MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
April 15, 2003
The Committee on Judiciarywas called to order at 8:12 a.m., on Tuesday, April 15, 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
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
COMMITTEE MEMBERS ABSENT:
Mr. David Brown (excused)
GUEST LEGISLATORS PRESENT:
Senator Terry John Care, District No. 7, Clark County
Assemblywoman Christina R. Giunchigliani, District No. 9, Clark County
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Frank Daykin, National Conference of Commissioners of Uniform State Laws
Lisa A. Rasmussen, Attorney, Dixon Truman, and representing Nevada Attorneys for Criminal Justice (NACJ)
Ben Graham, Legislative Representative, Nevada District Attorneys Association
Chairman Anderson:
The Assembly Committee on Judiciary will please come to order. [Roll called.] There are 14 members present, 1 absent. Mr. Brown should be marked present when he arrives; he is currently excused. [The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.] Finally, please note the sign on the witness table concerning the legality of misrepresenting facts before the Legislature.
Let me indicate to the members of the Committee as an after-action report, we had 112 pieces of legislation that were referred to the Committee, of which we took action on 66. Twenty-one of those 66 were “Do Pass” motions. We “Indefinitely Postponed” 5. We allowed 31 of them to die an unnatural death on the board. Nine we did not hear, one of which we will be hearing as a joint resolution next week, which we will probably “Indefinitely Postpone” just to get it off the calendar. The Nevada Supreme Court has indicated there is no need for the bill and I believe that Assemblyman Mortenson’s committee has already started a new resolution through the process dealing with the same topic. I would imagine we would see some of these issues again in an amended format. Don’t be surprised if you think you have heard the bill before.
We should have received green sheets on Friday and we have a new one today. We are trying to keep you up to date as to what is ahead of us. The next couple of weeks are going to be different in terms of what’s happening on the floor. I want to make sure that we are all OK with what’s happening. The green calendar is tentatively set through May 2, 2003. Meetings the rest of this week and next week are already set.
Good morning, Senator Care. Would you care to start with S.B. 43 or S.B. 48?
Senator Terry Care, District No. 7, Clark County:
I think most of the members, perhaps all the members of the Committee now, are familiar with uniform acts; they come from somewhere. They come from the National Conference of Commissioners of Uniform State Laws, which has been around since 1892. I will say this now because there will be other uniform acts that will come before you this session. There are about 250 members and they include federal and state appellate court judges, law professors, practitioners, a few legislators, and some others. They meet every year for about eight days and they promulgate or adopt uniform acts in the mission. I happen to be one and Mr. Frank Daykin, on my right, is also one from Nevada.
Our mission, basically, is to take the uniform acts, give them a thorough going-over, and go to the various state legislators to get them enacted. One such uniform act is S.B. 43, the Uniform Child Witness Testimony by Alternative Methods Act.
Senate Bill 43: Adopts Uniform Child Witness Testimony by Alternative Methods Act. (BDR 4-378)
The bill as written is not intended to prohibit courts in Nevada from doing what they already do when there is a child witness involved. It is simply a mechanism to allow the courts to use alternative or other methods as well.
Walking through the bill, Section 3 defines alternative methods that can include a closed-circuit television apparatus, audio-visual recordings to be presented in the courtroom, and room arrangements that avoid direct confrontation between the child witness and the judge, jury, defendant, and other parties.
Section 5 gives the definition of a child witness as being a witness who is under the age of 13. The age 13 was determined by the National Conference; it really doesn’t have anything to do with Nevada law. That is certainly subject to change depending on how the discussion goes in this Committee. There really wasn’t any discussion on that issue on the Senate side and it was left at 13. But the commissioners very much said, depending on the law in a particular state, that’s open to change.
In Section 8, you will see that the bill will apply to both criminal and non-criminal proceedings.
Section 9 sets forth the procedures for instituting and conducting a hearing to determine whether an alternative method of taking the testimony of a child witness should be authorized. This is a several-step process; the judge simply doesn’t say under this bill that we are going to put this child behind a screen or we are going to have direct and cross examination in a room where there is a camera to be played before the jury later. First the judge has to hold a hearing on that issue. The judge can call the hearing himself or any party may petition the court for the hearing, as well as anyone speaking on behalf of the child.
Section 10 gives the standards by which the court will make the determination whether there is going to be an alternative method allowed. The standards are different depending on whether it is a criminal proceeding or a non-criminal proceeding. In a criminal proceeding, the standard is that there must be clear and convincing evidence that the child would suffer serious emotional trauma and that direct confrontation would seriously impair the child’s ability to communicate with the finder of fact. In a non-criminal matter, the standard is somewhat less; it’s just a preponderance of the evidence after considering certain factors that allowing the child to testify by an alternative method is necessary to serve the best interest of the child or enable the child to communicate with the finder of fact.
