MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
April 9, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:22 a.m., on Wednesday, April 9, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Valerie Wiener
Senator Terry Care
COMMITTEE MEMBERS ABSENT:
Senator Dina Titus (Excused)
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Barbara Moss, Committee Secretary
OTHERS PRESENT:
Bonnie L. Parnell, Lobbyist, Nevada Parent Teacher Association
Chairman Amodei:
The meeting is open for work session beginning with Senate Bill (S.B.) 90.
SENATE BILL 90: Authorizes certain governmental entities to share certain records in their possession concerning defendants and offenders. (BDR 14-511)
Nicolas Anthony, Committee Policy Analyst:
Senate Bill 90, heard in committee February 18, 2003, was brought by the Division of Mental Health and Developmental Services jointly with the Department of Corrections in an effort to share medical records information between the divisions. Senator Care raised concerns on whether a patient is being deemed to have waived all rights, Chairman Amodei expressed concerns on the designees, and Senator Wiener questioned the amount of access to the records. Dorothy Nash Holmes, Mental Health Programs Administrator, Department of Corrections, through contact with staff, submitted tab A of the Work Session Document (Exhibit C) in an attempt to address those concerns. Legal counsel worked on the specifics of the amendment.
Chairman Amodei:
What is the pleasure of the committee?
SENATOR CARE MOVED TO AMEND AND DO PASS S.B. 90.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NOLAN, TITUS, AND WASHINGTON WERE ABSENT FOR THE VOTE.)
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Chairman Amodei:
The hearing is open on S.B. 41.
SENATE BILL 41: Revises provisions governing release and use of limited personal information to certain supervisors of personnel involved in security of resort hotels. (BDR 14-110)
I worked on an amendment regarding whether information given to a resort, and the dissemination of it, would become public information. We tried to craft the amendment in such a way that it would apply to places with large congregations of people, for example, churches, shopping centers, or theaters. It seems to me in the event of a suspicious car or truck, anybody could make a telephone call to law enforcement which has the discretion to conduct an investigation should it be warranted by circumstances. I see no need for S.B. 41 and suggest it be indefinitely postponed.
SENATOR CARE MOVED TO INDEFINITELY POSTPONE S.B. 41.
SENATOR WASHINGTON SECONDED THE MOTION.
Senator Nolan:
I would like to thank Senator Care for his time and effort on S.B. 41. It was not my bill, nor was it homeland security’s bill, but we saw a need and tried to make it work. I would have liked to see it come to fruition. I will not support the motion. I hope we never see an occasion where the legislation would have prevented an event.
Chairman Amodei:
I appreciate that. In regard to the objectives, I would be amenable to addressing another vehicle during the session, however, as the bill was brought forward in its present configuration, I plan to support the motion. Is there any further discussion on the motion to indefinitely postpone S.B. 41?
THE MOTION CARRIED. (SENATOR NOLAN VOTED NO. SENATOR TITUS WAS ABSENT FOR THE VOTE.)
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Chairman Amodei:
The work session is open on S.B. 303.
SENATE BILL 303: Makes various changes concerning dissemination of records of criminal history by Central Repository for Nevada Records of Criminal History. (BDR 14-967)
Bonnie L. Parnell, Lobbyist, Nevada Parent Teacher Association (PTA):
Although S.B. 303 does not impact volunteers, I have some concerns. I would like to call Senator Nolan’s attention to page 7, line 34, of S.B. 303, “ … current employees or volunteers … ,“ and page 10, line 17, of S.B. 303, where “employee” is defined as “a person with or without compensation.” I assume “without compensation” would refer to a volunteer. On page 10, lines 25 and 26 of S.B. 303, the language “does not include” is being deleted, therefore, it would now read “include volunteer.” In reference to fingerprinting on page 12 of S.B. 303, “ … as part of the record … ,” I agree with much of it. I like the inclusion of private schools in S.B. 303 but I question how it would affect parent volunteers, and so forth. My concern is, parent volunteers work under direct supervision of a licensed, certified employee, versus volunteers in general who work with youngsters and are not under supervision of a licensed, certified employee.
Senator Nolan:
A number of us received this concern via e-mail. An attempt was made to be thoughtful and careful when crafting the legislation and not including volunteers. The definition for “volunteer,” earlier in this section of the statute, is defined as an “employee.” The bill does not require either an employee or a volunteer to submit to fingerprinting, which is the primary objection of many volunteer groups due to the associated cost of fingerprinting as a background check. Regardless of whether or not S.B. 303 defines employee or volunteer, the section of the statute is absolutely permissive and does not require anybody to submit to fingerprinting.
In regard to organizations that require fingerprinting, Senate Bill 303 says, rather than receiving a limited amount of information related to sexual offenses only, organizations now may receive more information about a criminal history and allow private schools the opportunity to receive the same information as public schools regarding employees. I would like Mr. Wilkinson to reaffirm the accuracy of my statements.
Bradley Wilkinson, Committee Counsel:
The language on lines 38 through 42, section 4, of S.B. 303, is moved to page 7, lines 33 through 36. The effect of the change is it would not just be the central repository disseminating information; it would be agencies of criminal justice. It is a minor change as to who is disseminating the information, but it does not change who is subject to it.
