MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
May 7, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:12 a.m., May 7, 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. Bernie Anderson
Mr. John C. Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. Ken L. Haller
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:
Mr. Gene T. Porter, Vice Chairman (excused)
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Judge Robert E. Gaston, District Court Judge, Family Division, Department F
Ms. Mary Liveratti, Deputy Administrator, Nevada Department of Human Resources, Division for Aging Services
Mr. Dan Prince, Chief, Department of Human Resources, Division of Child and Family Services, Planning and Evaluation
Mr. Ben Graham, Legislative Liaison, District Attorney's Association
Lieutenant James Nadeau, Legislative Liaison, Washoe County Sheriff's Office
After roll call, Chairman Sader called the work session to order at 8:12 a.m.
Chairman Sader announced the scheduled work session bills, A.B. 196, A.B. 387 and A.B. 455 would not be considered at this time as per request from the subcommittees. He reminded the committee members all testimonies on bills considered during this work session had been heard during previous hearings.
ASSEMBLY BILL NO. 312 Revises qualifications for issuance of gaming license or finding of suitability.
Chairman Sader noted there was a proposed amendment to A.B. 312 addressed in a memorandum from Mr. Scott MacKenzie, Culinary Union Local No. 226, Exhibit C, dated May 6, 1993. He reminded the committee members substantial discussion had ensued during the previous hearing and four votes had been taken. A suggestion had been made to amend the four page amendment presented by Mr. Williams.
Chairman Sader pointed out the proposed amendment to the first amendment pertained to A.B. 312, Section 1, subsection 2 (b)(3), page 2 which suggested adding the following underlined language contained in the provision, "Record of compliance with federal and state laws, including but not limited to regulations and policies regarding alcoholic beverages, health...", Exhibit C. He stated the language would not be exclusive but inclusive.
Chairman Sader maintained the second proposed amendment to the amend and do pass motion was to delete the following underlined controversial language contained in A.B. 312, Section 2, page 4, "(or (b) the National Labor Relations Board has alleged or decided that a strike by employees of a licensee is an unfair labor practice strike), the Commission shall immediately..." Mr. Sader informed the committee this provision addressed the criteria in which the National Labor Relations Board alleged strikes were unfair labor practice strikes.
Chairman Sader summarized the status of A.B. 312. He recapped testimony had been considered during the hearing conducted May 4, 1993 during which time three committee members had been recorded as absent: Mr. Scherer, Mr. Collins and Mr. Porter. Three attempts had been made to amend the bill. A final vote of amend and do pass failed seven to five. He suggested the committee members consider A.B. 312 at this time. The proposal to amend and do pass originated from the four page amendment alluded to during the previous hearing. In addition, the phrase "including but not limited to" had been added upon which the amend and do pass motion had been made. Chairman Sader stated it was suggested to delete the portion of the amendment contained in Section 2.
ASSEMBLYMAN TOOMIN MOVED AMEND AND DO PASS.
ASSEMBLYMAN HALLER SECONDED THE MOTION.
Chairman Sader noted discussion had been heard with regard to A.B. 312 during the previous hearing and Mr. Scherer and Mr. Collins had not had the opportunity to testify.
Mr. Scherer stated he would abstain from any action on A.B. 312 as he was employed by a gaming licensee and the intent of the bill was to acquire more disciplinary action by the Gaming Control Board against gaming licensees.
Mr. Collins stated he would vote in support of A.B. 312.
Mr. Schneider questioned the section added to the bill. After speaking with members of the Culinary Union and Mr. Porter he believed the law was adequate as originally drafted. According to Mr. Schneider, A.B. 312 duplicated an existing law.
Mr. Regan stated he would abstain from voting as he was a gaming licensee.
Mr. Sader requested a roll call vote on A.B. 312. The motion was amend and do pass.
THE MOTION TO AMEND AND DO PASS CARRIED. (ASSEMBLYMEN CARPENTER, GIBBONS AND GREGORY OPPOSED. ASSEMBLYMEN
SCHERER AND REGAN ABSTAINED.)
Mr. Toomin was assigned to handle A.B. 312 on the Assembly
floor.
ASSEMBLY BILL NO. 464 Prohibits harboring children who run away from home.
Chairman Sader pointed to the proposed amendment discussed during a previous hearing. The committee would decide on the refinement of the suggested amendment. Mr. Sader alluded to correspondence which originated from the Office of the Attorney General, dated May 30, 1993, Exhibit D. A.B. 464 was a redraft with protections. The correspondence delineated the total reprint of the provisions.
Mr. Dan Prince, Chief of Planning and Evaluation, Department of Human Resources, Division of Child and Family Services, stated the family court judges in Clark and Washoe counties were in agreement with the proposed amendments.
Judge Robert E. Gaston, District Court Judge, Family Division, Department F, discussed the concerns raised by committee members during the previous hearing. He maintained the primary concern dealt with circumstances where children stayed overnight at adults' residences. He had spoken with representatives from teachers' associations who had voiced their concern with the provisions in the bill.
Judge Gaston stated the issue alluded to had been addressed in several ways. In order for misdemeanor charges to apply under the "runaway" definition there had to be reportings. Language had been added, "...and who has been reported as missing to a law enforcement agency...", Exhibit D, paragraph number 1. He continued, parents of children would be required to report missing children before misdemeanor charges would be applicable.
Judge Gaston noted concerns which had been raised in regard to neglected or abused children. A.B. 464, Section 4, indicated the provision did not apply to persons who acted in good faith and reasonably believed the actions were necessary to prevent the abuse or neglect of the children. Judge Gaston maintained the concern of the executive branch had been overlooked. He proposed amending Section 4, Exhibit D, paragraph number 2, after the term "432 B," add the following language, "or homes or facilities approved by government agencies or district courts.". He alleged this would solve the issues addressed during the first hearing.
Mr. Sader pointed out the term "intent" had been added in the definition of "harboring". The definition of "runaway" had also been added. The terms established the intent on behalf of the persons running away and the individuals harboring which made it a high standard. Mr. Sader cautioned, as the language was presently worded, there might be many well-intended individuals who would get caught up in this statute.
ASSEMBLYMAN REGAN MOVED AMEND AND DO PASS A.B. 464.
ASSEMBLYMAN PETRAK SECONDED THE MOTION.
Mr. Scherer alluded to the term "remaining away from home" which had been discussed during the previous hearing. He alleged the language "remaining away from home" had not been defined although it had been covered by the term "running away". He concurred with deleting, in Section 2 (a), the definition of "harbor" and remove the words "or remaining" at the end of the second line and the beginning of the third line. He believed the issues would be addressed in circumstances where individuals assisted children in running away from home; by utilizing the definition of "runaway" it included the intent to remain away.
Mr. Sader concurred with Mr. Scherer's analogy. The maker of the motion, Mr. Regan, also concurred with Mr. Scherer and agreed to include the proposed change. The maker of the second motion, Mr. Petrak, also agreed with the proposed amendment. Chairman Sader noted the motion would stand as amend and do pass with the further exclusion.
Mr. Carpenter questioned if the proposed amendments would cover battered women. In reply, Judge Gaston stated the language, "or homes or facilities approved by government agencies or district courts" would address this and should be all inclusive.
Mr. Prince stated the intent of the suggested provisions was to provide protection for agencies or services which operated under the courts or government and the provisos did deal with battered women and their children. He emphasized it was important the comma after "432 B" be retained to draw the distinction between agencies operating under 432 A and B. He believed the language was too narrow as agencies might not place runaway children due to incidents relating to 432 A or B.
Mr. Sader addressed Mr. Toomin's concern and referenced Mr. Gardner's correspondence, Exhibit D, page 2, "any person who in good faith reasonably believed that the actions were necessary to prevent the abuse or neglect of a child." He noted Mr. Toomin's concern with regard to children spending time with relatives was an exclusion from the law.
Mr. Gibbons alluded to A.B. 464, page one, subsection 2 (b) of the proposed amendments, Exhibit D, which defined the term "runaway" by utilizing the language "attempt to leave the home". Mr. Gibbons questioned the term "attempt to leave" and asked who would enforce this. In response to this concern, Judge Gaston replied the language could be deleted. He noted it was not unusual to insert this phrase in bills which pertained to law enforcement. He did not see how the law could be enforced unless children actually committed the act. Mr. Gibbons moved to amend the amendment which would delete the portion of the suggested amendment by deleting the language, "or attempt to leave the home".
Chairman Sader noted the maker of the original motion, Mr. Regan, and the initiator of the second to the motion, Mr. Toomin, both agreed to accept the proposed changes to the motion.
Mr. Ben Graham, Legislative Liaison, District Attorney's Office, responded to Mr. Bonaventura's inquiry to A.B. 464. As Mr. Graham understood, the sponsors of the bill were trying to address evidence of this type of abuse which would be investigated by the authorities assigned to the juvenile department. Evidence would have been developed from past incidence but attempts were unsuccessful in trying to prosecute the cases. He believed only egregious cases would be prosecuted under these provisions.
Chairman Sader requested committee consideration of A.B. 464 and noted the motion was amend and do pass.
THE MOTION CARRIED. (ASSEMBLYMEN CARPENTER, ANDERSON, GREGORY AND COLLINS OPPOSED)
Ms. Smith was assigned to handle A.B. 464 on the Assembly floor.
ASSEMBLY BILL NO. 540 Revises provisions governing issuance of protective orders for victims of domestic violence.
Chairman Sader brought attention to the proposed amendments to A.B. 540 suggested by Judge Gaston, Exhibit E. The previous hearing on the bill had been conducted April 30, 1993.
Judge Robert Gaston, District Court Judge, Family Division, stated the Judiciary Committee had identified three issues with the language contained in the original draft of A.B. 540. No provision had been put in place which indicated applications had been made by the victims. There was nothing which alluded to verifications of the arrests or the filing of the applications with court clerks.
Judge Gaston addressed the amendment alluded to in A.B. 540, Exhibit E, paragraph 5, which did not state the applications were initiated by the victims. Exhibit E, paragraph 5, indicated judges would verify with arresting officers at the time the alleged perpetrators were arrested and in custody.
Judge Gaston referenced the third issue addressed in Exhibit E, paragraph 7, which indicated actions must be filed with court clerks on or before the first judicial day following the signing of the orders of the clerks. He believed the modifications made by Chairman Sader were appropriate. Judge Gaston requested a modification to A.B. 540, Exhibit E, paragraph 6, where the phrase "custodian of the jail" would be replaced with the wording "authorized jail personnel." He clarified the term applied to individuals who served the inmates. He was concerned with the phrase "custodian of the jail" which might allude to supervisory personnel. Judge Gaston suggested modifying the language with the term "authorized jail personnel" and anyone authorized without limiting.
To further clarify the intent of the provision previously discussed, Chairman Sader suggested inserting the term "by authorized jail personnel" in place of "by the custodian of the jail." Judge Gaston maintained the proposed amendment reflected the changes requested by the committee.
Chairman Sader alluded to A.B. 540, Exhibit E, paragraph 5, and suggested the term "alleged" be inserted on the third and eighth lines in the phrases "of an alleged victim" and "identity of the applicant as the alleged victim". Chairman Sader pointed out these were situations where there were arrests but no convic-
tions. He also referenced paragraph 5, line 5, Exhibit E, the language "the alleged perpetrator." He surmised the terms "alleged perpetrator" and "alleged victim" would be more appropriate terms.
ASSEMBLYMAN ANDERSON MOVED AMEND AND DO PASS.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
Lieutenant Jim Nadeau, Washoe County Sheriff's Office, concurred with the proposed amendments to A.B. 540 with the exception of the language contained in paragraph 5, line 9 of Exhibit E, which stated, "...violence and shall further verify with the arresting agency or jail at that time that the alleged perpetrator..." He noted the language might be cumbersome in circumstances where arresting officers might have gone off shift. The initiators of the motions, Mr. Anderson and Mr. Regan concurred with the proposed changes.
Mr. Scherer suggested adding the term "alleged" in the language contained in Exhibit E, paragraph 5, line 5 which stated "...the jail where the alleged perpetrator is being held,..."
THE MOTION CARRIED. (ASSEMBLYMAN COLLINS VOTED IN OPPOSITION.)
Mr. Schneider was assigned to handle A.B. 540 on the Assembly floor.
ASSEMBLY BILL NO. 523 Expands exclusive jurisdiction of family court to include proceedings for involuntary court- ordered admission to mental health facility.
Chairman Sader noted testimony had been received during a previous hearing conducted on A.B. 523. Consideration of the bill had been held pending written confirmation from Washoe County and Clark County. Judge Gaston supplied confirmation from the Clark County judges. Correspondence was received from Judge Charles M. McGee and Judge Scott T. Jordan, District Court Judges, Family Division, and Judge James A. Stone, District Court Judge from Washoe County. All testified they were in agreement with the proposed changes, Exhibit F. Individuals with jurisdiction over civil commitment hearings were in agreement with the change.
ASSEMBLYMAN TOOMIN MOVED DO PASS.
ASSEMBLYMAN SCHERER SECONDED THE MOTION.
Further discussion on A.B. 523 was initiated by Mr. Scherer. Chairman Sader responded to Mr. Scherer's concerns and stated a proposed change had been made by Judge Gaston and was addressed in the correspondence dated May 3, 1993. The proposed amendment read, "all the Family Court Judges in the south propose that Item (f),: (Judicial approval of the compromise of a claim of a minor), should be deleted from the jurisdiction of the Family Court. Judge Jordan agreed that such an exclusion was in order. The subject matter more properly belongs to the general jurisdiction courts which handle all of the other personal injury claims. Although I have not polled the personal injury attorneys, I am quite confident that they would agree with this change."
Mr. Sader maintained current law required minors must have suffered alleged personal injury and judges must have approved compromise of the claims before they could be entered into. There were procedures and regular civil actions which would be tried by district court judges, not family court judges. The approvals of claims were made within the jurisdiction of the family courts. The suggested amendment to A.B. 523 disputed this and maintained the cases should remain in the district courts because personal injury actions were not conducted in family courts. Judge Gaston concurred and noted the personal injury attorneys were aware of this
Mr. Scherer noted a representative of the Nevada Trial Lawyers Association had testified during the 1991 Legislative Session they did not want these provisions in the bill. He did not feel it was a major issue and, as he recalled, the preference was the cases remain in the district courts.
Chairman Sader noted the maker of the motion on A.B. 523 was Mr. Toomin who agreed to rescind his motion. The maker of the second motion, Mr. Scherer, rescinded the second motion.
ASSEMBLYMAN TOOMIN MOVED AMEND AND DO PASS.
ASSEMBLYMAN SCHERER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Mr. Haller would handle A.B. 523 on the Assembly floor.
ASSEMBLY BILL NO. 73 Prohibits criminal neglect of patients
First Reprint in medical facilities.
Chairman Sader noted A.B. 73 had been held in subcommittee chaired by Mr. Gibbons. The bill had been heard a couple of times; during the final hearing, there were some lingering concerns regarding the provisions contained in the amendment which established a criminal neglect standard.
Mr. Gibbons stated the concerns expressed were those primarily of the Attorney General's Office. He informed the committee members, after the subcommittee meeting, they had reached an accommodation with those interested and affected parties in terms of allowing A.B. 73 to proceed forward as it currently read. Those concerns were expressed by Mr. Tim Taylor which addressed the inclusion of nursing expertise in the investigative phase. He also suggested expanding the definition of "facility to include an owner". Mr. Gibbons stated the majority of the support for the bill would evaporate if the committee went forward with the minor amendments. He noted the Attorney General's Office was cordial enough to rescind their position and allow the bill to proceed. Mr. Gibbons concluded A.B. 73 came out of the subcommittee in the first reprint in order to expedite it through the process.
ASSEMBLYMAN GIBBONS MOVED DO PASS AS AMENDED ON THE FIRST REPRINT.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
Mr. Scherer emphasized the amendment addressed the concerns which surfaced during the subcommittee hearing. He would support the bill as amended.
Mr. Sader believed the issues addressed would be an area subject to controversy. He commended the subcommittee on reconciling interest although he noted there would be individuals uncomfortable with the existing language and they would not be supportive. He contended it was better to proceed forward than to indefinitely postpone the bill. He stated he would support the motion.
Mr. Toomin contended there were fiscal notes on A.B. 73 which had been discussed. Expenditures for FY 1993/1994 was $85,000 and for FY 1994/1995 the projected costs were estimated to be $83,000. He was not sure if the fiscal matter would proceed to the Ways and Means Committee. Chairman Sader noted the fiscal note addressed would change the motion.
Ms. Mary Liveratti, Deputy Administrator, Nevada Department of Human Resources, Division for Aging Services, requested the committee delete the fiscal note for the Division for Aging Services because it would not be necessary with the revision. She stated the fiscal note on the Division for Aging Services for the first year was projected to be $85,807 and $82,631 for the succeeding year. Chairman Sader requested a written confirmation from the Division of Aging Services to be presented to the Ways and Means Committee Chairman who would be concerned as to why the bill would not go to the Ways and Means Committee.
THE DO PASS AS AMENDED MOTION CARRIED UNANIMOUSLY.
Mr. Gibbons would handle A.B. 73 on the Assembly floor.
ASSEMBLY BILL NO. 462 Requires suppliers of mobile telephone service to provide free access to emergency telephone numbers and provides penalties for theft of mobile telephone service.
Ms. Smith chaired the subcommittee on A.B. 462. The proposed amendments had been made on copies of the bill summaries for clarity, Exhibit G. She maintained the notification aspects in the bill had been deleted because the provisions did not deal with user fraud in the traditional sense. The intent was to address more covert activities.
Ms. Smith stated the proposed amendments simplified the penalties. She included copies of Nevada Revised Statute 193.155 - Penalty for public offense proportionate to value of property affected or loss resulting from offense and NRS 205.920 - Obtaining or attempting to obtain telephone or telegraph service with intent to avoid payment. Ms. Smith added the original penalties contained in A.B. 462 would be deleted. The proposed penalties were addressed on the second page of Exhibit G and read, "Sec. 6. Unless a greater penalty is provided in NRS 205.920, a person who violates the provisions of section 4 of this act is guilty of a public offense, as prescribed in NRS 193.155, proportionate to the value of the service obtained or the loss resulting from the violation, and in no event less that a misdemeanor.".
Ms. Smith brought attention to the proposed amendment contained in Exhibit G, page 2, which read as follows, "Sec. 8. This act becomes effective upon passage and approval.". She emphasized there was a need for an additional amendment due to the deletion of Section 3 and additional sections would need to be renamed. Chairman Sader noted the bill drafter would make the appropriate changes.
Chairman Sader informed the committee members Mr. Bonaventura held the fiscal note on A.B. 462. As Ms. Smith understood, anytime new crimes were addressed, there would be fiscal notes. Chairman Sader queried if felony provisions had been addressed in the proposed amendments. Ms. Smith confirmed the amendments did contain felony provisions. Chairman Sader added, if the crimes committed were in excess of the monetary threshold of $250, felony provisions applied.
Ms. Smith addressed Mr. Regan's concern with regard to protecting consumers in circumstances where individuals got control of their phones. She maintained the credit card standard of $50 was addressed under federal law and not state statute. Because the policy was already in existence with the utility companies, she contended the issue was not necessary to be addressed as a state statute.
Mr. Carpenter asked what was expected to happen after the removal of the notification procedures. In response, Mr. Sader stated there was not a constitutional problem associated with this as individuals were normally not notified they were committing crimes before being apprehended or prosecuted.
Chairman Sader pointed out NRS 205.920 addressed felony charges when the services exceeded $250. Ms. Smith stated the penalties which pertained to this provision had not been changed but those penalties already in existences had been incorporated. Chairman Sader reiterated the existence of a fiscal note. Ms. Smith responded when situations existed where individuals would become incarcerated, there would be a fiscal impact.
Mr. Gibbons focused attention on A.B. 462, Section 4, subsection 1 which addressed the new language "facilitate use". He asked how the attempt to facilitate the use without payment would be accomplished. Ms. Smith responded by stating this had to do with the piracy aspects of the bill. The language proposed had been decided upon by the mobile telephone industry who believed this language more accurately reflected the crime. Ms. Smith noted individuals addressed in this bill had not committed the crimes but had instructed others how to alter the technical mechanisms for illegal use.
Mr. Gibbons referenced A.B. 462, Section 4, subsection 3, and asked why the intent language had been deleted on the inference of the conduct from the proof. Chairman Sader noted both provisions which dealt with notifications and the notification requirements were being deleted. He suggested retaining the language which pertained to "requisite intent" and "notice".
Mr. Gibbons addressed the provisions contained in A.B. 462, Section 4, subsection 3 which read, "Maintain an ability to connect, by physical, electronic or other means, with facilities, components or devises..." He pointed to the proposed language in Section 4, subsection 1, Exhibit G, "or facilitate use". He queried the broad definition of "facilitate use" with regard to the ancillary aspects which could develop within the industry such as pirating mobile phone services.
Ms. Smith contended the language in the proposed amendment was not necessary and would complicate as well as create problems. The telephone industry preferred the proposed language be deleted. Mr. Ben Graham, legislative liaison, Nevada District Attorney's Association, alleged he had not had the opportunity to review the suggested language proposed by Ms. Smith. Mr. Sader noted the issues which had been raised regarding the enforceability of the proposed language. He suggested the committee vote for amending A.B. 462 at this time and request determination by the law enforcement community.
Mr. Anderson brought attention to A.B. 462, Section 4, which read, "It is unlawful for a person knowingly or with the intent to avoid payment in full for the service obtained to:" He asked if individuals had not paid for mobile phone services, would they be charged. He noted under Section 4, subsection 3, it appeared individuals still maintained the ability to connect by physical or electronic means. Chairman Sader stated it appeared Section 3 was tied to the concept of connecting with the intent not to pay for the service. In other words, it was not the fact there was a non-payment history. The fact was individuals had connected in such a way they did not intend to pay for the services. The services had been installed illegally.
Mr. Scherer noted most of the concerns had been addressed under the first part of Section 4 which applied to all the subsections. The provision stated, "It is unlawful for a person knowingly or with the intent to avoid payment in full for the service obtained to:". He addressed NRS 205.920 which mandated the penalty of one to ten years which he felt was excessive for this type of crime. He suggested the ten year maximum penalty be cut to six years. Mr. Scherer concurred with the amendment proposed by Ms. Smith to include the penalties. To clarify the proposal, the penalties under NRS 205.920 would be changed from one to ten years to one to six years.
Ms. Smith contended the addressed crime was extensive as it often entailed drug sales and other illicit activities. This was the reasoning behind the penalties. She noted the intent was not to amend the section contained in NRS 205.920.
Mr. Sader noted the motion on the floor was to amend A.B. 462 with Ms. Smith's suggestion as well as Mr. Scherer's amendment to NRS 205.920, subsection 2, which changed the ten year maximum penalty to a six year maximum penalty.
Mr. Gibbons stated he concurred with the proposed penalty reduction from one to ten years down to one to six years. He contended there were other telephone violations but these should not be the reasons for incarcerating individuals. The other illegal activities should be the basis for longer incarcer-ations. Due to the overcrowding conditions prevalent in the holding facilities, he contended jails should be used for more serious criminal acts. He supported the motion.
Mr. Schneider concurred individuals would be charged with telephone fraud and other crimes would be addressed in those areas.
Ms. Smith contended her concern was not with mending the current penalty statutes which should be a separate issue. The committee was taking the opportunity to change other provisions which she did not find appropriate.
Chairman Sader informed the committee the motion on the floor pertained to the issue of amending the bill which would be brought back before the committee at a later time for further consideration. Chairman Sader noted there was no motion before the committee to amend.
ASSEMBLYMAN SCHERER MOVED TO AMEND.
ASSEMBLYMAN GIBBONS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.
Chairman Sader would assist in redrafting the proposed amendment.
ASSEMBLY BILL NO. 204 Prohibits certain actions by court and makes voidable provisions of settlement agreement that conceal information regarding tortious conduct of governmental entity.
Chairman Sader stated Mr. Williams was the prime sponsor of A.B. 204. The bill had been heard earlier during which time a number of concerns had been expressed. He informed the bill had not been placed in subcommittee and Mr. Williams worked on the issues. Mr. Sader presented copies of a drafted outline of the proposed changes contained in the handout titled A.B. 204, Exhibit H.
As the handout had not been widely circulated, Mr. Sader suggested A.B. 204 be amended and presented before the committee in its amended version. The bill contained various provisions which required concealment of court documents. He stated the testimony brought about by the Las Vegas Metropolitan Police Department related to information on file at the department. The provisions would apply to all local governments. The purpose was not to mandate what the courts could conceal.
Mr. Sader suggested an open records approach which would require state and local governments publish certain information through annual summaries. The information was outlined in sections one through five of Exhibit H. Suggested amendment 1, Exhibit H, would mandate governmental agencies, on a calendar basis, post listings of all claims paid during the previous year, with no exclusions. The names of the claimants, the amounts paid which would include fees and costs to the claimants, and the types of wrongs alleged would be required to be posted.
Mr. Sader addressed suggested amendment 2, Exhibit H and noted examples of the listings would be wrongful terminations, false arrests, assaults and battery, etc. Judgments which had been entered but not paid, such as those on appeal, etc., would be required to be posted. The posted lists would also entail claims which had been made and judgments entered but not paid.
Mr. Sader focused attention on suggested amendment 3, Exhibit H, which required lists of claims made but pending for other reasons such as not having been litigated or disputed, with the same information with the names of the claimants, etc. Here there would be costs alleged rather than costs paid.
Mr. Sader stated suggested amendment 4, Exhibit H would require different summaries. The provision should read, "Summary of total claims paid and made by category of wrong..." which would address the other types of claims. He noted, instead of listing all the defendants, it would provide lists of all the false arrest claims, battery claims, etc. Mr. Williams' testimony alleged trends could be ascertained particularly in cases where there were allegations of widespread police brutality.
Mr. Sader addressed the proposed amendment 5, Exhibit H, which would mandate there could not be court orders to conceal information which would authorize the omission from compilation. He contended this amendment was important because series of cases could not be sealed in the courts to avoid being posted in the summaries. The intent was not only to make the information public but also to take away the incentive to conceal these cases. The whole orientation would be to require local governments to summarize rather than require the courts to post them. This would be easier to enforce and less susceptible to being overturned by the courts. He requested the committee amend A.B. 204 and review the amendments when returned in redrafted form before making any determinations.
Mr. Sader responded affirmatively to Mr. Anderson's concern and noted local governments would be participating in the information closures and would not be authorized under this statute to exclude themselves from the compilations. Court orders would not be effective as to this information. He maintained there were other reasons for disclosures such as in the identities of witnesses, victims, etc.
Mr. Carpenter noted there would be circumstances where victims requested documents be concealed. He questioned if the proposed provisions would take the authority to conceal records from court jurisdiction and make it difficult to settle cases. Mr. Sader noted legitimate disputes could be raised. He surmised, since this was taxpayer money, the obligation for disclosure would be different than for private parties; the public interest would be different as well. This was why he felt the general intent of A.B. 204 was well placed.
Mr. Gibbons addressed the suggested amendment 1, Exhibit H, "All claims paid of any amounts (no exclusions); names of the claimants, etc." He presented the scenario where minors had been placed in custody and mistreated and the juveniles' name had been excluded from being divulged by law. If the minors became the claimants again, law would mandate public notification of the minors' name and types of crimes. He requested consideration juveniles be retained under the disclosure requirements. Mr. Sader noted, information which disclosed minors had made claims and had been paid claims could be summarized in such a way to conceal the fact the minors had been arrested.
Mr. Gibbons maintained in cases of police brutality, inference might be drawn to this fact. Mr. Sader noted this was a good point to consider. He questioned if the claimants under those circumstances would be the parents or the children; he surmised, theoretically, it could be the children. Mr. Gibbons replied this would be dependent upon whether guardianships had been established for the children. Mr. Sader noted in these types of alleged wrongdoings, false arrests would clearly disclose the identities of the juveniles although they might have the option to not make the claim if they did not want the names associated with the activities. This did complicate the confidentiality for juveniles.
Mr. Collins stated A.B. 364 through A.B. 368 addressed public and private information. He questioned if there would be conflict between the four bills should the present amended language be adopted. Mr. Sader contended the proposed amendments did not state this type of information was or was not confidential. The open records law pertained to circumstances which were deemed confidential or not confidential. A.B. 204 would mandate summaries be published for public information. Mr. Sader concurred this aspect of the provisions required further contemplation.
Mr. Bonaventura did not see where the provisions in A.B. 204 allowed individuals could obtain the information. The proposed amendment would require local governments to compile annual summaries but the provisos did not state the summaries had to be made available to the public. If the summaries were mandated to be made available to the public, Mr. Bonaventura suggested there be set fees for use of the documents. Mr. Sader concurred and noted the amendment would be changed to clarify this would be public record. He stated governmental entities were currently permitted to charge copying fees which had been disputed issues on the public records question. He felt charging fees other than copying fees would be disincentives to the public for information.
Mr. Regan addressed his concern regarding the public record law and how the bill would handle settlements to avoid litigation. Mr. Sader noted these concerns would be addressed and provisions would be included.
ASSEMBLYMAN SCHERER MOTIONED TO AMEND A.B. 204.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
ASSEMBLY BILL NO. 490 Prohibits driving if subsequent test shows presence of alcohol.
Chairman Sader noted A.B. 490 had been passed as an amend and do pass motion during the previous hearing. Previous concerns testified subsection C of the repealed section would have to be retained. He noted the bill drafter had taken exception to the language and provisions in subsection C and had taken the issues up with Captain Togneri, Washoe County Sheriff's Office. Mr. Sader read the written comment: "Captain Togneri's concern was that we need to keep this definition for use in sections one and two of the bill. I showed him that...(NRS sections noted)... contain this definition and apply to sections one and two. He now agrees that no amendment is necessary so the bill should be reported out as a do pass if you wish to consider it." Chairman Sader noted this was a technical bill drafters request but the committee needed to reconsider the action to amend and do pass and then do pass A.B. 490.
ASSEMBLYMAN ANDERSON MOVED TO RECONSIDER PREVIOUS ACTION ON A.B. 490.
ASSEMBLYMAN GIBBONS SECONDED THE MOTION.
THE MOTION CARRIED.
ASSEMBLYMAN TOOMIN MOVED DO PASS ON A.B. 490.
ASSEMBLYMAN BONAVENTURA SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Ms. Smith would handle A.B. 490 on the Assembly floor.
Chairman Sader presented a request for committee introduction of BDR 32-972. The bill draft request had been requested by the Judiciary Committee although it would not be heard by the committee as it dealt with taxation of alcoholic beverages on Indian reservations.
ASSEMBLYMAN REGAN MOVED FOR COMMITTEE INTRODUCTION OF BDR 32-972.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Mr. Anderson would handle BDR 32-972 on the Assembly floor.
There being no further business to come before the committee, Chairman Sader closed the hearing at 9:45 a.m.
RESPECTFULLY SUBMITTED BY
Jessie Caple Committee Secretary
??
Assembly Committee on Judiciary
May 7, 1993
Page: 1