Section 11 gives the various factors that the court must consider in making that determination.
Section 12 requires that the court state findings of fact and conclusions of law to support whatever the court’s determination might be.
Section 13 is probably the most important provision in the bill, especially if you represent the defense bar. This simply says that when it is constitutionally required in criminal proceedings, an alternative method ordered by the presiding officer or the judge must permit a full and fair opportunity for examination or cross-examination of the child witness by each party. There was no opposition to this bill in Senate Judiciary; I think there will be some today. It will probably have to do with the right of confrontation. But again, Section 13 addresses that concern because defense counsel certainly is not impeded from cross-examining the child witness, who by the way could be a victim as well as a witness.
That sums up the bill. I can take questions or they might be better directed to Mr. Frank Daykin, who is much more familiar with the drafting of the uniform act than I am. But I will stay here to take any questions myself. Let me add, Mr. Daykin will be testifying on S.B. 48, but I brought this bill [S.B. 43] before this Committee again in my role as a Uniform Law Commissioner.
Chairman Anderson:
Ms. Ohrenschall is also a member of the National Conference of Commissioners of Uniform State Laws. In fact, I believe that Assemblywoman Ohrenschall and Senator Care are the two legislator members to that body.
Senator Care:
That’s correct, Mr. Chairman. And I think Scott Wasserman, too.
Chairman Anderson:
Mr. [Robert R.] Barengo, [Speaker of the Nevada Assembly in 1981], is no longer serving on the Uniform Commission?
Senator Care:
Actually, if you serve 20 years, you become a life member. He is a life member as of two years ago at the conference in Virginia.
Chairman Anderson:
Mr. Daykin, on the other hand, is fixture at the Uniform Commission. [He is] not only a highly respected participant here, but also a highly respected participant there in the makeup of the overall structure.
Senator Care:
That’s correct. Mr. Daykin has been a commissioner since 1975. I can testify that oftentimes the word at the National Conference when we are confused about the drafting of a bill is, “Go ask Frank.”
Chairman Anderson:
And we hear that once in a while here, too.
Frank Daykin, Commissioner, National Conference of Commissioners of Uniform State Laws:
I have nothing to add at this point concerning S.B. 43, but I will be glad to answer any questions. One thing I could put in, contradicting myself, is that the Chairman of the committee that drafted this bill for the Conference is our Arlen Beam, who is a judge of the Eighth District, United States Circuit Court of Appeals and, I know from past experience, has served as Chairman for at least 20-odd years of various committees of the Conference preparing evidentiary acts. He is well-versed in the subject.
Assemblywoman Buckley:
I think this is a good bill to provide some guidelines; I like a lot of the provisions. I was wondering about the alternative methods in Section 13. I had a case where we were representing an abused child, two children; it was pretty hard for them to say in open court, “My parents abused me.” What the judge did was he brought the children to his chamber; the proceedings were videocast down to the courtroom. The lawyer was present and allowed to cross-examine, and the judge just asked a couple of questions about how they were doing. The lawyers got to go to the chambers, the kids went, the judge went, the judge asked the questions, and the lawyer had the opportunity for cross-examination, but it was a lot less intimidating than having to put the child on the stand. I was proud of our system that day. I would like more information on what alternative methods you envision and how would that work in the criminal setting, elaborating a little bit more on that issue.
Senator Care:
As I said in my opening remarks, and this is an example, this bill does not prohibit courts from doing what they already do. I have been told that in some cases in Clark County, for example, it’s rarely invoked, but there might be a screen set up so that the child testifies from behind the screen but everybody can hear the child. The bill, as I read it, simply allows a judge to use any alternative method that might be available. That can be outside the presence of a jury in some cases and outside the presence of, not in an open forum, so that can be audio-visual or videotape. I don’t think that the notes and the conference contemplated anything other than that, for example, a child in a room outside the courtroom where testimony is taken by teleconferencing, or something like that, I don’t recall any discussion like that. I would point out, you mentioned the criminal aspects, that the court must first hold a hearing on whether this is going to be admitted. In the case of the criminal action, [it requires] clear and convincing [evidence] that this would cause serious trauma to the child. That’s a pretty high burden. Defense counsel, of course, could argue that this is not a case where that applies. There is that issue to begin with. When you get into the cross-examination itself, presumably, that’s what you are talking about, then Section 13 should assure defense counsel that whatever the mechanism is in chambers or whatever, that the rights of the defendant are not going to be tampered with. I don’t know if I have answered your question.
Assemblyman Horne:
Is it customary for courts to practice this suspension of the rules of evidence in Section 9, subsection 2, “…the presiding officer is not bound by rules of evidence except the rules of privilege”?
Senator Care:
That’s what the uniform act says. I don’t think that is an evidentiary… I take that to mean that this is not an evidentiary hearing. Obviously, privilege has to apply, it always does. This is to permit the court to simply see if this is necessary. It is kind of like we have in the rules of arbitration where we talk about the rules of evidence, rules of procedures are going to be relaxed. I think this is just to assist the court to make a determination whether the court is even going to allow this. I can see where the evidence simply doesn’t apply. We are talking about whether we need to do this. That’s doesn’t go to the final adjudication of the case itself.
Assemblyman Horne:
I only ask because usually, as a judge, he or she is suspending the rules of evidence to make this determination. Then in Section 12 he uses the findings of facts and conclusions of law to support the presiding officer’s determination. It seems a conflict to me.
Senator Care:
I think what that means is that the defense counsel may want something on appeal down the road, I don’t know, so that would be the reason, I would presume, for having findings of fact and conclusions of law. But I don’t think it necessarily has to be based on the evidence of the particular case. There is evidence as to the final adjudication of the matter, but I don’t know if that enters into the discussion as to whether the child should be allowed to testify by alternative methods. Myself, I don’t see the nexus, although I understand the concern. I don’t think the bill ties the two together.
Chairman Anderson:
That is the extent of the questions from the Committee. [Senator Care was excused.]
Lisa A. Rasmussen, Attorney, Dixon Truman, and representing Nevada Attorneys for Criminal Justice (NACJ):
I think, as Senator Care mentioned, we do have grave concern about the right of confrontation of criminal defendants. I will just briefly discuss that to the extent that it’s a very serious and fundamental constitutional right that any defendant in any criminal proceeding be able to confront and cross-examine witnesses against them. Having said that, I understand that Section 13 does provide for that. However, it would certainly be our position that it could potentially be neither fair nor full cross-examination if it’s done by an alternative method.
There are a couple issues with the way the bill is drafted. First, we have looked around and are not aware of any other state that has adopted it. Secondly, as Assemblywoman Buckley mentioned, there are provisions currently under Nevada law and United States Supreme Court case law. There is a case, Maryland v. Craig, that allows, in extreme situations where a child is likely to be traumatized, for an alternative method to be used. The example she gave was where it was done in chambers and an attorney was actually present in chambers. The way this bill is drafted, there is no prohibition against, for example, having it done by videotape from Florida or some other state where the defense attorney wouldn’t be able to be present. I think even more disconcerting is the fact that it doesn’t really speak to who could be in the room with the child. In other words, could a parent be in the room coaxing the child? How would we know that? What if they were behind the camera? It just leaves a lot of issues unresolved when it is says “by any other alternative method.”
There are a couple of other questions or problems that we had with the bill. Primarily, Section 9, subsection 2, provides for a hearing in which the court would determine whether the child witness could testify by an alternative method. But as you will note, in Section 9, subsection 2, the child is not even required to be present at that hearing. In other words, you can have a hearing where the judge decides if the child would be traumatized, but the child’s presence is not required even at that hearing. It is essentially an evidentiary hearing where a court would be determining whether or not the child’s interests were outweighed by the defendant’s rights of confrontation. So it is essentially an evidentiary hearing. When it says the rules of evidence don’t apply, what that simply means is that any and all hearsay could be used at that hearing.
Thus we would have a situation where hearsay would be admissible, presumably people could be testifying saying, “Yes, the child is traumatized,” but the person making that determination, the judge or the court, would not even have the benefit of having the child present to make that determination. I think that anytime when you have what is essentially an evidentiary and fact-finding hearing where a judge is going to be making conclusions of law, and when we throw the rules of evidence out and permit any and all hearsay and other issues to be admissible that would ordinarily not be admissible, that further abrogates the rules of evidence and the defendant’s rights.
In conclusion, I would just say that I think that the way S.B. 43 is drafted—I certainly understand the need to protect children. I am not immune to the emotional trauma that could be caused to a child, certainly in a criminal proceeding where the child is a victim. But I think that it’s too vague when it says, “by any other…method.“ I think that needs to be considered on the balance on what we are actually doing, which is really restricting, in some manner or method, a very fundamental constitutional right. We are not aware of any other states that have adopted it. I understand that it was drafted to be a uniform bill, but we just feel it is a little too vague. The last thing I would say is that we also feel that the age of 13 is too high; it should be more like 8 or 9 years old. Thirteen is awfully old.
Chairman Anderson:
I am concerned by your statement. Section 13 says, “the alternative method must permit a full and fair opportunity for examination and/or cross examination;” that is very specific in the bill. If the judge selects an alternative method, he must equally meet the requirements of cross-examination, which are outlined in Section 13.
Lisa Rasmussen:
I do recognize that Section 13 says that. However, what does that mean, “full and fair opportunity for…cross-examination?” As I mentioned, when it says that any other method can be used, it doesn’t prescribe or prohibit the specific methods that can be used. In other words, you could have a child potentially testifying via videoconference or teleconference and then the attorney would be left to simply cross-examine someone who is on video, which is certainly, from our position, not as effective, full or fair compared to doing it in person, when you are allowed to see someone’s reaction and their hesitance in a variety of factors that are oftentimes unspoken.
Chairman Anderson:
You and I are doing a fairly good job of conversing via videoconferencing this very second. The opportunity for you to give testimony there [Las Vegas] and for me to question you seems to be working pretty well. I guess it would be challengeable to the attorney to make sure that they have that opportunity to question as they see necessary, but I didn’t require for you to be here [Carson City] to cross-examine you. I am curious as to what would be your level of expectation.
Lisa Rasmussen:
I love videoconferencing with you. But when we are dealing with children, one of the issues I mentioned was that we wouldn’t know necessarily who would be in the room. I think it would put us in a position to request from the court if someone were teleconferencing from another state that we at least be allowed to have a representative in the room. Probably the court would grant that request, but it would certainly require additional costs. I think there would be some fiscal impact with regard to that.
Chairman Anderson:
I note that Idaho has adopted this rule and Oklahoma and Nevada are about to or are in the process of considering it. Just so you might know that it is in place in one state already.
Ms. Rasmussen, I believe you sent all the members of the Committee some information relative to this already, have you not?
Lisa Rasmussen:
Yes, it was sent via e-mail (Exhibit C). It was also sent by Amy Coffee of the Clark County Public Defender’s Office.
Assemblyman Conklin:
You mentioned the concern under Section 9, subsection 2, about the child not being present or not required to be present unless under order of the presiding officer. But in Section 10, it clearly identifies that you must have clear and convincing evidence that the child will suffer serious emotion trauma. I think that is put in there for the protection of the defense, which seemed to be your concern. Certainly if clear and convincing evidence were required to prove that the child should not stand face-to-face to a witness, that would either include the child’s testimony or substantial testimony of expert witnesses that have met with the child to say that this is not the most appropriate thing in the best interests of the child well beyond the defense’s concern. Does that not solve your problem or are you still concerned with this particular issue of the child being present?
Lisa Rasmussen:
I am still concerned because at the hearing to determine whether or not the child would actually be traumatized by the testimony, at the very least, the child should be present at that hearing. That, coupled with the fact that any hearsay could come in… You are envisioning in the manner in which we would hope that it would be, that there would be substantial testimony from experts who would testify as to their dealings with the child and their opinion as to how it would cause trauma. But at the very least, the judge and the person making these determinations should have the benefit of actually seeing the child and hearing from the child. This would be in a non-confrontational hearing where the child would not be cross-examined as to the facts of the case. This would be a minimal requirement that the judge be able to actually lay eyes on the child who is supposed to be traumatized.
Even with respect to age, I think that there could be vast differences in maturity levels and a variety of other factors with one child who is 8 versus another child who is 9, even though they are only a year apart in age. Those are all of the things that a court should be able to consider.
So, when we obviate the need for the child to be present at this preliminary evidentiary hearing, I think that is a serious constitutional infringement and I think it puts the trier of fact or the court who is going to make a ruling on this serious issue at a real disadvantage. Addressing your feeling that perhaps this issue is taken care of in Section 10 by requiring clear and convincing evidence, I agree that is a higher standard than a preponderance of the evidence, as is required in a non-criminal proceeding. But we are still, if you read the terms of Section 9, allowing hearsay and any testimony whatsoever without regard to the rules of evidence and without regard to having the child present. I don’t see on the balance that Section 10 takes care of the concerns raised in Section 9.
Assemblyman Mortenson:
I think there is an enormous difference in the child’s reaction, and I guess it is meant to be, but I think it could be bad, between being cross-examined personally and being cross-examined on television by teleconferencing. A child grows up with the television; he understands that television is fantasy and that the little figures in the television are not to be regarded too seriously. I think that could happen in a situation where the child is being cross-examined with a teleconference versus a real, honest-to-goodness figure in front of him or her.
Chairman Anderson:
I don’t think that teleconferencing is the only way that this has to be done.