With respect to the issue of employees and volunteers, Senator Nolan is correct. There is no requirement that volunteers submit to fingerprinting, just as there is no current requirement that employees submit to it. The change is, information about volunteers could be obtained should the employer wish to have them fingerprinted.
The only other change is, should an employer fail to request the information about an employee under current law, or for a volunteer under this proposal, the employer could be held civilly liable should an offense be committed by the volunteer.
Senator Nolan:
Would you clarify the employer would not be subject to any more liability exposure as a result of S.B. 303 whether or not the employer requires fingerprinting of volunteers. We worked with the Legal Division of the Legislative Counsel Bureau to create language that specifies if an employer chooses not to fingerprint employees or volunteers, which would negate discovery of criminal history, the employer would be subject to the same liability exposure regardless.
Mr. Wilkinson:
If I understand your question, I think it may be true as a matter of law. Currently, if an employer with a volunteer fails to seek criminal history information and the volunteer was a sex offender, under common law theory the employer could be held liable under those circumstances. Senate Bill 303 creates a statutory cause of action if that was the case. I do not know the practical effect of the change in the law. It is all contained in section 13, subsection 2, of S.B. 303, which states the employer would be liable to the child for damages suffered as a result of an offense committed against the child if the employer hires that employee, and the employee was the subject of information relating to the offenses, and the employer failed without good cause to request notice under this, or was unable to obtain the information because the person refused to consent to it.
Senator Nolan:
The language, as currently written in this section, refers to sexual offenses. Language already exists that creates a cause of action solely for sexual offenses. Section 10, subsection 4, of S.B. 303, mirrors that language but broadens the offenses.
Mr. Wilkinson:
That is correct. It changed from sexual offense to an offense listed in subsection 4 of S.B. 303.
Ms. Parnell:
There is an addition in S.B. 303 to include volunteers who are not included at this point in time. I think there is a real difference between a public school district contract with a teacher versus a parent volunteer. The language clearly includes the volunteer into the purview of the employer, which currently does not exist. I object to that portion of the bill.
Senator Washington:
I agree with Ms. Parnell. Although I applaud Senator Nolan’s efforts to protect children from sex offenders and predators, school volunteers are important. Should volunteers be eroded, it would cause difficulty for schools to operate bake sales, outings, and various other events. We must be careful to protect volunteers.
Studying S.B. 303 further, and listening to Mr. Wilkinson’s clarifications, I am concerned that should an employer fail to request fingerprints from a volunteer, and God forbid, something happened to a child, the employer could be liable for the offense of a volunteer working at a 1-day outing or bake sale.
Senator Care:
I suggest a conceptual amendment that would simply say, regarding section 13, subsection 2, of S.B. 303, this subsection does not apply to an employee who renders time and services without compensation unless the employer had constructive knowledge, or otherwise should have known such records exist, or something like that.
Senator Nolan:
I am open to amendments on S.B. 303, however, to allay Senator Washington’s concerns, as a practical matter, volunteer organizations currently can only receive criminal history information if they require volunteers to be fingerprinted. There are a number of organizations that realize the only way to get a full background check and know an individual who has access to children, or works with children, is to obtain a full fingerprint check. Currently, volunteer organizations are only able to get information relating to sexual offenses. In doing that, there have been a number of events in which people have had significant driving-under-the-influence histories who will be driving children, as well as people who have had white-collar crimes, such as embezzlement and fraud, who will have access to the assets of an organization. Nonprofit volunteer organizations and private schools have requested the same type of information available to for-profit organizations and public schools. That is what is addressed by S.B. 303.
There is currently an impetus and precedence upon all organizations that put adults into the mix with children to make sure children’s safety comes first. Should they fail in that obligation and a child molester or a person with a significant criminal history with children, hurts a child, the parents will bring the same type of lawsuit against the organization regardless of whether this statute is in place, and the treble damages will be the same. Therefore, in a practical sense, S.B. 303 does not create any more liability exposure, but it helps protect children by disseminating more information to the people who need it.
I work with a number of volunteer organizations and do not think S.B. 303 would deter any volunteer one iota. If there is a need to amend the bill, I think the safety of children should be the first priority. I am amenable to Senator Care’s conceptual amendment as long as it retains the ability of volunteer organizations to obtain criminal history.
Ms. Parnell:
We are discussing volunteer organizations, such as the Boy Scouts with unsupervised troop leaders versus parents who go into a school setting under the direct supervision of an employee. There is a split definition.
Senator Care:
With consent of the sponsor, I would move to amend and do pass with the conceptual amendment I suggested. Basically, section 3, subsection 2, of S.B. 303, does not apply to an employee rendering time and services without compensation unless the employer constructively knew, or reasonably should have known, that such records exist. I am talking about a volunteer with a certain reputation of which everybody was aware, but nobody followed up on it. In that event, clearly the volunteer organization should be liable.
SENATOR CARE MOVED TO AMEND AND DO PASS S.B. 303.
SENATOR NOLAN SECONDED THE MOTION.
Mr. Wilkinson:
Perhaps another way to state the amendment would be to simply exempt volunteers from the definition of employee within that section, which would have the same effect as Senator Care’s suggestion. The provisions pertaining to liability would not apply to them under Nevada Revised Statutes (NRS) 179A.230, and then common law would control in that area.
Senator Care:
That is fine with me.
Senator Nolan:
In the last Legislative Session when we put in the revolving account, we included information on page 16 regarding the fact that a nonprofit agency did not request the central repository through the use of the account to determine whether a prospective volunteer of a nonprofit agency has committed an act. Page 16, line 23, says, “The following facts must not be considered as evidence of negligence or causation in civil action.” That relates to their access to the revolving account. I think, perhaps, it is an area in which we can extend some civil protection to nonprofit organizations by not requesting fingerprints under this chapter. I throw that out to legal counsel to see whether it could be used as well.
Mr. Wilkinson:
We could certainly add that provision to make it clear that it is not to have any effect upon volunteers.
Chairman Amodei:
Senator Care, as the maker of the motion, would that addition as part of your amendment be acceptable to you?
Senator Care:
It is acceptable.
Chairman Amodei:
Senator Nolan, as the second of the motion, is it acceptable to you?
Senator Nolan:
It is acceptable.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
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Chairman Amodei:
The work session is open on S.B. 316.
SENATE BILL 316: Revises provisions pertaining to issuance of search warrants. (BDR 14-1278)
Mr. Anthony:
Senate Bill 316 relates to the issuance of search warrants and was brought forward by R. Ben Graham, Lobbyist, Nevada District Attorneys' Association/Las Vegas. The bill would delete the requirement that probable cause search warrants be left at a location being searched. There were problems with the person who provides the probable cause later being identified. There was a minor amendment, submitted by Mr. Graham, to add the words “pursuant” to line 18, sections 1 and 2 of S.B. 316.
During testimony, Senator Care expressed concern on how federal case law and constitutional requirements related to S.B. 316. I believe Mr. Graham went over the concerns with Senator Care.
Senator Care:
That is correct.
Chairman Amodei:
Senator Care has moved to amend and do pass S.B. 316 with the amendment found at tab B of the Work Session Document (Exhibit C).
SENATOR CARE MOVED TO AMEND AND DO PASS S.B. 316.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS TITUS AND WASHINGTON WERE ABSENT FOR THE VOTE.)
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Chairman Amodei:
The work session is open on S.B. 339.
SENATE BILL 339: Makes various changes relating to use of tobacco products. (BDR 15-1126)
Mr. Anthony:
Senate Bill 339 relates to the use of tobacco products, specifically with minors who may misrepresent their age of being over 18 to buy such tobacco products. There is a proposed amendment by John Albrecht, Chief Deputy Attorney General, Human Resources Division, Office of the Attorney General, at tab C of the Work Session Document (Exhibit C), to exclude children who are used in tobacco-sting operations from the provisions of the bill.
In addition, an oral amendment was suggested by Peter D. Krueger, Lobbyist, Nevada Petroleum Marketers & Convenience Store Association, that section 3 of S.B. 339 be deleted. Section 3 of S.B. 339 allows a shopkeeper or store clerk to detain a minor who may misrepresent his or her age for the purchase of tobacco products.
Basically, the policy choice the committee would be making, should it choose to delete section 3 of S.B. 339, would be to remove merchants from the responsibility of taking a child into custody and detaining the child. The remainder of the bill would allow for a child who misrepresents his or her age in violation of the statute to fall under the purview of the juvenile court. A first offense would be a reprimand and admonishment by the court with the possibility of community service, and subsequent offenses would be up to the purview of the juvenile court as well.
Chairman Amodei:
What is the pleasure of the committee?
SENATOR WASHINGTON MOVED TO AMEND AND DO PASS S.B. 339.
SENATOR NOLAN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
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Chairman Amodei:
The work session is open on S.B. 435.
SENATE BILL 435: Requires leave of district court to be obtained before filing of certain subsequent postconviction petitions for writ of habeas corpus. (BDR 3-434)
SENATOR WASHINGTON MOVED TO DO PASS S.B. 435.
Senator Washington:
I think S.B. 435 streamlines it and makes it a lot faster for the attorney general’s office.
Chairman Amodei:
I believe S.B. 435 places some additional requirements before a habeas corpus petition can be filed, namely, there must be leave of the district court in order to file it.
Mr. Wilkinson:
It would apply to a subsequent petition, not the initial petition. It would be a petition where there has already been adjudication on the merits.
Chairman Amodei:
The staff checked with the Judicial Branch and the record should reflect it is officially neutral on S.B. 435.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
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Chairman Amodei:
The work session is open on S.B. 218.
SENATE BILL 218: Revises certain provisions relating to program that provides public with access to certain information in statewide registry concerning certain sex offenders and offenders convicted of crime against child. (BDR 14-159)
Senate Bill 218 will be held for tomorrow’s work session.
There being no further business to come before the committee, the hearing is adjourned at 8:56 a.m.
RESPECTFULLY SUBMITTED:
Barbara Moss,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: