MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
May 12, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:07 a.m., May 12, 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. 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:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Mr. Marc P. Cardinalli, Deputy Attorney General, Office of the Attorney General
Deputy Chief Paul N. Conner, Detention Services Division, Las Vegas Metropolitan Police Department
Captain Randy Oaks, Legislative Liaison, Las Vegas Metropolitan Police Department
Lieutenant James Nadeau, Legislative Liaison, Washoe County Sheriff's Office
Mr. George McNally, President, Nevada Trial Lawyers Association
Mr. William Bradley, Former President, Nevada Trial Lawyers Association
Ms. Victoria Riley, Nevada Trial Lawyers Association
Dr. Thomas Brady, M.D., Nevada State Medical Association, The Doctors Insurance Company
Mr. Bill Prezant, The Doctors Insurance Company
Mr. Charles O'Brien, The Doctors Insurance Company
Ms. Judy Jacoboni, Mothers Against Drunk Driving, Lyon County Chapter
Dr. John Williamson, M.D.
Mr. Jerry Ash, President Nevada Hospital Association, Nevada Liability Cooperative of Nevada
Mr. Fred Hillerby, Nevada Medical Liability Insurance Company
After roll call, Chairman Sader opened the hearing at 8:07 a.m.
ASSEMBLY BILL NO. 310 Provides that only one cause of action for medical malpractice arises from single action or omission or series of actions or omissions.
Mr. Charles O'Brien, representing the Doctor's Insurance Company, testified in favor of A.B. 310. To support his presentation, he presented the Rubin case, Case No. 20543, Insurance Corporation of America, v. Alexander J. Rubin, M.D., Exhibit C. According to Mr. O'Brien, in the Rubin case, a child with a brain tumor had been diagnosed improperly and the attending physician, Dr. Rubin, had been litigated against on the grounds of several misdiagnosed office visits which amounted to $200,000 per claim and an aggregated total of $600,000.
Mr. O'Brien stated Dr. Rubin had entered into a stipulated settlement by which he admitted liability to protect his assets as he had made different diagnoses on each of the five separate visits. The Nevada Supreme Court was to decide which set of policy limits applied, the $200,000 for one occurrence, or $600,000 which covered the doctor for the year for each occurrence. In order to reach a result which would bring a modicum of money to the patient, the Nevada Supreme court issued the Rubin opinion. The court had gone through the existing law and cited cases where other state courts had determined there could be many occurrences, although if they resulted in one injury, this would be one policy limit.
Mr. O'Brien pointed out, the policy in the state was $1 million for each occurrence and $3 million for one year. He maintained there were plaintiffs demanding settlements on $3 million. He informed the committee the rates were not predicated on this. He stated the insurance company he represented was an exchange where doctors insured other doctors; profits could not be applied in terms of lowering rates or returning the premiums to the doctors.
Mr. O'Brien maintained there had been problems with health care in the rural areas as well as the availability of obstetrical services to women. He contended, if A.B. 310 passed and multiple limits were mandated to be paid out on single occurrences, the rates would be drastically raised.
Mr. O'Brien informed the committee, in the insurance industry, it was an indication there were problems when rates were in excess of 110 percent. He asserted ten percent of the operating revenues came from investing in bonds and stocks as insurance companies could not exist on premiums alone. The average computation for the previous two years for the state was 126 percent, 128 percent for 1991, and 122 percent for 1992; these were bad statistics. He alleged if the insurance companies were required to pay double limits on every case, the rates would be increased by 100 percent which would cause a health care crisis in the state.
Dr. Thomas Brady, past president of the Nevada State Medical Association and co-founder of the Nevada Medical Legal Screening Panel, testified in support of A.B. 310. He contended the Supreme Court decision on the Rubin case determined visits to doctors constituted a series of separate occurrences, not single courses of treatment. According to Dr. Brady, this ruling effectively exposed the aggregate policy limit in every case. He realized the insurers were in complete control over the language of policies which had been pointed out in the Supreme Court decision. In the Rubin case, the entire aggregate decision had been exposed. If doctors were to be exposed at full limits, they would experience rapidly increasing insurance premiums which might become prohibitively expensive.
Dr. Brady favored defining the provision in A.B. 310 to read, "that no more than one cause of action involving medical malpractice arises from a single action or a series of actions or omissions by a physician hospital or employee of a hospital in rendering services." This definition, under law, precluded physicians from setting up insurance companies in deposition by defining separate occurrences as Dr. Rubin had done. Dr. Rubin had set up and exposed his aggregate limit which appeared to have settled himself out of the case at the policy limits which had protected his assets. Dr. Brady did not feel this was right.
Dr. Brady added, the standard insurance coverage most physicians purchased was $1 million and $3 million. In the Rubin case, the insurance carrier had not been one of the three larger insurance riders in the state. According to Dr. Brady, in order for Dr. Rubin to expand his limits and protect his assets he had settled out and exposed the entire policy limit. If this was going to be the standard practice, Dr. Brady surmised it would create major problems for all physicians in the state. Liability protection must be reliable and actuarial predictable or the system would fail, he surmised.
Dr. John Williamson, internist and cardiologist, testified in support of A.B. 310. He stated he was insured with Nevada Medical Liability and he was president of the Washoe County Medical Society. He cited the Rubin case and noted, in the first cycle of the negotiations, Dr. Rubin had benefitted as he was able to expand his coverage. According to Dr. Williamson, in the view of Dr. Rubin's insurance company, he had paid premiums for one type of insurance coverage and had collected from another type of coverage. The point was Dr. Rubin had benefitted. In the second cycle, as Dr. Williamson understood, rates would increase because policy limits would be determined to be the aggregate rather than the occurrence. The third concern, Dr. Williamson continued, was primary care would be noticeably affected.
Dr. Williamson noted a large number of the professional membership were involved in primary care as internists, pediatricians and family doctors. Brain, heart and orthopedic surgeons were identifiable surgical, single occurrences. These types of medical practitioners conducted daily office visits. The physicians' concerns were that each office visit would be treated as separate medical events. He alleged one misdiagnoses could be followed by other concurrent misdiagnoses. The primary care givers were concerned with the distinction between the occurrence limits and the aggregate limits of their policies and this would force the insurance companies to levy higher premium rates. The physicians could not pass higher rates onto the clients. Many primary care givers were abandoning areas of exposure. Dr. Williamson did not ask the committee to make determinations for protection but provide identifiable ground rules and guidance.
Mr. Prezant testified before the committee in favor of passage of A.B. 310.
Mr. Fred Hillerby represented the Nevada Medical Liability Insurance Company and testified in favor of A.B. 310. He contended the case had been well articulated for the proposal of this legislation. He added he insured 550 Nevada physicians of which the majority of their policies were $1 million and $3 million.
Mr. Jerry Ash, President of the Nevada Hospital Association, represented the Liability Cooperative of Nevada which was a self-insured pool of 12 hospitals within the state and the rural hospitals and some small urban hospitals. He maintained the membership supported A.B. 310 although there were some concerns. According to Mr. Ash, the previous legislature had allowed for the formation of the liability cooperative. The rates for medical malpractice insurance for the 12 participating hospitals, or 40 percent, had been decreased. He contended multiple awards would increase insurance rates.
Mr. Sader stated the Judiciary Committee had been asked, during several legislative sessions, to act as an appellate court to the Nevada Supreme Court. The Rubin case, as Mr. Sader understood, suggested an adoption of the cause theory. Several of the cases cited had lead to opposite results than what had been achieved in the Rubin case. According to Mr. Sader, the Rubin case had adopted the cause theory although a set of facts surfaced which supported the cases cited. Because different symptoms, diagnoses, courses of treatment and independent assessments for each office visit had been determined, the conclusion was each office visit had been an independent occurrence and not a series of cases as cited in the alleged cases. Mr. Sader surmised this might have been a correct interpretation of the case. He presented questions for committee consideration and asked if the Rubin case would cause reaction on the issue of occurrences because doctors would be exposed to liability for each visit, or had the Rubin case been confined to its peculiar facts.
Mr. O'Brien replied Mr. Sader's summation was a good adjective for the faction of the Rubin case. He emphasized the facts in the Rubin case had been presented before the Nevada Supreme Court, not as a result of a dispute between the judge and jury, but as a result of a document Dr. Rubin signed wherein he had admitted liability and acknowledged he charged different diagnoses on each office visit. Mr. Sader interjected and asserted it appeared Dr. Rubin initiated the affidavit to circumspect the case law. Mr. O'Brien responded by stating the aforementioned affidavit had not been signed until the ruling from the court had been obtained. The Rubin hearing had been a collusive dispute. Mr. O'Brien surmised Dr. Rubin and the attorneys had been aware the liability limits were too low. He contended the $200,000 paid to the young victim in the Rubin case was outrageously insignificant and there should have been a higher limit determined.
Mr. Sader directed his concern to Mr. O'Brien and asked if cases could stand under the proposition each occurrence might be interpreted as separate occurrences. In reply, Mr. O'Brien said he could only reference how the plaintiffs interpreted the case as they had demanded policy limits on separate occasions of the same act. The Rubin case had been interpreted the policy limits had been up on each visit. Mr. Sader alleged these types of cases would find their way to the courts and more case law would be generated which might clarify the issues if the committee did not act.
Mr. O'Brien stated, during the Rubin hearing, the language of the ICA contract had not been cited. He alleged the courts in the Rubin case could have made a clean decision to assist the young victim but had failed to do so. The law had been circumvented in this case and the attorney for the plaintiff had argued there were two policy limits. Due to the outcome of the Rubin trial, insurance carriers alleged they needed to raise the insurance rates in Nevada. Concerned parties had decided to approach the legislature for clarification. Mr. O'Brien pointed out none of the insurance carriers were insuring against each separate office visit as separate policy limits.
Mr. Sader asked if the issues would be addressed if the contract occurrences were defined in such a way to clarify what the intended occurrences were. Mr. O'Brien responded, the decision made on the Rubin case had been a gnarled interpretation and the logic behind the case had been bizarre. He had no confidence in the decision of the Nevada Supreme Court particularly since the ICA language had not been addressed. If the courts had adhered to the ICA language and had determined the language was inappropriate, he would have agreed to try and redraft.
Mr. Bill Prezant represented the Doctors Company and testified in support of A.B. 310. He stated, until determination was made by the Supreme Court, the issues had to be dealt with on a daily basis.
Mr. George McNally, President, Nevada Trial Lawyers Association, testified in opposition to the passage of A.B. 310. He brought attention to Section 1, line 3, which read, "No more than one cause of action...". He noted, in the business of litigation, documents of complaint were filed where several causes of actions would be alleged. He maintained it would be impossible to list one cause of action as the result of medical negligence.
Mr. William Bradley, former president, Nevada Trial Lawyers Association, testified in opposition to A.B. 310. He maintained, in reference to the issue of the causes of action, they were not addressing the damage side of the cases where there were lost earnings but the various parties who could initiate causes of action based on the negligence of physicians or others. He pointed out the provisions in the bill which limited claims to one cause of action, it was not the intent of the language to limit it to injured persons' claims, or widows, or surviving childrens' claims. He alleged there was a technical problem in the bill.
Mr. Sader concurred with the unintended technical problem in the language and agreed it should be clarified.
Mr. Bradley stated, in the Rubin case, it was evident the insurance company had elected not to controvert Dr. Rubin's affidavit. There had been a claim regarding collusiveness on behalf of Dr. Rubin. Mr. Bradley surmised Dr. Rubin apparently felt threatened because he had not received cooperation from his insurance company and had wanted to settle whereas the insurance company had not. According to Mr. Brady, Dr. Rubin did what he was compelled to do in order to protect his assets by drafting an affidavit which stated each office visit was a different diagnosis and treatment. The Nevada Supreme Court had no previous determinations to utilize as guidelines.
Mr. Bradley maintained it was inappropriate for insurance carriers to come before the legislature requesting them to dictate insurance policies. He argued this was not a malpractice issue but what was right and fair under the Nevada Insurance law.
Mr. Haller addressed A.B. 310, line 3 which alluded to one cause of action. He suggested amending the term "one cause" to "claim or complaint".
Mr. Scherer referenced previous testimony which alluded Dr. Rubin had found himself compelled to write the affidavit due to the position his insurance carrier had placed him. Mr. Scherer emphasized affidavits were taken under oath and it had been Dr. Rubin's obligation to testify truthfully. He posed the question how could Dr. Rubin be compelled by his insurance company to tell the truth. In response, Mr. Bradly stated Dr. Rubin truly believed entertaining different diagnoses and prescribing different courses of treatment and follow up had been separate occurrences. Mr. Scherer took exception to the inference Dr. Rubin's insurance company had placed him in the situation. Mr. Bradley contended when relationships between insurance carriers and insurers broke down, the insurers were often on their own which did not influence their ability to provide truthful affidavits.
As Ms. Smith understood, insurance companies were required to pay the amounts they had contracted for. Mr. Bradley noted the parties involved in the Rubin case had paid the young victim $200,000 in damages; the one limit had applied. The trial court had made the determination. The Nevada Supreme Court had not agreed with the determination of the trial court. According to Mr. Bradley, if the Supreme Court had determined there were separate occurrences, the insurance company would have been directed to pay $600,000 in damages. The parties had agreed upon a stipulated set of facts which had been presented to the Nevada Supreme Court.
Mr. McNally clarified the evolution of the Rubin case through the court system. Since the issue was whether the case involved per occurrence limit at $200,000, or aggregate limits of either $600,000, the victim had been paid $200,000 and the remaining $400,000 in damages had been brought before the Nevada Supreme Court.
Mr. Bradley presented an additional determination made by the Nevada Supreme Court which reemphasized the court's position taken in the Rubin case which was the act caused the injury as an occurrence. The second case cited involved a driver of a vehicle who had driven over a pedestrian and then backed over him. In this case, the courts had determined, although driving forward over the victim constituted one act and driving backward constituted another, it was the act itself which had caused the injury. Mr. Bradley alleged this supported the per claim contention and the aggregate. He believed the court had expressed their opinion and would follow the cause effect.
Mr. Sader posed a concern to Mr. Prezant which related to the specific language contained in A.B. 310 which read, "... cause of action... arises from a single action or omission or series of actions or omissions...". He speculated the addressed language might cause interpretation problems.
Mr. Prezant responded by stating what the proposed language intended to address was that a series of actions or omissions resulted in the same injury. He believed the language would be subject to different interpretations. A.B. 310, Section 1, line 4, after the phrase, "series of actions or omissions," he suggested inserting the language, "resulting in the same injury," as it was consistent with the cases cited in the Rubin decision. Mr. Sader noted the intent appeared to relate back to resulting injuries. He suggested a redraft of the proposed language which would clarify the intent of the statutory change. Chairman Sader did not intend to create a subcommittee as the issue was significantly narrow and understood. He requested clarification of the proposed language before taking action on the bill.
Mr. O'Brien took issue with Mr. Bradley regarding the application of the case in that there was nothing in the language of the Rubin case which limited the intent to doctors. He was puzzled by the fact the Nevada Supreme Court had let the issue rest with the district court. The district court had ruled the entire series of acts constituted an aggregate and had exposed the aggregate.
Chairman Sader asked the sponsors of the bill to obtain a revised draft which would solve the language problems. The bill would be voted on during a subsequent hearing. Chairman Sader closed the hearing on A.B. 310.
SENATE BILL NO. 294 Authorizes board of county commissioners or governing body of First Reprint incorporated city to seek reimbursement for expenses incurred for supporting and maintaining prisoners in county or city jail or detention facility.
Captain Randy Oaks, representing the Las Vegas Metropolitan Police Department, testified in support of S.B. 294. He noted there had not been any opposition to the bill in the Senate. S.B. 294 had been introduced by the Metropolitan Police Department. According to Captain Oaks, the provisions would allow local governments which operated detention facilities to seek reimbursement for the expenses of confinement from those persons who had the ability to pay those costs.
Deputy Chief Paul Connor, Detention Services Division, Las Vegas Metropolitan Police Department, maintained the budget for the Clark County Detention Center was estimated to be $31 million per year. On a daily basis, there were approximately 1,450 inmates in the Clark County facility. He alleged the taxpayers were victimized by the crimes as they paid for the costs of apprehension, prosecution, judicial action and incarceration. He stated they would be remiss if they were not looking for ways to reduce those costs to the taxpayers.
Chief Connor testified to the success of the 1985 Prisoner Reimbursement Act instituted in Macomb County, Michigan where prison inmates were charged $30 per day for their stay in local jails. During fiscal year 1992, Macomb County received a net revenue of $750,000 from the prisoner reimbursement program after paying $76,000 in expenditures which represented a 15 percent return. Various collection methods had been used; inmates were billed after release, court actions were utilized, as well as garnishments, writs of execution and intercepted bail. Chief Connor stated the Clark County Detention Facility charged $30 per day for reimbursement per inmate. The incarceration costs per inmate in Clark County were approximately $64 per day.
Mr. Sader asked why Clark County had made the reimbursement cost $30 per day. Chief Connor replied the intent was to make the reimbursement costs reasonable and affordable. As in Macomb County, Clark County had asked that inmate medical expenses be part of the reimbursement. He added, Clark County currently spent $2 million per year for inmate medical care. He stated approximately 600 inmates reported to sick call on a daily basis; he surmised 50 to 65 percent of these inmates requested minor things such as aspirin, cough medicine, etc. This was unwarranted as it required a tremendous amount of staff time and cost. He emphasized the theory "pay for your stay" was applicable.
Chief Connor pointed out the inmates of the Clark County Detention Center spent $53,000 per month on snacks. Of the 1,360 inmates, they ordered approximately $12.41 worth of snacks two times per week. The law was directed toward those inmates who had the ability to pay; indigents were excluded. Child support payments and the victims of crime program took precedence.
Mr. Porter addressed the constitutionality of the provisions contained in S.B. 294. He asked if the U. S. Supreme Court had ruled whether prisoners could be mandated to pay for the cost of their incarceration as in the Macomb, Michigan detention center. Chief Connor was not aware if the U.S. Supreme Court had made any determinations as to the constitutionality of the law. He noted the law had been in effect in Macomb, Michigan and no issues had arisen he was aware of.
Mr. Porter stated his concern was directed along the lines of the equal protection analysis. He addressed S.B. 294, Section 6, subsection 2 (c), page 2, lines 38 through 41. As he understood, under the Fourteenth Amendment, all persons similarly situated would be treated equally. He maintained this appeared to be a situation where the affluent inmates were required to pay the cost of their incarceration and indigent prisoners did not. Chief Connor responded by stating there was a prohibition from having a debtors prison. Individuals could not be incarcerated because they did not have the ability to pay.
Mr. Porter addressed S.B. 294, Section 8, subsection 2, page 3, lines 41 through 43, which did not provide for good time credits. As he understood the provisions in the bill to read, when affluent inmates who had the ability to pay the costs of their incarceration did not cooperate, their incarceration was longer. The indigent inmates would not be involved in this type of situation as they did not have the financial means to pay for their incarceration. Chief Connor responded and stated the indigent inmates who cooperated would not be required to pay for their incarceration because they would have been determined unable to reimburse the county.
Mr. Porter contended the moneyed inmates who followed the same paths as the indigent inmates could conceivably end up serving longer sentences. Chief Connor alleged when the well-to-do inmates refused to cooperate, they would not receive good time credits; the same was applicable to the indigent inmates. Mr. Sader interjected and stated conceivably the poor inmates would not be in this situation because they did not have the ability to pay. Mr. Porter surmised the only inmates who had to cooperate were the individuals who had money. Chief Connor noted the opulent inmates who refused to cooperate would not receive good time credits and therefore would have to spend additional time in jail. This did not mean they were not going to pay as collection could be made through the courts.
To further clarify his position, Mr. Porter provided an example of two types of inmates, those who had the ability to pay for their incarceration and those who could not pay for their incarceration. He referenced S.B. 294, Section 6, subsection 2 (c), page 2 lines 38 through 41, which mandated, after the determination had been made, referencing page 2, the indigents were not longer addressed in the provisions. He alleged only the wealthy inmates would be addressed under S.B. 294, Section 8 which dealt with providing reimbursement. The inmates who had the ability to pay, as addressed on page 3, could be punished for their refusal to cooperate. According to Mr. Porter, the indigent inmates would never be addressed under page 3 of the bill. He asked how this was considered constitutional.
Chief Connor noted both types of inmates under Mr. Porter's analogy would be treated equally in regard to filling out the forms, regardless of their financial standing. Mr. Porter disagreed and stated the wealthy inmates were more exposed than the indigent inmates as the poor prisoners could receive good time credits. Chief Connor responded the affluent inmates could still cooperate and fill out the forms. Mr. Porter contended the affluent inmates were being treated differently because they were in a different category based on status which was unconstitutional, in his opinion.
Mr. Sader responded and stated the section of S.B. 294 which required inmates to pay for their incarceration expenses, appeared to be appropriate on a constitutional basis. He believed the issues contained in the provisions would be contained in Section 8 where inmates would not receive good time credits unless they filled out the forms. The provisions would mandate the inmates would be incarcerated for longer periods of time because they refused to pay for their incarceration. Chief Connor replied this was an inducement for the inmates to cooperate and divulge their financial situations. Mr. Sader added the issue was not with just filling out the forms. The problems lay with cooperation under the requirements outlined in subsection 1 which did not have anything to do with filling out the forms. The provisions dealt with the demand to pay the $30 per day or they would remain incarcerated longer. Chief Connor clarified the mandated $30 per day reimbursement costs would not be collected until after the inmates exited the holding facilities.
Chairman Sader walked through S.B. 294, Section 6, subsection 1, which mandated law enforcement to issue written demands for reimbursement. He noted, under S.B. 294, Section 7, subsection 1, when prisoners failed to make payment within 10 days, the district attorney had the option to initiate cause of action procedures. Under Section 8, which complied with requirements of subsection 1, the provisions did not apply to applications as it appeared the provisos referenced the demand to pay. Mr. Sader stated the provision addressed situations when inmates did not pay, they remained incarcerated longer. Chief Connor noted this was not the intent of the bill. The provisions had been lifted from the Macomb County statutes. Mr. Sader pointed to the language, "cooperate under the requirements of subsections 1 and 2 and 3 of Section 4", and noted Section 4 dealt with investigations and completing the forms, etc. Chief Connor concurred with the suggested change and noted this was the intent.
In response to Mr. Haller's question as to what the major changes had been in the Senate, Chief Connor replied the concern had been there was not a provision under Section 6, paragraph 2, which referenced the written demand. Also, there had not been provisions for child support and restitution of victims which should take priority to the county reimbursement.
Mr. Gibbons directed his concern with the recovery of fees after the inmates had been released and assessments directed toward any properties or assets of the individuals. How would the law enforcement entities deal with community property assets, separate properties of marriages held by one or more individuals, including the spouses of the convicted persons. Would this have any application of those persons being forced to pay restitution and jail costs of the convicted individuals. Chief Connor replied these were issues which would be determined by the district attorney who prosecuted the cases. He noted they would have to take into consideration the costs in trying to secure community property funds which would be too much of a burden. As in Macomb County, S.B. 294 would not entertain that type of action. Mr. Gibbons addressed Section 7, subsection 6, which allowed for hearings and the issuance of restraining orders. He maintained this would place burdens on persons other than the convicted individuals.
Mr. Carpenter addressed the rights of the inmates and believed the bill was creating different classes of inmates. Chief Connor clarified the inmates were not in prison, they were in jail on lesser offenses than inmates incarcerated in penal institutions. These inmates most likely had viable employment and the ability to pay for their incarceration. He asked why the taxpayers should be expected to pay for the incarceration and not the individuals who committed the crimes.
Chief Connor drew another analogy and maintained there were public defenders available for inmates who could not afford attorneys and this was paid for by taxpayers. He alleged there was already class discrimination in the criminal justice system.
In responding to Mr. Anderson's concern, Chief Connor noted some inmates were incarcerated for one day. Mr. Anderson alleged individuals were incarcerated to protect society and he felt it was the responsibility of the taxpayers to pay for the incarceration expenses. Chief Connor did not agree with Mr. Anderson's philosophy. The defendants applied good time credits toward the time served during pretrial detention. His contention was, in this case, should not the community be credited for the incarceration time.
Mr. Toomin emphasized laws and incarceration were deterrents to crime.
Mr. Collins alleged incarcerated individuals already paid toward their prison expenses through taxes. He asked if this was considered double taxation for those inmates who had the ability to pay for their incarceration. Chief Connor argued why should taxpayers pay for incarceration expenses as it was not fair to those taxpayers who had not been arrested. He noted bond issues were issued for capital construction of jail facilities. It cost $31 million annually to maintain and staff the detention facility; $1 would be recaptured from the jail reimbursement program.
Ms. Smith questioned the provision mandating offenders pay for the costs of incarceration prior to the determination of guilty of the charges. She contended individuals were considered innocent until proven guilty. Captain Oaks replied the collection of incarceration expenditures would not be made until after convictions had been levied. Credit for time already served would be applied at the time of conviction. He maintained offenders still took up time and space in jails.
Mr. Petrak addressed circumstances where inmates were incarcerated for 30 days and owed incarceration costs. He brought attention to those inmates who lounged around and refused to get involved in support programs. He was adamantly opposed to catering to inmates. He contended inmates should pay for the time they were incarcerated and believed the reimbursement costs should be increased to $60.
Mr. Regan referenced S.B. 294, Section 13, subsection 2, page 4, which read, "The sheriffs, chiefs of police and town marshals shall see that the prisoners under their care are kept at labor for reasonable amounts of time within the jail or detention facility, on public works in the county, city or town, or as part of a program of release for work established pursuant to ....." He asked if inmates were paid for the work they performed. Chief Connor replied inmates were not paid for this work. He noted most individuals incarcerated in the Clark County Jail had not been convicted but were held in pre-detention centers. Those inmates would have been released on bail or on their own recognizance. These inmates were not reimbursed for their work by cash but with good time credit.
Mr. Bonaventura suggested providing the option for those individuals who could not pay to work off their incarceration expenses. He noted in federal penitentiaries inmates were self sufficient as they worked in prison industries. Chief Connor acknowledged the suggestion and said the county did not have prison industry as most individuals alluded to were incarcerated from 7 to 14 days. He noted the question was what would happen in cases where the individuals did not show up for the work program. Prior to conviction, inmates could not be forced to do anything although after conviction this was a viable consideration.
Mr. Sader referenced S.B. 294, Section 6, subsection 2, which would mandate the jailer to investigate the financial status of the inmates and make subjective decisions as to whether or not to issue demands for payment. He suggested the provisions state payments or other obligations had priority over the obligations to pay jail expenses. Captain Oaks responded by saying the specific language had been added by the Senate Judiciary Committee.
Mr. Sader asked if this would be an appealable determination. If inmates approached the courts and sought civil judgment, would the defense be the demands should not have been issued in the first place due to the support obligations. Captain Oaks replied the issues were covered under S.B. 294, Section 7, subsection 4, where the language stated, "Before entering any order on behalf of the county or city against a prisoner, the court shall consider any obligation the prisoner may have to support .....". Mr. Sader asked if this authorized defenses as to whether or not the written demands were appropriate. He noted the provision which read, "the court shall consider an obligation", and asked if this would connote the demands were appropriate and the courts could determine they would not enforce the sheriffs' written demands because the prisoners had obligations for support, etc. He maintained the statutes were not clear in cases where courts were presented with questions of debts.
In reply, Mr. Connor stated the intent of the provisions was the courts would take into consideration other obligations such as child support or victims of restitution, before the counties would receive compensation for incarceration expenses. Mr. Sader noted the counties would not received reimbursement when inmates received their orders. He suggested the provisions allowed for the question of priorities as done in other areas of the statute which made support, restitution and administrative assessments higher priorities for collection on judgments than the obligations to satisfy written demands for jail expenses. Captain Oaks noted they had no objection to this concept.
Lieutenant James Nadeau, legislative liaison, Washoe County Sheriff's Department, supported the proposed legislation on S.B. 294 as it was important to defer county jail expenses. He noted the Washoe County detention facility's annual budget was approximately $15 million. Any efforts to recapture those costs were important. He noted the Washoe County Detention Facility inmate incarceration expenses increased from $56 per day to approximately $60 per day for each inmate since the last legislative session. Any uncaptured reimbursements would be dealt with in small claims court. The average incarceration was approximately 10 days and cost approximately $300. He noted these were not situations where residences and assets would be taken to recapture funds.
During the previous legislative session, Lieutenant Nadeau testified the law enforcement entities had requested a variety of programs to reduce the prison population which had increased from 500 inmates to 744 inmates in the Washoe County detention facility. The programs legislated had reduced the prison population by 5 percent and was 40 to 50 inmates less than if the programs had not been mandated. He cited work furlough programs where inmates earned money during the day and spent nights in the holding facilities. Under the weekender programs, inmates reimbursed the county $25 per day toward incarceration costs. He noted the proposed legislation would be an additional program which would assist in recovering expenditures. Lieutenant Nadeau supported the reimbursement concepts.
Ms. Judy Jacoboni, President, Mothers Against Drunk Driving, Lyon County Chapter, testified she had been present during the hearing before the Senate. Her concern at that time was there had not been a provision in the original bill for a priority scheme. Prior court assessments and victim restitution, as defined by the court, would not be superseded by the demands made by the county.
According to Ms. Jacoboni, Senators James and Adler had amended S.B. 294. As she understood, the purpose was to establish a priority scheme. During a latter hearing on a similar bill, both Senators had stated to the Attorney General there had been a priority scheme and they would take a policy position regarding prioritizing compensation or recouping revenues. There would be priority schemes in any bills regarding recouping revenues by the state or counties. The M.A.D.D. organization in Nevada supported S.B. 294 and it was their contention offenders should pay the costs of their incarceration. If the offenders could not pay with financial means, they should be required to pay in services. Ms. Jacoboni requested Section 6, subsection 2 (a) through (c) not be deleted by actions of the committee.
ASSEMBLYMAN SCHERER MOVED AMEND AND DO PASS.
Chairman Sader clarified the first proposed amendment to S.B. 294, Section 3, which would remove the preconviction detention time and insert a new provision which would obligate the offenders to pay for preconviction time to the extent which was actually credited to their sentence.
The second proposed amendment Mr. Sader stated would amend Sections 6 and 7, subsection 4 which would make it a priority for payment as opposed to a prerequisite in terms of child support and other obligations which would simply make it a priority system and not the prerequisite for actually issuing an order in the first place.
According to Chairman Sader, the third suggested change would be to amend S.B. 294, Section 8, which would require prisoners to cooperate in truthfully filling out the forms. The provisions of the existing obligations for child support and restitution of administration assessments would be deleted and replaced with the priority concept. Mr. Sader suggested the committee keep in mind Section 4 when considering the investigations and the forms.
ASSEMBLYMAN GIBBONS SECONDED THE MOTION TO AMEND AND DO PASS S.B. 294.
Mr. Scherer supported his motion to amend and do pass. He believed it was necessary to recoup more of the incarceration costs from the inmates. He noted the expenditures addressed during the previous testimony were not the costs incurred from the construction of the detention facilities but the annual operating costs. Attempts had been made during the previous legislative session to decrease the number of inmates in prison. He believed more needed to be addressed to recover the costs of incarceration.
Mr. Carpenter asked what had been determined in regard to the good time credits when inmates did not pay for their incarceration costs. Mr. Sader replied Mr. Scherer's amendment to Section 8 addressed this concern. The good time credits could only be reduced if the inmates failed to cooperate with the investigation of their financial status or if they refused to fill out the forms. The provisions did not address whether or not the inmates reimbursed the incarceration expenditures. Mr. Carpenter asked if the inmates would reimburse the county while in jail or after incarceration. Mr. Sader noted reimbursement could be made either way. As he understood the amendment to read, as long as the inmates cooperated when providing information on their financial status and filled out the forms, an inmate's good time credits could not be reduced because he did not pay for the costs of his incarceration. Mr. Scherer confirmed the summation.
Mr. Porter stated he would be voting against the amendment. He noted the deprivation of freedom itself was the ultimate penalty. Now they were attempting to request restitution. He did not support S.B. 294.
Mr. Petrak was adamant in his belief individuals who broke the law should be accountable for the incurred costs. He urged passage of the proposed legislation.
Mr. Collins opposed the proposed legislation on S.B. 294. He argued taxes paid for the public's safety. He believed double taxation was unfair.
Mr. Anderson desired S.B. 294 be rereferred to the Judiciary Committee for review in amended format as there were additional issues which needed to be considered in closer detail. He stated he would support the amendment if the bill were rereferred. He contended there existed the question of double taxation as alluded to by Mr. Collins. He believed those individuals who could most afford to pay for their incarceration would pay twice, first as taxpayers and then as inmates. He stated he would vote in opposition to S.B. 294 without the proposed provision.
Ms. Smith stated her concern with the incarceration costs and the price society had to pay. She alleged society had chosen incarceration as the punishment. Society mandated the system and if it was not to its liking, it was society's decision to change it. She opposed the bill.
Mr. Haller believed the important consideration in S.B. 294 was the fact the counties were seeking reimbursement for incarceration expenditures. He supported passage of the bill.
Mr. Bonaventura believed S.B. 294 had good intent although he did not personally believe it was fair. He emphasized inmates should have the choice to work or pay for their incarceration expenses. He did not feel it was equitable indigents were not expected to pay anything toward their incarceration whereas the working class individuals would have to reimburse the county.
Chairman Sader noted the motion was amend and do pass. A roll call vote was called for S.B. 294.
Mr. Scherer, the maker of the original motion to amend and do pass, called for a change in his motion to amend and rerefer. Mr. Gibbons, the second maker of the motion, did not rescind his second to the motion to amend and do pass. Chairman Sader noted the motion on the floor continued to be amend and do pass.
THE MOTION FAILED. (ASSEMBLYMEN ANDERSON, BONAVENTURA, CARPENTER, COLLINS, PORTER, REGAN SCHNEIDER AND SMITH VOTED IN OPPOSITION.)
ASSEMBLYMAN COLLINS MOVED INDEFINITELY POSTPONE.
ASSEMBLYMAN BONAVENTURA SECONDED THE MOTION.
Mr. Scherer requested the committee members who were uncertain not to support an indefinitely postpone motion. He suggested to amend and rerefer.
Chairman Sader called for a roll call vote on the motion to indefinitely postpone S.B. 294.
THE MOTION TO INDEFINITELY POSTPONE FAILED.
Chairman Sader noted Mr. Anderson moved to amend and rerefer with the amendments stated by Mr. Scherer in the original motion.
ASSEMBLYMAN ANDERSON MOVED TO AMEND AND REREFER S.B. 294.
ASSEMBLYMAN SCHERER SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMEN COLLINS, BONAVENTURA AND PORTER VOTED AGAINST.)
SENATE BILL NO. 321 Requires director of department of prisons to establish by regulation reasonable deduction from money credited to account of offender to repay certain costs.
Chairman Sader brought attention to correspondence initiated by the Office of the Attorney General dated May 11, 1993, Exhibit D, which addressed two Nevada Supreme Court cases generated by the Nevada Department of Prisons policy.
Mr. Mark Cardinalli, Deputy Attorney General, Office of the Attorney General, represented the Nevada Department of Prisons (NDoP). He testified in support of S.B. 321. He stated the bill had been generated as a result of two lawsuits heard in federal court regarding an NDoP policy which allowed the deduction of expenses from inmate accounts. According to Mr. Cardinalli, the federal courts had determined the NDoP had the constitutional authority to institute the deductions although NDoP did not have the statutory authority.
Mr. Cardinalli noted there were inmates who ran up expenses in the thousands litigating against the State of Nevada. It was the NDoP's responsibility to assist indigent inmates in payment of the legal expenses. It was the right of the NDoP to recoup the money from these inmates when they were no longer indigent.
Mr. Al Peralta, Nevada Department of Prisons, Budget and Finance Division, supported S.B. 321.
In reply to Mr. Anderson's concern, Mr. Cardinalli described the code of penal discipline where inmates were brought before disciplinary committees. According to Mr. Cardinalli, the provisions would require inmates to remit the expenses for the disciplinary process. He noted the purpose of subsection 4 was to recoup the costs of infractions. It was the determination of the disciplinary committee as to whether or not assessments would be charged.
In reply to Mr. Bonaventura's inquiry, Mr. Cardinalli stated inmates would be accountable for the costs of drug testing only if they had been found guilty of possession of illegal substances. Under this system, inmates would have to be disciplined before they could be charged for the drug tests. He added urinalysis testing could be conducted at any time and they would be accountable for these tests only if they were found to have illegal substances in the system.
Chairman Sader informed the committee members the motion on S.B. 321 should be amend and do pass, the amendment was to delete Section 1, subsection 4.
ASSEMBLYMAN PORTER MOVED AMEND AND DO PASS S.B. 321.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
Chairman Sader addressed S.B. 321, Section 1, subsection 4 and contended there was concern in those provisions which related to bringing disciplinary actions against inmates and requiring them to pay for them. He believed these actions could be subject to significant abuse.
THE MOTION PASSED UNANIMOUSLY.
Mr. Anderson was assigned to handle S.B. 321 on the Assembly floor.
SENATE BILL NO. 291 Makes various changes to provisions governing victims of crime.
Chairman Sader informed the committee S.B. 291 had been introduced by the Attorney General's Office and dealt with a proposed change in Chapter 217 which addressed the compensation for victims of crime. The legislation had established the victims of crime fund which paid compensation to victims. The victims of crime fund was administered by the Nevada Department of Administration, Budget Division. Mr. Sader stated the bill provided statute of limitations on circumstances where criminals had published books, newspaper articles, television or film documentaries which had been related to the crimes. Under the provisions, the victims could sue for the proceeds of the profits made five years after the crimes had been committed.
Ms. Judy Jacoboni, President, Mothers Against Drunk Driving, Lyon County Chapter, testified in support of S.B. 291. She stated the repealed section had allowed 3/4 of the profits from books, articles, television documentaries, etc. to go to the Victims of Crime fund. The proposed language in S.B. 291 would allow victims of crime to file causes of action and recover funds; the bill extended the period of time in which to do this.
ASSEMBLYMAN SMITH MOVED DO PASS.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
THE MOTION PASSED. (ASSEMBLYMAN PORTER OPPOSED.)
Mr. Bonaventura would handle S.B. 291 on the Assembly floor.
Chairman Sader informed the committee they would consider bills heard previously during the hearing scheduled for May 11, 1993.
SENATE BILL NO. 242 Makes various changes regarding regulation of gaming.
Chairman Sader noted the provisions would make various changes in the gaming statute. He added the Nevada Gaming Control Board Chairman, William Bible, had testified in support of the bill earlier.
ASSEMBLYMAN ANDERSON MOVED DO PASS.
ASSEMBLYMAN PETRAK SECONDED THE MOTION.
Mr. Scherer informed the chairman he would abstain from voting as the outcome of the vote would affect his employer.
THE MOTION CARRIED. (ASSEMBLYMAN SCHERER ABSTAINED)
Mr. Petrak was assigned to handle the bill on the Assembly floor.
ASSEMBLY BILL NO. 576 Revises penalties for certain violations concerning commodities.
Chairman Sader reminded the committee members A.B. 576 was the criminal bill where penalties had been reduced from $20,000 to $10,000 and the maximum sentence had been reduced from 10 years to 6 years.
ASSEMBLYMAN PORTER MOVED DO PASS.
ASSEMBLYMAN GIBBONS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Mr. Haller would handle the bill on the Assembly floor.
Chairman Sader opened the hearing on committee business and announced they would consider A.B. 462 during the work session scheduled for May 13, 1993.
Chairman Sader presented a Bill Draft Request, BDR No. 8-1020, which concerned the uniform commercial code.
ASSEMBLYMAN PORTER MOVED FOR COMMITTEE INTRODUCTION OF BDR No. 8-1020.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
There being no further business to come before the committee, Chairman Sader adjourned the meeting at 10:25 p.m.
RESPECTFULLY SUBMITTED BY
Jessie A. Caple
Committee Secretary
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Assembly Committee on Judiciary
May 12, 1993
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