Assemblywoman Buckley:
In past legislative sessions, we have dealt with this issue. Nevada Revised Statutes (NRS) 174.227 allows the use of videotaped depositions for perspective witnesses if they are less than 14 years of age or a victim of sexual abuse, which allows cross-examination. In the 2001 Legislative Session, we revisited NRS 51.385, which allows hearsay to be admitted, hearsay exception, for children under the age of 10 describing sexual conduct, sexual abuse, or physical abuse, if the court finds that the statement provides guarantees of trustworthiness or the child is unavailable or unable to testify. So we have begun over the years trying to think of the child while preserving the rights of confrontation and cross-examination. I am wondering whether this bill tries to expand that while guaranteeing those same rights of trustworthiness and rights to cross-examination. So that’s my first question.
My second question relates to the evidentiary hearing to be required first and your concerns about that. Currently, I don’t think the child is required to be brought before the court in either the hearsay statement to be utilized or the videotaped deposition. Wouldn’t that just defeat the whole purpose of the bill if then you were going to drag the child to court twice instead of once? Wouldn’t an affidavit and perhaps hearing the statements of others, parents, [and] experts…dragging the child in twice when they are 9 and a victim of sex abuse, it seems to eviscerate the bill. Could you address those two issues?
Lisa Rasmussen:
I don’t see the evidentiary hearing as being confrontational or traumatizing to the child. I think in family court, in many instances, the court will speak with a child. I see it more as an opportunity for the court to make a determination and to actually lay eyes on the child, to get a feel for the maturity level, the educational level, and the special problems that may be presented by that particular child. I don’t see it as a confrontational hearing in the way that witness testimony at trial would be at all. Certainly it is a very serious issue and I understand that maybe coming to court is scary for a child, but we have to balance that against the rights of a criminal defendant who is often looking at having their liberty taken away for a significant amount of time.
I think at the very least the court, the person making that determination, should be able to see the child in person and make that determination. Parents, of course, are going to submit letters saying that their child is traumatized. I think that goes without saying. I would expect there would probably also be therapists who would submit letters; hopefully they would be there in person so that defense counsel would be able to ask them a few questions. But I don’t think that the evidentiary hearing would be the traumatizing event to the child.
Assemblywoman Buckley:
If it were an evidentiary hearing to determine whether to allow a different method of testifying, wouldn’t the child then be subject to cross-examination?
Lisa Rasmussen:
Yes, the child would; that’s absolutely true. I can’t imagine though, even from a defense perspective, how it would be beneficial to us to do a harsh cross-examination on the child at this evidentiary hearing. In other words, that would be defeating our purpose. This is not in front of the fact finder and there would be nothing to gain by it; all it would do is traumatize the child and prove their point that it’s traumatizing. So, I wouldn’t think that it would be confrontational in any manner.
With regard to your other comments about expanding what we already have provisions for; yes, I think that it does. I think that we have sufficient provisions. As you pointed out from the prior example, there are currently ways to affect the same thing without making it vague and ambiguous as the proposed S.B. 43 reads.
Assemblyman Carpenter:
I think that in regard to whether the child would be present or not at the evidentiary hearing, it should remain that way. Maybe somebody would take advantage of the child and that’s what they want to do is traumatize him if they get the chance before they actually go to trial. On Section 13, it really leaves everything open so that everyone has a say into what kind of alternative method can be used. I think if we start putting it in statute, the methods that can be used, we are going to leave out something that the judge and both sides come up with that maybe is really the best way to do it. It gives everybody a better opportunity to leave it the way that it is.
Assemblywoman Ohrenschall:
The way I read this bill, basically what I see is that we are leaving it to the discretion of the judge to decide whether or not the child has to be present at the evidentiary hearing, and if so, under what terms. I think this is the standard that we have followed in Nevada for a long time because the judge after all has access to all other evidentiary materials, he has listened to whatever the case is about from beginning to end, and he does have the opportunity if he wishes to see the child alone or in chambers. I am not quite sure that I understand what the problem is in leaving it to the discretion of the judge.
Lisa Rasmussen:
I would simply say that the problem is if it’s discretionary it leaves room for opportunities where it may not happen. I suppose it also leaves opportunity for the defense to never lay eyes on the child witness and to be able to make arguments that the child appears mature, educated, or non-traumatized. It would have the effect of tying the hands of defense counsel. I really disagree with the earlier comments that it would be our opportunity to traumatize children. That is certainly never our goal, particularly in a hearing where the issue is whether or not the child is traumatized. That would particularly not be our goal to traumatize the child. If that were our goal, then the court would consistently make findings that the child could testify by alternative methods. If it’s within the discretion of the court that the child appear, then it’s in the discretion of the court and we would have no opportunity to see the child or make any kind of rebuttable argument to the claim that the child is traumatized.
Assemblywoman Ohrenschall:
What do you make then of Section 12, subsection 3, that states, “the alternative method ordered by the presiding officer may be no more restrictive of the rights of the parties than is necessary under the circumstances to serve the purposes of the order.” If it can be no more restrictive, is that not a protection for you defense counselors? And is not the judge there to oversee and make sure that the child is protected?
Lisa Rasmussen:
Yes, I think that the language in Section 12, subsection 3, is very good. I don’t have any problem with the way that is drafted. Again, I am really concerned about the evidentiary hearing where we are making the determination where the child may not be present, because when we get down to Section 12, the court is making findings of fact and law. I don’t know how the court could be making a finding of fact without actually talking to the child and asking the child a couple of questions.
Chairman Anderson:
Wouldn’t that question be open to the judge to determine his methodology? Are we not relying upon, to a certain degree, judicial discretion? I hesitate to go there, I know judges often think that we don’t give them that kind of discretion, but generally we do try to give them some.
Lisa Rasmussen:
Yes, I do think that the court would be relying on their discretion. I don’t necessarily have a problem with that. I just think that it also leaves it open to abuse where courts could find that it’s easier not to have the child there and they’ll just take a bunch of affidavits and letters and leave it at that. I think it runs into very dangerous ground when we leave that kind of discretion open. Also again, it puts the defense in a position of not being able to really make an argument. How do you argue against it when you’ve not had an opportunity to see the child?
Chairman Anderson:
Is there anyone else wishing to give testimony on S.B. 43?
Ben Graham, Legislative Representative, Nevada District Attorneys Association:
This is one little piece of the puzzle. We offer guidelines to the 17 counties and to the 200 judges that we have. And remember, any abuse, ever, is subject to appellate review and I assume case law would develop. If there is a problem, I bet we would be back here.
Chairman Anderson:
We don’t like to think that there is ever going to be any problem with anything that has Mr. Daykin’s name attached to it. Occasionally, we have to fiddle with them, but we try not to.
Anybody else wishing to testify on S.B. 43? Let’s turn our attention then to Senate Bill 48.
Senate Bill 48: Adopts revision of Uniform Child Custody Jurisdiction and Enforcement Act. (BDR 11-382)
Frank Daykin:
The basic purpose of this bill is set out in the summary, “Adopt a revision of the Uniform Child Custody Jurisdiction and Enforcement Act.” You will see at the end of the bill a list of sections of the present act being repealed, which are replaced by S.B. 48. You already have an extensive act on the books, and what this does is to bring that up to date. I will draw your attention to the two particular points where there is something new besides small revisions of language.
If you look at Section 22, beginning on page 3, this extends the notion, which heretofore has applied among the states of the United States, to foreign countries as well. As the bill provides, child custody determinations made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of the provisions of this chapter must be recognized and enforced. We have Canada, we have Europe; as a result of air travel, we are finding more and more instances of children who leave the country where determinations are made. Subsection 3 is the safeguard; a court of this state need not apply the provisions of this chapter if the child custody law of a foreign country violates fundamental principles of human rights. For example, the situation within Iraq would fall within that exception.
Then beginning with Section 56, which begins on page 19 of the bill, this elaborates further the matter of foreign countries by dealing with a case arising pursuant to the provisions of this chapter or involving the Hague Convention on the Civil Aspects of International Child Abduction. That is not in the law as it is presently on the books. This goes into the application of the Hague Convention to these situations. I would like to take questions on the bill thus far and then I have an amendment, which proves to be necessary since the drafting of the bill, which I would like to explain to the Committee.
Assemblyman Carpenter:
I have a question on page 4, line 3 through 5, that says, “a court of this state need not apply the provisions of this chapter if the child custody laws of foreign country violates fundamental principles of human rights.” It would seem to me that’s when it really should come into play because it seems all through this act it talks, at least the way I read it, in the best interests of the child. I don’t understand why it “need not apply” when I believe that’s when it really should apply. Maybe you could straighten me out on that?
Frank Daykin:
Your substantive point is exactly right and that is exactly what the subsection is meant to do. The principles that need not be applied are those of deferring to the court of the other state or country. That is what we don’t do if the law of that country violates human rights. This is reciprocity; first, among the states of this country, we assume that all of those are dealing fairly with the child. Section 22 extends that to foreign countries with reservation that the extension does not go to a country like Iraq. Does that help?
Assemblyman Carpenter:
Not really, I think it should say what you said and what I believe it should say rather than beat around the bush.
Frank Daykin:
You have to remember that every one of these acts is the product of a long period of drafting and compromise. I can say in my own defense that I was not on the drafting committee for this one, or it might have come closer to what you say.
