsen, Government Liaison, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department; and representing the Nevada Sheriffs’ and Chiefs’ Association:

[Introduced himself.]  I have been asked to be the “designated hitter” on this bill.  We support this piece of legislation.  There are numerous events that have occurred throughout the state of Nevada where an individual, for whatever reason, has chosen to run from the police when the police are trying to stop them.  I am going to give you one example that I was involved in a number of years ago. 

 

I had spotted a vehicle in the downtown area of Las Vegas and ran the plate.  The plate came back as both a stolen vehicle and wanted in an armed robbery.  I called in the vehicle plate, called in my location, attempted to stop the vehicle and the vehicle took off.  This began a 30-minute pursuit that went from downtown Las Vegas, through the rest of the valley, and ended up out by Nellis Air Force Base.

 

During the chase, the individuals that were in the vehicle hit one car causing severe damage to the vehicle and minor injuries to the occupants; they went through an intersection causing a significant accident between two other vehicles that the suspect vehicle never touched.  A woman and her daughter were severely injured in that accident.  Then they drove on the wrong side of Las Vegas Boulevard at about 90 miles an hour against traffic, weaving in and out of the oncoming traffic causing other accidents as they proceeded onto Interstate 15.  Shots were fired during the pursuit and one North Las Vegas police unit was struck by the suspect vehicle.  In the end the suspects were taken into custody after they crashed their vehicle out near Nellis Air Force Base.

 

All told, there were five accidents that occurred as a result of this pursuit.  The suspect struck two vehicles; the other vehicles that were involved in the accidents were trying to avoid him during the pursuit.  As I stated, a woman and her daughter were severely injured.

 

Several times we have what we call a “bubble pursuit.”  One officer will follow the vehicle; other units are off anywhere from a quarter mile to a mile on either side and we try to call in the direction that the pursuit is going.  Again, as I stated, this was an armed robbery, it was a stolen vehicle and they were dangerous felons we had to take into custody.  We backed off the pursuit several times and they did not slow down at all. 

 

If this law were in effect, the suspect would have been charged with a felony in this situation.  As it was, the only felony that he was charged with was the armed robbery.  The stolen vehicle case was dropped for reasons I can’t remember; it was too many years ago.  I believe the person ended up receiving probation.

 

We support this piece of legislation.  I know that there have been similar situations in other jurisdictions throughout the state.  These individuals should be held accountable for what they do, for the deaths they cause, for the accidents they cause, and the severe injuries that they cause. 

 

Chairman Anderson:

Are there questions from members of the Committee for Lt. Olsen?

 

Assemblyman Carpenter:

I don’t believe I have any questions on the addition of the increase of punishment of that, but I do have a question in regard to page one, where it said, “When given a signal to bring his vehicle to a stop, is guilty of a misdemeanor,” and then it says, “The signal by the peace officer described in Section 1 must be by flashing red light and siren.”  I think that most of the time the siren is not used.  Just this morning I saw a vehicle stopped on my way up here and I didn’t hear any sirens.  So I am wondering whether we need to do something with that because it says “red lamp and siren” and most of them do have a red, but they also have blue and other colors too.

 

Lt. Stan Olsen:

Mr. Chair, with your permission, I would like to address that.  You are absolutely correct, Mr. Carpenter; there are red lights and blue lights.  Those are the two primary colors used by emergency vehicles throughout the state of Nevada.  Numerous times the vehicles are stopped in a regular traffic stop without the use of a siren for a number of reasons.  Number one, you don’t want to attract a crowd.  Number two, it is 2:00 in the morning and you are in front of somebody’s house, they don’t appreciate it and so we usually don’t.  So that may need some clarification. 

 

During a pursuit, however, everything is on.  We have within the Metropolitan police jurisdiction what we call corner strobe lights, which are in the parking lamp assembly plus the red and blue lights on the roof of the vehicle and then we use the sirens; they will keep changing the siren’s pitches and tones to keep getting people’s attention.  We found that if you keep the siren on steady with the same tone, people will just ignore it, but if it keeps changing, they start looking around.  We are trying to warn people ahead.  That may need some clarification based on your statement, sir.

Assemblyman Carpenter:

I just think it’s pretty specific where it says “must” and “siren” and probably ought to change so that it conforms to what is happening today, which I agree with, but I think it’s pretty specific.

 

Chairman Anderson:

The only observation that I would have relative to that would be if somebody were guilty of a Category B felony; you might want to have a higher standard for the officer.  I know that in my community recently a police officer was trying to stop somebody by signaling to him.  He was trying to avoid arrest at a justice court.  He left a justice court where he had appeared and was fearful that he was going to be taken into custody and have to spend some time in the county jail.  He drove away with the guard attached to his vehicle, and another police officer that was there shot him and killed him.  I only bring that forward because I know that some people in my community are concerned about the overuse of force and the question of endangerment.  So if we are going to send somebody to prison for a Category B and want to make sure that the police officer clearly demonstrated that he was serious about what he was doing, I think the red lights and the sirens probably provide that higher standard.

 

Lt. Stan Olsen:

This particular law is dealing with the pursuit of somebody and so the use of the siren is probably appropriate to keep in.  The clarification might need to be that red and flashing emergency lights be used; most agencies now are using both.  Blue lights tend to show up better in the daytime than red.

 

Assemblyman Geddes:

In the penalty phase in Section 4, I am wondering why it is only a Category B felony and not a Category A if the pursuit leads to the proximate cause of the death of a person.  I am not sure Category B goes far enough if somebody actually dies as a result of this activity.  I don’t know if there should be a separate one for death or not, but I am just wondering why Category B and not Category A when it leads to death.

 

Chairman Anderson:

Let me help him out.  I have my reference materials regarding felony categories right here, “. . .murder in the first degree, murder in the second degree, kidnapping, aiding or abetting kidnapping. . .fighting a dual, challenging to fight, death resulting. . .”  I guess it is a question of intent.  It seems to me this would be the same as a DUI where a death is involved; it’s consistent with the kind of Category Bs that we currently do.  We keep Category As for really, really bad folk, not that this person is a bad person, just habitual felons.  I guess you could get there but it might be a little hard-pressed.  We may want to hear from the Legal Division though.

 

Assemblyman Geddes:

I see where that is coming from.  The intent portion and the one that stuck out in there that would be similar would be the challenge of a fight leading to a death.  When a person takes off in this pursuit activity and is really flaunting authority and the law, he is flaunting the rules of society.  If jumping out there and if that leads to a death, I defer to the wisdom of the back row.  I think it might be there in the challenge and the intent side of that when you do this and maybe it is just an unintended consequence of the actual action.  That is why it is a Category B and I am fine with that.  I just think that it might be a Category A.

 

Lt. Stan Olsen:

If I may say also, you’re right; Category As are kept for the worst-of-the-worst.  Obviously, this person’s intent was to run from the police and avoid capture.  His intent was not necessarily to kill somebody.  In order not to diminish the seriousness of the Category A levels, I think Category B would be sufficient but I will let my legal counsel respond.

 

Kristin Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney; and representing the Nevada District Attorneys Association:

[Introduced herself.]  Typically, Category A felonies expose a person to a life sentence, life without the possibility of parole, life with possibility of parole, or the sentence of death.  Generally, Category B sentences are, I believe, 1 to 20 years; the suggested penalty of 2 to 15 years is why it falls under Category B, strictly within the sentencing range not due to the seriousness of the offense.

 

Chairman Anderson:

I guess that is what Mr. Geddes was getting at.  He was happy to move it to a higher level of intensity and have it be consistent with what we would consider to be an A category, which tends to be a death sentence, 50 years, 20 to 50, 15 to 40, 10 to 25, or 5 to 20 years.

 

Assemblyman Gustavson:

I actually have a question for Lt. Olsen and what would probably help clarify Mr. Carpenter’s question as using both red lights and sirens.  I think the only thing here we might want to change is this:  emergency lights or clarify red and blue.  I am not sure, but Lt. Olsen, isn’t the reason you don’t use the siren at a normal traffic stop because the majority of the people will stop just at the red lights?

 

Lt. Stan Olsen:

Yes, sir, that is correct.  Again, this particular law and the bill itself are not dealing with the normal traffic stop; it is dealing with the pursuit-type situation.

 

Assemblyman Gustavson:

Exactly, I understand that, I just wanted to clarify that.

 

Assemblywoman Angle:

I want to follow up on Mr. Geddes’ question just a bit.  I keep going back to when I was in high school.  There was a pursuit on Kietzke Lane and two girls walking home from Wooster High School were hit and killed.  So, what I am following up on is, do we have another law that would take care of that since two deaths were caused by that?  Could we get them into that other area with another law?  Is this the only thing that we have?

 

Chairman Anderson:

Is this with an emergency vehicle that did this?

 

Assemblywoman Angle:

Yes, they were escaping from a policeman.

 

Kristin Erickson:

There could be other charges such as reckless driving causing death, which could be alleged.  I am not sure of the penalty.  I believe that is a Category B as well.  Other than that, I don’t believe there are any more serious charges; I believe it would be simply what we have for you today.

 

Chairman Anderson:

That may be the incident that caused this to come into the statute in the first place.  We could go back and check.

 

Assemblywoman Angle:

Yes, I believe that they were only convicted of a B felony at that time.  I know it was; we thought they should have had to stay longer in prison for something like that.

 

Assemblyman Carpenter:

I don’t want to belabor the point, but I think that the way this reads that in the sentence above the one that I was looking at before, it says, “When given a signal to bring his vehicle to a stop. . .the signal. . .”  So, I think that the way I would read that is that anybody that you are going to stop, you are going to have to turn the siren on because you don’t know whether they are going to flee or not.

 

Lt. Stan Olsen:

We don’t want officers there trying to go in pursuit of somebody, an actual pursuit, without using their sirens and so we certainly want to make that very clear.  But there are hundreds of cases every day where cars are stopped that do stop, without the use of the siren.  Perhaps we should clarify that if a pursuit begins both are used.  At a regular traffic stop, it could be without the siren.

 

Chairman Anderson:

If the lights are turned on and the driver doesn’t pull over right away, it is an additional misdemeanor.  Then if there’s a pursuit with the siren turned on, we have to make sure that lights are going.  If all of these other factors are in place, and if somebody is harmed, then the offense is moved from being a misdemeanor to being a B felony.  That is in the current law.  What we are going to do here then is move it to a higher penalty of B felony with a maximum 5- and 6-year sentence.  If it causes a death, we are now going to do a B felony.  We moved it from 5 and 6 to a 2- to 15-year sentence.  Is that right?

 

Lt. Stan Olsen:

Yes, sir.

 

Major Robert Wideman, Deputy Chief, Northern Command, Highway Patrol Division, Nevada Department of Public Safety:

[Introduced himself]  Good morning, Mr. Chairman and members of the Committee.  I don’t want to take up too much of your time but I would also like to indicate our support for this particular bill.  The problems generated by high-speed pursuits and people fleeing are significant.  Those persons who tend to flee tend to demonstrate a self-centered interest and a total disregard for the safety of those around them.  We certainly support this bill.  Again, I wanted to be brief, but I would be happy to answer any questions if you have them.

 

Chairman Anderson:

Are there any questions for Major Wideman?  Mr. Carpenter had expressed some concerns, Major, relative to the use of red lamps and sirens, which I am sure goes back to some older piece of legislation.  Is there a problem with the Highway Patrol cars relative to red lamps and sirens?

 

Major Robert Wideman:

I don’t think we have a particular problem with that.  I heard Lt. Olsen’s explanation and our circumstance would be similar to that.  Ordinarily, in the course of a traffic stop our officers turn on the illumination and, for the most part, people stop and that is appropriate.  As I understand this particular bill, the use of the lights and sirens would only be necessary to prove an element of this particular crime.  As long as people stop, it is not an issue.  Certainly, if people don’t stop or we see some evidence of their attempt to get away, the sirens are activated and all possible means are used to get their attention to pull over in that regard.

 

Chairman Anderson:

Is there anybody else wishing to testify in support of Assembly Bill 335?

 

Gary Wolff, representing Nevada Highway Patrol Association:

For the record, I just want to say “me too.” 

 

Chairman Anderson:

Is there anybody else wishing to speak in support of A.B. 335?  Mr. Nadeau, do you need to be on the record on this?  [He indicated no.]  Is there anybody speaking in opposition to A.B. 335?  I am going to close the hearing on A.B. 335. 

 

Assemblyman Geddes Moved to Do Pass A.B. 335.

 

Assemblyman Carpenter:

I would like to see it clarified, but I guess I would yield to what our legal staff thinks.

 

Chairman Anderson:

We managed to range so far over this thing that I must have 15 notes here in front of me to try to straighten me out.  The siren is here so that a person is not held criminally liable unless the siren is used because that raises the level of response.  I think we all understand your concern relative to the red lamp, if that is the only way it can happen, because they use other kinds of colors.  However, so do other kinds of emergency vehicles and I think there is a certain level of concern from the past discussions about what kind of lamps they use.  I think we are okay with the bill as it is and if we are going to move it, we might as well move it and get it to the Floor and get it out and across.  With the 120 days, it is just doesn’t seem to be that major a problem.

 

Assemblyman Conklin seconded the motion.

 

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

 

We will ask Assemblyman Manendo if he would like to defend his own bill.  However, I am sure that he may need a little bit of support here, so will ask Mr. Geddes to be his support.

 

Let’s turn to our Work Session Document (Exhibit C).  Again, we are going to be looking at A.B. 448 at 10 a.m.  The first bill that we have in our Work Session Document today is A.B. 92.

 

Assembly Bill 92:  Makes various changes to requirements governing filing and form of certain documents. (BDR 8-271)

 

We asked for some clarification here.  If you recall, this dealt with the Uniform Commercial Code.  I see Mr. Rabkin out here in case we need some clarification.  As you know, this is not an opportunity to give new testimony, Mr. Rabkin, but merely to answer questions for us.  This is an additional amendment (Exhibit D) that is being distributed now relative to the disposition of collateral.  It deals with the problems of the sale or repossession of vehicles, motor vehicles, and the notice that is set forth there.  These are some concerns raised by Ms. Buckley and other members of the Committee.  Technical changes to Article 9 of the Uniform Commercial Code reinstate language deleted in Section 2 and amends page 6, lines 1 through 4.  Do you want to help us understand the document here?

 

Allison Combs, Committee Policy Analyst:

On the Work Session Document [Exhibit C], on page 1, are some amendments submitted by Mr. Rabkin following the hearing that were discussed during the hearing [page 8].  If you are looking at the bill on page 6, at the very bottom of that page, there is some language that is deleted requiring a form that a filing office may not refuse to accept in this subsection 1 or 2, and must conform to the format prescribed for the form by the National Conference of Commissioners on Uniform State Laws.  It was indicated that the language should actually be reinstated.  That is existing law.

 

A second change to the bill on page 8, under Section 4, at the top of the page, lines 1 through 4, would replace the language there in the bill.  The new language currently references “be on a form prescribed and made available by the Secretary of State if required. . .under Nevada Revised Statutes (NRS) Chapter 104.”

 

Instead of that new language, other new language is offered to state that it would be on a form authorized specifically by NRS 104.9521, and that section is amended under Section 2 of A.B. 92.

 

Finally, under Section 5 of the bill dealing with NRS Chapter 482, is an amendment proposed, again, to add new language in the middle of the page.  Currently, it says, “required on the form prescribed by the Secretary of State.”  It would instead be, “substantially in the form prescribed by NRS 104.9614,” which prescribes the contents and form of notification before disposition of collateral in a consumer goods-type transaction.  This may be an area where we may have a revised amendment.  Mr. Rabkin also submitted some additional changes (Exhibit D).

 

Alan Rabkin, representing Nevada Bankers:

Actually, they are not additional changes.  We are really down to this amendment in Section 5, dealing with the disparity between two sections of the Nevada Revised Statutes.  I provided both sections so that we might take a close look at it; I highlighted the changes.  If you look at these two sections, NRS 104.9614 and NRS 482.516, you will see that when it comes to cars, the NRS actually has two different definitions for the notice that must be given to repossess a car.  The reason is that cars are personal property under Article 9.  So seemingly, NRS 104.9614 would apply, but then we have a very specific statute, NRS 482.516 that seems to target cars and repossession.

 

The reason I added this on to some other technical changes, which are not controversial any longer, is because nobody knows which of these two statutes to use; therefore, they use both and they create a hybrid between the two.  For example, if you have mixed collateral in a bank loan that includes machinery, equipment, and a car, you wind up having to give a notice that’s a hybrid between these two.  What we propose to do is to take what we thought was the more binding of the two statutes.  If you look below NRS 104.9614, you will see a sample notice.  It says, “Notice of our plan to sell property. . .”  It goes into great detail as to what your notice has to be to sell property under the Uniform Commercial Code.

 

If you look under NRS Chapter 482, there is no sample notice but there are five subparts of language that they would prefer be in your notice.  We thought that NRS 104.9614 seems to have this very detailed notice that goes to customers, so why don’t we simply refer NRS Chapter 482 over to NRS 104.9614 and then it will be consistent.

 

Assemblywoman Buckley asked me to look at some of the issues in NRS 482.516 because there are some catchwords in that statute that use words like “privilege of reinstatement” and “right to redeem” that we want to make sure we don’t inadvertently eliminate by referencing NRS Chapter 482 over to NRS 104.9614.  That is certainly not my intent.  That sort of verbiage is in the sample notice that we are referring to.  It is not up above in the (a) through (d) sections existing in NRS 104.9614, but it is in the sample notice.  I think the intent under the Uniform Commercial Code would be to give somebody the right to redeem and the privilege of reinstatement, and so on.  I am simply trying to create consistency between these two statutes.

 

Assemblywoman Buckley:

I appreciate the effort in removing just the reference to the Secretary of State and how they got into the statute.  There are still a few things that concern me about this.  Right now, under NRS Chapter 482, the creditor has to tell you how much it will cost to get your car back.  The creditor also has to make sure that the amount includes a refund of any unearned finance charges, cancelled disability credit insurance, and some of those items that get tacked on the lower car loans.  That’s gone.  I don’t like the provision where you call to find out how much you owe.  Right now, it’s in the notice; so there’s no “he said, she said” about how much is owed.  We have seen where people will call and they can’t get through and they don’t know the amount.  They will mail you a written explanation, but you need that amount to know how much you need to pay right now and you only have a short period of time.

 

So I think that is not good and creates additional hurdles for consumers.  I like the stronger provisions in NRS Chapter 482 and would be comfortable if we repeat those in NRS Chapter 104, but I don’t want to weaken any of the consumer protections.

 

Alan Rabkin:

Mr. Chairman, this is not a critical element of my bill.  I was simply trying to help creditors with mixed collateral better understand these two statutes.  I would be more than content to delete any changes to NRS 482.516 from the bill and continue the current practice.  At our last work session hearing, we had a representative of the Department of Motor Vehicles also testify to the fact that they create the best of both of these statutes and I think people do improvise to deal with both statutes, maybe it is simply not a change we need to make.  I thought since I was making other technical corrections that involved the Uniform Commercial Code, I would try to create consistency, but I am certainly not trying to eliminate any consumer protections here.

 

Assemblyman Carpenter:

On the form—I guess this is for a private disposition—it says, “We will sell at a private sale sometime after. . .” and then you date it.  I would think that in these kinds of sales you need a specific date but again, I am looking for an explanation.

 

Alan Rabkin:

Yes, that is fairly easy to explain.  As opposed to an auction, where you do have a date certain, under the Uniform Commercial Code, if you elect to sell privately and notice the borrower or debtor of that, you could sell on or after that date to any other person that you want without further notifying the debtor.  That is in lieu of an auction, so that is provided by the Uniform Commercial Code.  That’s not typically done unless the bank or the lender has somebody in mind for selling this item, like a wholesaler or some sort of jobber in that particular type of equipment or whatever.  If that was the case, though, and the bank did know of an outlet to sell those items, they would notice the borrower or debtor that on or after this or that date we are going to sell this collateral to that type of person.  That is why there is both a private disposition and an auction available for the sale of items.

 

Assemblywoman Buckley:

Do you think it would be okay if we amended the NRS Chapter 104 notice to just add those things that are already required in NRS Chapter 482?

 

Alan Rabkin:

I wouldn’t recommend that.  You would be going to a nonuniform Article 9 provision and we will throw off a lot of other states by doing that.  That is why I am willing to withdraw the amendment entirely.  I think there would be a wave of concern about that if I did that.  That is why I elected to amend the NRS Chapter 482 side rather than the Article 9 side.

 

Assemblywoman Buckley:

I just thought that would be an obvious solution.

 

Chairman Anderson:

Are there other questions for Mr. Rabkin?  It looks like we are at something of an impasse then.  If we can’t proceed with the bill and work out the differences in this section, are you suggesting that we not have the piece of legislation?

 

Alan Rabkin:

No, the rest of the legislation amending the other sections is fine.  Everyone is in agreement now that those are necessary.  The only one that probably should be deleted at this point as part of the work session is the change to NRS Chapter 482.  It is simply not worth affecting the rest of the bill by trying to have absolute consistency between two sections.

 

Chairman Anderson:

Ms. Buckley, are you ready to make a motion?  Do you want to state the amendments of this that we are going to accept then, so the rest of us will feel comfortable or at least the Chair will feel comfortable?

Assemblywoman Buckley:

Yes, thank you, Mr. Chairman.

 

Assemblywoman Buckley Moved to Amend and Do Pass A.B. 92 with the amendments in the work session document (EXHIBIT C).

 

I would move Amend and Do Pass and the amendments would consist of those in the Work Session Document but would not include any of the proposed changes to Section 5 including the new handout that was given today.

 

Assemblyman Carpenter seconded the motion.

 

The motion carried unanimously.

 

Ms. Buckley, may I ask you to do the amendments on the Floor? 

 

Let’s then turn our attention to Assembly Bill 103.

 

Assembly Bill 103:  Eliminates requirement for Director of Department of Corrections to return certified copy of judgment to county clerk of the issuing county. (BDR 14-532)

 

Allison Combs:

Assembly Bill 103 on page 2 of the Work Session Document (Exhibit C) was a bill that was requested by the Nevada Department of Corrections to eliminate the requirement that they return a certified copy of judgment of conviction to the county clerk.  There was some concern in the Committee to put what the Department is currently doing, since they are not currently doing that, into statute.  The Department submitted some language that is at the bottom of page two of the Work Session Document.  The suggested concept is the Department of Corrections will provide each county clerk in the state with a monthly listing of all offenders who have discharged their final sentences from the Department or from Parole, indicating the case number of all discharged sentences.  It was indicated that this is their current practice.

 

Chairman Anderson:

Apparently this reflects what they have been doing since 1967, which causes us some level of concern.

 

Assemblyman Carpenter:

I think that it is important to have something here.  It seems to me, like on one of the bills we were discussing about being able to vote after an offender has discharged his penalties, that some people said they couldn’t even find out what had happened and there was no record.  It seems to me that it is very important to have some kind of record so those people can get their lives straightened out.

 

Chairman Anderson:

I would agree.  I don’t like the idea of us giving a window of opportunity for the state to not be following the law, which causes me some level of concern and, I know, others to be concerned.  I do want to hold them accountable to the reporting of discharge back to the county in some meaningful way so that we have some track.  I don’t want the state to just think that they just get to walk away from the responsibility of the law.  I think that if we got them doing what their practice is, we codified that, maybe it will relieve their anxiety and ours too.

 

Assemblyman Carpenter moved TO Amend and Do Pass Assembly Bill 103, the amendments being those suggested REFLECTING the current practice of the Department of corrections.

 

Assemblyman Conklin seconded the motion.

 

The motion carried unanimously.

 

If the Committee so desires, the Chair will compose a letter indicating to the Department a strong desire that they begin to follow the law in this regard and showing our concern for the lack of observing the statutes in this regard.  Seeing no objection from any member of the Committee, the Chair will take that as direction and ask staff to draw up such a letter.

 

[The Chair assigned Mr. Sherer to present the bill on the Floor.]

 

Let’s turn our attention to Assembly Bill 117.

 

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

 

Allison Combs:

Assembly Bill 117, at the top of page 3 of the Work Session Document (Exhibit C), is a bill that makes various changes with regard to the withholding of income, which is ordered to enforce child support payment.  The bill specifies some circumstances in which the court may find good cause for not issuing an automatic order directing the withdrawal of the child support income.  There was testimony that this proposal does not conflict with any federal laws mandating the withholding.  There were no proposed amendments.

 

Chairman Anderson:

We have been holding this one back for the passage of some other pieces of legislation.  It looks like a good bill that sets the record straight.

 

Assemblyman Carpenter:

I really didn’t like this bill because they said that very often employers discharge people just because they get an order for garnishment.  I don’t know if that is practiced or not.  I think the judge already has the authority to do what they are trying to ask.  It seems to me that they are putting in a few provisos here that to a judge should be plain on the surface.  I have a gut feeling and I don’t like it.

 

Chairman Anderson:

I am somewhat sympathetic to the bill.  It seems to me it clarifies the fact that if a person has been making his payments and everything is okay, that he shouldn’t be harassed in some way here.

 

Assemblyman Horne:

I concur with your comments with the expression that the bill was trying to do what was practice.  Employers of parents who were current in their payments, would receive letters regarding the garnishments, which sometimes could put their jobs at risk.  That would undermine the whole purpose of child support.  If a parent loses his job because of a letter of garnishment, he can’t pay now—even though he was paying before—just because he had an employer who violated the law and chose to dismiss him thinking that he was a deadbeat parent or the like.  I like this bill.

 

Assemblyman Conklin:

Hopefully I can clear up some of the concerns on A.B. 160 that we passed out of this Committee.  I do believe there was a provision in there stating that an employer cannot terminate an employee as part of the statute and, hopefully, I am correct here, but I do believe I remember reading it because of garnishment of wages.  So hopefully there is some protection in there.  It is a separate bill but I think it would apply in this case as well.  Maybe Legal can clarify that.

 

Risa Lang, Committee Counsel:

I think that is actually the current state of the law.  There are provisions in that chapter in which an employer is prohibited from firing a person based on that.  I think the testimony indicated it was just hard to prove that was the reason behind the firing and that was the problem with it, but there are definitely those provisions in the statutes as they currently exist.

 

Assemblywoman Buckley:

I was initially skeptical about this bill, but I found the testimony pretty persuasive that despite the fact that income withholding really isn’t just supposed to be done automatically, it was; at least that was the testimony from Clark County.  Maybe it is just an example of a Clark County practice, which so often we hear about.  The only concern I had about the bill is that we already made a policy statement in A.B. 160 that automatically holding for domestic violence victims and an extended order was right.  I don’t want to contradict that, but I think that would come out in the conflict amendment process.  Or does that need to be done in this bill?  That was my only concern about it.

 

Risa Lang:

If it is a substantive conflict, we would definitely resolve that during the conflict amendment process.  I am not sure if this would create a conflict with that bill.  I guess I would have to look at A.B. 160 again, which deals specifically with domestic violence, and this one is dealing with any type of situation where withholding is imposed by the courts.  So I am not sure now with the amendments to A.B. 160 if this would be a conflict or not, but I will definitely look at that.  I’ll have both of them on my desk for amendments so I can try to address those issues, and if they are in conflict, I’ll bring it back to the Committee.

 

Chairman Anderson:

Let’s do this.  Since A.B. 160 has an Amend and Do Pass motion on it, why don’t I take a Do Pass motion on A.B. 117?  We’ll not take it to the Floor until the amendment has been adopted, so then we get it out of the way and we will make sure that A.B. 160 has cleared the House.  That will give us enough time to see how the two of them look.  That will get it off my board.

 

For you freshmen who don’t understand what I just said, that would mean that we would pass the bill.  The usual process is that I have to sign a document that takes it to the Floor but I would not sign that document and take it to the Floor until we had adopted the amendments on A.B. 160.  Thus we’re able to give Legal enough time to look at the potential conflict.  If there were a conflict, then I would still have it in my possession and would be able to bring it back here.

 

The Chair will entertain a Do Pass motion on A.B. 117.

 

Assemblywoman Ohrenschall moved to Do Pass A.B. 117.

 

Assemblyman Brown seconded the motion.

 

Assemblyman Horne:

I just thought of it; I have a child from another relationship and I make child support payments.  I wouldn’t be affected any more than anybody else on this, but I don’t know if I should. . .

 

Chairman Anderson:

You want to disclose in the event that—it is always a good idea if you are in doubt to disclose that there is a potential conflict of interest, but you are not affected by anyone in any way different from any other person similarly so situated.

 

Assemblyman Horne:

That is correct. 

 

Chairman Anderson:

Is it your intention to abstain from the vote?  You don’t need to abstain; I was just inquiring.

 

Assemblyman Carpenter:

I just think that if we have to give judges these kinds of instructions, if somebody tells the judge, “I have been paying for 12 months and I continue to keep paying. . .”  I don’t know, I think judges are smarter than that.

 

[The Chair called for a voice vote.]

 

The motion carried with Mr. Carpenter voting no.

 

Chairman Anderson:

The bill has passed.  I will assign the bill to Mr. Brown on the Floor.

 

Let’s turn our attention to Assembly Bill 126.

 

Assembly Bill 126:  Revises definition of "exploitation" for purposes of provisions concerning abuse of older person and for purposes of provisions concerning civil liability for exploiting older person or vulnerable person. (BDR 15-879)

 

Allison Combs:

Assembly Bill 126 revises the definition of exploitation of older persons for the purposes of the provisions concerning civil liability for exploiting an older person or a vulnerable person, as well as the abuse statutes.  There was concern about the revised definition, which is reflected on page 2 and page 4 of the bill.  The sponsor of the bill submitted some language this week to revise that definition, and that is included at the top of page 4 [Exhibit C].  It would replace what is in the bill.  The new language would read that exploitation means, “Any act by a person who has the trust and confidence of an older person or any use of the power of attorney or guardianship of an older person who converts money, assets, or property for their own use with the intent to cause the older person to be permanently deprived of that ownership, use, benefit, or possession of his money, assets, or property.”

 

Chairman Anderson:

So we would be changing page 2 and page 4 of the bill to this new definition, away from “an intentional breach of duty and act by a person who has the trust and confidence of an older person. . .”  Is this conceptual, Ms. Combs, or was this done by someone in the Legal Division?

 

Allison Combs:

It is conceptual.

 

Chairman Anderson:

Ms. Lang, are there problems with the language?

 

Risa Lang:

Mr. Anderson, I would be happy to work on the language.  You notice in paragraph (a), we talked about a person who has the trust and confidence of an older person, so in drafting I’ll try to figure out how to break that down, since we will be talking about the same situation.  Currently, I think it is set up so the first part deals with the person with whom the older person has trust and confidence and the second situation is someone who has an actual fiduciary duty to that older person and that was how it was broken down.  If you decide to go forward with this amendment I will just try to work out where the differences are.

 

Chairman Anderson:

So, it appears that they have taken this same language and merely substituted attorney or guardianship.

 

Assemblyman Geddes:

I just have a question in that new definition as far as the phrase “for their own use.”  That would limit it too much.  I was just wondering if somebody did this and they made their children benefit from it or their spouse benefit from it, so they themselves didn’t benefit, would this restrict including those actions?  Would the legal language take care of that or does the definition imply that?

 

Risa Lang:

So you are asking if “for their own use” would limit it so that it is just for their own use and not somebody who they might give the money to.  I think “for your own use” could be limiting in that manner.

 

Assemblyman Geddes:

So, we could expand that in the legal drafting to make sure it didn’t limit?  [Ms. Lang indicated yes.]

 

Assemblywoman Buckley:

I think this is a good bill.  I think the person from Las Vegas Metropolitan Police Department was really quite good.  He made the point that by having in the first paragraph, which is on page 2 of the bill, line 9, that they had instances where “to obtain control” became too limiting and didn’t catch people who just stole, so I think that is why the suggestion is to go to just “converts,” because that just conveys stealing.

 

I agree with Assemblyman Geddes; we can delete “for their own use” but keep the rest.  I think that one of the things that we struggled with in previous sessions was not to get at children who make a bad investment.  That is not the intent.  We want to get people who steal basically.  I think if we have “convert with permanently deprived” and probably just took out “for their own use” that would still be tight enough not to get at bad investments but be strong enough to eliminate the loophole that the exploitation unit sees.  While we might have to divide up the paragraphs, one for power of attorneys and one for none, that should be pretty easy to do in drafting.  I like this approach.

 

Assemblywoman Buckley moved to Amend and Do Pass A.B. 126 with the amendment being the suggested language conceptually created with the removal of “for their own use.”

 

Assemblyman Oceguera seconded the motion.

 

Chairman Anderson:

On the Buckley/Oceguera motion, Amend and Do Pass, the amendment being the suggested language conceptually created with the removal of “for their own use” so that we are answering the concerns raised by Mr. Geddes, are there any problems?

 

Assemblywoman Angle:

This is the one that I have the concerns over those who, like I said, family or friends who are just doing this.  Perhaps the word “intent” takes care of some of it, but “permanently deprived”—I would like to see something that causes damage.  I know that in the case of relatives who have Alzheimer’s, they are personally deprived of their ability to own and use, but they still benefit, however they may not think so and some of their family members, might not think so.  I’m not sure that the damage is there.  My concern is that it would speak to this as damaging to them someway rather than just depriving them.  That is my only concern.

 

Chairman Anderson:

[Chair recognized the arrivalof Assemblywoman Peggy Pierce, District No. 3, Clark County, sponsor of the bill.]

 

The Committee is a bit concerned with the amendment that you have suggested, which you do not have in front of you.  In terms of “for their own use” of an attorney or someone, we felt that might be narrowed to such an extent that they could take care of their family member or someone else by use of the assets, unless we wouldn’t be able to reach out and touch them and we wanted to prevent this action from taking place.  So, we were going to remove that.  This is conceptual language that the bill drafter will have to work on to try to draw the difference between somebody who has the power of attorney and between A- and B-type individuals here.

 

Mrs. Angle, I don’t know whether we have addressed your concerns or not.

 

Assemblyman Brown:

Regarding Mrs. Angle’s comments, I believe that within the conceptual language here, that the damage is implied.  There is a permanent deprivation not only of ownership but as to the benefit and I think that is where the damage comes in.  So we are not just removing that from their possession or ownership, they aren’t getting anything out of it.  So I am satisfied with that language.

 

Assemblywoman Angle:

I just wanted to comment that I am satisfied too if that covers a damage there.

 

Chairman Anderson:

Penalties are based upon the amount of damage that was done so we would be okay.

 

[The Chair called for a voice vote.]

 

The motion carried unanimously.

 

Assemblywoman Pierce, was it your intent to present this on the Floor?  [She indicated yes.]  We will provide you with a statement from Allison Combs and I will take care of the amendments on the Floor and you can have the bill.

 

Mr. Mortenson, we will ask you to be backup.

 

Let’s move to A.B. 191.

 

Assembly Bill 191:  Provides for enhanced penalty for burglary of research facility. (BDR 15-1081)

 

Allison Combs:

Assembly Bill 191 is a measure that provides an enhanced penalty for the burglary of a research facility.  It also adds the definition of a research facility into the statute.  There are a couple of amendments proposed [Exhibit C, page 4.]  The first one listed is proposed by Chairman Anderson to delete the enhanced penalty for the burglary of a research facility but retain the specific reference to research facility that has been added to the burglary statute.  A couple of other amendments were proposed during the hearing.  One of which was to expand the circumstances under which the enhanced penalty would apply to include a reference to someone who is obtaining unauthorized control over toxins or toxic chemicals.  The other was a proposal from Dr. Simmonds [page 9] revising the definition of the research facility, which is on the bottom of page 2 of the bill, specifically to include a reference to agricultural research.

 

Chairman Anderson:

I have not talked to the author of the bill, Assemblyman Tom Collins, but it seems to me that we could add “research facility” to the list and take Dr. Simmonds’ suggestions of adding “agriculture” and “toxin and toxic chemicals” without doing too much harm.  Mr. Geddes, I know that you had some concerns here.

 

Assemblyman Geddes:

Yes, Mr. Chairman, I am not entirely sure what your amendment does.  Does it put “research facility” in there as far as the burglary so it would automatically get the enhanced penalty or is there no enhanced penalty?

 

Chairman Anderson:

There would be no enhanced penalty.  It merely adds it to the list of similar groups of facilities.  We would hold to the language at line 3, page 1, and add “research facility” there.  Conceptually, we would not do the enhanced penalty, but we would put in the suggestions by Dr. Simmonds of toxic chemicals and agriculture.  The “toxin and toxic chemicals” would be changed.  Do we still need the definition of a research facility?  I’m sorry; it is the other way around.  So, we are adding “agriculture” to the research facility definition, but we are not doing the “toxin and toxic chemical” section of the enhanced penalty.  It doesn’t do much other than add “research facility” and “agriculture.”

 

Assemblyman Geddes:

I like the enhanced penalty portion of it and I don’t think it will do much without that.  If you break into one of these facilities as it is, there would be a charge of burglary.  Without the definitions and the enhancers going in addressing the toxic agents and biological agents and chemicals, I think we lose the intent of the bill by not allowing the enhanced penalty.  I would be opposed to that particular amendment of the bill.

 

Chairman Anderson:

I have problems with the bill as a whole.  I have no objection to adding “research facility” if that clears up the ambiguity in what kind of place you are going to break into.  Including an “agriculture facility,” for some reason, makes them feel more comfortable.  I am a little bit concerned, however, given the nature of how some of these things take place.  I can only imagine, because I am not a research chemist, how devastating it would be to lose your research at a critical stage.  I still have difficult time trying to move this kind of charge up to a B felony.

 

Assemblyman Geddes:

Mr. Chairman, I would agree with that.  Again, with the original testimony, I have concerns with it being the research and their data and the logbooks.  Although those are valuable to the company, I don’t see a big threat and concern there.  It is the fact that actual specimens and chemical and biological agents can be specifically targeted that concerns me; I think the enhanced penalty needs to go to those.  I know in a few of the other anti-terrorism bills we talked about these agents and this is one specific area where we can increase the penalty for someone who is seeking to secure those agents.  Maybe we can amend the language so we won’t be protecting their data and their logbooks; I do have a concern.  Although there is financial value there, I don’t have a great concern with the threat that comes out of that.  However, with the threat of these chemical and biological agents, I think there is concern there and the enhancement should be there for that. 

 

Maybe we could just go through the definitions under the “enhanced” and remove the “records, data, result of any test.”  I am not sure that needs to be there to protect the public.  In subsection 4(b), I’m not sure about anything except subparagraph (3) that needs to be addressed to alleviate my concerns.  I think that subparagraph (3) definitely needs to stay in there and maybe just the burglary with the intent to the release from confinement any animal, biological, or chemical agents should be something we look at.

 

Assemblywoman Buckley:

I would have a hard time equating a cat with a toxin.

 

Assemblyman Geddes:

Unless that cat is in the research facility and has been given botulism or anthrax or something where they are studying the effects and that cat is released; it does pose a public threat.  A lot of these test subjects have been exposed to smallpox, to anthrax, to herpes; the effects are being studied and they do pose a health threat.

 

Assemblywoman Buckley:

Right, but how would you know the difference?  How would you know, unless you say an animal has been given a disease?  I think the bill needs some work.  I think there is some merit in it, but maybe we could also put it in another terrorism bill or something.  I think the sponsor may need to work a little on it.

 

Chairman Anderson:

Let’s set A.B. 191 aside; we will send it back to the board.

 

Allison Combs:

Assembly Bill 209 is the next bill in the work session.

 

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

 

It is on page 5 [Exhibit C] and it is a measure that requires the testing of prisoners to detect the presence of a controlled substance in their system before consideration for parole and release on parole.  The bill also provides that the Parole Board must not release a prisoner on parole if the presence of a controlled substance is detected.

 

There are two proposed amendments.  The first one, proposed by Chairman Anderson, would delete the new prohibition on releasing an inmate on parole based upon this positive test result.  The second issue raised was not necessarily a specific amendment proposed.  During the testimony, Assemblyman Joshua Griffin noted that there may be a need to address the length of time before the next parole hearing for an inmate who tests positive.  I would also note that following the hearing, the Department of Corrections submitted some information indicating that they do currently test their pre-parole population, so there should not be a physical impact to the Department.  The data on their latest tests are on a pink piece of paper attached to the Work Session Document [page 10].

 

On the left-hand side of the page of the pink document there is the broad category of test-level numbers for each month.  Under that program requirement you will see the pre-parole category; those are the test program results from that testing population.

 

Chairman Anderson:

Let me explain my concerns with the bill.  My concerns rest with the idea that here we have somebody who is up for parole and we are going to put him out.  He tests dirty, so you put him back in the prison population.  He zeroes out his time; now we are going to put him on the street without any supervision.  The likelihood of his recidivism, of his going back in, is extremely high, but you don’t have anybody out there watching him specifically.  The people we put out on the street with parole, even though they may have turned dirty, will be supervised.  There is a possibility they can put themselves in some program on the outside.  If they don’t offend during that time period while they are being watched, they are not going to be going back.

 

On the other hand, we are out there watching them because they have to report to Parole and Probation.  When we take that away because they zero themselves out, they merely need to report their presence in the community and that’s it.  I just don’t think we have as good a handle on them.  So, I think Assemblyman Griffin’s bill is something that is already taking place, but if I were a member of a Parole Board I would want to know that this was taking place.

 

Assemblyman Brown:

I think that is a valid point.  I had a question you probably know off the top of your head.  Is there is intermittent testing during parole?  Is that just random?

 

Chairman Anderson:

It depends on the kind of program they are put into.  In some cases as a condition of parole, they are put into a drug-testing program.  The current warden is trying to pursue such a program.  In fact, the drug-testing program is one of the major elements in what she is trying to accomplish here in trying to put people back into society.  It depends on the situation where they are put on the street, under what their initial crime was, but the possibility is there.

Assemblyman Brown:

Was there any discussion or evidence of how many inmates this would keep in the system on an annual basis, in terms of population?  I would think it would influence it somewhat.

 

Chairman Anderson:

There was no testimony indicating how many would fall in this category or might fall through, who might come out the other end.  In fact, I think that would be a difficult thing to ascertain.  I hesitate to think, given the unfortunate financial situation in the state, that we would put ourselves in a position where we would have to put people back into prison who might be dirty relative to drugs.  We would be precluded from putting them back on the street and putting them in a less costly program on the street than in the prison, which is financially burdensome to the state.  I think while there is no economic problem with doing the drug testing, there may be some fiscal impact to the prison population if even a few people are held up in that regard.  I think that would be a mistake.

 

Assemblywoman Angle:

I like the incentive in this bill.  I feel that if the inmates know drug testing is coming up, the incentive to get clean is there.  Also, there is an incentive for us to do some type of rehabilitation within the prison system and make sure these people don’t have the problem when they leave.  I think that rather than relying on them to be rehabilitated on the outside through a treatment program after parole or while they are on parole, we should be thinking of being more proactive if they are in prison for drugs or drug-related crimes.  We need to be treating that within the prison and making sure we are not turning them out with that problem.  I think this is a step in the right direction toward keeping them, just an incentive for us to get them out there in a place where they are actually rehabilitated and can face the rigors of life once more.  It is also an incentive for them to stay clean during the time that they are there and to meet this requirement if they know it is going to happen.  I just really like this bill and would like to see it kept the way it is. 

 

Chairman Anderson:

I don’t disagree with you, Mrs. Angle.  In fact, I think we had recommended drug treatment programs on the inside of prison and have been pushing that since 1993.  Unfortunately, I have yet to see, during the last couple of administrations, a couple of wardens’ programs seemingly funded by the state Legislature that had any consistent legs to it.  They start out well and then it just becomes a big issue.  So, it’s a good thing said but in reality it doesn’t work, whereas the drug treatment programs on the outside have.

 

Assemblywoman Buckley:

You know, I think this is kind of a mess because the Department of Corrections came and said, “We don’t test everybody before parole,” which, I assume, is the reason why Assemblyman Griffin decided to bring forth the legislation.  Now they send us a paper saying, “We were wrong, we do currently test all of our pre-parole population,” thereby obviating the need for the bill.  So I want to know if the Department of Corrections has gone to the sponsor of the bill to explain that they presented erroneous testimony and to talk to him about where he would like to go with this bill.  How would they come to a hearing and not know what they do?

 

Chairman Anderson:

I don’t disagree and I don’t try to protect the prison system.  I know we are going to be going today to look at the facility in Elko because of some of the strange things that are happening over there.  Ms. Buckley, I have no answer to that question.  They said we should do this and they said they were doing that, but they are not doing this; they say, “Oh, yes, we are doing this; oh, maybe, we could do this.”

 

Assemblyman Claborn:

It sure doesn’t make any sense to me.  We put a person or individual in jail for doing drugs; then we let him out and he is still on drugs.  It doesn’t make any sense to me.  Something really has to be done, but I don’t know if this is the vehicle in which to do it.

 

Chairman Anderson:

Not all the people who are going to be tested are people who are there on drugs.  One study that I read, indicated that 70 percent of the population had an underlying drug problem when they went in.  The chances of a person coming out with a drug problem is even greater.  We send you there because you are bored; you come away with a new form of entertainment and addiction.  It is a wonderful place to be, apparently.

 

Assemblyman Carpenter:

I guess if we take them at their face value that now they are tested before they are put on parole, the only thing that seems to me that the bill does is it says not more than 30 days and I don’t know whether they are doing that or not.  This sheet they sent us is hard to read anyway, but I don’t know.  I do think we have to take them at their value that they are doing it now, otherwise they wouldn’t have sent the sheet around.  If they are doing it, hopefully they are only doing it within the 30 days and then I don’t think the Parole Board is going to let somebody out if they have a positive drug test unless they think they can get help on the outside. 

 

Chairman Anderson:

I just don’t want to see us tie the hands of the Parole Board.

 

Assemblyman Geddes:

Following up on Ms. Buckley’s comments, I see that they have the number that they pre-paroled, but is it a requirement in pre-parole?  It is listed as a breakout of their random testing of 5 percent of the population.  I am not sure if 2,200 is the number of people a year that they parole or if it’s just part of the random number of those included in the pool.  I guess it’s on them saying that they don’t do this and then showing this data that they do.  It sounds like the numbers that are pre-paroled are just a portion of who is being paroled and not necessarily everybody there.  I guess I would like a little bit of a clarification if that is everybody being paroled.

 

Allison Combs:

When the Department gave me the list, they indicated they do test everyone before they go before the Parole Board and that this is the information on that, which would reflect that approximately 2,200 folks were considered that year for parole.  Before going before the parole board, they are tested.  It was not a random test with this population.

 

Assemblyman Geddes:

Is that within 30 days or is there any time certain?

 

Allison Combs:

They did not indicate any time certain when they talked with me.

 

Chairman Anderson:

[Acknowledged the arrival of Assemblyman Joshua Griffin.]  We are in the process of discussing A.B. 209.  As I had indicated to you, I was going to suggest that if we were going to process the bill that we not make it a condition of denial by the Parole Board but rather information based upon the fact that the prison system now indicates that they do test everybody before they go to the Parole Board.  One of the questions from one of the members of the Committee was had they informed you of that fact that?

 

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

No, I was not aware that they tested everybody.  I was not aware that they tested pre-parolees.  You and I talked about it this morning and on other occasions.  The intention of the bill is to make that a condition, obviously, so that may be the distinction of what currently happens, but I was not aware that was currently occurring.  Do we have any statistics that were provided that says how many are paroled that test positive?  I don’t know if that came up.

 

Chairman Anderson:

They didn’t provide us with that.

 

Assemblyman Griffin:

From my standpoint, that would be the most interesting figure because if they are testing them before they get paroled but not making it a condition of their parole, and then they parole them, I would be curious as to how many people with positive tests were being paroled into the community.

 

Chairman Anderson:

The Committee has already written a letter directing the Department of Corrections to follow the state law.

 

Assemblyman Conklin:

I like the intent of this bill.  I think there is a problem that we need to get at and I think that everyone has suggested that already and this Committee has been trying to work on it for some time.  I am concerned about the first proposed amendment.  If we are going to drug test and somebody is found to have an illegal substance in their body from use and we set that person free, what precedent have we set?  From a legal standpoint, we are setting somebody free who has an illegal substance in his system.  I have a concern there; I guess it is conceptual or philosophical.

 

The second thing is in my limited experience, although a very personal family experience, for these people that have illegal substances that do get out of prison, what is the cost to us of processing them?  We let them go.  At the very first parole check by their probation or parole officer, they get screened.  They have an illegal substance, which we already knew they had in their system, and then we turn around and we process them right back into prison again.  So, I am just a little concerned about the bill.  I am also concerned about the amendments and I believe in the intent of the piece of legislation, so I just offer that up.

 

Assemblywoman Buckley:

I would recommend that we hold the bill and allow the sponsor a chance to contact the prisons and ask why their testimony has now changed.  They did submit a fiscal note for the additional costs that now are no longer additional costs, which means the fiscal note is wrong?  We never got the information on what they do about people who do test dirty.  Of course, they didn’t tell us they do it.  So, it might just make sense to at least get all the information on the record first.

 

Assemblyman Gustavson:

It is interesting sitting here listening to the arguments back and forth here and I tend to agree with Ms. Buckley.  Maybe we might get some more clarification from the prison.  I would like to see the bill processed because there is a reason for this bill, obviously, because we’re getting different testimony from when they testified here before and with what they are telling us now.  So we need to do something, as a policy setting Committee in the law, which apparently, they weren’t following—we don’t know yet.  Processing this bill would send a message to them that we are not unhappy with what they have been doing, or haven’t been doing, whatever the case may be.

 

Assemblyman Carpenter:

I was just going to suggest that Assemblyman Griffin take Mr. Conklin and Mr. Gustavson with him, and we will really find out what is going on.

 

Assemblyman Geddes:

I think the question that I would like to hear answered as well is, if they are releasing people who test positive, are they required to be in a drug treatment program as part of that parole?  Just as a follow-up, if we are going to let them out of there, although they tested positive, there should be some requirement that they are seeking to correct that situation.  I would like that answered from the Department of Corrections as well, if they are releasing.

 

Chairman Anderson:

The Chair is concerned about the number of people, the 2,200, who were released.  How many of them were released with zero time?  They were forced to be released because their time had expired in the system; therefore, as a condition, they had to go through a drug testing program and so we released them anyway because they had a drug problem.  So, I guess it is those three basic questions that we would look for and ask our researcher to assist Assemblyman Griffin in obtaining the information that he needs from the Department of Corrections.  We will ask the Department to communicate again with Assemblyman Griffin and with Research relative to the change in fiscal note since they are already doing it, but didn’t tell us.

 

Is there anything else that anybody would like to discuss on this particular piece of legislation? 

Assemblyman Griffin:

Actually, as we speak, Senator Sandra Tiffany is chairing a committee in which they are talking about the motor pool, so it is kind of interesting and exciting to see how that is going.

 

Chairman Anderson:

Assembly Bill 273 is next.

 

Assembly Bill 273:  Establishes procedures for permanently placing an abused or neglected child with a guardian. (BDR 38-688)

 

Allison Combs:

Assembly Bill 273 establishes procedures for permanently placing an abused or neglected child with a guardian under Chapter 432B of NRS.  During the hearing, Assemblywoman Buckley offered to work with the parties and prepare a list of amendments [Exhibit C, page 6.]  Behind the chart we were all just looking at on the parole statistics in the Work Session Document is a mock-up of the bill that contains some of the conceptual language on amendments that have been raised at this point [page 11].  If you turn to the mock-up it would be easier to go through the amendments that are listed there.

 

On the second page up at the top, the first proposal is for clarification.  A lot of individuals reading the measure were confused about the placement of the word “adopted” so it is a suggested change there.  The second proposed change from Judge Hardcastle suggests that any person, not just the agency involved, should be allowed to petition for guardianship and then the court would be able to determine whether or not that guardianship is appropriate. 

 

In the third box on that same page, Judge Schumacher raised, during her testimony, a change proposed by Clark County to increase the notice time to 20 days, which would provide consistency with the NRS Chapter 159 guardianships.

 

The next one is the one that has been proposed since the time of the hearing by Judge Deborah Schumacher and Cynthia Lu.  Ms. Lu, from the Washoe County Public Defender’s Office, suggested some of the findings of the court would, have to on the filing of the petition, leave subsections 1 and 2 there:  “That the child is in need of protection and that the adoption of the child is not appropriate or is not likely to occur and the termination of parental rights would not be in the best interest of the child.”  That language would be deleted and the explanation for that was that these considerations are the subject of the permanency hearing and need not be reiterated at a guardianship hearing.

 

The third proposed change by the same two individuals for the same purpose is deleting subsection 5 that the child is in the custody of the agency providing child welfare services and that the agency has made reasonable efforts to preserve and unify the family.  Again, those are considerations that are involved at the permanency hearing.

 

The next change up at the top of the third page goes to the burden of proof.  For that reason they suggest deleting subsection 7, that the proof standard would be the best interest of the child and instead, reference the burden of proof under Chapter 159 of NRS, the guardianship chapter.

 

In the next box there is concern that was raised during the hearing with regard to the guardianships that are established.  It would provide the guardian with sole legal custody and physical custody of the child and the language regarding termination of all other persons to legal or physical custody would be deleted.

 

There is also the proposal of a new section.  This was the location suggested by the proponents but certainly doesn’t indicate where it would go if it were adopted by the Committee.  It was to address a concern with out-of-state proposed guardians that cannot immediately obtain guardianship in their home states because most states require that the child had lived in their state for some period of time.  NRS Chapter 159 requires at least one guardian to be a resident of Nevada and they suggested that this is a sensible provision because the courts cannot effectively supervise out-of-state placements.  To resolve the dilemma and for the permanent placement of children with out-of-state guardians but not to create a situation of long-term supervision of out-of-state placements, they are recommending this new language, which is there in the middle of the page, that, “If necessary to further the permanent placement of the child, a court may grant a guardianship not to exceed six months in duration to a guardian who meets all their requirements of Chapter 159 of NRS, except residency in the state of Nevada.”

 

On the next page are some changes that were proposed to ensure that the court retains its jurisdiction over these types of guardianships involving abused and neglected children and that the agencies remain involved with these cases as well.  The “may” there on line 20 should have been stricken—it is not stricken there, but “may” in both cases would be stricken with “shall” being the proposed change there.

 

Finally, to clarify that the burdens of proof and the standards of evidence and procedures from NRS Chapter 159 apply once a guardianship has been established, there is some new language there that you see in the middle of page 4 that, “The procedures and provisions of NRS Chapter 159 apply to any motion to enforce, modify, or terminate a guardianship, or to appoint a successor guardian.”

 

Chairman Anderson:

Ms. Buckley, do you think this is conforming with the intent of your subcommittee that has been meeting now for two years?

 

Assemblywoman Buckley:

Yes, I believe it does and I think it is going to do a lot to speed up the process.  Judge [Deborah] Schumacher, [Second Judicial District Court, Washoe County], spoke to all the interested parties who testified, including Judge [Gerald] Hardcastle, [Eighth Judicial District Court, Clark County], to come up with all of the best ideas of everyone.  I think it is a good amendment and I support it.

 

Chairman Anderson:

The Chair will entertain Amend and Do Pass motion, the amendment being those suggested in the mock-up language from Judge Schumacher, Judge Hardcastle, and Ms. Lu.  It looks like we have it in every case with the additional deletion to line 20, page 4, the striking of the word “may.”  So it is a “shall.”

 

Assemblywoman BUCKLEY moved to amend and do pass A.B. 273, with the amendments being those suggested in the mock-up language from judge Schumacher, judge hardcastle and Ms. cynthia lu.

 

Assemblyman Carpenter seconded the motion.

 

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

 

Ms. Buckley did you want to take care of this on the Floor?  [Ms. Buckley indicate yes.]  Then we will look at Ms. Buckley’s next bill, A.B. 365.

 

Assembly Bill 365:  Makes various changes to provisions regarding guardianship. (BDR 13-953)

 

Allison Combs:

Assembly Bill 365 also revises provisions involving guardianships under Chapter 159 of NRS.  Since the time of the hearing, the individuals involved worked with Ms. Buckley to provide some proposed amendments to the bill.  There are two documents relating to this in the Work Session Document [Exhibit C].  Behind the goldenrod sheet [page 15] in your packet is a summary of all of these amendments that I put together and then behind the purple page [page 24] is the document submitted by all of these parties that provides more detail on the proposals.  I put together the other document just for succinct presentation as they jumped a little bit between the sections of the bills.  I would be happy to go through those if you would like, Mr. Chairman.  [He indicated yes.]  I will go from the page that has the blue writing on it behind the goldenrod page.  I would be happy to try to answer any questions if any come up.

 

The first change would be to Section 5 and that involves new language bringing some language over from the probate code involving appraisal or evaluation of assets.  There was some concerns from the rural communities for the expense and difficulty of obtaining an appraisal, so some language is proposed to be added to the bill to provide that “the guardian could file a verified record of an asset” in lieu of an appraisal, including “miscellaneous personal property and household goods where the total value does not exceed $5,000.”  In addition, it would also allow “with regard to real property, the county assessor’s tax value may be used” in regard to the appraisal.  However, it specifies that if the real property is to be sold, then an appraisal is necessary.

 

The second change is one that they noticed a reference in Section 6.  The word actually in bringing things over from the probate statute rather than “sells,” it should actually be “purchases.”

 

The next section change under Section 8 is also a technical amendment to reference subsection 1 of Section 7.  I would be glad to point it out but there is no (a) and (b) under the other section as would be needed, so it is just a technical change.

 

Section 10 involves the sale of real property, subject to mortgage or other lien or disposition of proceeds and other sections from the probate chapters.  Again, it addresses some concerns of the rural communities where the court is not actually able to hold the money as would be required by the current language, so the language would allow if the mortgagee or lien holder cannot be found, the money from the sale may be paid “as directed by the court.”  The current language as stricken would have required the court to hold that.

 

Chairman Anderson:

Was that to take care of a rural problem also, where the court was not in a fiduciary position to hold onto those?

 

Allison Combs:

That is right.

 

The next section is a change proposed under Section 23, also involving changes brought over from the probate code, and the request is to change the language there to specifically reflect what is in NRS 148.300, which is the section that this is based on.  There was some language in the statute that would have read, “If the amount realized on the resale of the property is insufficient to pay for the expenses related to the offer. . .”  The proponents would prefer to use the phrase “cover the expenses. . .” which goes back to the language of NRS 148.300.

 

The next change is to Section 47 with regard to appeals to the Supreme Court from certain orders.  They suggest it is important to make it clear that the notice of the entry of the order is what triggers the appeal period, so you will see some language there, adding in “within 30 days after its notice of entry from an order.” 

 

The next change is to Section 49 and to existing law which currently defines “incompetent” for the purposes of this chapter.  The new language under the bill would provide that the term includes an incapacitated person.  The change proposed is to specify that the term includes a “mentally incapacitated person,” and they suggested that that was important to differentiate.

 

The next section involves the new appointments that the bill allows the courts to make to appoint a guardian ad litem.  Currently, under that section authorizing appointment, the reference is to a guardian ad litem to act in the best interest of the ward.  There was some concern that that standard could cause some problems and some confusion within that chapter and so the proposal is to delete that modification of the guardian ad litem.

 

There are multiple changes to Section 57, which involves the filling of the petition.  The first change is to require that “the petition must state and provide to the extent known or reasonably ascertainable to or obtainable by the petitioner.”  Again, that is suggested language.  To clarify, I think the circumstances in which you may not know, but then the next section would require that the identifying material be provided and kept in a confidential manner.

 

Finally, there are some concerns in this section, as well as some others, about the use of the word “affinity” when referring to relatives.  There was some concern by those involved that that would include the ward’s in-laws and that was not their intent.  So in several sections you will see that the reference to “affinity” is removed as well and then inserted as “the spouse of the ward,” just to clarify to whom they are referring.

 

[Allison Combs continued.]  There is also some language added, “To the extent that such information is not provided at time of filing the petition, it must be provided to the court not later than 60 days after the appointment of a guardian or otherwise as directed by the court.”  The next change is at the top of page 4.  That same section also deals with maintaining the information provided in a confidential manner.  Then in the middle of the page referencing the blue changes on lines 19-16 and 19‑17, they would like to make those changes to clarify the references that he is the “proposed guardian,” as well as the “proposed guardian” on the next line.

 

Section 59 deals with the issuance of the citation for appearing to the hearing and who it must be served upon.  These are the same changes I mentioned in the previous section to delete the reference to “affinity” and to specific reference “the spouse of the ward.”

 

The next section deals with the appointment of an attorney for an adult ward or proposed adult ward.  There is some new language in the bill specifying that the attorney is entitled to reasonable compensation from the estate of the adult ward.  The proponents would like to provide some court discretion in that awarding of compensation, so they suggest the language “subject to court approval.”

 

The next changes apply to Section 64, 65, and 66, which relate to notice given by a publication.  Currently, there is a new language in those sections stating, “If notice is given by publication of a temporary guardian, they request to extend the guardianship for not more than 30 days during the period of publication, but may not be granted more than two extensions.”  They would like to replace that language in all three sections to specify just simply, “A temporary guardianship may be extended for up to two additional 30-day periods for good cause shown.”

 

The next change relating to the qualifications of the guardian as it was indicated, they want to clarify some of the language and they also want to allow the court some discretion.  Currently, existing statute provides that individuals convicted of a felony are not eligible to be guardians, but the bill provides some court discretion with regard to that, so this change would carry that discretion over as well to people who have been proved with “clear and convincing evidence to have committed abuse, neglect, or exploitation,” and you will see there, “that unless the court finds it is in the best interests of the ward to appoint such a person as the guardian of the ward.”

 

The next change is at the top of page 6 to Section 72 regarding the preferences in appointing the guardian.  There is some deleted language there to provide that the court, instead of requiring the court to consider relatives of half-blood equally with those of the whole-blood, it changes to “may” as opposed to a “shall.”

 

[Allison Combs continued.]  Then in addition to the list of individuals there, the court considers in order of preference, it would be a new subsection not relating to the relatives but allowing the court to consider “any other interested person as the court deems appropriate.”

 

Going on into the next subsection, “If the court finds there is no suitable person,” it strikes the language specifying the court to appoint a guardian “related by blood, adoption, or marriage or who is nominated in the written instrument.”  Finally, there was some concern with private fiduciaries that was raised during the hearing.  On lines 33-16 through 33-18 there is a provision to provide that the private fiduciary would not have to be located in the county where the ward resides; the private fiduciary would have to be “a resident of the state.”  It also adds an “or” between subsections (a) and (b), so it would allow the court to appoint the public guardian or a private fiduciary.

 

It was suggested that Section 93 of the bill needed some clarification.  The acts of this section need the court’s approval and to clarify that “certain petitions will require a different burden of proof.”  This is a section that provides that any time after appointment of the guardian, the guardian could petition the court for an order authorizing a number of actions.  They are listed on page 7 of the document.

 

The proposal would strike a number or the new items that would be allowed to be considered for the petition and revise the language somewhat.  These are then transferred into a new subsection 2, which is on page 8 of the mock-up bill.  So with regard to these actions, such as petition to “Make or change last will and testament of the ward,” you will see are stricken there.  The new language at the top of page 8 suggests that “Prior to taking any of the following actions and after the guardian has proved to the court by clear and convincing evidence, that the ward, if competent, would actually, or as a reasonably prudent person would have taken the proposed action, the court may in turn order granting the guardian the right and power to take any of these following actions.”  Again, those are listed from the other section.

 

There is also an additional revision to that proposed to “Specify that before the court can enter such an order granting the authority to the guardian to take these types of actions, the guardian must prove by clear and convincing evidence that the testator or trustee would have changed the beneficiary or taken other such actions because of fraud.”

 

[Allison Combs continued.]  Section 94 of the bill is another reference to the change to clarify with regard to the deletion of the word ”affinity” and inserts a reference to the spouse.

 

Section 95 regards the investment by a guardian of the estate.  These changes are suggested to address a concern that the ward could be injured by the guardian not taking steps to get investments under control and also to address some language regarding gender neutrality.  Those changes are up at the top of page 9.

 

There are two more sections.  The suggested changes are for Section 103.  I think they felt it would read better with these changes so there was not a substantive problem indicated with this section.

 

Finally, a new section was added to the bill modifying the existing provision of NRS 159.026 on the definition of a special guardian to include “Special guardian means a guardian of a person of limited capacity,” which is existing language, and adding “or one who is appointed as a result of a voluntary petition by a person of limited abilities, who has the requisite capacity to make such a voluntary petition.”

 

Chairman Anderson:

Ms. Buckley, have you had an opportunity to review the amendments?

 

Assemblywoman Buckley:

I have; thank you, Mr. Chairman.  I think all these folks did a wonderful job.  I think we were lucky to have so many people from different parts of the state really cleaning up and making a good guardianship chapter for us.  The only change that I had a question about was the one on page 8 about changing the will or the designation of the beneficiary.  I went back and forth trying to determine if the language was good enough.  This is one section where I would love to hear what the Committee thinks. 

 

They use the term, “Prior to taking any of the. . .actions. . .the guardian has to prove to the court by clear and convincing evidence that the ward, if competent, would actually or as a reasonably prudent person. . .” would have made the change.  This is to get at the issue where someone was actually convicted of stealing from the ward, but they had convinced him to change his will and there was no provision to allow a change.  I think it needs to be changed, but I think we need to be really careful and I just would love another opinion about whether their language does it.  One day I think it is okay and then the next day I wonder if it is.

 

Assemblyman Brown:

That section stood out to me.  I am trying to determine what standard “would actually” is.  “Clear and convincing” is a relatively high standard, but we are probably looking at an issue of intent.  I am trying to figure out in my own mind if the “would actually. . .have taken the proposed action” is a higher standard than intended, or if that can actually be proven.  It certainly is interesting language.  I probably, as Ms. Buckley, would need to look through that and try to flush it out.  I think I like the bill; I would like to have a little bit of time to at least look at that.  I don’t know what the Chair’s goals are for today about moving this.

 

Chairman Anderson:

Let me make sure I understand what is going to happen here.  I have been appointed the guardian by the court and I have to prove now to the court, by the highest possible standards, “clear and convincing” means that, had the ward that I am now responsible for been competent, he would have taken this affirmative action to dispose of his property.  I have to do that by some demonstrable means because that is what “clear and convincing” means.  The reason you’ve set the wall so high, which is the highest level you can set the wall—clear and convincing—is because you want to make sure that it is just not, “It looked like a good idea to me at the time.  It is where I have my money and it’s where he should have his money too.”  That is not what I have to do; I would have to demonstrate in some meaningful way that the person who is now my ward would have made these kinds of prudent investment decisions in the past or would have naturally made this choice.  Am I correct with where I am going here?

 

Assemblywoman Buckley:

Mr. Chairman, yes, but it is only the decisions on to whom is given money or property in the will or in a trust, just that.  So it is if they would have known that the person was really fleecing them, would they have named them as their beneficiary.  That is the issue.  Maybe you take out “would actually” and leave it to the “reasonably prudent person” standard, which we use in other areas of the law and that way you don’t get into this thorny, “would they have or wouldn’t they have.”

 

Chairman Anderson:

It’s the “would actually” that to me would be the big thing because I would have to reach back in time and have to have some really pretty concrete thing to move on here.  Isn’t that the question the two of you are trying to evolve for me?

 

Assemblyman Brown:

As I go through it again, I do see that it is limited action, (a) through (d), but there are very significant actions to be taken.  I think the standard should, if you are going to give this person that kind of power, be extremely high.  I think the “would actually” is very high.  I don’t see the “reasonably prudent person” as being as high a standard.  It does say “or.”  I don’t know, does that create some conflict?  Could you say, “he wouldn’t have actually, but a reasonable person may have”?  Is that going to create a conflict?

 

Chairman Anderson:

The only suggestion that I was going to make would be that—not that I want to see Legal have to go through two sets of jumps through this—“would actually, or as a reasonably prudent person” gives them two standards there.  “Would actually” is the higher but then when you move to the “reasonably prudent person,” I would have to demonstrate that this is a highly likely event.  Mr. Horne, do you wish to move in on this question?

 

Assemblyman Horne:

I understand the concerns; I recognize them, but I really don’t have any suggested language.  My feeling, is if we were trying to choose, I would tend to make the standard in this area higher.

 

Assemblyman Brown:

I am just trying to think of the types of evidence that may be brought forward and I have scratched them out here.  One, “mere adverse impact,” we are going to view this and somebody might come in and show that this really had a negative impact.  The other would be some kind of very clear document that indicates some kind of intent.  I would tend to think that “mere adverse impact” wouldn’t carry the day and it should not.  I’m not sure if we are ever going to get much in the way of documentation that shows a clear intent of the ward.  It is a tough area and maybe we are not going to get better drafting than we have right here.

 

Chairman Anderson:

Ms. Buckley, for my comfort level, I believe that it sets the highest possible standard.  If we are going to give the guardian this kind of responsibility, we also want to make sure that the guardian is able to have a certain level of latitude to don it.  I think a reasonable prudent person does that, and we will have clearly made sure that, if they are going to move into this area, they are going to have to meet the “would actually” standard in addition.  So I think we put a huge burden on them but not an insurmountable one.  If we are going to do this kind of dramatic change to this law, maybe we will have to come back to it in the future and chisel out some element from it.

 

Assemblywoman Buckley:

Because it is such a lengthy amendment and because this hasn’t been put in the legal form yet, maybe, if we expressed our intent that it should remain the highest standard and that we are clear that substitution of judgment, “mere adverse impact” is not enough.  Maybe we could add something in like, “for good cause including but not limited to abuse, exploitation. . .” and give an example of it and see what Legal comes up with.  Then if people have problems with it when it comes back, you and I and Mr. Brown can tighten it up more and let everybody look at it.

 

Chairman Anderson:

Mr. Brown, let’s take Ms. Buckley’s suggestion that we do an Amend and Do Pass motion, the amendment being this change in this conceptual language.  We are going to look for Legal, and we will ask that when the amendment comes back that we review, yet again, this section, but only this one section of the overall bill.  We will look at the amendment for any other kind of technical problems to make sure it conforms.  It has happened, but it is pretty unusual if we find an error in the amendment but occasionally we do.  All of you have the obligation, as I am sure you all know, to look at those yellow amendments when you see them to make sure.

 

Assemblyman Brown:

I am comfortable with that.

 

Assemblywoman buckley moved to amend and do pass A.B. 365.

 

Assemblyman Brown seconded the motion.

 

Chairman Anderson:

Ms. Lang, are there questions? [There were none.] 

 

The motion carried unanimously.

 

It is 10 a.m. and this is the time certain that I had set for the second bill of the day.  We have been sitting here since 7:30 a.m., so we are going to take a short break.

 

[Reconvened the meeting at 10:23 a.m.]

 

Let me turn our attention to Assembly Bill 448, warrantless arrest. 

 

Assembly Bill 448:  Clarifies provisions governing arrest involving violation of order for protection against domestic violence. (BDR 3-448)

 

Nancy Hart, Deputy Attorney General, Office of the Attorney General:

[Introduced herself.]  First of all I want to thank you very much for setting a time certain for this hearing.  I appreciate the accommodation.  For the past five years my work as a Deputy Attorney General has focused on statewide projects and issues concerning domestic violence.  I am here this morning to present A.B. 448, a bill that makes a small but important clarification to Nevada law regarding misdemeanor arrest for violations of protection orders against domestic violence.

 

The Office of the Attorney General submitted this bill to clarify that a law enforcement officer may make an arrest for violation of a protection order against domestic violence whether or not the violation occurs in the officer’s presence, if the officer has probable cause to believe that an adverse party has violated that order.

 

This bill is based on feedback from law enforcement officers during our statewide Law Enforcement Protocols and Training Project, sometimes referred to as LEPT, which you will hear more about momentarily.  Briefly, the LEPT is funded by a grant under the Rural Domestic Violence Enforcement Program under the Office on the Violence Against Women of the Department of Justice.  This project is an ongoing collaborative effort between POST (Peace Officers’ Standards and Training) and the Office of the Attorney General to train officers so that they can increase enforcement of domestic violence protection orders.

 

The current protection order law at NRS 33.020 states that an arrest for violation of a protection order must be made if there is probable cause to believe that a violation has occurred.  If you look at Section 1 of the bill, you will see that language in subsection 1, that first sentence of the bill.  Reference to probable cause there certainly implies that the violation does not need to be in the officer’s presence and current practice among officers is for the most part consistent with that.  This bill simply clarifies and codifies what is generally understood and practiced.

 

I have distributed for you a couple of relevant statutes (Exhibit E) just to walk through misdemeanor arrest for the Committee.  It starts with NRS 171.124, which sets forth when an arrest may be made.  You will see from subsection 1, an arrest may be made in obedience to a warrant delivered to the officer or may without a warrant if it is one of the enumerated exceptions.  So there has to be a warrant in general for arrest, or no warrant if the public offense is committed in the officer’s presence; that is misdemeanors. 

 

[Nancy Hart continued.]  The rest of these exceptions concern felonies and gross misdemeanors.  A protection order violation is a misdemeanor and so under the general statement of the law, the officer would need to have, if it happened in his presence, to look to NRS 171.136 when an arrest may be made.  This also talks about the time of day and night.  If the arrest is a felony or a gross misdemeanor, the arrest may be made at any time, but if you look at Section 2, if it is a misdemeanor, the arrest cannot be made at night between 7 p.m. and 7 a.m. unless it is one of the enumerated exceptions.  Again, you will see that paragraphs (e) and (f) concern those exceptions.  So at nighttime when the offense charge is battery or when the offense charge is a violation of an order, it can be made at night.  That actually was clarified last session.

 

On the next page, NRS 171.137, this is arrest for the misdemeanor for domestic battery, not a protection order violation but a domestic battery, and that in the first paragraph states, “Whether or not a warrant has been issued, a peace officer shall arrest a person when he has probable cause to believe a person to be arrested has committed a battery.”

 

So these are the current laws that guide misdemeanor arrest and you can arrive at the conclusion that you don’t have to have a warrant, you just have to have probable cause, but we are simply adding to this, the statement that it need not be in the officer’s presence.

 

One other reason we are seeking this change in NRS 33.070 is because Nevada law concerning workplace harassment orders, which are provided in NRS 33.320 that passed last session, already provides that arrest may be made on probable cause, that the violation has occurred whether or not the violation occurred in the officer’s presence.  So again, we are trying to make arrest provisions consistent for these two types of orders. 

 

With me this morning is Veronica Frenkel, who is the Domestic Violence Ombudsman for the state of Nevada, and the coordinator for the LEPT Project.  Also with me is Larry Stout, who is the training consultant for the project.  They will provide some additional background (Exhibit F) on the project and the need for this legislation.  We would very much appreciate your favorable consideration of this bill.  I would be pleased to answer questions now or after they have testified.

 

Assemblyman Horne:

I just have one question.  Can you give me an example of what would give rise to probable cause on a violation of a protection order outside of another corroborating witness?

 

Nancy Hart:

If law enforcement was called to a home and there was no one there except for the victim who claimed to have had her protection order violated, and she has a protection order, the officer can verify that the order exists.  She may make statements whether or not it was a battery.  There may be evidence, such as the phone was pulled out of the wall, or there may be physical evidence supporting the fact that he was there and trashing the house.  Obviously, if he actually hurt her and there is bruising or visible signs, then there would be a battery and that would be probable cause to arrest for the battery, which could also be a protection order violation.  But you could have any number of things that might create probable cause.  Her statements alone may be probable cause; if she is a credible witness the officer could take her statements as probable cause.

 

Assemblyman Horne:

That is the one area that gives me pause.  She could say, “I saw him following me; I know he is not supposed to but I just saw him and I am afraid of him,” but yet that’s it; that is what we have.  Making a warrantless arrest gives me. . .

 

Chairman Anderson:

Mr. Horne, why don’t we hang on here.  We will take the testimony from the other two witnesses.  If you want to respond to that very question, you can, and we will take your information.

 

Larry Stout, Project Consultant, Law Enforcement Protocol and Training Project:

[Introduced himself.]  I’m the project consultant for this project.  Mr. Horne, one very common protection order violation that is based on physical evidence is a threatening phone call that is taken on an answering machine.  A threatening message left on an answering machine is pretty decent probable cause.

 

I am a retired law enforcement officer with far too many years working, ten of which were as Executive Director of Peace Officers’ Standards and Training.  Currently, I am the Project Consultant for the Law Enforcement Protocol and Training Project, which is a cooperative project between the Office of the Attorney General and Nevada POST, and Dick Clark has given us his permission to say he also supports this bill. 

 

What I would like to convey to the Committee today is simply that this bill is here due to input from Nevada’s law enforcement community that came to us through the conduct of this project.  There is a process that we went through in this project of inclusion to get as much information as we possibly could from Nevada’s law enforcement community.

 

In the spring of 2001, we started Phase II of what was a multi-phase project to enhance law enforcement’s response to domestic violence cases.  In this process of inclusion, we started with a core team of true domestic violence experts in the state that represented law enforcement, prosecutors, judges, and domestic violence advocates.  The goal of this project was twofold:

 

1.      Develop a model policy for enforcement of protection orders in the state.

 

2.      Develop a training program based upon this policy.

 

In this process of inclusion, the core team drafted a draft model policy which was sent to literally every agency in the state that we could think of that was involved in domestic violence cases.  Subsequent to that, we held what we call “advisory group meetings” throughout the state: Elko, Ely, Fallon, Reno, and southern Nevada.  At these meetings, law enforcement came to us with a lot of issues but one issue kept coming up.  They said they had trained us for years and it is policy that there is a misdemeanor accepted for arrest with domestic violence protection orders, but it is not in NRS 33.070, which is the portion of the statutes that deals with protection orders.  This is confusing and it would be helpful if it was in there because when law enforcement goes to the statute to enforce protection orders, it is not there.  So that is how this bill came about; it came from the input of Nevada’s law enforcement agencies.

 

Veronica Frenkel, Domestic Violence Ombudsman, Office of the Attorney General:

[Introduced herself.]  As previously stated, I currently coordinate Nevada’s Law Enforcement Protocol and Training Project on domestic violence.  I would like to reinforce the notion that this project has given POST and the Office of the Attorney General an opportunity to have an ongoing dialogue with Nevada’s law enforcement regarding current issues, street level issues, on domestic violence enforcement.  It also allows us to keep a finger on the pulse of what their concerns are, which is again why we are here today.

 

We would like to support Nevada’s law enforcement in whatever degree we can in improving the enforcement of domestic violence cases which is currently the third phase of the project.  Again, the enforcement of protection orders in domestic violence cases can be very, very critical to victim safety and immediate response by law enforcement and defender accountability.  To that degree I would ask that the Committee consider the bill and would appreciate your favorable consideration.  I am here at the pleasure of the Committee to answer any questions that you may have about the project or other issues related to domestic violence.

 

One of the things we are currently training in the protocol training process is how to determine probable cause and the kinds of information evidence that they can draw upon to reach and arrive at probable cause, including the existence and validity, the service of a protection order witness statement, other evidence, information, including solely the victim’s statement where that is deemed to be sufficient and credible.  So I just wanted to reiterate that we have included in that training how to determine probable cause as part of the training process.

 

Chairman Anderson:

I think Mr. Horne already raised the concern and it is one that I share too.  Somebody has a temporary protection order (TPO).  She is terribly concerned about her own safety; that is the reason why she got the TPO.  The longer she sits there and broods on this particular problem the angrier she becomes.  She tears up the house and then calls the police and says that somebody had come to the house and tore it up; that is her explanation, but in reality it is a spiteful thing that she is trying to do.  Now, the police officer and the other person are placed into a very difficult situation.  The officer arrests him and puts him in jail.  When he appears in front of a judge and he is going to say, “Your honor, I was at work,” and hopefully he was not sleeping because he could have been there.  How is a person going to defend himself from that kind of action?

 

Nancy Hart:

In the bill itself, the question of probable cause is not a change.  That is the way the law has been written for some time.  The only change to the bill today is to add the fact that it need not occur in the officer’s presence.  So the fact that protection order violations have been based on probable cause is something that I believed passed back in 1985.  So it has been in the statutes for a great deal of time.

 

I have to say that I have not heard those concerns of someone intentionally messing up their house and then calling the police and then attributing it to the perpetrator that they have an order against.  I do think it goes back to the training that we have been talking about with officers, and we are not the only source of training for officers.  They obviously get training from a variety of different locations and sources, but that is the essence of being an officer is making those judgments about probable cause in any number of settings.

 

Probable cause is the standard for arrest as you know across the board.  I actually believe that officers are cautious about holding someone accountable on the basis of one statement alone, so I think that looking for corroboration is part of their job.  I think it would be a very strong statement from a victim that they would rely on alone.  More often than not there is some kind of tape of a conversation or some kind of physical evidence, or a witness, or something along those lines.

 

Chairman Anderson:

I appreciate that Ms. Hart.  I note that every time we deal with the TPO issue that right after we passed whatever we did out, immediately I get a barrage of comments, and I am sure the rest of the Committee members do too and maybe the Legislature as a whole, from people who say it is much too easy to get a temporary restraining order and there should be some demonstrable evidence to acquire one of those in the first place.  People say that we have been way, way too lenient in this area in the past, to which I always respond, “really?”  And they are always upset with me.  I am a little hesitant here because to make an arrest without a warrant is a scary thing, especially after I heard the presentation about somebody messing up a room.

 

Assemblywoman Buckley:

I would like to just back up and try to fill in some holes in my knowledge.  When an extended order is issued, is that recorded in any sort of central data base so that it is available to law enforcement?

 

Nancy Hart:

Yes, in 1997, this body established the creation of a centralized electronic repository that is housed in the DMV Records and Identification Bureau.  It is part of NCJIS (Nevada Criminal Justice Information System) even though it is not criminal history.  It has been, over the past five years, a matter of getting the funding and resources to actually program that.  We have standardized the forms throughout the state and standardized the data so the data could be entered into the repository.  Now law enforcement has almost immediate access to orders of protection that are issued whether they are temporary or extended.  There are a small handful of courts, mostly rural, that are not currently electronically entering because they have such a very low volume of cases, but in the large jurisdictions they are all online with the repository.

 

Assemblywoman Buckley:

Who actually enters the order?  Is it the clerk’s office or the court that issued the order or is it law enforcement?

 

Nancy Hart:

Without getting too complicated about how the repository works, there is a data entry function that happens at the court level and it differs a little bit between jurisdictions.  It may be the court clerk; it may be a judge’s clerk; it may be a staff person for the court.  It is data entry at the court end, so when an applicant goes in and applies, he fills out a standard application form.  Data, name, and so forth are put into the data-bank, and upon filing, either the filing clerk’s office or someone in the court system sends it into the electronic universe and it gets sent to the criminal history repository.  It can be updated when it is modified, vacated, set aside, extended, or any of those things.

 

Assemblywoman Buckley:

Does it include whether or not the person has been served?

 

Nancy Hart:

Yes.  Service can be entered on two ends.  Service can be entered on the court end.  If a person received a certificate of service back at the courthouse, he or she can access the repository and put in the fact that it was filed and served.  On the other hand, law enforcement also has access and can update the record with service.  The first thing that an officer gets when they do a wants-and-warrants query on NCJIS is information on whether there is a protection order out against that individual; it is the very first screen that pops up on that hit.  At the top of that hit it has the name of the individual and the fact that there is a protection order against him, and the very next piece of information is whether or not that order has been served.  So an officer can find out immediately whether there has been service.

 

Chairman Anderson:

Thank you, Ms. Hart.  Let me try to explain this to the group that just came in the door, who have no idea what you are talking about.  This is a group from the Katherine Dunn Elementary School in Sparks where my wife happens to teach.  For all of you students who are trying to figure out what is happening here, and the adults I am sure are equally concerned: Ms. Hart, the lady in the middle here, is from the Office of the Attorney General.  She is responsible for the domestic violence issues in the Office of the Attorney General.  The gentleman to her left is the former director of the Police Officers’ Standard Training Unit and is a consultant to that group now.  That is where all the police officers in the state are trained and he is bringing a concern relative to how police officers are trained on a specific issue.  The lady on the right is the Ombudsman—that is one of those words that you hardly ever run into anymore—the representative of the people who have been in domestic violence situations.  She is the consultant for in the Office of the Attorney General who deals with that.  We are talking about what is called “temporary restraining orders,” TPOs as they are called, and the right of a police officer to be able to arrest somebody without a search warrant based upon probable cause and that is a “big-time” deal.  So we are a little concerned about what is happening here.  Ms. Buckley, who is an attorney in her real life, is from Clark County and has just been inquiring as to the nature of that.  She also happens to be the Majority Leader of the Democratic Caucus and you are going to see her down on the Floor in a little while.  Are there any questions?

 

Nancy Hart:

Mr. Anderson, I believe Ms. Frenkel wanted to add a few comments.

 

Veronica Frenkel:

I wanted to address the concern both you and Mr. Horne mentioned regarding protection orders, and I understand that quite well.  I also received calls in that regard as Ombudsman for the state of Nevada.  However, in the vast majority of cases where people go into court to get protection orders, they have been abused for a very long period of time and it is a very difficult decision.

 

As with any other court process, both civil and criminal, there are abuses of the system; however, most studies show that there is no more abuse of the system in domestic violence cases or with protection orders than with any other system.  For example, false representations on IRS claims, burning your house or car for insurance money, things like that.  The system is based on a good‑faith belief that the judges in court issue those orders based on a reasonable belief that those orders are necessary; someone is at risk and someone is in danger.

 

So I want to reiterate that point here because I think victim safety is very critical and protection orders are very useful both for the court, the criminal justice system, and victims to be able to allow for a response prior to the escalation of violence.  The vast majority of orders that we don’t hear about are actually doing their job and working.  The ones we do hear about are the ones that have been misused or abused; unfortunately and sadly, that does happen, but not to any more degree than anything else in the court process.  So I wanted to state that only to reinforce the notion that the vast majority, 90 percent or more, of protection orders out there need to be enforced by law enforcement quickly and effectively to send that message to the offender that a court order will be taken seriously by the state and by law enforcement. 

 

Assemblyman Conklin:

Currently, if you have a warrant, you have to go to a judge to get that warrant—is that correct, or the Judicial Branch?  And if you get a restraining order, that also comes from the judge, is that correct?

 

Nancy Hart:

Both of your questions are correct, yes.

 

Assemblyman Conklin:

But in this case what is going to happen is we are going to bypass the judge and we are going to allow somebody in the field who is trained in the execution of the law, as opposed to judging right from wrong in the judicial system, to make that determination, correct?  Is that what we are saying here?

 

Chairman Anderson:

They have to have a TPO, don’t they?

 

Nancy Hart:

Yes, there has to be probable cause that a protection order exists and that it has been violated and it has been violated by that person that you are about to arrest and that the order is against that person.

 

Assemblyman Conklin:

But, there is some judgment being made in the field without a warrant as relates to this TPO?

 

Veronica Frenkel:

That is correct.  As Ms. Hart mentioned before, law enforcement is trained across the board with every crime to make those determinations about probable cause.  So to the degree they have to do that in these situations, there is no distinction.  They have to determine probable cause and they have the ability to act that has been given to them by existing statute in terms of a warrantless arrest.

 

Nancy Hart:

Following up on that, looking back on NRS 171.124, you will see that in subsection 1(a) is where you see the exception for without a warrant you can arrest for a public offense committed in your presence.  You don’t have to have a warrant if it is committed in your presence.  The reason for that is if it is committed in your presence, you absolutely have probable cause to believe.  So back in 1985, bypassing the idea that probable cause was enough to arrest on a violation, that’s why I say it is already implied, that it need not occur in your presence because you would not provide for probable cause arrest unless you intended for the officer to make a judgment that a violation has occurred.  So, you are correct; that is the way it has been for close to 20 years now on the basis of believing that the offense need not occur in your presence; you just need to have probable cause.

 

Chairman Anderson:

Are there any other questions for these three witnesses?

 

Nancy Hart:

Some of you know Veronica Frenkel from the work that she has done in the communities throughout the state and some of you have heard from her before.  Some of you have not met her until today and I don’t know if she will be back this session to testify.  I just want to say that she has been with the office a little more than five years, just like myself, and started a little before I did.  She has decided to leave the office and wants to move on to greater challenges.  I just want to publicly commend her for the tremendous work that she has done for this state in addressing domestic violence. 

 

Chairman Anderson:

Ms. Hart, I am sorry to hear that she is going to be leaving also.  I think there was a great comfort in recognizing that the person whom you recommended that the public go talk to, the Ombudswoman, was somebody you really knew and trusted.  That kind of trust and diligence is difficult to replace.  I am sure that you are going to be greatly missed and I hope that you find a new challenge.

 

Veronica Frenkel:

It has been an honor to serve the state and to be a part of the entire political process here.

 

Chairman Anderson:

Since you brought it to its level of credibility, you and Ms. Hart, I think the state owes you a great debt of gratitude.

 

Jim Nadeau, representing Washoe County Sheriffs Office and the Nevada Sheriffs’ and Chiefs’ Association:

[Introduced himself.]  Mr. Chairman, we support this and we are a “me too.”  I know there were several questions on probable cause arrest.  If there were any questions out there I would be happy to field those.

 

Kristen Erickson:

On behalf of Washoe County District Attorney’s Office and Nevada District Attorneys Association, I simply wanted to voice our support for this bill.

 

Chairman Anderson:

I have a feeling that there are going to be a few controversies about this piece of legislation and I don’t believe we have quite enough time to take care of it today.  So we are going to have to hold it over for the next work session.  I am gong to close the hearing on Assembly Bill 448.

 

I will use the prerogative of the Chair on behalf of this Committee and ask that a letter be drafted commending the Ombudsman for her hard work on behalf of the domestic violence for the people of the state.  I hope that I have the consent of the Committee to write such a letter.  [The Committee agreed.]

 

We are adjourned [at 10:57 a.m.].

 

RESPECTFULLY SUBMITTED:

 

 

 

                                                           

Sabina Bye

Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Assemblyman Bernie Anderson, Chairman

 

 

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