MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
May 15, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei at 9:47 a.m., on Thursday, May 15, 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 E. Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Assemblyman William C. Horne, Assembly District No. 34
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Ann Bednarski, Committee Secretary
OTHERS PRESENT:
R. Ben Graham, Lobbyist
Jan Gilbert, Lobbyist, Progressive Leadership Alliance of Nevada
Chairman Amodei opened the work session with Assembly Bill (A.B.) 14.
ASSEMBLY BILL 14 (1st Reprint): Makes various changes to penalty hearing when death penalty is sought and revises mitigating circumstances for murder of first degree. (BDR 14-198)
Nicolas Anthony, Committee Policy Analyst, was asked to explain the proposed amendments to the bill found in the work session document. Chairman Amodei then announced he was withdrawing his amendment, which was found at Tab A of the work session document (Exhibit C. Original is on file at the Research Library.) [Exhibit C and Exhibit D also contain material regarding A.B. 274 and A.B 475, which were not heard.]
Mr. Anthony said tab B of the work session document, Exhibit C, was submitted by Senator Washington and requested judges instruct juries that the relatives of victims were prohibited from specifically recommending a sentence. He added that other amendments to A.B. 14 had also been withdrawn.
There was no further discussion. Chairman Amodei asked if anyone wished to make a motion. He said there was only this one amendment. Chairman Amodei explained he withdrew his amendment after being advised it should not be considered.
SENATOR TITUS MOVED TO DO PASS A.B. 14.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION FAILED. (SENATORS AMODEI, CARE, MCGINNESS, AND NOLAN VOTED NO.)
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Chairman Amodei then opened discussion on A.B. 118.
ASSEMBLY BILL 118: Revises provisions regarding when sentence of death may be imposed. (BDR 14-856)
Mr. Anthony explained A.B. 118 increased the minimum age to receive the death penalty from 16 to 18 years of age. He said the only amendment found in tab A, Exhibit C, applied to A.B. 14, and since it was withdrawn there was no amendment.
Senator Nolan said there were some issues that could be included in mitigating circumstances when considering juveniles between 16 and 18 years of age in a capital sentencing case. He asked Chairman Amodei to elaborate on the nature of his discussions regarding his now withdrawn amendment.
Chairman Amodei said the proponents of this legislation wanted a policy statement for a blanket ban of execution of individuals who were younger than the age of 18. He said it was requested that he not offer an amendment anything different from a blanket policy statement. Chairman Amodei said, “Accordingly, I have withdrawn that amendment.”
Senator Nolan said he thought the circumstances and issues were objective and based in science. He said these mitigating circumstances were well thought out and he would propose they be included as an amendment to A.B. 118.
Chairman Amodei explained he did not practice law in capital punishment cases and deferred to attorneys who do such litigation. He said these attorneys felt the amendment would narrow the ability to argue the case, which he explained would not be his intent. He said the reasoning behind A.B. 118 was to establish a policy. Chairman Amodei said for the record, he was convinced of his decision from communication with Assemblywoman Christina R. Giunchigliani, Assembly District No. 9. Chairman Amodei said if one examined the history of the State of Nevada, this issue had come up only three times. He said the policy statement made it illegal to execute someone under 18 years of age.
Chairman Amodei said he would not accept Senator Nolan’s suggestion for an amendment and asked if anyone wanted to make a motion.
SENATOR CARE MOVED TO DO PASS A.B. 118.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION FAILED. (SENATORS AMODEI, MCGINNESS, NOLAN, AND WASHINGTON VOTED NO.)
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Chairman Amodei opened discussion on A.B. 166.
ASSEMBLY BILL 166 (1st Reprint): Makes various changes concerning transfer of right to receive payment pursuant to structured settlements. (BDR 3‑231)
Mr. Anthony explained under A.B. 166, payments on a structured settlement agreement would be valid only if the agreement was approved by a district court. He said there was no opposition to the original bill but amendments clarifying language and regarding secret settlements and public hazards, were offered in Exhibit C, tabs C, D, and E. In addition, he said Senator Care had offered an oral amendment that made transfers of settlement agreements without court approval void.
Senator Care then withdrew the oral amendment he had proposed at the previous work session.
Senator Titus said she wanted her amendment, in tab D of Exhibit C, to be considered by the committee.
Chairman Amodei asked the committee for a motion.
SENATOR TITUS MOVED TO AMEND WITH AMENDMENT AT TAB D AND DO PASS A.B. 166.
Senator Wiener asked for clarification of the motion.
SENATOR TITUS MOVED TO AMEND WITH THE AMENDMENTS AT TABS C AND D OF THE WORK SESSION DOCUMENT AND DO PASS A.B. 166.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION FAILED. (SENATORS AMODEI, MCGINNESS, NOLAN, AND WASHINGTON VOTED NO.)
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Chairman Amodei asked if there was another motion.
SENATOR MCGINNESS MOVED TO AMEND WITH AMENDMENT AT TAB C IN THE WORK SESSION DOCUMENT AND DO PASS A.B. 166.
SENATOR WASHINGTON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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Chairman Amodei asked Mr. Anthony to present work session information on A.B. 250 (tab H, Exhibit C).
ASSEMBLY BILL 250 (2nd Reprint): Makes various changes regarding certain acts relating to terrorism, weapons of mass destruction, biological agents, chemical agents, radioactive agents and other lethal agents, toxins and delivery systems and requires resort hotels to adopt emergency response plans. (BDR 15-49)
Mr. Anthony said A.B. 250 related to terrorism and, at the request of Chairman Amodei, the legal counsel drafted a combined amendment with a section‑by‑section analysis, Exhibit C, tab F. He said it incorporated language suggestions regarding weapons of mass destruction, and suggestions submitted by the American Civil Liberties Union (ACLU).
Mr. Anthony said Chairman Amodei indicated at the previous work session that A. B. 250 could be processed with an amendment submitted by Senator Raggio. He said Senator Nolan also requested that Senate Bill (S.B.) 41 be incorporated into this bill.
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)
Mr. Anthony said in the work session document, Exhibit C, tab G, another amendment was submitted by Karen Coyne, Lobbyist, City of Las Vegas, which requested continuing education on weapons of mass destruction for medical professionals.
Chairman Amodei announced Assembly Speaker Perkins and Senate Majority Leader Raggio had discussed terrorism legislation and agreed A.B. 250 would be the mechanism that moved forward regarding this matter. In addition to the proposed amendments, Senator Raymond D. Rawson, Clark County Senatorial District No. 6, had submitted another planning-related amendment. Senator Rawson requested a planning element be included in the terrorism legislation.
Chairman Amodei said he had no objections to the proposed amendments but the planning amendment would most likely be heard in the Senate Committee on Government Affairs. He asked if anyone wanted his or her name amended onto the bill, and said the opportunity would be available in committee and when presented on the Senate Floor.
Senator Nolan said he had just talked with Assembly Speaker Perkins and Senate Majority Leader Raggio regarding S.B. 41 and A.B. 441 (tab H, Exhibit C). He said both leaders were amenable to incorporating the provisions of S.B. 41 into A.B. 441. Therefore, Senator Nolan withdrew his request for an amendment to A.B. 250.
ASSEMBLY BILL 441(1st Reprint): Enacts provisions relating to ensuring security of the State of Nevada and its residents with respect to acts of terrorism and related emergencies. (BDR 19-1139)
Senator McGinness said many local governments had recently made substantial investments in communications systems and were concerned about the changing of systems. He said that was an issue to address. Senator McGinness said it was part of the coordination of agencies in the event of a terrorist attack.
Chairman Amodei first asked if Senator McGinness wanted to offer language to address this communications plan and then suggested the committee move the bill “in concept” today and make it subject to any additional amendments offered on the floor. Senator McGinness agreed.
Senator Care said he recalled the committee discussing the definition of weapons of mass destruction. Senator Care said he preferred Ms. Lusk’s amendment to the one he had submitted, Exhibit C, tab F, page 9. He said both amendments were contingent upon the intended use. He said the language, “bodily harm to large numbers of people” was vague, but made more sense than the language, “more than one person,” used in S.B. 38 (tab H, Exhibit C).
SENATE BILL 38 (1stReprint): Makes various changes regarding certain acts relating to terrorism, weapons of mass destruction, biological agents, chemical agents, radioactive agents, toxins and delivery systems. (BDR 15-89)
Senator Care said any motion made today should include Ms. Lusk’s amendment in section 14 of A.B. 250 and alter section 10 to be consistent with S.B. 38.
SENATOR CARE MOVED TO AMEND AND DO PASS A.B. 250 WITH THE AMENDMENT SUBMITTED BY LUCILLE LUSK AND AMENDING SECTION 10 TO READ AS S.B. 38, INCLUDING AMENDMENTS FROM THE CITIES OF LAS VEGAS AND RENO DELETING LANGUAGE ON ACT OF TERRORISM, ADDING MR. SIEGEL’S ACLU LANGUAGE AMENDMENT, AND ADDING SENATOR RAGGIO’S NAME TO THE BILL.
SENATOR WIENER SECONDED THE MOTION.
Assemblyman William C. Horne, Assembly District No. 34, said he was selected to work on this legislation by Assembly Speaker Perkins and Assembly judiciary chairman Anderson. Assemblyman Horne said the amendment submitted by the City of Las Vegas would have a fiscal note on it that was not anticipated. He said he would not want to see it derailed because of a fiscal impact.
Chairman Amodei thanked Assemblyman Horne and said with Senator Raggio’s name on the bill, and knowledgeable of his interest in this legislation, he did not think continuing education for paramedics derailed this in a financial sense. He said if that occurred, the committee would work to amend the bill appropriately. Chairman Amodei agreed to speak with Senator Raggio regarding a fiscal note prior to presenting A.B. 250 on the floor and if necessary, the committee would reconvene to deal with that issue.
Senator Titus also expressed concern over the education of paramedics amendment included in A.B. 250, stating she did not think it was germane to the content of the bill. She suggested the continuing education for paramedics and health officials should be included in other legislation.
Bradley Wilkinson, Committee Counsel, said it was very germane to A.B. 250. He said it related to responses to acts of terrorism and being prepared to deal with emergency response plans for resort hotels.
Senator Nolan said as a member of the State Emergency Response Commission there were federal funds available through the federal Department of Homeland Security for training of emergency medical personnel as well as the purchase of equipment.
THE MOTION CARRIED UNANIMOUSLY.
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Chairman Amodei opened discussion on A.B. 320(tab J, Exhibit C). He explained this bill was exempt. However, because it did not go to ways and means or finance, it needed to be moved out of committee today in order to meet the deadline. Chairman Amodei said he realized no one had an opportunity to read the 42‑page amendment. Therefore he suggested a motion to do pass action on it for purposes of committee action with the understanding that after reviewing the amendment, committee members were free to do whatever they believed necessary on the Senate Floor.
ASSEMBLY BILL 320 (1st Reprint): Makes various changes regarding malpractice. (BDR 57-868)
Chairman Amodei said he was in contact with the Assembly majority leader and the respective industry people regarding the issue areas of A.B. 320. He said he thought the amendment was in order.
Senator Washington asked if it was possible to send the bill to be re-referred to Senate finance without a recommendation from the committee on judiciary. Chairman Amodei said a good portion of A.B. 320 represented a piece of the malpractice tort reform puzzle this committee spent a lot of time considering, and he would prefer to move the bill in the traditional format with the understanding the floor amendments or a change of vote would be accepted.
Senator Washington said he was leery of voting on something he did not read. Chairman Amodei reminded Senator Washington he had the option of not voting.
SENATOR WIENER MOVED TO AMEND AND DO PASS A.B. 320.
SENATOR CARE SECONDED THE MOTION.
Senator Titus said many of the provisions of A.B. 320 were the same or very similar to a bill already passed by the Senate that emerged from the commerce and labor committee relating to insurance reform. Senator Titus said the other amendments were consensus amendments that were worked out by everyone, the industry, the regulators, the doctors, and the lawyers.
Senator Washington said he would accept the wisdom of the committee but elected to hold judgment until after reading the amendment.
THE MOTION CARRIED UNANIMOUSLY.
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Chairman Amodei opened discussion on A.B. 337.
ASSEMBLY BILL 337 (1st Reprint): Makes various changes concerning rights of ex-felons. (BDR 14-63)
Mr. Anthony said following the last work session, Assemblywoman Giunchigliani, Assembly District No. 9, and interested parties offered a consensus oral conceptual amendment, Exhibit D, page 6. The amendment proposed several things, first of which was the automatic restoration of rights except for category A felony crimes and repeat offenses. Persons in either of those excepted categories would be required to petition the sentencing court. The right to serve on a civil jury but not a criminal jury was also included in the amendment. He said after 6 years, the offender was automatically eligible to serve on either type of jury. A convicted person who had served his sentence was also eligible to run for public office, Mr. Anthony said. The amendment changes section 4 of A.B. 337, regarding registration of convicted persons to become one category A felony or two other felonies. Lastly, the oral amendment aimed to delete the mandatory language in sections 21 through 23.
Mr. Anthony said Chairman Amodei suggested the removal of section 11 of the bill in its entirety. This would retain the existing law as to any felony or malfeasance while in office disqualifying such person from ever holding office.
Chairman Amodei said he was trying to do something responsible with section 11. He explained his intent was to error on the side of being stricter in terms of what we expect of those in public service and those who hold public office. The Chairman said he felt the existing law was reasonable in terms of what was expected from public officials.
Senator Titus voiced support of Chairman Amodei’s position, in view of the news today of public officials being involved in criminal activities.
Chairman Amodei said the amendment was conceptual and the committee could move today and come back with a written version for the committee’s perusal.
Senator Care recalled a discussion at a work session on May 13, 2003, wherein the committee discussed several occupations that required a license or a board that oversees the profession. He used the profession of accounting to illustrate his concern, stating the board might refuse to certify a public accountant if that person had been convicted of a felony relating to that profession. One could presume if a person was not an accountant at the time of conviction and became an accountant later, that person could be certified. However, he continued, if he or she was convicted of embezzling, it became a question of veracity and something the accounting board would want to consider.
Senator Care then used promoter Don King as an example, stating Mr. King had to demonstrate fitness to be a promoter to become licensed. Obviously he demonstrated to the State his ability and fitness because he was a promoter. Senator Care said, “That burden can be overcome.” He was not sure if the burden of fitness was placed on the applicant for licensing in various fields. He felt the language offered for the amendment, “fitness to act as…“ was good, as there were people who were rehabilitated who made exemplary employees.
Chairman Amodei asked if Senator Care wanted that language included in the professional licensing section of A.B. 337. Senator Care said he would.
Mr. Wilkinson said he did not believe A.B. 337 would affect in any way the burdens related to profession licensing and who would bear the burden of fitness or suitability. He said that burden was always on the person seeking the license. The licensing board’s procedure was to look at the crime committed and determine whether the person was appropriate to have a license. Mr. Wilkinson said there were several sections of A.B. 337 that pertained to licensing and the use of the word “fitness” was used specifically for section 24.
Senator Nolan said some of the testimony indicated that those who would offend again did so within a 4-year period of time. He said there was a certain amount of recidivism and therefore supported the 6-year time limit before eligibility to serve on a jury, but his concern was with the right to run for public office. Senator Nolan said he realized anyone could run for office whether they were registered to vote or not. He suggested the right to run for public office should be withheld for 2 years after the right to serve on a criminal jury was reinstated, or a total of 8 years.
R. Ben Graham, Lobbyist, said he was testifying as a private citizen and not on behalf of any of his interest groups, and stated he had friends in the defense community and in the prosecution community. Mr. Graham said the feeling is Nevada took steps gently towards joining the other states in being less punitive in certain areas. He said after a person has had a stumble, or a great fall, the truth is it is over; the penalty was done. He said after arguing about jury duty, including the question of whether police could serve as jurors, the conclusion was a felon who had served his time could serve on a jury as soon as they had their rights restored. He said, “And, they can vote.”
Mr. Graham said after 6 years without incident, the consensus was full jury service should be reinstated. He said he had no problem with the public office question, stating 12 percent of the population of Las Vegas voted, so, he asked, how big is the problem?
Senator Nolan said he was concerned about the public office eligibility because of the fiduciary commitments and responsibilities to the citizens. He asked what the recidivism rate was in Nevada. Mr. Graham said the rate of recidivism was approximately 76 percent. He added there were some ex-convicts who had run for office and not been elected. On the other hand, Mr. Graham said, some without criminal records have run and been elected to public office and behaved illegally. He used the expression, “Holy cow” to describe the public’s response to both of these situations. Mr. Graham said the voting issue was crucial and defense attorneys shared that opinion.
Jan Gilbert, Lobbyist, Progressive Leadership Alliance of Nevada, said there was a lot of discussion in the Assembly committee about ex-felons running for office. She said it passed in the Assembly. The result of the discussion was, if an ex-felon was desirous of running for public office, let him. She announced that 38 other states already had such legislation. She repeated the sentence for the felony was served.
Ms. Gilbert reported about a man, an ex-felon who had turned his life around, who was now a productive business owner and taxpayer. She said he had been out of prison for years and spent a frustrating year trying to get his right to vote reinstated. She reiterated Mr. Graham’s comments about the percentage of people who vote. She said it was people like the man whose story she shared who deserved to have their rights restored. Ms. Gilbert urged passage of A.B. 337.
Senator Care said he agreed with the positions of Mr. Graham and Ms. Gilbert. He said often in the committee on government affairs, in legislation regarding elections, the voters need to be responsible about their choices, which included investigating the candidates. Senator Care said, “The voters are certainly free to elect anybody they wish. They have a duty to find out who those people are.”
Senator Washington said he was concerned about the “automatic restoration of rights.” He said there were some category B felonies that were heinous in their nature. Mr. Wilkinson said there were category B felonies that ranged in prison time from 1 to 6 years to 8 to 20 years, the crimes ranging from drunk driving that caused death or bodily harm to violent crimes. Senator Washington said he wanted to review the category B crimes and after this review might offer another amendment on the floor. Chairman Amodei said Senator Washington’s concern was noted for the record.
SENATOR CARE MOVED TO AMEND AS SPECIFIED ON THE WORK SHEET, EXHIBIT D, PAGE 6, AND DO PASS A.B. 337.
SENATOR WIENER SECONDED THE MOTION.
Senator Nolan said he would vote for the motion but wanted it noted there was merit to reinstating rights to those released from the penal system, but he said he disagreed with the time frame portion of holding public office. He said he would likely join Senator Washington with an amendment on the floor. However, Senator Nolan said he wanted the bill to move forward.
Chairman Amodei compared the removal of section 11, which retained the existing law which prohibits a person from ever holding office if convicted of felonious behavior while in office, and the concern about ex-felons running for office. He said he looked forward to the day that would happen.
THE MOTION CARRIED UNANIMOUSLY.
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Chairman Amodei asked Ms. Gilbert to provide a copy of a letter from Senator Raggio to be handed out on the floor when A.B. 337 was presented. She agreed. Chairman Amodei then opened discussion on A.B. 397.
ASSEMBLY BILL 397 (1st Reprint): Makes various changes concerning proceedings in actions concerning eminent domain. (BDR 3-1082)
Mr. Anthony said the legal counsel prepared a mock-up to address concerns, Exhibit C, tab K. One of them was Assemblyman Horne’s language change from “person” to “party.” Mr. Anthony said “party” now appeared throughout A.B. 397.
In addition, Mr. Anthony reviewed Senator Care’s amendments to allow a party to depend on an appraisal in good faith, expansion of time to reply from 10 days to 30 days, and the requirement of certification for appraisers.
Assemblyman Horne said he had spent a lot of time on A.B. 397 and recently contacted opponents regarding a possible amendment to pertain only to single family residences. He said he had talked with all but one of the representatives and they did not like the bill or the policy. He said the opponents said the perceived fiscal impact would be impacted. Assemblyman Horne said there was no movement from the opposition and respectfully asked the committee to think about the policy behind the bill and help home owners stand up for themselves.
SENATOR TITUS MOVED TO AMEND WITH TAB K AMENDMENTS AND DO PASS A.B. 397.
SENATOR CARE SECONDED THE MOTION.
Chairman Amodei congratulated Assemblyman Horne on his excellent performance as a freshman Legislator. He said A.B. 397 was the third issue Assemblyman Horne had presented. Chairman Amodei respected the interest Assemblyman Horne had shown and said it was one issue that the committee would likely revisit in various contexts. Chairman Amodei also appreciated some members of this committee attempting to work on this legislation.
Senator Washington also applauded Assemblyman Horne for his efforts. He said there apparently was a need out there that deserved attention. Senator Washington said as policy makers all parties had to be considered, the homeowners and the municipalities. He said the people who administer the municipalities were likely homeowners too. He said A.B. 397 had some merit but it also had some questions. Senator Washington said this time he was siding with the municipalities and would vote against it. He concluded his comments stating, “Anytime you take someone’s home or property or land, it’s kind of an infringement on the American Dream, a right to own land, the principles and foundations of this country, a person’s identity and dignity.“
Senator Titus, referring to Assemblyman Horne, said she appreciated him coming before the committee and all his hard work. She said she was so appreciative she would support this measure, as “Perseverance is a good thing.” Senator Titus said that her measure, to protect people from harm, had failed, too, and reported she had been addressing her issue for 12 years.
Assemblyman Horne responded in appreciation of their comments and their patience with him during this process. He said he had experienced ample opportunity to work with each of the members.
Senator Care said he shared Senator Titus’ opinion. To A.B. 397’s proponents Senator Care said in recent years the courts had looked at the abuses that occurred from eminent domain and taken a second look. He encouraged the supporters to continue to search for the proper vehicle, adding the right to just compensation was a constitutional right and a good argument for their position.
Senator Wiener said she would support the measure and added if it failed this time, she would continue her support.
Chairman Amodei closed discussion on A.B. 397 and called for a vote.
THE MOTION FAILED. (SENATORS AMODEI, MCGINNESS, NOLAN, AND WASHINGTON VOTED NO.)
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Chairman Amodei announced discussion on A.B. 475 would take place next week. He said it was an exempt bill. The committee would meet again at the call of the chair. He said there would be committee meetings on the floor.
ASSEMBLY BILL 475 (1st Reprint): Makes various changes concerning providing health insurance for child pursuant of court order for support. (BDR 3‑1246)
Chairman Amodei said the next meeting was at the call of the chairman and adjourned the meeting at 10:59 a.m.
Ann Bednarski,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: