MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-Seventh Session
February 24, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:05 a.m. on Wednesday, February 24, 1993, in Room 332 of the Legislative Building, Carson City, Nevada. (Exhibit A) is the Meeting Agenda, (Exhibit B) is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Robert M. Sader, Chairman
Mr. Gene T. Porter, Vice Chairman
Mr. Bernie Anderson
Mr John C. Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Mr. Michael A. Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Denice Miller, Research Analyst
OTHERS PRESENT:
Mr. Ben Graham, Nevada District Attorney's Association
Mr. Ernest Nielsen, Director of Washoe Legal Services
Mr. Cam Ferenbach, Chairman of the Board of Nevada Legal Services in Clark County
Mr. Wayne Pressel, Executive Director & Board of Directors of Nevada Legal Services
Mr. Edwin Fend, Representative of American Association of Retired Persons
OTHERS PRESENT CONTINUED:
Mr. Felix F. Stumpf, Board of Director & Treasurer of Washoe Legal Services
Ms. Shari Cane Vogel, Executive Director of Senior Citizen Law Project/Las Vegas
Mr. Kathryn Landreth, Attorney & Board of Director of
Washoe Legal Services
Ms. Helen Foley, Representative of the Defense Trial Lawyers of Nevada
Mr. Robert Hadfield, Executive Director of the Nevada Association of Counties
Ms. Mary Henderson, Washoe County Department of Finance
Mr. Kirby Burgess, Representative of Clark County
Following the roll call, Chairman Sader considered Assembly Bills 62, 71 and 81 from the meeting on February 23, 1993.
ASSEMBLY BILL 81 -
Makes various changes relating to filing of criminal informations.
Mr. Sader delayed action on AB 81 until the receipt of the amendment from Mr. Ben Graham of Nevada District Attorney's Association.
Mr. Sader next considered AB 71.
ASSEMBLY BILL 71 -
Revises provisions governing return of property retained as evidence.
Mr. Sader had received an amendment from Mr. Graham on AB 71 which was discussed in the meeting on February 23, 1993. Mr. Sader restated the suggested: amendment on page 1, section 1, subsection 1, line 10 to delete the language through line 15 after the words "request within" and insert "120 days" and on line 18 delete the brackets after the period and next delete lines 19 and 20.
ASSEMBLYMAN ANDERSON MOVED TO AMEND AND DO PASS AB 71.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Finally, Mr. Sader briefly discussed and requested a motion on AB 62.
ASSEMBLY BILL 62 -
Requires convicted person applying or petitioning to have his civil rights restored or criminal record sealed to submit certain information with application or petition.
ASSEMBLYMAN PORTER MOVED TO DO PASS AB 62.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Mr. Sader explained there were 3 bills which would increase administrative filing fees. The first was AB 50, the second was to be introduced today which related to law libraries in Washoe County and the third was proposed by Nevada Association of Counties and was still in drafting. It dealt with a number of fee increases in various places which included the court system. Mr. Sader wanted to hear the testimony on AB 50 but hold off action on it until the other bills could be heard at which point all 3 would be considered.
Chairman Sader then opened the hearing on AB 50.
ASSEMBLY BILL 50 -
Increases fees charged in civil actions to support legal services for indigent and elderly persons.
Mr. Sader introduced Mr. Ernest Nielsen, Director of Washoe Legal Services, who stepped forward in support of AB 50.
Mr. Nielsen introduced Mr. Wayne Pressel, Executive Director of Nevada Legal Services, Ms. Shari Vogel, Director of Senior Citizen Law project/Las Vegas, Mr. Felix Stumpf, Board of Directors and Treasurer of Washoe Legal Services, Ms. Kathryn Landreth, Board of Directors of Washoe Legal Services and Mr. Cam Ferenbach, Representative for Nevada Legal Services who also came in supported of AB 50.
Mr. Stumpf described the difficulties encountered by Washoe Legal Services in covering expenses for the services currently provided. Mr. Stumpf explained all attempts at private funding had not gone well in 1992. Mr. Stumpf had distributed to the committee Exhibit C and referred to page 3 of Exhibit C which showed a $13,326 deficit for Washoe Legal Services in 1992 and on page 2 Mr. Stumpf pointed out 68,657 people lived below the poverty line in Nevada. Mr. Stumpf further revealed with the growth of the population in Nevada the estimated population below the poverty line was 120,000 people and many of them needed help legally. Mr. Stumpf stated Washoe Legal Services was striving to maintain the same level of services as in the last 7 years, but without additional funding a 20 percent cut in legal services was necessary. Mr. Stumpf related AB 50 modestly raised filing fees and these fees had an impact on the number of cases handled.
Mr. Sader clarified AB 50 raised the filing fees on civil, not criminal actions. The bill raised the filing fees from $18 to $25 and both parties filing a complaint had to pay a fee. The bill also raised the fee for those filing for divorce or domestic relations items. Mr. Sader said the purpose of the bill was to raise the fees to fund legal services, and section 1, subsection 4 dealt with how the legal services organization distributed these fees. At the moment these filing fees went to 2 or 3 different places besides the county general fund.
Mr. Sader asked someone from Washoe or Clark County Legal Services to explain what their services were and how the funds were used.
Ms. Landreth came forward to testify and respond to Mr. Sader's question. Ms. Landreth explained what kind of legal services Washoe Legal Services to the north and Nevada Legal Services to the south provided.
Ms. Landreth said clients were determined by income eligibility and they had to be low income, disadvantaged people. Ms. Landreth gave an example of the caseload in 1992 for Washoe Legal Services which was 7,000 requests for legal services which all dealt with basic survival issues. Washoe Legal Services dealt on a daily basis with cases where people were going to be locked out of their homes or lose health care benefits to which they were entitled.
Ms. Landreth said even though 7,000 requests for basic needs were received, Washoe Legal Services was only able to provide legal assistance for just under 1,400 of those cases.
Ms. Landreth opined Washoe Legal Services could justify spreading the cost of legal services to all litigants by raising filing fees due to the fact the vast majority of cases filed in court did not deal with survival.
Another example of the kind of case Washoe Legal Services and Nevada Legal Services handled was the Community Reinvestment Act "CRA" (which was enacted in 1974 to eliminate widely acknowledged banking practices against women minorities and other disadvantaged groups). This federal act was to be enforced by banking regulatory agencies like the FDIC when examining banks.
Ms. Landreth opined as a practical matter in the state it had not been attended to with any significance by any of the bank regulators. In fact, before the two legal agencies, both north and south entered the CRA arena, the story was appalling. When the Bank of America merger was on the table with the Federal Reserve Board the two legal services obtained a negotiated commitment from Bank of America to live up to its CRA commitment if the merger was approved. As result of the negotiations, Washoe Legal Services and Nevada Legal Services got Bank of America to commit to a $31 million annual package for the state of Nevada. Secondly, included in the Bank of America merge package was an $18 million commitment from Bank of America to fund affordable housing projects.
Ms. Landreth stated, "These projects did 2 important things one, it represented an annual injection of private funds into this state of $31 million and that by itself is a remarkable achievement. Secondly, this would not have happened if Washoe Legal Services and Nevada Legal Services had not undertaken to do it."
Mr. Wayne Pressel, Executive Director, Nevada Legal Services, came forward and introduced Mr. Cam Ferenbach, Chairman of the Board of Directors of Nevada Legal Services in Clark County.
Mr. Ferenbach said, "Nevada Legal Services not only sued individuals to bring things about but negotiation was the much better way to get things done."
Mr. Ferenbach explained AB 50 would be a source to obtain funds for the pro bono project. Mr. Ferenbach explained the pro bono project was a system set up a number of years ago whereby members of the Clark County Bar Association could volunteer their time to serve indigent people and actually find poverty clients to represent. The pro bono project would screen applicants who wanted free legal services and determine, at least on the face of a meritorious case, they were in fact indigent and not trying to get a free ride. Then through a referral network the attorneys arranged to represent and help these people.
Mr. Ferenbach said Clark County had the 6th highest pro bono project representation rate in the country, 50 percent of the attorneys in Clark County participated in this program. Mr. Ferenbach stated there was a need for funding for Nevada Legal Services in order to pay the paralegals who screened these clients and referred them to the private attorneys.
Mr. Ferenbach said Nevada Legal Services handled 122 social security hearings with an average pay back of $4,000 each case which was $.5 million in federal money. Mr. Ferenbach said Nevada Legal Services had a very professional staff and it would be a shame to let some of them go due to financial cutbacks.
Ms. Vogel came forward to testify in support of AB 50. Ms. Vogel explained the Senior Citizens Law Project offered free legal services to anybody who lived in Clark County who was 60 years or older. Unlike Nevada Legal Services and Washoe Legal Services, the Senior Citizens Law Project only provided legal services to the elderly. Ms. Vogel said the Senior Citizen Project had been sponsored by the City of Las Vegas since 1978, was partially funded by a federal grant from Division of Aging Services, received client donations and filing fee money under this statute.
Ms. Vogel distributed written testimony out to the committee Exhibit D which on page 2 described the type of services the Senior Citizens Law Project provided. Ms. Vogel explained the purpose of Living Wills and Durable Power of Attorneys for Health Care. She said the Senior Citizen Law Project practiced preventive law because no one knew when a catastrophic illness might occur. Ms. Vogel said the Senior Citizens Law Project tried to reach out to seniors on the initial interview and help them prepare Simple Wills or Living Wills while the clients were still healthy and competent.
Ms. Vogel referred to pages 2-4 of Exhibit D and gave examples of the types of cases and situations Senior Citizens Law Project commonly handled on a daily basis.
Ms. Vogel recommended 2 amendments, first on Page 1 line 5 insert the words "or city" between the words "county program" and secondly Ms. Vogel requested an equal allocation of a $5 fee increase for both the elderly as well as the indigent on page 2 line 3 subsection 2.
Mr. Edwin Fend, Representative of American Association of Retired Persons, came forward to testify in support of AB 50. Mr. Fend provided and read written testimony Exhibit E to the committee which explained the American Association of Retired Persons need for the increased funds produced by AB 50.
Mr. Fend stated the American Association of Retired Persons was in favor of Ms. Vogel's proposed amendment regarding the division of fees.
Mr. Sader recommended an amendment to AB 50 based upon Ms. Vogel's suggested language. On page 1, section 1, subsection 1, lines 10 and 11 the fee would change from $18 to $28 instead of from $18 to $25. Also page 1, subsection 2, line 16 would change from $7 to $17 instead of $7 to $14. Then these increases would be reflected on page 2 the distribution of money in subsection 2, line 3, $9.50 would change to $12.50 and on line 8 subsection (2) $4 would change to $7.
Mr. Collins inquired of Ms. Vogel why fees would increase for elderly and indigent people who could not afford to pay in the first place.
Ms. Vogel explained the fees were suggested donations and all the services were provided free of charge. If a client wanted to donate to the program, the fee amounts were on the suggested donations list. Ms. Vogel said some clients could donate while others could not.
Mr. Anderson questioned Ms. Vogel as to how much money was generated by the Senior Citizens Law Project and what was the increase in cases that justified the additional money requested.
Ms. Vogel replied the senior citizen population in Clark County exploded in the 1990 Census to 111,000 seniors living in Clark County with over 77,000 of those 65 and older. Ms. Vogel said the Senior Citizens Law Project wanted to reach the population of elderly who were in nursing homes and this was where the increased cases came in.
Mr. Fend responded to Mr. Anderson's question and explained very few elderly people made $30,000 or $25,000 per year, but a lot of people's whose income consisted of social security and perhaps $4,000 or $5,000 in savings.
Mr. Toomin requested Ms. Vogel to produce a budget for Senior Citizens Law Project.
Ms. Vogel explained the last fiscal year budget (July 1, 1991 to June 30, 1992) was $470,000 which was broken down into 4 sources: First, a federal grant of $92,000 administered by the States' Division of Aging Services, second, program income estimated at $40,000 (from client donations), third, NRS filing fee money of $1,116, and fourth, the City of Las Vegas which sponsored $222,000.
Mr. Toomin inquired what the projected budget was for this year and Ms. Vogel said approximately the same amount as last year even though the program income based upon donations was down to the $15,000 to $20,000 range because clients were not donating the same.
Mr. Bonaventura requested estimates from the Washoe Legal Services as to how many people would slip through the cracks because they were not qualified for legal services because their income level was slightly above poverty.
Mr. Nielsen answered there were a lot of people who fell into that category because of the eligibility level. Mr. Nielsen gave an example of the 1990 census which said there were 119,000 people at poverty level but if the Legal Service Corporation's estimated figure of 125 percent was used as a measurement of poverty, then there would be a .25 percent marginal difference which meant the number changed from 119,000 to 223,000 people at poverty level. Mr. Nielsen said the 125 percent was set by the Legal Service Corporation a federal corporation set up by Congress which allocated funds to Washoe Legal Services and Nevada Legal Services.
Mr. Bonaventura further questioned Mr. Nielsen about raising the eligibility level in the future to cover more people who fell between the economic gaps.
Mr. Neilsen said Washoe Legal Services and Nevada Legal Services tried as much as possible to work with the corporate government and other money sources to serve people who were in need but were slightly higher than the 125 percent eligibility level.
Mr. Neilsen said he supported Ms. Vogel's amendment since it would also benefit Clark and Washoe Counties' 2 senior citizens' projects.
Mr. Carpenter asked for clarification on the proposed amendment to the bill.
Mr. Sader again restated the suggested amendment to AB 50.
Mr. Toomin referred to page 3 of Exhibit C where deficit amounts were shown and inquired what Washoe Legal Services' budget was for 1992. Mr. Nielsen explained Washoe Legal Services' budget amount appeared on page 5 of Exhibit C.
Mr. Toomin commented the requested fee increase was really not based upon the budgetary information provided in Exhibit C. Mr. Nielsen said the statistics were provided to reveal the dire straits Washoe Legal Services was in financially.
Mr. Toomin asked Mr. Neilsen if United Way provided the largest portion of funding for Nevada Legal Services and Washoe Legal Services. Mr. Neilsen answered no, funding primarily came from Legal Service Corporation which funded 300 legal programs across the country. Mr. Neilsen said they received United Way funds but those funds had been substantially cut from $40,000 to $29,000. Mr. Toomin requested a copy of Nevada Legal Service and Washoe Legal Service's budget for 1992.
Ms. Smith wanted to know how the amending language to AB 50 on page 1, section 1, subsection 1, line 5 adding the words "or city." affected county and city jurisdictions. Ms. Vogel explained Senior Citizens Law Project in Washoe was sponsored by Washoe County but the Las Vegas office of Senior Citizens Law Project was sponsored by the City of Las Vegas. Ms. Vogel said in order for the Senior Citizens Law Project of Las Vegas to receive its funding from the city this amendment was necessary.
Ms. Helen Foley, Representative of the Defense Trial Lawyers of Nevada, came forward to testify in support of AB 50. Ms. Foley explained defense trial lawyers were civil lawyers who represented the defendant in civil cases, and they strongly support the legislation.
Mr. Sader asked for opposing testimony. Coming forward in opposition to AB 50, Mr. Hadfield, Executive Director of Nevada Association of Counties (NACO), introduced Mr. Kirby Burgess, Representative of Clark County and Mary Henderson, Washoe County Department of Finance.
Mr. Hadfield said, "He was not there to question the legal services program but to bring to the attention of the committee a much larger problem regarding county government funding." Mr. Hadfield said there was no monetary provision from county government to provide for basic fees. In fact, some of the counties fees had not been increased for 15 years. The new state budget deprived the counties of over $6 million currently received in sales taxes. Mr. Hadfield said the counties found themselves in a box. At the lower end the fees which had not increased had provided for the basic services while at the higher end the general revenue sources had been capped or severely limited.
Mr. Hadfield made a major effort last session to work in a comprehensive manner with Assembly Taxation since all of the counties' fees were set by statute and the county commissioners had no authority to increase county fees other than in the area of land use planning fees. Mr. Hadfield said the county had worked with Assembly Taxation to come up with a major bill which addressed county needs across the board, not only court fees but all types of other recording fees, but time had run out. This session the bill drafter was in the process of working on a comprehensive bill that would address county fees across the board but it would be several weeks before a bill draft was available.
Mr. Hadfield asked the committee to withhold action on any fee requests which affected county fees to allow the counties to bring before the committee their request so all fee requests could be given due consideration together.
Mr. Sader asked if Mr. Hadfield knew what the proposed filing fees were and Mr. Hadfield said that information was not yet available.
Mr. Sader restated no action would be taken on AB 50 until Mr. Hadfield's bill was ready to be heard.
Ms. Henderson indicated support for Mr. Hadfield's bill noting Washoe County had very serious concerns with earmarked revenue going to programs other than the county general fund. Ms. Henderson felt very strongly this was the year to address earmarked fee increases in county government.
Mr. Kirby Burgess stepped forward and concurred with the testimony given by Ms. Henderson and Mr. Hadfield.
A short discussion followed.
Mr. Collins asked Mr. Hadfield he thought if it was a good idea for the counties to manage their own administrative fees. Mr. Hadfield welcomed the ability for the counties to set and maintain their own fees. However, he recognized the hesitancy of the legislature in that area because of the legislature's attempt to maintain a statewide fee structure.
There being no further testimony, Mr. Sader closed the hearing on AB 50.
Mr. Sader opened the hearing on AB 175 and asked for testimony.
ASSEMBLY BILL 175 -
Prohibits persons from directly or indirectly threatening or intimidating state employees.
The Prime sponsors of AB 175 requested Mr. Sader to reschedule the hearing on AB 175 due to testimony conflicts with other committees.
There being no further action on AB 175, Mr. Sader closed the hearing.
Mr. Sader opened the hearing on AB 87 and asked for testimony.
ASSEMBLY BILL 87 -
Increases fees charged in civil actions to support legal services for indigent and elderly persons.
There being no one to testify, Mr. Sader rescheduled and closed the hearing on AB 87.
Mr. Sader requested the introduction of BDR-2937, BDR14-581, BDR14-150 and BDR3-1392 before the committee.
ASSEMBLYMAN REGAN MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT REQUESTS.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION FOR COMMITTEE INTRODUCTION OF BILL DRAFT REQUESTS CARRIED UNANIMOUSLY.
Mr. Sader asked the committee to reconsidered the amendment passed on AB 174 since the bill drafter found language problems.
ASSEMBLY BILL 174 -
Limits right of natural father to custody of or visitation with child conceived as result of sexual assault and prevents admission of certain evidence by accused in prosecution for sexual assault.
Mr. Sader explained the bill drafter found difficulty with the language if the circumstance arose where the perpetrator (rapist) tried to get custody of the child. The proposed amendment provided the mother or the legal guardian could give consent to a visitation if the visitation would be in the best interest of the child. The bill drafter pointed out the way it was decided now in custody matters was state law determined what was in the best interest of the child. This amendment if passed would vary from that standard so even if it were not in the best interest of the child but the mother consented to it, the rapist could get custody.
Mr. Sader suggested the following amending language.
Instead of the word "or" substitute "and" in the amendment and in this way take into consideration the mother's situation as well as the child's in this peculiar circumstance.
Mr. Sader asked for a motion to reconsider committee action on AB 174.
ASSEMBLYMAN PORTER MOVED TO RECONSIDER COMMITTEE ACTION ON AB 174.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
A brief discussion followed.
THE MOTION CARRIED UNANIMOUSLY.
**********************
Mr. Sader requested a motion on the revised amendment on AB 174.
ASSEMBLYMAN TOOMIN MOVED TO AMEND AND DO PASS AB 174.
ASSEMBLYMAN SCHERER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
There being no further business to come before committee, the meeting was adjourned at 9:50 a.m.
RESPECTFULLY SUBMITTED:
CHANDRA PENDERLAND
Committee Secretary
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Assembly Committee on Judiciary
February 24, 1993
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