MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      May 18, 1993

 

 

 

The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:08 a.m., Tuesday, May 18, 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

      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:

 

      Ms. Mary Ritland

      Mr. Chris Ritland

      Mr. Mike Reutnelli

      Ms. Jean Reutnelli

      Mr. Alan B. Rabkin, Sierra Tahoe Bancorp

      Ms. Debbi Furrie

      Mr. Pat Furrie

      Mr. Mylan Hawkins, D.F.C.

      Ms. Sharon Huddle, National Committee Against Surrogacy

      Ms. Janine Hansen, Nevada Eagle Forum

      Chief Justice Robert Rose, Nevada Supreme Court

      Mr. John Sande, Nevada Bankers Association

      Ms. Valerie J. Cooney, Nevada Trial Lawyers

      Ms. Lucille Lusk, Nevada Coalition of Concerned Citizens

      Ms. Sharon E. Claassen

 

SENATE JOINT RESOLUTION NO. 25      Proposes to amend Nevada constitution to create intermediate appellate court.  (BDR C-1907)

 

Chief Justice Robert Rose of the Nevada Supreme Court testified in favor of SJR 25 and reminded the committee this measure was considered last session.  After last year's term, he explained, the court saw the accelerating number of cases coming to the Nevada Supreme Court and reassessed its position, deciding to start the amendment process again.  Justice Rose thought three things contributed to the bill's failure:  the cost of $3 million, disruption at the Nevada Supreme Court, which did not put the court in a positive light in view of many, and the fact the courts and the bar did not provide the leadership to spread the message.  He reported currently cases were coming in at the rate of 100 a month, and the court could only process them at a rate of 80 to 85 per month.  He declared their backlog at this point was in excess of 800 cases, and at the end of March the backlog had increased by 201 cases for the year.

 

Justice Rose explained it was the Nevada Supreme Court's role to provide every appeal a review by five justices, which meant all five had to sign off on 1,200 matters.  He reported the American Bar Association recommended no more than 100 cases per year per justice on an appellate bench.  Ten staff attorneys were added in the 1970's to assist with the overload, Justice Rose reported, but declared the court did not want to add more attorneys as the review still had to be accomplished by only the five justices.  Secondly, he explained they had resorted to the "simple order dismissing the case", which took care of 80 percent of the work load.  He reported the states of California, Arizona, Utah, Idaho, Oregon had seen the necessity for the intermediate appellate court.  He emphasized additional district court judges should not be added and reminded the committee eight new judges were added last year.  Every one of those judges had appeals which went to the supreme court.  Since the 1960's, he claimed, the number of district judges had doubled, the caseload had almost tripled, but the supreme court remained the same.  Justice Rose requested the committee start the process to establish an intermediate appellate court, realizing this would not be effective until 1998.  He expressed concern if no action was taken at this time, there could not be an appellate court until the 21st century.

 

Mr. Toomin asked Justice Rose how many states employed the appellate court procedure and if most of the states had five justices.  He questioned if the justice thought adding the appellate court would be better than expanding the supreme court to seven seats.

 

Justice Rose responded probably 40 out of 50 states had the intermediate appellate court system, and most states had five justices but some had seven. 

 

Mr. Carpenter inquired as to the cost of setting up the appellate court.

 

Justice Rose said there was an estimate of $2.7 to $3 million on the ballot, however he did not know where the figure had come from and thought it could have been brought in at $1.5 to $2 million.

 

Mr. Carpenter questioned whether the appellate court would sit in different places throughout the state or be housed in Carson City.

 

Justice Rose advised three judges would be housed in Las Vegas, where there was the major caseload, and would sit here periodically.

 

There being no further testimony, Chairman Sader closed the hearing on SJR 25.

 

ASSEMBLY BILL NO. 617         Adopts recent revisions of Uniform Commercial Code concerning commercial paper, bank deposits and collections.  (BDR 8-1020)

 

Chairman Sader explained the Uniform Commercial Code was probably the most important uniform act passed by the Conference of Commissioners on Uniform State Laws, and over the last ten years it underwent a fundamental revision.  He reported the code was basically the rules and regulations of trade practices in commercial transactions, and it was crucial that Nevada have the amendments and the updated versions. 

 

Mr. Frank Daykin testified in support of AB 617.  He explained the Uniform Commercial Code was fully adopted in 26 states, including several of the large banking states.  The basic changes, he related, were to modernize the law of negotiable instruments to bring it in accord with current banking practice.  Mr. Daykin said A.B. 617 conformed to the California amendments concerning the version adopted by the conference and had a section the conference had set forth since the original proposal.  Mr. Daykin reported he would prepare an amendment 

for that section, including any California changes.

 

Alan Rabkin, General Counsel for Sierra Tahoe Bancorp, testified for A.B. 617 and reported his group had the distinction of having both a California and Nevada bank and had used both versions of the Uniform Commercial Code since January 1, 1993.  He reported their experience with the California statute had been very good.  Mr. Rabkin stated the new revisions allowed 30 days rather than 14 days for a customer to look at his  statement, which gave the consumer additional rights.  It also allowed the bank to require the customer to be responsible for acts of their employees committed with their knowledge, he reported.   

 

Ms. Smith referred to page 4, line 24, questioning the circumstances under which a person was deprived of his funds.  She wondered if it was an instance where the individual made an error or when the bank erred.

 

Mr. Rabkin responded it was when the bank made an error.

 

Mr. Haller asked if this had any effect on credit unions.

 

Mr. Rabkin answered it was binding on credit unions.

 

Mr. Haller said he had heard talk of establishing a Nevada bank and wondered if it would have any effect on the plan.

 

Mr. Daykin responded there was no effect on either the creation or non-creation of a state bank.  On the matter of checks, Mr. Daykin explained this bill did not regulate whether a bank must take a check, unless it was drawn on that particular bank.

 

Mr. Petrak asked how Mr. Rabkin felt about this legislation.

 

Mr. Rabkin responded he thought it was good legislation.  He informed the committee the statutes of limitation for the customer to go back against the bank were increased and recognized people do not always look at their bank statements promptly.  The customer also had options, such as ability to issue a postdated check after the bank was notified and ability to provide oral advice of a stop payment to be followed by written advice within 14 days.

 

There being no further testimony, Chairman Sader closed the hearing on A.B. 617.

 

ASSEMBLY BILL NO. 625               Prohibits false accusation in divorce action of battery upon spouse or abuse or neglect of child.  (BDR 11-1864)

 

Chairman Sader explained AB 625 resulted from concern by the committee regarding testimony previously heard in the area of domestic relations actions.  The testimony, he stated, indicated it was a fairly common occurrence where one spouse or the other, or both, attempted to use the criminal justice establishment by making false accusations of battery or abuse to gain advantage in divorce actions or attempted to penalize a spouse or ex-spouse.

 

Mrs. Lucille Lusk, Nevada Coalition of Concerned Citizens, testified in support of A.B. 625.  She reported she learned over the past few years, several cases where false accusations were made had come to her attention.  She contended an accusation of domestic violence or child abuse was becoming the way to assure favorable rulings in a divorce case where the goal was usually to obtain child custody and sometimes to obtain favorable property rulings.  In one case, Mrs. Lusk stated, the person who made the accusation admitted years later, "I was just doing what I had to do to get the kids."  She reported the common belief of the child protective services was if an accusation was made, it was true.  Consequently, when someone was accused, she stated, they feared a fight in court because they feared the ultimate, serious consequences.  Often the accused plea bargained and accepted the lesser charge, she explained, which permanently tainted his life and often destroyed relationships with his children.  She recalled one exception where the accused chose to fight, but the case continued for years.  During that time, she reported, the child was placed in the custody of the state, and  in the end it was determined that evidence was falsified by the child protective services.  The individual did win the case, but by that time, she reported, his relationship with his child was virtually destroyed. 

 

Mrs. Lusk had mixed feelings about the bill, because in her opinion it was unlawful to bring false charges in all cases, not just divorce cases.  It was apparently true, she stated, divorce cases were becoming the prime breeding ground for false charges.

Mr. Porter asked Mrs. Lusk if this was an instance where one spouse filed a criminal complaint against another for battery or child abuse, or it was intended to be the context of a legal pleading where one spouse asserted the other spouse was an unfit parent.  In the context of legal pleading, he wondered if the lawyer was also the individual who was conspiring to make the accusation.

 

Mrs. Lusk responded she did not know what the legal implication was, but it was her opinion it would not be the lawyer conspiring because they did not have knowledge it was a false accusation.  She stated she thought the intent was when a person determined he wanted his children at the time a marriage fell apart, he went to any length to get them.   Mrs. Lusk was not certain whether the wording of the bill achieved that, and if it did not, it was her hope that the committee would work with the wording.

 

Ms. Smith agreed with the principle, however if someone had been physically or sexually abused, she thought possibly this legislation prevented that person from bringing charges because they had no tangible proof.

 

Ms. Valerie Cooney, a family law attorney from Carson City, representing the Nevada Trial Lawyers Association, testified in opposition to A.B. 625.  Ms. Cooney said the bill was well- intentioned but needed to be studied to determine whether or not a civil or criminal penalty would be imposed and where such a law was to be included in the statutory scheme.  She stated the legislation addressed a situation which was not common.  It had been her experience these occurrences took place more in the post-divorce setting than during divorce.  It was not as common, she said, that a parent made any accusations of abuse, of a spouse or of a child, during the course of the pending divorce proceedings.  Those allegations, she stated, came later when there was dispute over custody and efforts to modify or change custody. 

 

Other concerns Ms. Cooney had with the bill related to NRS Subsection 1(b), "To aid, abet or conspire with a person in making such an accusation.", which she thought directly affected attorneys.  In their position, she claimed, when it came to the representation of clients, they were inclined to believe what they were told.  

 

There was considerable discussion between Ms. Cooney and Chairman Sader to clarify the conduct of aiding, abetting and conspiring and attorney-client privilege.

 

Mr. Sader stated the bill was criminal and made it a misdemeanor.  If the privilege applied, privilege belonged to the person accused of having made the false accusation. 

 

Ms. Sharon Claassen expressed to Chairman Sader the problem was a "catch 22".  If there was a custody case where abuse was alleged and not proven, a district attorney could decide to pursue the client and the attorney.  The attorney was bound by the confidentiality requirement, she said, which made it impossible to defend himself.  She was concerned something would be added to the statutes which was not necessary and created other problems.  She expressed the feeling there were adequate remedies under existing laws.

 

Ms. Cooney thought the bill was well-intentioned but should be studied by the committee and amended, and she stated she would be happy to assist with the drafting of any amendments.

 

Mr. Carpenter said it was stated these cases were not common but they were not uncommon either, so there probably was a good reason to have a statute on the book to take care of "uncommon" cases.  He thought it was a big enough problem something should be done about it. 

 

The hearing was closed on Assembly Bill 625.

 

ASSEMBLY BILL NO. 583               Authorizes contracts for assisted conception and provides for determination of parentage under such contracts.  (BDR 11-1432)

 

Assemblyman Vivian Freemen, District 24, introduced this bill on request and asked Lorne Malkiewich, Legislative Counsel, to explain the bill to the committee.  An editorial in the Reno paper the previous week, she explained, gave considerable misinformation.

 

Mr. Malkiewich told the committee in 1979 the Legislature enacted a provision (NRS 126.061), which concerned artificial insemination.  He explained in the case where a woman, with consent of her husband, was artificially inseminated, and the parties so agreed, her husband was considered the father. The donor was not considered the natural father.  In 1987, he reported, there was a bill enacted which prohibited the sale of a child for adoption.  At that time, he stated, the matter of a surrogacy agreement was raised and the question arose whether that was considered selling a child.  Mr. Malkiewich quoted Subsection 5 of NRS 127.287, "The provisions of this section do not apply if a woman enters into a lawful contract to act as a surrogate, be inseminated and give birth to the child of a man who is not her husband."  This provision, he pointed out, was interpreted by some as authorizing surrogacy agreements.  In 1989, he stated, bills were introduced to make surrogacy agreements lawful and to make them void, and both bills were killed, and since that time there was no legislative activity in this area.  A.B. 583, Mr. Malkiewich explained, allowed people to enter into a contract for assisted conception.  The contract specified the rights of the parties, the parentage of the child, and the custody of the child in the event of changed circumstances.

 

Mr. Malkiewich reported Subsection 2 provided some protection,  as a person was not to be identified as a parent unless the person was a party to the contract.  Unless a court determined, the parentage specified in the contract was manifestly contrary to the best interest of the child.  Subsection 3 excluded pregnancy which resulted from artificial insemination within the meaning of NRS 126.061.  In 1979, a law was passed to specify if a married couple entered into an agreement in which the donor agreed not to be the parent, the husband and wife were considered the parents.  Since that was already provided for in the law, the arrangement was excluded from the scope of this bill.

 

Mr. Scherer questioned the definition of "assisted conception" and assumed it was not intended to apply to the use of fertility drugs. 

 

Mr. Malkiewich responded in drafting the bill, the requesters were concerned about having the definition too narrowly drawn. 

Mr. Gibbons referred to line 8, "...change of circumstances;" and stated the contract contemplated custody of the child under changed circumstances.  He questioned how broad that would have to be delineated in the bill and what conditions constituted "changed circumstances".

 

Mr. Malkiewich explained he believed the intention was at the time the contract was entered into, there was an anticipated custody parentage agreement.  He thought the only purpose of this provision was to indicate there might be a change in circumstances, if not provided for in the contract, which could put the custody of the child in doubt. 

 

Mr. Gibbons wondered if each possible condition of change had to be specified in the contractual agreement in order to make the contract binding.

 

Mr. Malkiewich stated he did not think that was the intent of the legislation.  It was his interpretation unless there was an absolute absence of a provision to this effect, the contract was still enforceable.  He thought the purpose of putting this in the statute was to make certain the parties at least contemplated this issue.

 

Mrs. Mary Ritland spoke in favor of Assembly Bill 583, emphasizing the bill was not intended to legalize surrogacy but simply eliminated the intervention of the Nevada State Adoption Agency where a contract had already determined parentage. (Exhibit C).

 

Mr. Chris Ritland added this bill basically allowed them to take possession of their biological child without going through the adoption process.

 

Chairman Sader advised the committee the Ritlands were the couple working with Ms. Furrie in such a circumstance.

 

Sandy Allenson, a registered nurse certified in Reproductive Endocrinology and Infertility Nursing, testified in favor of

AB 583 and described the In Vitro Fertilization and Embryo Transfer (IVF/ET) process (Exhibit D).

 

Debra Furrie, an unpaid gestational surrogate for the Ritlands, testified in favor of A.B. 583 (Exhibit E). 

 

Mr. Toomin asked Mrs. Furrie what her motive was for carrying the Ritlands' child.

 

Mrs. Furrie responded she had known for a long time the Ritlands wanted to have a child.  Mrs. Ritland, according to Mrs. Furrie,  had a partial hysterectomy in her mid-twenties, and there was no possibility of her carrying her own child.  She said she realized the technology was there, she was in good health, and she and her husband were not ready to have a second child of their own at this time.  Mrs. Furrie stated she wanted the Ritlands to have the same joy they had with their daughter.

 

Ms. Mylan Barin Hawkins, Executive Director of the Diabetic Educational Center, testified in favor of Ab-583, reporting there were some women who were insulin-dependent diabetics.  Because of the dependency, there was a greater risk through pregnancy, and for some pregnancy endangered their health and lives and did not guarantee they would bring to term a healthy infant.  For these women, the option of this type of gestational surrogacy was a real boon.  She stated her organization was interested in only one area of surrogacy, where the biological mother and father were recognized as a married couple and did not have to go through the process of adopting their own biological child.  (Refer to Exhibit F)

 

Ms. Sharon Huddle, a family law lawyer and co-founder of the National Coalition Against Surrogacy, testified against the bill.  She reported she had worked on several litigated surrogate mother cases and talked to over 100 women who were involved in a surrogate arrangement who asked her for help. She stated she was not able to help them because their adoption was properly conducted.  There was some basic information given earlier, Ms. Huddle explained, which she wanted to clarify.  There was a high incidence of infertility, but the vast majority of women could be helped by technology today, she reported.  The word "infertility" was defined as not being able to conceive after one year of trying, she explained, so it could take more than one year, but it meant one out of six had no hope of ever having a child unless they did it with assisted conception.

 

Ms. Huddle explained another basic premise of those who favored surrogacy was that a child was a gift.  The bill, she stated, was definitely commercial surrogacy and had nothing to do with giving a gift because it allowed for a contract.  She pointed out no one would be here today if women did not have the maternal instinct of bonding with their children.  Maternal instinct, she emphasized, could be regulated.  She pointed out there had been the contention the compensation was not for the child but was for a service.  If that was true, the woman who  performed the service and created the child could actually keep the child too.

 

Ms. Huddle claimed the adoption law was a method of regulating surrogacy.  She felt special bills were created so there could be an exchange of money, which was what the adoption laws did not allow, and so the woman was forced to give up her child at birth and did not give her any opportunity to change her mind.  This bill, she stated, did not have anything listed on it that required protection or screening.  Ms. Huddle stated the bill was not limited to the case where an egg and a sperm were taken from a husband and wife and placed in another woman.  This bill allowed two or more persons, so three women could make a contract with another woman, or three men, and all were listed as natural parents.  Nothing in the bill stated the child shall have one mother and one father, she explained, and it did not require the people to be married or cohabitating; it was just one person providing money and the other one raising the child.

 

Ms. Huddle pointed out the bill stated on its face the contract determined parentage, which she thought decided who was going to be the parent of any child.  Ms. Huddle said she felt it was more appropriate to say the woman who gave birth was the mother, rather than requiring a couple to adopt their own child.  If the woman chose not to take on her parental responsibilities and did not want to parent the child, she could terminate her parental rights and then the genetic mother and father could take on the parenting rights.

 

Ms. Huddle reported on a national/international basis, every country in the world which has had commercial surrogacy has banned it.  Nationally every state that made a law made commercial surrogacy unlawful, she stated, although it permitted non-commercial surrogacy under certain circumstances.  Every organization in the country that dealt with children had opposition to commercial surrogacy.  She thought the bill needed lots of revisions.

 

Chairman Sader remarked both those who testified for this bill and Ms. Huddle testified in such a fashion it was confusing to members of the committee what exactly this bill did.  As Mrs. Ritland pointed out in the first place, he said, the bill dealt primarily with the relationships of the parents, the contracting party and the child conceived from an arrangement like this.  He stated he gathered from Ms. Huddle's testimony she and her organization supported prohibition of surrogacy in any form, commercial or noncommercial.

 

Ms. Huddle responded her organization did not believe one could prohibit noncommercial surrogacy, because women in this country had a right to get pregnant if they chose to do so by whatever means they wished.

 

Mr. Sader clarified commercial surrogacy, in Ms. Huddle's views, should be outlawed but noncommercial surrogacy would not be.  He asked Ms. Huddle if her organization had any suggestions how the relationship should be between the parties and how the child should be considered under the law. 

 

Ms. Huddle said it was not necessary to draft any because all fifty states had adoption laws.  It was disconcerting, she stated, where both natural parents of a child had to follow adoption laws. 

 

Mr. Porter maintained Mrs. Furrie had the right to be compensated for her time and her change in lifestyle and asked Ms. Huddle if that was some kind of commercial activity in her way of thinking.

 

Ms. Huddle explained under all adoption laws one was allowed to pay pregnant women for living expenses, medical expenses, and for other needs incurred.  In this bill a woman was required to give up her child, because it automatically made the genetic parents the parents and the birth mother had no rights.  That was different than giving someone money during the pregnancy.

 

Mr. Gregory stated he saw the Ritlands who wanted to have a baby and their friends, the Furries, who were willing to go through a great deal, at no cost, to provide them with that child.  He said he saw no harm in that. 

 

Ms. Huddle explained if it was said the woman who gave birth was not the mother, women were considered less human and not mothers. 

 

Mr. Anderson said he found Ms. Huddle's testimony the most incredible presentation he had ever heard before their committee and looked forward to reviewing the written documentation, including qualifications of her organization.  He said he hoped it included the basis for her statistics, as he found her comments in conflict with earlier testimony regarding

surrogacy and fertilization.

 

Mr. Sader asked Ms. Huddle to provide written documentation for the statements made in testimony.

 

Considerable discussion followed between the committee members and Ms. Huddle as to the definition of motherhood.

 

Ms. Janine Hansen, State President of Nevada Eagle Forum, read a statement by the National Council For Adoption in opposition to A.B. 583 (Exhibit G).

 

Mr. Carpenter, to clarify the case of the Ritlands and the Furries, asked if the Ritlands had to go through the Nevada adoption proceeding to gain custody of the child.

 

Mr. Sader announced he felt there was a majority of members of the committee who would consider passage of the bill in some form, but it was clear the bill needed a subcommittee to review the many points the bill did not address.  Chairman Sader appointed Messrs. Toomin, Regan, Scherer and Ms. Smith, along with Mr. Gregory as chairman.

 

Chairman Sader reported SJR-25 and A.B. 625 would be taken up the following day.  A.B. 617 would be voted on when the amendment was returned from Mr. Daykin.

 

There being no further business to come before the committee, Chairman Sader adjourned the meeting at 10:35 a.m.

 

                                          RESPECTFULLY SUBMITTED BY

 

 

 

                                                                  

                                          Barbara D. Tonge

                                          Committee Secretary

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Assembly Committee on Judiciary

May 18, 1993

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