Assemblyman Carpenter:
There is no reason why we couldn’t change it, though, could we?
Frank Daykin:
We certainly could change that subsection, page 4, … Mr. Carpenter’s concern is “need not apply the provisions of this chapter…” what we could say is, “a court of this state need not defer to the findings of a court of a foreign country…” and then go on. Would that suit you?
Chairman Anderson:
I think that is exactly what it says, does it not? If you begin reading at Section 22, “A court of this state shall treat a foreign country as if it were a state of the United States…” and then it says, if you read subsection 3, “if the child custody law of a foreign country violates fundamental principles…” then we don’t have to. Isn’t that what we want?
Frank Daykin:
That is exactly what the conference intended. Mr. Carpenter is troubled by the language of subsection 3; I am not, for I read it in the same way as the Chairman reads it. My off-the-cuff suggestion of rewording it was only to see if that was what Mr. Carpenter is driving at. If my personal preference was an issue, of course, I would follow the Chairman’s interpretation, which I am satisfied is the correct one. [Subsection] 3 is simply an exception to [subsections] 1 and 2.
Assemblyman Carpenter:
I can kind of see what you are getting at, but…
Chairman Anderson:
You would not like us to “treat a foreign country as if it were a state of the United States?”
Assemblyman Carpenter:
I did not understand what you are trying to tell me.
Chairman Anderson:
In other words, you would like us to not accept any foreign nation on an equal footing with the 50 states and the provinces, territorial acquisitions, Puerto Rico and Guam?
Assemblyman Carpenter:
I definitely would, but I have a problem where they violate the fundamental principles of human rights. Maybe I am reading it wrong, but where it says it “need not apply the provisions of this chapter,” I think that is where I have a problem because I think in those nations that violate the fundamental principles of human rights, they are not going to be concerned at all about this.
Chairman Anderson:
So what you want us to do at line 3, page 4, is to change the word from “need” to “will” [to say] “A court of this state will not apply the provisions of this chapter if the child custody law of a foreign country violates fundamental principles of human rights.”
Assemblyman Carpenter:
I think that the court needs to apply the provisions of this chapter where they consider the best interests of the child.
Chairman Anderson:
OK. “A court of this state shall apply the provisions of this chapter if the child custody law of a foreign country violates fundamental principles of human rights.” We can’t do that either.
Risa Lang, Committee Counsel:
I am wondering if it might not clarify it at all, and perhaps Mr. Daykin could comment, if instead of saying, “…need not apply the provisions of this chapter…” we said that “the provisions of the section do not apply if the child custody law of a foreign country violates fundamental principles of human rights,” therefore clarifying that this section makes you apply the other country’s provisions inapplicable in those situations. I don’t know if that would be…for purposes of clarification.
Frank Daykin:
I think Risa’s amendment does it. It is only this section, Mr. Carpenter, which we will not be applying. That means the fundamental humanities and the concerns for the rights of the child and so forth would be preserved. But only this matter that I was trying to get at with “need not defer,” but I think Ms. Lang has stated it better by stating it positively and confining the amendment to the section.
Assemblyman Carpenter:
I think that would be better.
Frank Daykin:
With the Chairman’s leave, I will add that to the amendment (Exhibit D) I am going to discuss with you.
If this is fully understood as to substance, the one point that I would direct your attention now is on page 2, line 41. I would suggest amending the bill to delete “including without limitation” and say simply “including.” At this point, if I have the leave of the Chair, this is a rather fundamental principle of statutory construction. All of the uniform laws—I have sat in that Conference for over 28 years and sat on the Committee on Style for 25 years—are drafted on the basis that “includes” means what it says, that it is not a word of limitation, it is a word of extension. Therefore, one need never say, “includes without limitation.”
As Russ’s chief deputy here [at the Legislative Counsel Bureau, Legal Division], beginning in 1963 and then gradually until I was the Legislative Counsel up until 1995, I think I can say with confidence that this applies also to the 1997 Legislative Session. All the revisions of the earlier statutes by the Nevada Supreme Court in creating the Nevada Revised Statutes and by Russ, myself, and lawyers working for us, were drafted on the principle that “includes” means “includes.” Beginning in 1999, the words “without limitation” began to be thrown in there. So what I would propose is the amendment that I mentioned, taking out “including without limitation” and going to “including,” then amend the bill as a whole by adding a new Section 62, to read as follows: “The preliminary chapter of NRS is hereby amended by adding thereto a new section to read as follows, ‘include or including extends the meaning of the subject of the verb or the word modified by the participle to include or emphasize the word following the verb or participle.’” I have a number of copies of this amendment for the Committee’s perusal and then I can add Mr. Carpenter’s suggestion as improved by Ms. Lang to this amendment. But I will be glad to answer any questions on the summary on the reason for this amendment.
This was not added, of course, to the uniform act originally because it is one of the premises of the uniform act. When I discovered that a provision to the effect of what I gave you as to the new section was not going to come in through another bill, I felt that it needed to be added here. It will apply to all the uniform acts and would restore the construction of roughly 40 years’ drafting of NRS to avoid internal contradictions between sections as drafted by the Nevada Supreme Court and Russ.
Chairman Anderson:
Let me ask an embarrassing question, only because the Chairman must always ask the embarrassing question. It’s always difficult to be with the man who wrote the book, but I recognize that you are the man who wrote the book, you and Russ. For those of you who are not aware of the gentleman that Mr. Daykin is referring to, Russell McDonald was the first to put together the NRS into the statutorial sequence of events that we have in front of us today, rather than just grouping them by general chapter. I guess that would be the way you would look at the older versions of the NRS; how would you refer to that? I have always tried to come up with a good euphemism for it.
Frank Daykin:
I am not sure that there is a euphemism. You were following a common sense approach. What actually existed before was one layer piled upon another. The earlier compilers could not change anything, and so we had statutes that contradicted one another or partly amended one another without reference. Russell McDonald, under the supervision of the then- three justices of the Nevada Supreme Court, sitting as ex officio as a statute revision commission, went all the way through those older compilations. That’s what the annotation details and preface details. They put the thing together, made choices between the contradictory provisions, dropped the ones that had become obsolete, and so on. The Legislature in 1957 repealed all the previous “mish-mash” and enacted the Nevada Revised Statutes.
Chairman Anderson:
The point that I am trying to get to, not only did you write the book, you and Mr. McDonald, but I am getting to the question that the Chairman must ask. Currently, Ms. Brenda Erdoes is our Mr. Daykin, so these are all “Erdoes-ed” in a way. Have you had an opportunity to show Ms. Erdoes this proposed choice in terms, rather than conceptually, because we usually deal with amendments as conceptual ideas and give it to Ms. Erdoes and our bill drafters to come up with the exact verbiage with all due respect to the writer of the book.
Frank Daykin:
I have indeed. We discussed it extensively before the 2001 Legislative Session. She was persuaded that, in fact, there was no reason for the “without limitation” and included in a draft bill of that session this same language. With the Chairman’s leave, I had to reproduce this document this morning because I left my notes at home. I would be glad to check and conform this exactly to what was put in. But by the time it had reached the end of the session, counsel had tortured it out of all recognition, and the bill in which it was contained was not passed. So, she does approve of the idea. I would defer to her, obviously, if she wishes to modify this language. As I said, I will verify that I have followed it word for word.
Chairman Anderson:
With all due respect, I have learned if nothing else from my process, that I deal with conceptual ideas and the bill drafters render it back into acceptable form. I have found that to work the best for all of us. We will make sure that this fits Ms. Erdoes’ needs first and foremost.
Other questions or observations? Anybody else who wishes to testify? Any other questions for Mr. Daykin on the Uniform Commission? Recommendations?
I might indicate that there are 30 states that originally passed the original Uniform Child Custody Jurisdiction and Enforcement Act, which came into existence in 1968. Nine of those states have brought the new updated version into place, so far. So we are not breaking ground here, if that is one of anybody’s concerns. I am sure that the other states, of the 30, will be moving along on the amendment in the next couple of years as they come forward.
Anybody else wishing to testify on S.B. 48? Let me bring these back to Committee and see what kind of temperament everybody has this morning.
Assemblywoman Buckley:
I like both bills, but if we are not in a hurry I would like to send them off to some family law experts and child experts to get another day or two.
Chairman Anderson:
Looking at our green sheet, I see that I have tentatively put a work session in place for April 28, 2003, two weeks from Monday, which is quite a ways away. It is possible that we can take these up at the end of one of our meetings. I have no problems with S.B. 43, and on S.B. 48 I only note the suggested amendment. I will ask Ms. Lang to work with the questions suggested by Ms. Lang and the amendments suggested by Mr. Daykin, so let’s hold off on S.B. 48 until we hear back from the bill drafters, because I want to make sure that we don’t add to the front chapters without having clearance. I have a tendency to be very careful there.
Anything else to come before us today? Please note that we do not meet on Friday, April 18, 2003, and it is not my intention to meet next Monday, April 21, 2003, either. That may change depending upon what we are going to be doing on Monday, what the needs are of the Committee. The deadline for the first house is a week from Tuesday, a week from today.
We are adjourned [at 9:47 a.m.]
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: