MINUTES OF THE

SENATE Committee on Judiciary

 

Seventy-First Session

May 29, 2001

 

 

The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 9:30 a.m., on Tuesday, May 29, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Agenda.  There is no Attendance Roster.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

COMMITTEE MEMBERS PRESENT:

 

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

 

STAFF MEMBERS PRESENT:

 

Bradley A. Wilkinson, Committee Counsel

Allison Combs, Committee Policy Analyst

Carolyn Allfree, Committee Secretary

 

OTHERS PRESENT:

 

John P. Sande III, Lobbyist

 

Chairman James opened the hearing on Assembly Bill (A.B.) 666.

 

ASSEMBLY BILL 666:  Makes various technical changes to provisions of Nevada Revised Statutes. (BDR S-1071)

 

Bradley A. Wilkinson, Committee Counsel, Principal Deputy Legislative Counsel, Legal Division, Legislative Counsel Bureau, explained A.B. 666 makes technical changes and clarifies ambiguous statutes found in Nevada Revised Statutes (NRS) over the past 2-year period.  He provided a written explanation of the changes included in the bill (Exhibit B).  Item 1, he said, is a provision saying that it will no longer be necessary to use the phrase “without limitation” or “but not limited to,” following “include,” “includes,” and “including,” because those terms will be defined in Chapter 0 of NRS, a preliminary chapter.

 

Chairman James asked, “What happens if you want it to be with limitation?”  Mr. Wilkinson answered that the specific items would need to be listed.  Chairman James said he did not think this should be done, because some contexts mean with limitation and other contexts without, and the determination should be made each time a statute is drafted.

 

Mr. Wilkinson further explained the provisions of A.B. 666, as outlined in Exhibit B.

 

Senator McGinness asked where the summary came from in item 3, concerning distribution of the motor vehicle privilege tax and the technical corrections to NRS 482.180 and NRS 482.181.  He said when Senator Coffin (Senator Bob Coffin, Clark County Senatorial District No. 3) processed S.B. 59 through the taxation committee, he indicated it was nothing more than a name change to try to accommodate some public perception about a privilege and to change it to what it really is, a governmental service tax.  He commented that the distribution of the tax, as discussed in item 3, was not discussed at all during the taxation committee hearing.

 

SENATE BILL 59:  Changes designation of privilege taxes on motor vehicles to governmental service taxes.  (BDR 32-39)

 

Mr. Wilkinson said he believes someone in his office prepared the description of the motor vehicle tax distribution, and it is his understanding some of the suggestions for amending NRS 482.180 and NRS 482.181 were made by Ted Zuend, Deputy Fiscal Analyst, Fiscal Analysis Division, Legislative Counsel Bureau (LCB), who felt the statute needed to be clarified and made compatible with actual practice.

 

Chairman James advised deleting section 1 of the bill, and requested a motion to amend and do pass A.B. 666.

 


SENATOR WIENER MOVED TO AMEND AND DO PASS A.B. 666 TO REMOVE SECTION 1.

 

SENATOR CARE SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman James opened the hearing on S.B. 25, and asked Allison Combs, Committee Policy Analyst, to explain how the Assembly had amended the bill.

 

SENATE BILL 25:  Revises provisions governing granting of rights to visitation with child to persons other than parents of child. (BDR 11-45)

 

Ms. Combs said the Assembly has a version of the bill which does not contain the higher standard of evidence contained in the senate bill.  Additionally, Senator O’Connell (Senator Ann O’Connell, Clark County Senatorial District No. 5) had brought S.B. 25 forward to allow an intact family to be able to petition for the visitation, and the Assembly version of the bill does not include that provision, Ms. Combs said.

 

Chairman James asked what is meant by “intact family visitation,” and Ms. Combs replied the bill specifies who can seek visitation rights in certain circumstances.  She said current law does not provide an opportunity for grandparents or other individuals to seek those rights, if the parents are still married.  Senate Bill 25 allows those rights; the Assembly version does not, she said.  Chairman James suggested the committee not concur, and seek a compromise between the Senate and Assembly versions of the bill.

 

Senator McGinness said he thinks the higher standard of evidence contained in the Senate version is what makes the bill work.

 


SENATOR MCGINNESS MOVED TO NOT CONCUR IN AMENDMENT NO. 866 TO S.B. 25.

 

SENATOR PORTER SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman James opened the hearing on S.B. 62.

 

SENATE BILL 62:  Revises provisions regarding mistreatment of animals. (BDR 50-713)

 

Chairman James said this committee had increased the penalties for mistreatment of animals, and the Assembly removed those penalties from the bill and attached an amendment by Assemblyman Tom Collins, Clark County Assembly District No. 1, to prohibit state and local governments from imposing restrictions on rodeos.

 

SENATOR TITUS MOVED TO NOT CONCUR IN AMENDMENT NO. 840 TO S.B. 62.

 

SENATOR WIENER SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman James opened the hearing on S.B. 171.

 

SENATE BILL 171:  Revises standards for designation of gaming enterprise districts in certain locations. (BDR 41-116)

 

Ms. Combs explained the Senate version of S.B. 171 provided the vote required for a local government, in relation to the neighborhood casino, be three-fourths majority plus one.  The Assembly version changed it to a majority plus one.  Chairman James asked to be reminded what the provision was in S.B. 208 of the Sixty-Ninth Session, and Ms. Combs said it was for a three-fourths majority, but did not specify the voters who abstained were included.

 

SENATE BILL 208 OF THE SIXTY-NINTH SESSION:  Revises provisions governing gaming licenses.  (BDR 41-192) 

 

Ms. Combs said the definition of “related parcel of land” was changed from, “Expected to be used for any purposes directly related to the operation of the proposed establishment,” to, “Expected to be used for any purpose exclusively related to the gaming activities of the proposed establishment.”  In addition, the effective date of the bill was changed to December 31, from “effective upon passage and approval.”  Chairman James asked if this committee had added “related parcel of land” to prevent someone from subdividing land next door to an establishment, and Ms. Combs replied in the affirmative.  “So, ‘related parcel of land,’ means a parcel of land that is contiguous to the property expected to be used for any purpose directly related to the operation, and this is going to change it to ‘exclusively?’” he asked.  Ms. Combs, again, affirmed.  She added that the effective date of the bill was changed at the request of property owners who wanted to file petitions.

 

Chairman James stated the effect of changing “directly” to “exclusively” is going to, essentially, gut that provision.  Senator Care said he agreed. 

 

Chairman James said:

 

A related parcel of land . . . in order to get around the distance requirements in the law, you can subdivide the property and then put some things that are ancillary to the gaming development there, like shopping center or whatever, and still have that kind of activity, and the whole parcel is sort of a legal fiction of a parcel, and you do not have actual gambling on that parcel; you get around the requirements, but you can still butt it right up against the neighborhood.  So, the idea of “directly related” was that if you are going to do that, it is directly related.  But, if you say, “exclusively related” to the gaming activities, then they will say, “Well, it is not exclusive because some people come there just to shop, or some people come there just to park, or to whatever.”  So, it is essentially going to gut that provision.

 

Senator Porter said the change in the voting is a substantial change, also.

 

SENATOR PORTER MOVED TO NOT CONCUR IN AMENDMENT NO. 895 TO S.B. 171.

 

SENATOR WIENER SECONDED THE MOTION.

 

THE MOTION CARRIED.  (SENATOR CARE ABSTAINED FROM THE VOTE.)

 

*****

 

Chairman James opened the hearing on S.B. 83.

 

SENATE BILL 83:  Increases amount of homestead exemption. (BDR 10-4)

 

Chairman James stated the Assembly “just threw out” the homestead exemption this committee had proposed.

 

SENATOR CARE MOVED TO NOT CONCUR IN AMENDMENT NO. 894 TO S.B. 83.

 

SENATOR WIENER SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman James opened the hearing on S.B. 182.

 

SENATE BILL 182:  Removes authority for private person to take arrested person before nearest magistrate following arrest. (BDR 14-527)

 

Chairman James explained this is a technical correction, and provides for a private person to bring an arrested person before a “peace officer” instead of a “magistrate.”

 


SENATOR PORTER MOVED TO CONCUR IN AMENDMENT NO. 678 TO S.B. 182.

 

SENATOR CARE SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman James opened the hearing on S.B. 356.

 

SENATE BILL 356:  Makes changes regarding filing of documents with secretary of state. (BDR 18-1206)

 

Chairman James said this bill was meant to deal with people fraudulently filing documents with the secretary of state’s office by providing for a legend warning people to check their records for such activity.  The Assembly has said the secretary of state may adopt regulations prescribing procedures designed to prevent the filing of false or forged documents, he said.  Chairman James asked the committee members how they feel about granting such authority.  Senator Care noted it is a ministerial function of the secretary of state, but said he is not sure, from the brief description, what this change means.  Chairman James read the entire language of the amendment:  “The secretary may adopt regulations prescribing procedures to prevent the filing of false or forged documents in his office.”  He said the secretary of state ought to be asked to inform the committee as to what sort of regulations he has in mind and whether he agrees with the amendment.  Therefore, no action was taken on S.B. 356.

 

Chairman James opened the hearing on S.B. 301.

 

SENATE BILL 301:  Makes various changes concerning certain professions. (BDR 7-634)

 

Ms. Combs explained the Senate version provides a professional association must file a statement with the secretary of state, annually, showing the names of its members and employees.  The Assembly added a descriptor to say the names to be provided are only those of the members and employees licensed or otherwise authorized by law to render a professional service.

 

SENATOR PORTER MOVED TO CONCUR IN AMENDMENT NO. 867 TO S.B. 301.

 

SENATOR CARE SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman James opened the hearing on S.B. 412.

 

SENATE BILL 412:  Revises various provisions pertaining to certain offenders. (BDR 14-798)

 

Ms. Combs explained S.B. 412, as well as an amendment from the Assembly which, she said, was requested by the Division of Parole and Probation, Department of Motor Vehicles and Public Safety:

 

Senate Bill 412 had a lot of changes relating to registration and communication provisions; it also included some changes in the mandatory parole and probation conditions for sex offenders.  A lot of those changes allowed an exception, if it was approved by a parole and probation officer.  One of those [changes] was not having contact with the victim unless approved by the parole and probation officer.  This amendment provides that in addition to that approval, a written agreement has to be signed by the victim, the defendant, the parole and probation officer, the psychiatrist or counselor treating the defendant, victim, or witness, and the parent, if the victim was under 18.

 

The second [change] is that the sex offender would not be allowed to go near a playground or motion picture theater or other businesses that primarily have children as customers, unless they [sic] had approval of probation and parole officer.  The amendment also requires approval of a psychiatrist, psychologist, or counselor treating the defendant.

 

Finally, the bill also allowed the offender to provide updates on his registration, in person or in writing.  The amendment provides that if the person moves to a new jurisdiction, he has to do the new registration in person with law enforcement, but he can provide his new location to his former jurisdiction in person or in writing.

 

SENATOR PORTER MOVED TO CONCUR IN AMENDMENT NO. 801 TO S.B. 412.

 

SENATOR MCGINNESS SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman James opened the hearing on S.B. 548.

 

SENATE BILL 548:  Makes various changes concerning sex offenders and other persons convicted of crimes. (BDR 14-512)

 

Ms. Combs said the Senate bill proposed to amend NRS 176.139 to allow psychosexual evaluations and evaluations for release from parole and probation be done by a person selected from a list of those specifically qualified to do psychosexual evaluations.  The Assembly amended the bill to provide if a psychosexual evaluation is not required, the person doing the evaluation would be a psychologist or a psychiatrist licensed in Nevada, which, she said, is basically what is provided in current law.

 

SENATOR PORTER MOVED TO CONCUR IN AMENDMENT NO. 800 TO S.B. 548.

 

SENATOR WIENER SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman James opened the hearing on S.B. 551.

 

SENATE BILL 551:  Makes various changes concerning computers, technology, Internet and crimes against children. (BDR 15-442)

 

Chairman James noted the Assembly changed the information an ISP (Internet service provider) has to keep, and he said he did not object.  However, subpoena power, which the Senate had taken out, was reinserted by the Assembly, and Chairman James said he does not concur.

 

SENATOR CARE MOVED TO NOT CONCUR IN AMENDMENT NO. 897 TO S.B. 551.

 

SENATOR PORTER SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman James opened the hearing on S.B. 33.

 

SENATE BILL 33:  Revises various provisions governing probate. (BDR 12-853)

 

Chairman James noted the Assembly amended the bill to include electronic wills and trusts.

 

John P. Sande III, Lobbyist for Matthew E. Woodhead, said Amendment No. 742 to S.B. 33 adds a provision in the probate code for electronic wills and trusts.  Ways of identification and means of authentication are defined in section 9, subsection 6, of the second reprint of the bill, he said.  He pointed out S.B. 49, which deals with a similar subject, has already been processed by this committee.

 

SENATE BILL 49:  Adopts Uniform Electronic Transactions Act. (BDR 59-258)

 

Mr. Sande explained the amendment to S.B. 33 would allow people to create wills or testamentary trusts, or inter vivos trusts, by electronic means.  The bill also outlines where the wills and trusts should be kept and how they should be kept, he said.  Senator Porter asked why these changes were made in the Assembly and not done here, and Mr. Sande said his client, who is one of the leading estate planners in the country, asked for these provisions when the bill was in the Assembly.

 

Senator James asked whether this is the same kind of authentication of a will used in S.B. 49, and Mr. Sande said it is his understanding it is.  He said the amendments put into S.B. 49 were consumer affairs issues.  Senate Bill 49 specifically states it does not apply to the creation and execution of wills, he said, and it was felt any electronic language should be in the probate code.  Chairman James said he thinks this will be subject to abuse and litigation over the person’s real intentions.  “You used to have witnesses,” he said.  Mr. Sande responded, saying he thinks there will be less potential for abuse or fraud, because the identifying characteristics are much less vulnerable to abuse.

 

Mr. Sande stated:

 

Just to show how archaic we are, we require two witnesses for a will.  Usually you come into a lawyer’s office and you will get a couple of people to come before the testator, and they sign it and say they are of sound mind and do self-proving affidavits.  But, at the same time, now days, with advanced estate planning, we use inter vivos revocable trusts . . . where people come in, and they do not have to have any witnesses, and they transfer all of their assets into a trust, and all they have to do is sign it . . . I usually have them acknowledged, but I do not even think that is required by law.

 

[Under this bill] you could go and actually converse with your attorney over the Internet and when you got to the point where you say, “This is perfect,” and have safeguards built in, which are in this bill, you could actually have it done and the original would be stored at your attorney’s office.

 

Chairman James said the difference is, one is inter vivos (between living people) transfer and the other is a transfer that takes place upon the death of the testator and is run through probate to prove what the testator really meant.  “Are we getting rid of the witness requirement, then?” he asked, and Mr. Sande answered, “Not for the standard will.”  Chairman James said he thinks it should all be made consistent, and Mr. Sande said an inconsistency is already built into the difference between trusts and wills.  He added, usually witnesses do not know the testator; they just sign the document as witnesses to the testator’s signature.

 

Chairman James said attorneys from the probate section of the state bar had contacted him and indicated they were concerned about the effect of this amendment to S.B. 33.  Mr. Sande responded he believes their concern was, “Why do we need this?  The old system works fine.”  He said:

 

The answer is that we are moving into the twenty-first century; we should be able to do this, as long as there are safeguards . . . They are already passing, at least you passed out of committee, the Uniform Electronic Transactions Act; so, this is a reality.  I think you will find that, especially for those people that are used to conversing electronically, there are a lot of benefits . . . We are trying to make it easier for people to do their estate planning.

 

Senator Care said he is wondering if there could be something akin to a holographic will printed out on a computer.  “Would it be possible, Mr. Chairman, [to] just hold off on this for 24 hours?” he asked.  “I’ll entertain any reading materials, anything you’ve got,” he added.  Chairman James stated the committee would hold off for a couple of days on both S.B. 33 and S.B. 49 and “deal with them together.”

 

Mr. Sande responded:

 

You made a good point.  The holographic will is something that does not need any [witness] signatures, as long as it is totally in your own handwriting.  Then you have the question of whether that is your own handwriting, whereas electronically, as I understand it, it is virtually impossible for there to be any type of forgery.

 

Chairman James opened the hearing on A.B. 54.

 

ASSEMBLY BILL 54:  Revises provisions relating to time within which prosecution for certain felonies must be commenced and certain provisions concerning genetic marker testing. (BDR 14-296)

 

Chairman James noted the Senate had amended A.B. 54, and the Assembly did not agree with the amendment and asked the Senate to recede.  He requested a motion to not recede.

 

SENATOR CARE MOVED TO NOT RECEDE FROM AMENDMENT NO. 663 TO A.B. 54.

 

SENATOR MCGINNESS SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman James opened the hearing on A.B. 162.

 

ASSEMBLY BILL 162:  Makes various changes to provisions governing theft. (BDR 15-900)

 

Chairman James said the Senate removed certain language from A.B. 162, and the Assembly put the language back in.

 

Ms. Combs explained the language in question, saying the Senate had removed language specifying a person does not commit theft unless, before the repair of a vehicle, that person received a written estimate and agreed to pay the amount in the written estimate.

 

SENATOR MCGINNESS MOVED TO NOT RECEDE FROM AMENDMENT NO. 567 TO A.B. 162.

 

SENATOR CARE SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman James opened the hearing on S.B. 572.

 

SENATE BILL 572: Provides immunity from civil liability for person who reports threats of violence against school officials, school employees or pupils. (BDR 34-1532)

 

Senator Titus explained Amendment No. 1157 to S.B. 572 includes threats against all schools employees, rather than against just teachers and administrators.  Senator Wiener added, the language was also changed to provide that anyone can do the reporting, not just those named in the original bill.

 

Chairman James noted the bill provides immunity from civil liability for a person who reports another has made a threat of violence against a school official, school employee, or pupil.  He requested a motion on the measure.

 

SENATOR PORTER MOVED TO AMEND AND DO PASS S.B. 572.

 

SENATOR WIENER SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

There being no further business, the meeting was adjourned at 10:45 a.m.

 

 

RESPECTFULLY SUBMITTED:

 

 

 

Carolyn Allfree,

Committee Secretary

 

 

APPROVED BY:

 

 

 

                       

Senator Mark A. James, Chairman

 

 

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