MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-Second Session

April 9, 2003

 

 

The Committee on Judiciarywas called to order at 7:46 a.m., on Wednesday, April 9, 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:

 

Assemblywoman Chris Giunchigliani, District No. 9, Clark County

Assemblyman David Goldwater, District No. 10, Clark County

 

STAFF MEMBERS PRESENT:

 

Allison Combs, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Carrie Lee, Committee Secretary

 

OTHERS PRESENT:

 

Leland Sullivan, Chief, Child Support Enforcement, Welfare Division, Nevada Department of Human Resources

Ben Graham, representing the Nevada District Attorneys Association

Scott Anderson, Deputy, Commercial Recordings, Office of the Secretary of State, State of Nevada

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

Benjamin Blinn, Citizen

 

 

Chairman Anderson:

[Roll called.]  There is a quorum present.  [The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.]  Let’s take a look at Assembly Bill 475, which is submitted on behalf of the Department of Administration.  The Assembly Committee on Ways and Means actually brought this piece of legislation and they are highly interested in it.

 

Assembly Bill 475:  Makes various changes concerning obligations of support for children.  (BDR 3-1246)

 

Leland Sullivan, Chief, Nevada Child Support Enforcement Program:

 [Introduced himself.]  I am here to support, with amendment (Exhibit C), A.B. 475, which would make changes to Nevada Revised Statutes (NRS) 31A.350 to provide for the use of the National Medical Support Notice, a federally mandated notice intended to provide a standardized means of communication between state child support enforcement agencies, employers, and administrators of group health plans regarding the medical support obligations of noncustodial parents.

 

Federal regulations require the state child support enforcement agency issue the notice to employers that maintain or contribute to group health plans, and employed persons obligated by child support orders to provide medical health coverage for their children.  The federally mandated National Medical Support Notice provides specific time frames for employers and medical plan administrators to adhere to the child support actions in which the court has ordered a parent to provide medical insurance for a dependent child, and medical insurance is available through an employer.

 

The proposed legislation supports the implementation of this notice in the state of Nevada and provides for penalties for noncompliance.  The federal mandate requires the use of the federal form exactly as it is published in order to provide a uniform vehicle for employers to transmit the medical insurance information to the child support enforcement program nationwide, thereby minimizing the impact on employers, payroll associations, and medical plan administrators. 

 

Although not a federal mandate, the bill also proposes to delete the current requirement to notify obligors by certified mail when enforcing authorities intend to seek enrollment of the obligor’s child in the health insurance plan pursuant to a court order.  The federal mandate requires the National Medical Support Notice be sent to employers within two days of identifying a noncustodial parent’s employer; removing the current requirement ensures compliance with the two-day mandate. 

 

Additionally, the current notice is unnecessary and costly because obligors are notified in the court orders of their health insurance obligations.  The program will realize a cost savings by eliminating this redundant notice requirement.  The cost of mailing a certified letter is $1.90, not including the printing of the notices and the staff time to process.  State child support enforcement programs must comply with Title 40 mandates to be eligible for both child support enforcement and Temporary Assistance to Needy Families (TANF) federal funding.  Federal funding for the TANF program is contingent upon a state’s compliance with child support mandates.  Failure to adopt this legislation may result in the disapproval of both our child support, the TANF state plans, and federal funding of the programs. 

 

Lastly, as written, A.B. 475 intends NRS 31A to charge child support obligors a $2.00 fee for each income withholding.  However, this issue has already been addressed in S.B. 186 and does not need to be part of this bill.  Accordingly, we recommend amending A.B. 475 by deleting Sections 1 through 4.  At this time I would be pleased to answer any questions the Committee may have.

 

Chairman Anderson:

So that leaves us with Sections 5, 6, and 7 of the bill as the only parts that are necessary.

 

Leland Sullivan:

That’s correct.

 

Chairman Anderson:

We can move along here, written proof of enforcement authority and remove the other statutes, 20 business days after date of notice.

 

Assemblyman Geddes:

Mr. Sullivan, you say it may result in disapproval of child support in TANF state plans?  You said “may” and not “will.”

 

Leland Sullivan:

It will.  It would be a disallowance of the state plan requirement.  It is federally required.

 

Assemblyman Geddes:

If we do not adopt this, we will lose the funds?

 

Leland Sullivan:

Correct.

 

Chairman Anderson:

I think when Mr. Sullivan always uses that term “may,” it is that they have not done it yet but they will, and the more likelihood, would.  It is just a matter of how long it takes the feds to process the paperwork.  Would that be a fair statement?

 

Leland Sullivan:

That is correct, Mr. Chairman.

 

Chairman Anderson:

Any other concerns from anyone else in the Committee?  None of us like to be held hostage by the federal government to do something.  How will this benefit, or will it benefit, your delivery program in some meaningful way so that there is an advantage to the kids and the welfare recipients? 

 

Leland Sullivan:

The notice is uniform, so I believe the employers nationally supported the request for a national notice.  Again, employers end up receiving income withholdings and medical support requirements from 40 agencies and other states, so that improves the employer receiving one type of notice.  Then for the Child Support Enforcement Program, it helps outline to the employer the different time frames and the information the child support program needs, and allows, within the notice of within 20 days, for the employer to send it to the plan administrator.

 

Chairman Anderson:

So, even though it is a federal regulation, there is some advantage for us to do it this way in terms of staff time and dollar savings, and in terms of those kinds of economic things so we can use dollars for other kinds of programs.  Is that correct?

 

Leland Sullivan:

Yes, that is correct.

 

Chairman Anderson:

Questions from the Committee?  Anybody else wish to be heard on A.B. 475?  I will close the hearing on Assembly Bill 475.

 

ASSEMBLYMAN CONKLIN MOVED TO AMEND AND DO PASS A.B. 475 DELETING SECTIONS 1 THROUGH 4 OF THE BILL AND RENUMBERING SECTIONS 5, 6, AND 7.

 

ASSEMBLYMAN CARPENTER SECONDED THE MOTION.

 

THE MOTION CARRIED.

 

Chairman Anderson:

[Assigned Assemblyman Mabey to defend the bill on the Floor.]  Let’s turn now to the Work Session Document. 

 

Allison Combs, Committee Policy Analyst:

The first bill in the Work Session Document (Exhibit D) is Assembly Bill 156.  It abolishes the plea of guilty but mentally ill.

 

Assembly Bill 156:  Abolishes plea of guilty but mentally ill and reinstates exculpation by reason of insanity. (BDR 14-131)

 

Chairman Anderson:

The first thing I have to do is dissolve the subcommittee of Dr. Mabey and myself that did not have an opportunity to meet, but we have talked to a couple of people independently and have reached the same general conclusion.  While the subcommittee does not have a report, per se, I have had an opportunity to review some of this and agree.

Assemblyman Mabey:

I spent about a half hour with Ben Graham.  He explained the M’Naghten Rule and I would agree with you, Mr. Chairman, with what we talked about and I feel comfortable. 

 

Allison Combs:

Assembly Bill 156, as you mentioned, deals with the plea of guilty but mentally ill and reinstates the exculpation by reason of insanity and reinstates the M’Naghten Rule.  There are some amendments starting at the bottom of page 1 (Exhibit D). 

 

The first four amendments are those that the Nevada District Attorneys Association and the Nevada Attorneys for Criminal Justice are presenting without any objections.  The first one would specify the time frame prior to trial for entering into a plea of not guilty by reason of insanity, and that would provide that the plea would be entered into no less than 21 days prior to trial.  The second agreed amendment between the two groups was to retain the current standard in the bill for proving the insanity, which would be preponderance of the evidence.  There was a suggestion at one point to raise it to “clear and convincing” but that was later withdrawn.  Section 25 specifies that an incompetent person could not be tried or adjudged to punishment for a public offense.  There was some concern that this could have unintended consequences, so there was a suggestion to delete that section from the bill. 

 

The fourth amendment was presented by Dr. Elizabeth Neighbors, who represents the Lakes Crossing Center, Division of Mental Health and Developmental Services.  They suggested deleting a reference to a “general mental facility or hospital” and replacing that as a reference to “Lakes Crossing Center.”  They also suggested requiring that the mandatory examination be performed by persons employed by the Division of Mental Health and Developmental Services. 

 

Regarding amendments 5 and 6, I understand, the Nevada District Attorneys Association is not interested in pursuing.  I would be glad to go through those if you would like.  One deals with individuals who are not liable for punishment, and I must correct myself.  Number 6 is from Dr. Siegel and he suggested adopting the Model Penal Code’s Test for a plea of not guilty by reason of insanity.  That was one of the tests that Risa Lang, Committee Counsel, went through during her presentation of the four different approaches that other states go through. 

 

Chairman Anderson:

Would you go over suggestion number 5 again?

Allison Combs:

The proposal is to update language under NRS 194.010; it would amend subsection 7 of that bill.  The revisions that are proposed at the top of page 3 would revise it to read that persons unless “charged with the crime of murder or attempted murder,” and that would replace the current language of “crime punishable with death.”  I understand that would expand it a little, but I would be happy to defer to a representative of the Nevada District Attorneys Association on their intent on that one.

 

Chairman Anderson:

It seems to me then what we would be doing is specifying the time frame for trial under proposed amendment number one.  We would keep to the preponderance of evidence.  Mr. Graham, we are on Assembly Bill 156, which is something that you had talked to Dr. Mabey and me about at various times.  We were to specify the time frame prior to trial for evidence in a plea of not guilty that would change Section 4, page 3, at lines 20 through 26.  The amendment would provide for a plea of not guilty by reason of insanity and must be enacted within 21 days, which apparently you and Mr. Jackson had worked out between the two of you.

 

Ben Graham, representing the Nevada District Attorneys Association:

[Introduced himself.]  Actually Mr. James Jackson and Mr. Howard Brooks from the Nevada Criminal Justice Attorneys pretty well ironed this out to be most consistent with what M’Naghten was, or the rule was in Nevada, prior to the last session.

 

Chairman Anderson:

We were doing that in proposed amendment number 2, preponderance of the evidence.  [Mr. Graham replied in the affirmative.]  In proposed amendment number 3, we were going to be deleting Section 25 of the bill because of some unattended consequences?  [Mr. Graham agreed.]  That we were going to take the suggestions of Dr. Neighbors to substitute Lakes Crossing Center for the mental health facility and require that a mandatory exam would be performed by persons employed by the Division of Mental Health and Developmental Services.  When it came to proposed amendment number 5, we had some questions, so you could help us with number 5 to update the language in Section 37 of the bill.

 

Ben Graham:

What we had here is a carryover from some older legislation.  As indicated on the last page of the blue handout of the Work Session Document (Exhibit D, page 13), the amendment sought by our office is mainly a cleanup from a statute that was brought into the 1911 code where there were a number of crimes that were punishable by death, more than what we have today with just first degree capital murder.  Not even all murders are punishable by death, so the defense would not be available where the circumstances would place one in a position of treating someone else’s life as their own, under these circumstances because of the way the law was previously written.  According to our analysis, it would not protect a mother from committing a crime to protect a child.

 

Assemblywoman Buckley:

So in the original Section 37, you wanted paragraph 3, which added another category of people who could not be punished and that would be those who committed the act charged in a state of insanity?  Are you recommending leaving that in, and in addition, having another category, where someone committed a crime unless “murder or attempted murder” when their life was endangered?

 

Ben Graham:

Yes, I believe so.

 

Assemblywoman Buckley:

We would have both.  [Mr. Graham agreed.]  That makes sense to me.

 

Assemblyman Geddes:

I have a couple of questions on amendment 4, revising Section 9.  The first one is on 4(a).  My understanding in the long-term plan is that we are building a mental health facility in Las Vegas.  I was just wondering if it had the detention center similar to Lakes Crossing in its plans and if this would limit that.

 

Risa Lang, Committee Counsel:

If the Committee goes with this, we probably would not specify Lakes Crossing in the language, although they have asked for that.  We would refer to them as the “forensic facility” or something to that effect, so that it would be anyone who is equipped with that type of facility.

 

Assemblyman Geddes:

And then the second question is on 4(b).  If we require that they be employed by the Division does the defense have the right to ask for their own psychiatrists or psychologists in that situation, or will they have to have the state determination with this amendment?

 

Ben Graham:

It is my understanding that the defense would still be allowed to have their own people offer expert testimony as well. 

 

Assemblyman Geddes:

The finding would be made by the two state employees.  Is that what amendment 4(b) is trying to do?

 

Risa Lang:

I think Section 9 is dealing with after they have already been adjudged insane and it’s how you are going to commit the person.  That would be after the trial and they have already determined to be insane.  You would have already had your evidence in front of the court and your own psychiatrist, if that is what you are talking about.

 

Ben Graham:

Since he is acquitted of that by the defense, he would be found not guilty by reason of insanity.

 

Assemblyman Geddes:

So the court will have ruled him not guilty by reason of insanity and then we would appoint two people from the state to determine if he’s insane or not?

 

Ben Graham:

You would have a trial proceeding where there would be a guilt phase and the state would have the burden of proving each and every element beyond a reasonable doubt.  Then insanity would, in effect, be an affirmative defense, so the defense would then offer the burden of explanation as to why, by the preponderance of the evidence, they feel the defendant is not guilty by reason of insanity.  The state would then try to rebut that.  If the jury comes back, and in most cases it would be a jury, with a verdict of not guilty by reason of insanity, he is not released immediately.  He would go to the center and would ultimately be examined by one independent and apparently two state doctors before he would be released after treatment.

 

Chairman Anderson:

Let’s have Allison Combs take a shot here too.

 

Allison Combs:

Also, under subsection 1(c) of Section 9, it specifies that at the hearing in open court, the judge must “receive the report of the examining advisers and allow counsel for the state and for the person to examine the advisers, introduce other evidence and cross examine the other witnesses.”

 

Assemblyman Geddes:

I am still not quite getting the point of this evaluation, if the jury has already made the determination, why this determination takes place.

 

Chairman Anderson:

You are found mentally ill; you are found guilty; now we are going to have to place you someplace; how do you get out?

 

Assemblyman Geddes:

So the evaluation is to evaluate progress in the mental health facility.

 

Chairman Anderson:

Correct.

 

Ben Graham:

We are going to get this whole thing resolved with everybody working on it. 

 

Chairman Anderson:

That is what a Committee is supposed to do, isn’t it? 

 

Assemblyman Horne:

My question is on the first amendment and bringing forth the defense in no less than 21 days prior to trial.  Do we have procedures in place if the insanity does not manifest itself until afterwards?

 

Ben Graham:

Basically what this does is give everybody notice that we should not have trial by ambush from either side, but I would strongly argue that if something new or unknown or unfound would manifest itself that would lend a legitimate plea, the court would grant a continuance to have this developed.  You are not going to be precluded, that would be clear error on appeal if we were to preclude that; there would be a mechanism.

 

Assemblyman Conklin:

If you enter the plea, not guilty by reason of insanity, does that make the assumption that you have actually done what you have done, but you are not guilty because of this condition?  In which case, if you are found not guilty by reason of insanity, you still will go to some sort of institute?

 

Ben Graham:

Not guilty by reason of insanity still places all issues at hand, the state still has the burden of proof.  Otherwise we would just say, “Let’s just prove that he is not insane; we won’t have to prove the murder.”  We have to prove each and every element of the murder before the state can conclude their testimony, and the defendant is not bound by that plea, that he is admitting anything, so that plea admits nothing.  The state still has the burden of establishing each and every element beyond a reasonable doubt, prior to the defense offering what would be an insanity defense.  They argue not only has the state failed, but additionally, if they have succeeded, ladies and gentlemen of the jury, this fellow is mentally insane.  Then they would argue that, so it is a two-tiered argument.

 

Chairman Anderson:

How frequently does this type of case happen?

 

Ben Graham:

Most of us will not be here, with term limits setting in, by the time we see this again.

 

Chairman Anderson:

So, it is a rare occurrence.  Have you ever had one?  [Mr. Graham replied in the negative.]

 

Assemblyman Geddes:

I am just looking at Section 3 and once they are deemed to no longer suffer from the illness and they are released, where are they released to?  And it is just leading to the question that some mental illness can be controlled by proper medication.  The concern is upon release, do they fall off that medication if they are being released to a prison, or are they released to the general public? 

 

Chairman Anderson:

Let me remind you of two basic things here.  First of all, the United States Supreme Court has indicated that we had to come back to statute relative to the M’Naghten Rule.  So what we are trying to do is make sure that in applying the M’Naghten Rule that we are coming up with something that is in the unlikely event it is ever going to be utilized, which apparently it was, or else the court would not have made the statement, that we know what is happening here.  Relative to where this person goes, if he is guilty, I guess he goes to Lakes Crossing, or Lakes Crossing having made the determination, either has to decide what would happen to him in terms of the court’s choices:  20 years, 50 years depending upon the crime.

 

Assemblyman Horne:

From what I understand, you are found not guilty by reason of insanity.  The state still has an obligation to commit to a psychiatric treatment or whatever to that point at which time it is deemed that you are no longer insane; if that happens, you are released.  You are not required to serve the term had you been found guilty of without the insanity portion, because that is what we found is that you are not guilty by reason of insanity.  So, theoretically, once this determination has been made, and you have been sent to Lakes Crossing for evaluation, they can determine a week later, a day later, that insanity is no longer there and you are free to go.

 

Ben Graham:

I think in a strict interpretation that could happen, but that is not going to happen. 

 

Risa Lang:

This might help clarify.  When you are adjudged innocent by reason of insanity, there is technically no right for the state to hold the person because they are innocent.  So you go under Section 9 and then you have to find by “clear and convincing evidence” that the person is mentally ill before you can commit them, and then you commit them for up to the length of the term of a sentence that would have been imposed.  After that time, you can continue to hold them if you can prove that the person continues to be mentally ill and is in need of being held.  So that is how these statutes would operate, but basically what they are proving at trial is that at the time that they committed the offense, they were insane and then you have to prove that they continue to be insane and are in need of being supervised.

 

Assemblywoman Buckley:

I am just wondering if this language is right.  On line 36, I think the same language is in the amendment too, on page 5, Section 9, that we are working on, and it is still there in the green amendments.  The phraseology, the question of release is whether the person has “recovered from his mental illness.”  People don’t recover from mental illness.  The proper legal standard is whether you are a danger to yourself or others; you are stabilized; you are on medications; there are certain organic mental illnesses that you will always have.  The question is whether you have stabilized or no longer are a danger, I think that is the commitment standard, and so I am just wondering if this is the right phraseology.

 

Risa Lang:

I am not sure that we can change it, but there is also the rest of that phrase, “or has improved to such an extent that he is no longer a mentally ill person.”  A mentally ill person is defined at the bottom and it has the meaning ascribed to it in NRS 433A, which is the commitment statute.

 

Assemblyman Conklin:

We are using the term mentally ill after we have struck it every place else in the whole statute.

 

Risa Lang:

What we struck is “guilty but mentally ill” because the court said we could no longer have “guilty but mentally ill” in lieu of an insanity defense.  It is not because there is anything wrong particularly with the term “mentally ill.”  It was the term “guilty but mentally ill” that was the problem.

 

Assemblyman Conklin:

So are we to assume that if somebody is insane, not guilty by insanity, they are mentally ill?  Or is there a degree to mental illness that applies to insanity?  Now I am not OK with the bill, Mr. Chairman.

 

Risa Lang:

Under the insanity defense, that is the term that has been defined by the court, which would continue to be the legal insanity, which isn’t just that you are mentally ill or that something bad happened to you in your life.  “Mentally ill” for the purposes of this statute is the M’Naghten Rule, which means you have to have had a delusion while you committed the act, which if true would have been like self-defense; you believed that you were doing something that would have been excusable conduct.  If you were doing something and you didn’t believe that you were doing something that would be excusable conduct, you are going to be guilty.  So, this is very narrow.  It is not any type of mental illness, it is insanity that causes you to be delusional in a manner that would give you exculpation, and perhaps Mr. Graham would like to expand on that.

 

Ben Graham:

Those of us who got Jurist Doctorates didn’t get the right degree to answer a lot of these questions.  As the Chair said, this deals strictly with the M’Naghten Rule for defense at criminal trials.  What we do with these souls afterwards, I think the medical people take over from there.

 

Assemblyman Horne:

I was under the impression that even under the M’Naghten Rule insanity did not necessarily equate to mental illness, and because we use the term ”mental illness” or no longer ”mentally ill,” it seems to throw everybody into that category because basically you can be found insane without being mentally ill. 

 

Risa Lang:

The part where we are getting into mental illness is whether or not the state can commit the person.  The insanity is a defense that they are going to have to prove during the criminal prosecution.  Thereafter, if you want to hold the person in an institution because they are a danger to themselves or because they are mentally ill, then you have to prove the ordinary standards for commitment.  First you prove insanity, and then to hold them, you prove mental illness, or that they have the degree of mental illness to commit the person.

 

Assemblyman Horne:

So to clarify after this determination of not guilty by reason of insanity there is going to be a separate proceeding to determine the mental capacity of this person on whether or not we are going to be able to continue to hold them.  At which time that person, if they determine that they have grounds to hold them, they will continue to be held until such time that they are no longer deemed to be mentally ill.

 

Chairman Anderson:

Correct.

 

Assemblywoman Buckley:

Nevada Revised Statutes 433A.115 sets down the standard whether you are a danger to yourself and others and has time lines and very good standards.  Because that would be so hard to repeat in these other sections, it is now clear to me why the Legal Department wrote it that way; I think that is the right way to do it and I no longer have a concern.

 

Chairman Anderson:

If I am to proceed with the document, we would not be doing proposed amendment number 5 and we would not be doing [proposed amendment] number 6 either.  What we would be doing if we were going to move with all of this, we would move with proposed amendments 1, 2, 3, and 4, but we would not be accepting the language of “Lakes Crossing” or the specificity of a location, but some language relative to the general nature of placement in a similar facility so that it wouldn’t be line-specific in case the state changed its mind.  We would like to come out with a clean bill and we are not breaking new ground.  So the Chair will accept the Amend and Do Pass motion on Assembly Bill 156, the amendments being those suggested in the Work Session Document at 1, 2, 3, and 4.

 

ASSEMBLYWOMAN OHRENSCHALL MOVED TO AMEND AND DO PASS A.B. 156 WITH PROPOSED AMENDMENTS NUMBERS 1 THROUGH 4 IN THE WORK SESSION DOCUMENT.

 

ASSEMBLYMAN GEDDES SECONDED THE MOTION.

 

Is there any discussion?

Assemblywoman Buckley:

Then on Section 4, that is going to be fixed to “forensic facility.”

 

Chairman Anderson:

That is correct, or some other term not line-specific to a particular institution. 

 

THE MOTION CARRIED.

 

[The Chair assigned the bill to be presented on the Floor by Mr. Mabey.]  Let’s turn to A.B. 536.

 

Assembly Bill 536:  Makes various changes to filing requirements for business entities. (BDR 7-454)

 

Allison Combs:

Page 8 of the Work Session Document (Exhibit D) goes to Assembly Bill 536, which is a measure the Committee heard on April 2,2003, relating to filing requirements for business entities.  The testimony indicated the measure was requested to standardize the filing process within the Office of the Secretary of State, and to allow for a smooth transition to e-commerce within that office.  There were several amendments proposed that indicated they would reflect the original purpose of the bill and they are attached to the document.  Scott Anderson is here from the Office of the Secretary of State if there are some detailed questions.  On the salmon colored paper at the back of the Work Session Document (page 22) is the amendment that was submitted during the work session, it was indicated the amendment goes towards the original intent of the bill, just to clarify some of the provisions there. 

 

On the next document (page 32), which is a yellowish color, was submitted on April 7, 2003.  Subsequent to the hearing, John Fowler, the Chair for the Business Law Section of the State Bar Association reviewed the bill as well and had an additional suggestion, which is reflected on the second page of the buff colored document.  Then finally there was also an amendment submitted by Mr. Barengo to amend Section 5 of the bill to include a reference to thrift companies.  He indicated that subsection 1 of NRS 78.045, which is under Section 5 of the bill, prohibits the Secretary of State from accepting filings for articles of incorporation or certificates of amendments unless the documents are first approved by the Commissioner of Financial Institutions, and appears from the documents that the corporation proposes to carry on a business as a banking or trust company.  There is a reference to NRS 669.095 that Mr. Barengo indicated was part of the 1999 bill revising the trust and thrift company statutes, and he is suggesting adding in a reference to trust companies into that section of NRS that is amended by the bill, just to clarify that they are included with the bank’s savings and loan associations.

 

Chairman Anderson:

I note that the buff-colored document came from you after Mr. Fowler’s review, so that appears to be OK with you.

 

Scott Anderson, Deputy, Commercial Recordings, Office of the Secretary of State, State of Nevada:

[Introduced himself.]  Absolutely.  We had the opportunity to meet with Mr. Fowler on Monday and we went through the details of the bill, section by section, and this is the resulting language from that meeting.

 

Chairman Anderson:

Risa Lang, are there any problems with the material on the buff- or salmon- colored pages?

 

Risa Lang:

I think they are OK, Mr. Anderson.

 

Chairman Anderson:

We have the blue document (page 34) that came from Mr. Barengo yesterday.  I don’t know if you had the opportunity to look at that.

 

Scott Anderson:

We were aware of this; Mr. Barengo had come to our office and requested that we make this.  We suggested that he submit this amendment, as we felt it would be necessary to check with L. Scott Walshaw, Commissioner, Division of Financial Institutions, Nevada Department of Business and Industry, to make sure that he was OK with this at the time of this hearing.  We have not heard back from Mr. Walshaw in regards to this.  It really wouldn’t change the procedure in our office if a company wanted to form a business entity or submit an amendment that had the words “banker trust” in it.  We would still submit that to the Division of Financial Institutions for approval before we would file that document.

 

Chairman Anderson:

So Mr. Barengo’s amendment does no dramatic harm, and you would have felt more comfortable if you had had an opportunity to have it reviewed by the banking section.

 

Scott Anderson:

Yes.

 

Assemblywoman Buckley:

Are these additional fees included in the Governor’s budget or is this separate and apart because it just affects these new formations of companies?

 

Scott Anderson:

Which sections are you referring to?

 

Assemblywoman Buckley:

Any that has a fee in it, such as Section 77; there are fees throughout it.

 

Scott Anderson:

Any fees that are in here are standardized to what the current fees are currently in Title 7, and do not reflect any changes as may be proposed by the Governor’s bill, the resident agents’ bill, or the bill from Senator Terry Care and Senator Mark Amodei.  We have not included any fee increases, other than to standardize those with the current fee structure.

 

Chairman Anderson:

There are no increases here.  Then why the requested 2/3 majority vote on the top of the face of the bill?

 

Risa Lang:

If I am to understand correctly, this is standardizing them, but I think they are still new fees; at least they are listed as new fees in the sections.

 

Chairman Anderson:

Are you moving them from one section to another section of the law?

 

Scott Anderson:

We have added several sections; for instance, foreign provisions for reinstatement of certain entities to be standard with the domestic filings.  We are just adding the same fee in those sections.  There are new provisions, but they reflect the current practice and the standard fees that we currently have in our office.

 

Assemblyman Conklin:

I just wanted to point out that Mr. Brown has a copy of the bill that does not have the 2/3 majority on it and the computer copy from the Web site doesn’t have 2/3 majority on it.  That is kind of confusing.

Chairman Anderson:

If you are looking in your bill book, you should be looking at Assembly Bill 536.  There should be an asterisk in the left corner.

 

Risa Lang:

You are exactly right.  The asterisk indicates that we created a new version of this after it came out, with some changes and that is the change we indicated—a 2/3 majority, which was inadvertently left off on the first printout of this bill.

 

Chairman Anderson:

I guess the Web site probably didn’t catch the remock-up of the bill to indicate that.  Questions from members of the Committee?  If we are to proceed, this would be an Amend and Do Pass motion on Assembly Bill 536, the amendments being those that are outlined in the salmon and buff and blue attachments. 

 

ASSEMBLYMAN CARPENTER MOVED TO AMEND AND DO PASS A.B. 536 WITH THE AMENDMENTS BEING THOSE THAT ARE OUTLINED IN THE WORK SESSION DOCUMENT.

 

ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.

 

Chairman Anderson:

Questions from members of the Committee? 

 

Assemblyman Gustavson:

Until I look further through this bill, I am going to vote no on it just because of the fee increases in there.  If there really are new or additional fees then I would be against it.  I am going to take a closer look at it.

 

Chairman Anderson:

Mr. Gustavson has indicated his intent to either vote in the negative or abstain on this particular piece of legislation.  Any other concerns? 

 

Chairman Anderson:

Chair will place the question.

 

THE MOTION CARRIED.  (Mr. Gustavson abstained from voting.)

 

Ms. Combs, do you want to take us through the suggested amendments to A.B. 337?

 

Assembly Bill 337:  Makes various changes concerning rights of ex-felons. (BDR 14-63)

 

Allison Combs:

The amendments to A.B. 337 start on page 4 of the Work Session Document (Exhibit D).  A.B. 337 makes various changes concerning the rights of ex-felons and at the time of the hearing, the sponsor of the measure offered to work to coordinate all of the amendments that were proposed, and those are reflected here in the document.  On the middle of page 5, the first proposed amendment would revise the procedures for the restoration of the civil right to vote or to hold office, and the proposed amendment would streamline the operation such that when a person receives an honorable discharge from probation or parole, or is released from prison after being granted a pardon, is released from prison after having served the length of their sentence, the person is restored to his right to vote or hold office, and then that person may use his discharge or release documents as proof of his right to vote and go directly to the Registrar of Voters.

 

The difference between the amendment and the bill is that it would delete the requirement that the person go back to the court or the parole board for an order restoring those civil rights, as well as deleting the role of the court or Division of Parole and Probation to provide the written notice to the Registrar of Voters or the individual.  During the hearing, that was indicated as one of the cost-drivers for the concern for the Division of Parole and Probation.  The proposal would also apply to persons convicted in Nevada prior to the effective date of the bill, as well as to persons convicted in another state, and for those individuals if there were problems such as with their paperwork upon release, there would be the option provided for those individuals of actually going through the court in order to get an order, if that should be necessary.

 

Chairman Anderson:

If I go through the prison system and I zero myself out the door, that is, I am now released from Parole and Probation, I would immediately have my civil rights restored to me by the fact that I have spent my full sentence?

 

Assemblywoman Chris Giunchigliani, District No. 9, Clark County:

Yes, sir.

 

Chairman Anderson:

So there is another added incentive for staying in prison to zero myself out?  I get my civil rights restored.

Ben Graham:

[Introduced himself.]  You can also get them restored by having good behavior and getting out early and continuing to behave.  I think that would probably be more beneficial than just staying in prison.  Rather than say full civil rights restored, this is kind of a piecemeal basis that we are working on, so they are limited.

 

Allison Combs:

The second component of the proposal is at the top of page 6, and it deals with the civil right to serve on a jury.  This right would be restored two years after the date on which the person received the honorable discharge from Parole and Probation and was released from prison after expiring his sentence, or he received a pardon, and as a result is no longer in custody.

 

The next provision deals with registration requirements as a convicted felon.  Currently Chapter 179C of NRS requires anyone convicted of a felony to register with law enforcement.  Section 5 of the bill revises that requirement and as the bill is currently written, it would require that anyone convicted “of three or more felonies involving the use or threatened use of force or violence against a victim; or anyone convicted as a habitual felon” would be the only ones required to register.  The proposed amendment would delete the modifier of felonies that only involve the use or threatened use of force or violence against a victim as well as the habitual felon language to simplify that to provide that any person convicted of three or more felonies would then be required to register.

 

In connection with that, the fourth amendment would also delete some language from that same section of the bill specifying that a person whose civil rights have been restored is not required to register.  The effect of the deletion of that language would be to require that anyone convicted of three or more felonies, regardless of whether their civil rights have been restored, would be required to register.

 

The next amendment is the deletion of Section 6 in the bill, not the deletion of the law, but just changes to that existing law section.  Currently that section, as amended, would require law enforcement to notify convicted persons when information from the registration database has been requested and subsequently transmitted.  That change would be deleted.

 

Number 6 is a clarification that is requested regarding peace officers.  Currently under the Nevada Administrative Code (NAC) standards for peace officers, a person convicted of a felony is not eligible to serve as a Category 1, 2, or 3 peace officer.  There was a request to clarify that restoration of civil rights would not affect that disqualification.

 

Assemblywoman Giunchigliani:

It was just pointed out to me we also had agreed that individuals who are ex‑felons, regardless of whether they had their civil rights restored, could not run for sheriff.  I neglected to catch that language.

 

Chairman Anderson:

So, number 6 should include “sheriff or constable.” 

 

Allison Combs:

Number 7 has some amendments proposed by the Gaming Control Board with regard to the sections that affect their operation and those proposals are included on some gray paper (page 21), but they are summarized below.  Essentially, they would reinstate some deleted language under subsection 1 of Section 3, allowing the state Gaming Control Board and the Gaming Commission to inspect sealed records.  It would reinstate existing language in the law allowing that inspection, but clarify that “any application for a work permit shall not be objected to or denied based upon events or convictions which are the subject of an order sealing records unless those events or convictions relate to the applicant’s fitness to work as a gaming employee.”  The next amendment would reinstate deleted language on page 7 of Section 6, allowing the Commission and Board to request information from the database of information on convicted persons.  I would note that Section 6 is proposed to be removed from the bill, so this amendment may not be necessary. 

 

Section 21 would reinstate deleted language on page 20 that authorizes the Board to object to the issuance of a work permit if a person has been convicted of a felony or a gross misdemeanor.  Then there is a suggestion to add some additional language to provide a modifier relating to whether or not “the offense is related to the applicant’s fitness to act as a gaming employee,” which is similar to the proposal under 7a of the Work Session Document.

 

Chairman Anderson:

Mr. Graham, you participated in creating the amendments to A.B. 337?

 

Ben Graham:

I, along with Jim Nadeau and Lt. Olsen participated at this time, and these are amendments we feel we can work with.

Chairman Anderson:

In reality, there are very few people who are going to avail themselves of these opportunities, but for those people who, like the auto mechanic who was here and others who have managed to turn their lives around, there may be some hope that we can return to them their civil rights in terms of serving on a jury and in greater circumstances, be able to vote and participate in society.

 

Ben Graham:

Kristen Erickson also participated in the discussion.

 

Assemblywoman Giunchigliani:

It is not going to be hundreds of thousands of individuals who will qualify, but it is a step in the right direction.  Actually even with the changes made, especially regarding the registration of ex-felons, we will still be at the bottom of the list of how restrictive we are, so we went to the more restrictive standard.  I think it is a move in the right direction so that Nevada makes at least some gains.  I do want to give my appreciation to all the members who worked with me on the subcommittee because I think we resolved it in a compromising way.

 

Chairman Anderson:

We are going to revise procedures restoring the civil rights as suggested to vote or hold office, as suggested in numbers 1 and 2.  Number 3, registration of convicted felons, and Section 5 is going to be revised so that three or more offenses as felons, which involves the use of threat or habitual use…

 

Assemblywoman Giunchigliani:

We removed that language.  It is three felonies period, and sex offenders automatic under another section.

 

Chairman Anderson:

So that will remain, and then we are going to delete the phrase, “involved the use or threatened use of force,” and outlined in 4 require repeat offenders to register after civil rights are restored.  Number 5, delete Section 6 of the bill.  We are going to include the ineligibility to serve as a peace officer or run for sheriff or constable.  For work permit, we are going to straighten out the suggested language as offered by the Gaming Control Board so that they will still be able to offer employment if the offense is not related to the applicant’s fitness.

 

Assemblyman Mabey:

On the second amendment it suggests, “…is eligible to serve on a jury two years after the date on which he…” and then it goes on to a, b, and c.  I would like something like that in the first amendment, maybe a year or two after those conditions are met.  That way, it gives them a little more time to make sure that they have demonstrated that their lives have changed.

 

Chairman Anderson:

Did you discuss that as a possible choice in the first instance, Assemblywoman Giunchigliani?

 

Assemblywoman Giunchigliani:

The whole intent of this bill was to reinstate their civil rights upon immediate meeting of certain standards, which is common throughout 38 of the states in the United States already.  We did agree, the issue of serving on a jury came up and that is why we put the two-year threshold on that part of it, but I do believe that at minimum, the right to vote should be automatic.  If Mr. Mabey has concerns about holding office, we didn’t even discuss that issue.  We had never, actually until two years ago, defined what civil rights reinstatement meant in our statutes.  I did not wish to give them the right to bear arms so we did not deal with that issue.  We felt that in common through most states, the issue of voting and holding an office and serving on a jury seemed to be common, but we did agree because about 23 states have a waiting period for the jury issue. 

 

Ben Graham:

Just as a point of information, there are a number of states that allow the inmates in prison to vote.

 

Assemblywoman Buckley:

I am still pondering the right to run for office.  On one hand the gentleman who testified, it was 30 years ago, so I wouldn’t think that was a problem; but what if someone is a two-time felon, violent crime, child abuse.  They could still run for District Attorney?  They could still run for Judge?  I don’t know, but then the other candidate has the right to say that.  I would like a felon to run against me; that would be an easier election, but I don’t know.  I am just grappling with that and would like to know if you discussed those issues?

 

Assemblywoman Giunchigliani:

Truly, we did not discuss the issue of holding office in any depth.  I would not want that issue to hold up this legislation, so if you wish to consider treating it the same as you do for a jury so there is a time period before being able to run for office or serve on a jury, then maybe a two-year period for that.  I do believe that the whole intent of this is to reinstate their voting rights.

Chairman Anderson:

If you really say that somebody has been restored their rights to participate in this democracy, it means to vote.  That is the first thing that truly means to be a citizen of this country is to vote.  But also to hold office, and even though we are not necessarily happy that somebody sitting in this seat is potentially a criminal, the reality is that we have to give the voter the opportunity to make a choice.  The more we restrict that choice, even though they are the people who have broken the rules, we are taking the opportunity away from the voter to exercise his ultimate choice.  Philosophically, I have never felt that was a real choice.  To me, the voter should have the greatest amount of freedom that they can possibly have, and the opportunity to run for public office is included in that because we are saying that they are not capable of making that choice.  It is the same reason why I don’t believe in term limits and a couple of other things, because I think it restricts the voters’ choices.

 

Assemblywoman Giunchigliani:

Currently they can.  All they have to do is go to the court and they can run for office now.  As you debate that, this actually becomes more restrictive than what the current law is.

 

Chairman Anderson:

But, they do have to go through the court in order to get that restored and so there is somebody who is making that determination. 

 

Assemblyman Claborn:

Does this bill in any way let a felon have access to a gun?

 

Assemblywoman Giunchigliani:

No.

 

Assemblyman Brown:

I was wondering if there was any rationale beyond other states are doing it, as far as the distinction between the two-years right to serve on a jury.  I have some reservation, also, on holding office.

 

Assemblywoman Giunchigliani:

I believe that our society has set a policy which is that you do time for certain behaviors.  Once your time is served, we have also interpreted that policy as you have paid your debt to society.  Nevada has been very slow in moving, in any framework, to at least recognize that individuals who have done their time as required by our law, at a minimum, should be entitled to reenter society and one of the greatest benefits for reentry, in my mind, is the democratic process.  Hopefully, they learn something from their time, and voting is very near and dear to many individuals that I spoke to who were the genesis of this bill.  It is our decision, or your decision, on how we define civil rights reinstatement.  I know that I made a judgment call.  I don’t believe they should have their arms restored and that is a separate matter.  When we finally defined civil rights last session, we put in voting rights, right to run for office, and jury, which is common throughout the United States. 

 

A couple members of the Committee, the group that were working on this, had some concerns about serving on a jury, and that is why I agreed to go to the two-year standard, which is fairly common.  In most states, their voting rights and right to run for office are automatically reinstated, but again that is a policy decision.  I believe that if you want people to assimilate in society, they earn benefits back.  If they reoffend, they are back to jail; they lose their rights again.  I do think that at a minimum, we ought to allow people who have paid their debt to at least begin to participate in the democratic process so they will appreciate it more and hopefully, will not reoffend.

 

Assemblyman Brown:

You stated that several have voiced objections to the jury service.

 

Assemblywoman Giunchigliani:

Mr. Nadeau and Lt. Olsen objected.  Maybe I might ask Mr. Graham to talk about that.

 

Ben Graham:

I could imagine that in seeking a fair and impartial jury, a prosecutor would probably feel that a person with a felony conviction might lean the other way as opposed to neutral.  There are certain challenges we automatically get to challenge people off of the jury.  If they were allowed to serve on a jury, and we knew that they had a conviction, we would automatically exercise that preemptory challenge to kick that person off.  Then later on there might be somebody that we were more nervous about and we would have used up our preemptory choices.  Sometimes they can count challenge for cause which then the judge would remove them, but this would at least give a two-year window where if they were going to reoffend, they might have a chance to do that and that will be moot anyway, and we would use a preemptory to remove them.

 

Assemblyman Brown:

I agree, Assemblywoman Giunchigliani; I think that they should earn back the right.  I absolutely think we should reinstate.  I know there are different theories on why we incarcerate, some to pay back to society or to punish the individual.  I also understand when I discipline my child or when I was disciplined, I paid a punishment.  Then there was kind of a time period that I was essentially on parole or probation.  I was encouraged when I saw the two years associated with the right to serve on a jury.  I am OK with automatic, but I am also comfortable with that period of time.  I think I am OK with the amendments, but I would prefer to see a two-year period. 

 

Chairman Anderson:

I am trying to get a sense of how we are going here so that we can come out with something.  Assemblywoman Giunchigliani has indicated that she is more concerned about making sure that we have voter rights restored than she is about the two-year window of opportunity, or even leaving it alone since the court has to clear somebody anyway. 

 

Assemblywoman Giunchigliani:

I believe the court would be eliminated under this, so if the feeling of the Committee is to move the person that may run for office to parallel them with the person serving on jury for the two-year, but leave the voting right there, then that might give comfort to the members who had concerns.

 

Chairman Anderson:

I am trying to get a sense of the Committee.

 

Assemblyman Claborn:

I can support the rights to vote, but I can’t support any of the other.

 

Assemblyman Carpenter:

Not being able to serve for two years is reasonable.  I guess if a felon runs against you and you can’t beat him, maybe you shouldn’t be here anyway.

 

Assemblywoman Buckley:

I support the bill.  I think I have been convinced that holding office is OK, but if we can’t get a consensus from that, we can always delete it and move forward with the rest of the bill. 

 

Assemblyman Oceguera:

I have been convinced as well.  I still have some philosophical differences with this; not differences, but confusions, like you said.  It is part of the American way, but then again maybe you should lose your rights if you are a convicted felon.  I am all right either way on the two years or give them right back.

 

Assemblyman Gustavson:

I am still pondering this; I still have some problems with it too.  I believe that a felon should have some time to prove to society that he is not going right back into prison.  We know a high percentage of them do return to prison.  There are some offices that they shouldn’t run for, so I am still not quite sure.  At this point, I am not totally in support of the bill.

 

Assemblywoman Ohrenschall:

I have no problem with the right to vote immediately, and I think I would be in favor of a more graduated process to get the other rights back one at a time.

 

Assemblyman Sherer:

I agree with Ms. Ohrenschall.  I don’t have a problem with the right to vote, but some of the other ones should be gradual to show that they deserve those rights back.

 

Assemblyman Conklin:

I support the bill; proposed amendment 1, I am very fine with.  I am of the opinion, like you are, that if you have served your debt to society you have received the honorable discharge, and you want to try to run for office.  I am good with number 2.  I do have a small concern with number 3, but I can support the amendment, and I will reserve my right to review number 3 with Assemblywoman Giunchigliani before it comes to Floor.

 

Assemblyman Brown:

I will just make comments on the holding office.  I understand the rationale presented by the Chairman and appreciate that.  I would add that another line of thinking is kind of a fitness for office issue, and I am not saying that someone is not fit.  We have said you have done something rather grievous and something that made them essentially unfit for office in removing them from society.  So, we have put them back into society, and I fully agree with Assemblywoman Giunchigliani, they should be reassimilated.  I do not see a problem with a period of time where the penalty has been paid, but they are convincing society that they are fit for office.  I would probably move that to the two-year period, along with the jury.

 

Assemblyman Mortenson:

I am comfortable with having a person try to hold office.  I feel that people will make that choice; there is no question in my mind that the newspapers will essentially tell the public why this person was incarcerated and the people will make a choice.

 

Assemblywoman Angle:

I just have some philosophical problems with the whole issue, but if we are just concentrating on the running for office, I agree with my colleague Mr. Mortenson that the truth will come out and the voters will decide.

 

Assemblyman Horne:

I support this bill, particularly in addressing Mr. Brown’s fitness for office statement.  I think it is termed differently when we are talking fit for office.  I think whether or not you meet the qualifications set at statute, if you are 21 years of age or you are a resident of the district or the ward you seek to represent, as opposed to being fit to be a member of the State Bar or medical association.  Those types of fitnesses are different and I don’t think we use those types of fitness standards in the application we are trying to use here.  Whether or not a person should vote or be able to run for office, they have served their time.  I believe if the voters choose to elect someone who has been convicted of a crime, that was their choice, and I think we stand by it.

 

Assemblyman Geddes:

I support the bill and where it is going and I think you should be able to run for office right away.  Let the voters decide.

 

Assemblyman Mabey:

I have some concerns, there is a scripture that I remember that says, “Repentance is a change of heart if you confess it so you pay the price for doing that and you forsake it.”  They paid their price, but they have not had a change of heart; they haven’t forsaken it.  But I agree with the part about voting.  I don’t have any problems if we decide to vote that way.

 

Assemblyman Claborn:

To my knowledge in the federal government, if you are a convicted felon you cannot run for a union office.  Would this supersede what we are trying to do here today?

 

Chairman Anderson:

No.  I think that is the bylaws, and some federal requirements of labor groups as a whole, and this only deals with voting rights within the state of Nevada and institutions within our state.  The preclusion of former RICO (racketeer influenced and corrupt organizations) folks holding office and labor unions will still apply.

 

Assemblyman Claborn:

I am going to vote no on this today, but I would like to hold my rights to vote on the Floor.

 

Assemblyman Gustavson:

There is a section in the bill that deals with sealing records.  I know that is just for the Gaming Board right now to possibly reopen those, but what is the law about sealing records?  Is there a period of time before records can be sealed, because if records can be sealed immediately then how would we know that they were an ex-felon?

 

Ben Graham:

There are provisions with a misdemeanor that it would be a three-year period; a gross misdemeanor, 5; some felonies, 10; and others 15; so that would be a period of time where they would not disappear form the record.  On running for District Attorney and judge, you have to be a member of the State Bar.  There may be some ex-felons who are members of the State Bar, but it took a long time to get back into the profession, so that kind will weed itself out.

 

Assemblywoman Buckley:

It has been a good discussion and debate.  One thing that is really important, as soon as you are released you can apply for the restoration of your civil rights, including your right to hold office, and so I think it makes us all nervous, that is the current system and that is very consistent with your philosophy as you stated in the beginning.

 

Assemblywoman Ohrenschall:

I am going to explain a little bit about what I said about feeling better about having rights reinstated gradually.  I think we should consider graduated steps to provide the person who is coming out and rejoining the world with a definite outline of what is happening and steps toward total integration into society.  I don’t think society is going to be hurt one way or the other if we let them run for office the day after he is restored to his right to vote and so on.  I think he might feel a little more comfortable as he ticks off various things that are happening to bring him back completely into full membership.  This is simply a matter of how it affects the ex-felon, not society.  I could feel comfortable voting either way on this bill.  I might be inclined to vote for it as it is.

 

Chairman Anderson:

I consider this an important piece of legislation and I am concerned about it making it through the entire process.  If that means that we have to move back from the other part, then so be it.  I had hoped that this discussion was going to clarify things for me, but you left me in the exact same place I was in before, and that is I think that we can comfortably move on:

 

• Proposed amendment 1
• Proposed amendment 2 that would allow for serving on a jury
• Proposed amendment 3 so that we are OK deleting that provision which involves the use of threat or use of force for the violent offenders
• Proposed amendment 4 the requirement for repeat offenders to register after civil rights are restored
• Proposed amendment 5 which deletes Section 6
• Proposed amendment 6 eligibility to serve as a peace officer that we should maintain it the same way it is currently in statute for the right to hold public office
• The recommendations of proposed amendment number 7 by the Gaming Control Board

 

ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND DO PASS A.B. 337 WITH THE AMENDMENTS LISTED ABOVE.

 

ASSEMBLYMAN HORNE SECONDED THE MOTION.

 

Questions from members of the Committee?

 

Vice Chairman Oceguera:

I am fine with that, but I would like to have a little bit of discussion on the registration of a convicted felon.

 

Chairman Anderson:

Registration of a convicted felon, proposed amendment number 3.

 

Assemblywoman Giunchigliani:

Nevada makes everybody register, including if you were not a felon in another state, but happen to be one here.  Sex offenses automatically have to file, any child molestation; that is not even an issue here.  Only Florida and Alabama require ex-felons to register, other than sex offenders.  I modeled this bill after the Alabama language, which is the only state that requires if you have been convicted of three felonies, and they use the term of “threatened” or “use of force” against a victim.  I agreed to take that language out so it is three felons for anything still has to register in the state of Nevada, which keeps us the most severe for registration of felons in the United States.  We removed the habitual offenders] because it was duplicative based on what we were looking at; the three felonies are already habitual and that is why the language was deleted.  If you are a habitual, you are already guilty of three, so you would automatically come under this.  We also made it clear that even if your civil rights had been restored, you still have to register three times. 

 

Assemblywoman Buckley:

On the same topic, Mr. Graham, could you tell us what the District Attorneys and the police thought, what your rationale was?

Ben Graham:

Over the years, we felt that the registration gives us a handle on whom to look for in many cases when certain crimes start occurring.  It was felt that sometimes there is a graduation from a lower class felony to a higher class, so we will be more comfortable with just three of any kind rather than just a three of threatening and menacing type.  That is why we asked that this portion be added, as opposed to the one from Alabama.

 

Assemblywoman Buckley:

Why did you feel comfortable with not having registration for one felony, or two felonies?  Because you know where to find people now, or because of technology?  What was your rationale?

 

Ben Graham:

Varying degrees of comfort level.  This was a compromise comfort level.

 

Chairman Anderson:

We are still going to be finding people who are first and second offenders; they are still going to have to be registered, are they not?  We are not doing away with that requirement in its entirety if they are a convicted felon.  If they are on probation, they are still going to be required to be registered, are they not?

 

Ben Graham:

I believe that unless they have had three felony convictions, either in this state or another state, they would no longer be required to register unless they fall under the other classes of domestic violence or sex crimes.

 

Chairman Anderson:

That is a little bit broader than the scope of restoring civil rights.  Why would we do that?

 

Assemblywoman Giunchigliani:

Because we are the only state in the United States where we require every ex‑felon to have to register.  In 47 states, only sex offenders are required to register and part of the discussion was if their police officers obviously feel comfortable with it, why were we so different here?  That is why the recommendation was to go to the standard of three.

 

Assemblywoman Buckley:

I am wondering if we could put Lt. Olsen on the hot seat because this is really more of a police issue.  I would like to hear what Metro has to say.

 

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

[Introduced himself.]  We did discuss this.  As far as cards, we were OK with databases; cards are old-fashioned, and we don’t really need that.  We are a little uncomfortable with felons not being required to register because of the transient nature of our state with the growth right now.  But if it is the pleasure of this Committee to move forward that way, we will live with that.  I am not saying that Assemblywoman Giunchigliani did not know we have our concerns.

 

Assemblywoman Giunchigliani:

They did raise that issue; however, we all agreed to the three years without that other language.

 

Assemblyman Horne:

I think it was mentioned whether or not they were on probation or parole.  I believe that if you are on probation or parole anyway, you are part of the system, registration is too much, so that wouldn’t be necessary.  However, on the three or more offenses, I am of the adage, “Fool me once, shame on you; fool me twice, shame on me.”  Maybe two offenses and we require registration instead of three?  We make people more comfortable.  I think that’s what they are having the trouble with.

 

Assemblywoman Giunchigliani:

That is for your policy decision as a Committee to discuss.  I have a 65-year-old man who contacted me in southern Nevada who was convicted of a felony back in New York when he was 19 years old.  He still has to register.  That is wrong.  That was the genesis of dealing with the registration issue.  He is not the only one who is out there, so I was trying to figure out, with giving the police the comfort level of at least having repeat offenders, they know where they are and where they are bound.  It is a policy decision for you to deal with.

 

Chairman Anderson:

It does not affect sex offenders?

 

Assemblywoman Giunchigliani:

No.

 

Assemblyman Horne:

You could have basically one act and be convicted of multiple felonies and then fall under this, so somebody could have a conviction, have one act back in 1960, but still have to register for the rest of their lives.  I agree with Assemblywoman Giunchigliani that the gentleman that she described probably should not have to register.  But I just wanted people to be aware that when we say multiple felonies, three or more, that doesn’t mean over a period of years.  Sometimes that could be one time, but they have three felony convictions.

 

Ben Graham:

As indicated earlier, after 15 years all felons can get their records sealed except for a few exceptions.  The fellow from New York would probably have to go back to New York to do it.  I think that if we could work with Assemblywoman Giunchigliani over this period of time, if somebody has been in this state for 25 years and has not had any problems, I don’t see that we could find much objection to at least not requiring him to register. 

 

Lt. Stan Olsen:

From law enforcement’s perspective, we would be very comfortable with two felonies.  I understand what Mr. Horne is saying and don’t necessarily disagree about the one incident with multiple charges.  For example, there is an individual under indictment in southern Nevada with approximately 60 or 80 felony indictments and they are technically one incident.

 

Assemblyman Carpenter:

It seems to me that the person that Assemblywoman Giunchigliani was talking about, and I think there was someone who testified that he couldn’t get his rights restored.  It would seem to me like there should be some kind of a process that they could go to court or before a judge, and he could make that decision.  Do we have anything like that in the law at the present time?

 

Ben Graham:

We do with regard to in-state, but somebody who has lived here for 40 years and hasn’t gotten into any trouble but 41 years ago was in trouble in another state, we do not have a provision within this state to treat that.

 

Assemblyman Carpenter:

Is there any reason why we could not put a process like that into our law, even if the conviction was in another state? 

 

Chairman Anderson:

I think this would do it. 

 

Assemblyman Conklin:

I can be comfortable with proposed amendment number 3 if we go to two offenses and clearly identify that they are separate and have taken place on separate occasions.

Assemblywoman Giunchigliani:

I think that is what Lt. Olsen was suggesting, and that would be acceptable if the Committee wishes to move in that direction. 

 

Assemblywoman Angle:

I will put my concerns forth now.  I like the pardon situation that we have and I think that was what we were referring to, that in-state people go before a pardons board and are pardoned.  When they are pardoned they are completely restored, they get everything back, which I like.  I don’t like this piecemeal stuff.  I think if you are pardoned, you are pardoned.  I know that is kind of a rigorous process for some people and I understand that it doesn’t apply to out of state.  I think that would be what I would be most comfortable.

 

Chairman Anderson:

Are we endangering the three felon statutes that we have by moving to two separate events?  Are we broadening it rather than narrowing it, because two separate events could be eight or ten felony events, considering the fact that you could have multiple felons.  Can we do that?

 

Risa Lang:

I was trying to think how I would word that; we certainly could find a way to phrase it.  I think that as you are indicating it could perhaps involve more than just a number of felonies; it would be a number of separate convictions.

 

Chairman Anderson:

With the two separate events, we would be broadening it much more than we are anticipating.  

 

Assemblywoman Giunchigliani:

Lt. Olsen and I were just talking.  If you just went to two offenses and didn’t deal with the separate issue, then that should take care of your concerns as well as what the police would like.

 

Chairman Anderson:

We have the Buckley-Horne motion with amendments on Assembly Bill 337.

 

·        Proposed amendment number 1, restoring voter rights

·        Proposed amendment number 2, the right to serve on juries after two years

·        Proposed amendment 3(a) that we are going to require registration of a convicted felon for two or more offenses, but we are deleting the phrase “which involved the use or threatened use of force or violence against the victim”

·        Proposed amendment 3(b) that deletes the habitual offender language

·        Proposed amendment 4 that requires repeat offenders to register after civil rights are restored

·        Proposed amendment 5 that deletes Section 6 of the bill

·        Proposed amendment 6 the eligibility to serve as peace officer or run for sheriff or constable

·        Proposed amendment 7 accepting the Gaming Control Board recommendations on the gray paper to include the language, “Any application for work permit shall not be objected to…” as they have outlined 

 

Ben Graham:

Just a point of clarification.  We are making it clear that they are not eligible to serve as Category 1, 2, or 3 peace officers, or as candidates for sheriff or constable.

 

Chairman Anderson:

Correct.  Ben, we are in a work session and I don’t want you to muddy the water, but I want to make sure that you have your opportunity to speak how you feel about it.

 

Benjamin Blinn, Citizen:

[Introduced himself.]  Something that was a misdemeanor in my case was 9/10 of one gram of marijuana in possession 30 years ago is now a misdemeanor felony; giving away $1.00 worth of marijuana was my second felony.  These are counts, all on one case, and under these terms I continue to register.  I don’t mind registering, so I continually will be here to tell you that yes, a crime that is not of moral turpitude such as mine, or is now a misdemeanor, I think I should have a right, besides sealing my records to tell you right out front my convictions.  I am still an eligible schoolteacher because of that, teaching your kids, but I do think that taxation without representation is tyranny and I think I should have a tax exemption as long as I can’t vote. 

 

[Roll call vote taken.]

 

MOTION CARRIED WITH ASSEMBLYWOMAN ANGLE, ASSEMBLYMAN CLABORN, AND ASSEMBLYMAN GUSTAVSON VOTING NO.

 

Assemblywoman Giunchigliani, I would presume that you wish to defend your bill on the Floor.

Assemblywoman Giunchigliani:

Thank you for your consideration.  I know how difficult some of this is.

 

 [The Chair acknowledged the presence of Assemblyman David Goldwater, sponsor of A.B. 274.]

 

Assembly Bill 274:  Increases length of notice before persons 55 years of age or older may be evicted from certain periodic tenancies under certain circumstances. (BDR 3-1128)

 

Allison Combs:

Page 3 of the Work Session Document (Exhibit D) references Assembly Bill 274, which increases the length of notice before persons 55 years of age or older may be evicted from certain periodic tenancies under certain circumstances.  Subsequent to the hearing, the sponsor of the measure submitted some documentation, which is attached to the Work Session Document.  The first document is on yellow paper (page 17) and is an analysis of A.B. 274 from the Nevada Fair Housing Center concerning some questions regarding the Federal Fair Housing Act of 1968, and the Fair Housing Amendments Act of 1988.  There were some concerns raised during the hearing regarding how this bill would interact with federal law.  The Center indicates that it supported the bill and that it does not violate the Fair Housing Act.

 

The second document is attached on violet paper (page 19) and proposes two options, which I would be glad to defer to Assemblyman Goldwater for clarification.  They are set forth on the top of page 4 of the Work Session Document.  It is suggested that instead of requiring the 60-day notice to all seniors, revise the bill to require that the 30-day notice must contain language stating that the tenant may notify a landlord that the tenant is 55 years or older or has a disability and wishes to exercise the tenant’s right to remain for an additional 30 days.  As noted in the memorandum, it is suggested that the advantage is that the landlord would only have to provide the extra 30 days if requested in writing by the tenant, as well as it could require that the tenant include some proof of disability or age in order to obtain the extra days.  The landlord should not have the discretion to say no, but there could be some mechanism to challenge if there were some question on the age or disability, he could challenge that in court.

 

A second option presented was to amend NRS 70.010, to authorize the justice court the discretion to grant a stay of up to 30 days to a senior or person with a disability and is explained in the memorandum.  Currently if a justice court orders an eviction, it can be executed under NRS 40.253, subsection 5(a), within 24 hours.  NRS 70.010 gives the justice court the ability to stay the execution of an eviction order for up to 10 days, and the suggestion would be to broaden that power to say that the court has the discretion to grant a stay of up to 30 days for seniors or persons with disabilities.

 

There were some additional considerations that were put forth suggesting that with regard to this option, an additional provision could be added to require that the court first must find that the tenant would suffer a hardship without the extra 30 days, and that rent would continue to be paid during that time.

 

Chairman Anderson:

Well, in light of the yellow piece of paper, we can clearly see that the supposition that was put forth by some that the federal law does not apply here, so that question is removed.  It seems to me, personally, that what we may want to do is give the option to the justice court to move from 10 days to 30 days, and to further clarify for not just seniors, but those people for whom it creates a hardship.  I think that would be in the best interest of all interested parties, and not be quite as age-discriminatory; however, I think we clearly need to identify that opportunity for senior citizens in some meaningful fashion. 

 

Assemblyman David Goldwater, District No. 10, Clark County:

I would negotiate against it myself here because I think the two objections that were raised were pretty roundly answered in the bill as it is.  It is a pretty good idea.  The practical application of what you say is what 9 out of 10 people who are faced with a 30-day no-cause eviction do.  They never go to court; they just get out, because the notice on their door says to get out in 30 days.  Nine out of ten people just leave.  What I was hoping for is that the note on the door will say 60 days if you are 55 or older and would make life that much easier.  I will leave it up to the wisdom of the Committee.  Attached on lilac paper (page 19) is an outline of the objections.  It is not a violation of the Fair Housing Act and the eviction statutes aren’t where we protect seniors.  If a shorter eviction period helped seniors, I would be in here with a 1-day no-cause bill.

 

Assemblyman Geddes:

I had some concerns with the original bill, but I think either of the amendments brought by Assemblyman Goldwater would satisfy my concerns.  I think he does bring up a valid point as far as the notice being put on the door.  I am wondering if we had the option to end the requirements of that notice and state that anyone 55 or older can follow whichever one we adopt here, and they can ask for the extension, or ask the judge.

 

Assemblyman Carpenter:

The concern I have is that we keep lowering the age.  I think when I first came to the Assembly we thought seniors were 62, and then they got to 60.  It seems to me like older people are doing more and living a fuller life, and to me it is not the age so much as the condition of that person that we should be addressing.  If they are disabled or unable to work, I heartily agree with you that one day any kind of a notice is probably not right.  We keep lowering the ages and I keep getting older.

 

Assemblyman Goldwater:

That number is arbitrary, it really is.  You can change it to whatever you want.

 

Chairman Anderson:

I agree with you that many people, particularly senior citizens, are going to comply with the notice because it is posted there.  Unless we do something meaningful to make them aware of this option, I don’t think that landlords are going to post that and tell them of their additional 30-day option.  I don’t have any problem with what Mr. Geddes was suggesting that in posting the 30-day notice, that we make individuals who have a demonstrable excuse why they can’t get out based upon a particular disability hardship, because I don’t think it is a question purely of age.  I don’t want to pick 60.

 

Assemblyman Claborn:

Do I have to disclose that I have some rentals?  I don’t have a problem with the bill as it is and whatever we decide on I don’t have a problem with any of it.

 

Chairman Anderson:

I have a rental too and my tenants are over 60 years of age.

 

Assemblywoman Ohrenschall:

I think this is a very good bill and broadening it to allow folks with disabilities to take advantage of the two just makes it an even better bill.  There is a social need.  I don’t think that it is going to overload the court system because most people do, given the opportunity, try to get out quietly and gracefully, but there may be a few who have a legitimate need for more time to do so.  I just want to commend Assemblyman Goldwater for bringing this bill.

 

Assemblyman Brown:

I struggle a little bit with the hardship issue just because having moved myself a couple of times, I deem that pretty much a hardship.  I feel like if that is some kind of standard and we state that they may claim an additional 30 days, I think that in just about every instance we are going to get that claim; that is one stated concern.  The other is, for instance, a condemnation where the landlord maybe doesn’t have control over time lines and can’t necessarily comply with giving them 60 days.  Is condemnation a for-cause or no-cause type eviction?

 

Assemblyman Goldwater:

This particular bill only covers the 30-day no-cause eviction statutes.  There are other remedies for eminent domain condemnation in NRS Chapters 118A and 118B, but I think one of the opponents of this particular bill saw it as broader than it truly is.  This is only no-cause evictions.  Got a lease?  It does not apply.  Condemnation?  I don’t think this bill applies, unless you are using the no-cause eviction in the condemnation which probably isn’t right to do.

 

Assemblyman Horne:

I thought this was limited to no-cause.  But also on condemnation issues, I don’t know of any condemnation that, in the sense that I think you are talking about, would take place in a matter of 30 days.  These are drawn out procedures if you have property in such a situation that you would have a much longer period of time to notify your tenants of the possible need to move.

 

Assemblyman Goldwater:

We had an instance in Assembly District 10 with the eminent domain issue at some property near the Convention Center where there were some instances where the property owner was notified of the condemnation but he did not let his tenants know until the very last minute.  It is a very valid question, but I think that got fixed in a different bill.

 

Assemblywoman Buckley:

Condemnation is not a specific notice that you would give in order to have someone go into unlawful detainer.  There are nuisance, there are lease violations, there are actions following a foreclosure, there is no-cause.  Sometimes landlords will use a 30-day no-cause with a condemnation, but as was already stated, the landlord has months of notice because they are entitled to a hearing before their property is taken away from them.

 

Shifting back to the bill a little bit, I have seen lots of cases where someone is given a 30-day no-cause and they may have lived in the property for 30 years.  Whether they are elderly, whether they are disabled, this is their home, and it can be a great hardship.  They are required to pay the rent the entire time, so that is not the issue.  If they don’t, a 5-day rent eviction notice is served.

 

I would support changing the 30-day to a 60-day, across the board, to get away from the age concerns, but since I know that probably is not what the sponsor intended, I think either of the approaches would work.  It could still be a 30-day notice but you could put in NRS Chapter 40 that any tenant may request an additional 30 days from the landlord, and you could put because of hardship or because of age or disability.  Then if the landlord denies it, the tenant could request that additional time for only up to 30 days from the court and allow the court to assess the circumstances.  That type of approach might work, so it is right on the notice.  It is in NRS Chapter 40.  It is required to be in every 30-day no-cause notice, so it is effective, but it allows them first an opportunity to try to work things out and hopefully, in most cases you can.  If not, you have judicial oversight to make sure it is really a hardship.

 

Assemblyman Brown:

In terms of condemnation, I was really wondering and this may kick in an entirely set of rules, for instance on health safety issues.  If somebody came in and said, “We are shutting you down,” does that invoke another complication?

 

Assemblywoman Buckley:

I believe that is in the local government chapters on nuisances.  They are still required to give notice in a hearing in order to comply with due process to the tenant, but they have an emergency procedure with the cities in order to effectuate that.

 

Assemblyman Carpenter:

I thought that the first proposal was pretty good and I think Ms. Buckley’s motion kind of expands on that, which I do not have a problem with other than I guess I can take 55, but I’d a lot sooner have 60.  The way I feel, if they pay their rent, they can stay there forever.

 

Chairman Anderson:

Ms. Buckley, do you want to help us with what we are going to be doing here with the options that are presented in the memo?  How do you see this as operating?

 

Assemblywoman Buckley:

I could make a motion along the lines I said previously.  The question would be whether you want it to say “hardship” and not get into age or disability, or whether you want it to stay “age” and “disability.”

 

Chairman Anderson:

I think that it has to be a “demonstrated disability” rather than just “hardship,” because as Mr. Brown pointed out, the hardship question is I have a flat tire on my truck today and I don’t think that works.

 

Assemblywoman Buckley:

So, “age 60.”  Mr. Chairman, I move that we Amend and Do Pass with the amendment being that NRS Chapter 40 would be amended such that the 30-day notice would be required to include language that any tenant may request an additional 30 days from the landlord because of hardship associated with their age over 60 or disability.  If denied by the landlord, the tenant may request this additional time from the judge for up to 30 days.

 

Assemblyman Goldwater:

That sounds great, Mr. Chairman, thank you very much for your consideration.

 

ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND DO PASS A.B. 274 WITH THE CONCEPTUAL AMENDMENT ABOVE.

 

ASSEMBLYMAN CLABORN SECONDED THE MOTION.

 

THE MOTION CARRIED.

 

Chairman Anderson:

Assemblyman Goldwater, I would presume that you wish to defend your bill on the Floor?

 

Assemblyman Goldwater:

Thank you, Mr. Chairman. 

 

Chairman Anderson:

Mr. Claborn, we will let you have the backup for Assemblyman Goldwater.

 

Mr. Horne, the Chair has noticed that you have been working diligently on the terrorism bills, A.B. 250, A.B. 441, and the Homeland Security A.B. 462.  The Chair would like to know about what you think, relative to the time question, tomorrow on those bills?  Or will you be able to have them for tomorrow?

 

Assemblyman Horne:

I believe that I will, Mr. Chairman.  I was informed by Danielle Christensen that I would have a rough draft of the proposed amendment today.  I will present them to you today for your review, and I will proceed from there.

 

Chairman Anderson:

I appreciate your hard work on that particular piece of legislation. 

 

I should indicate that the Senate has processed a smoking bill that includes several of the needed provisions that I think that we could all agree to.  That is going to be coming our way and so some of those issues I have chosen not to move forward with.  I want to make that as a public disclosure not just something that people are thinking about.  I have reviewed and asked the Research Division to review for me again all the things and steps that we have done in smoking over the last several sessions, so that for the comfort of some of you, you may recognize that.  If you weren’t here for it, there is some big progress that has been made on that here in Nevada.  It is kind of an embarrassment because here we are having one of the poorest smoking records of any state in the United States.  So, as a percentage of our overall population, I guess that is just a reality of life that you have to deal with.  That is what freedom of choice is all about.  As a nonsmoker, I can say that.  Questions? 

 

We are adjourned [at 10:30 a.m.].

 

RESPECTFULLY SUBMITTED:

 

 

 

Carrie Lee

Committee Secretary

 

 

APPROVED BY:

 

 

 

                       

Assemblyman Bernie Anderson, Chairman

 

 

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