MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
May 21, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:07 a.m., May 21, 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. Michael A. Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
COMMITTEE MEMBERS ABSENT:
Mr. Scott Scherer
GUEST LEGISLATORS PRESENT:
Assemblyman Christina R. Giunchigliani
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Ms. Dorothy North, Director, Nevada Drug Commission
Ms. Roxane Clark-Murphy, DUI Assessment Center Coordinator, City of Las Vegas Municipal Court
Ms. Elizabeth M. Breshears, Chief, Nevada Department of Human Resources, Rehabilitation Division, Bureau of Alcohol and Drug Abuse
Mr. Todd Shipley, Peace Officers Research Association of Nevada
Mr. Kevin Kelly, Nevada Attorneys for Criminal Justice
Mr. Tom Bentz, Nevada Alliance for Responsible Animal Use
Mr. Bill Prezant, The Doctors Company
Ms. Catherine Blake, Criminal Justice Halfway House
Following the roll call, Chairman Sader opened the hearing on committee business. He informed the committee members of the change in the scheduled agenda as SJR 2, A.B. 469 and A.B. 196 would not be heard. The bills were rescheduled for the work session set for May 26, 1993.
Chairman Sader presented a request for introduction of BDR 3-1837 which made changes regarding claims brought by prisoners, or former prisoners, to recover compensation for loss of personal property.
ASSEMBLYMAN ANDERSON MOVED FOR COMMITTEE INTRODUCTION OF BDR 3-1837.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
ASSEMBLY BILL NO. 63 Requires separate penalty hearing Second Reprint in all criminal cases which result in conviction of defendant for murder of first degree.
Chairman Sader requested committee concurrence with the Senate amendment to A.B. 63. He advised the bill had originated from the District Attorneys Association and had been amended by the Senate.
Mr. Ben Graham, Legislative Liaison, District Attorneys Association, stated the content and concept had remained in the bill as determined during the preceding hearing conducted in Las Vegas. Inadvertently, the issue of the requirement of three judge panels in every case had not been addressed. The language had been amended to correct this oversight.
ASSEMBLYMAN ANDERSON MOVED TO CONCUR WITH THE SENATE AMENDMENT TO A.B. 63.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Chairman Sader focused attention on legislative immunities and privileges. He presented the situation which occurred during the subcommittee hearing where Mr. Duran had testified unfavorably against Laughlin and Associates, Inc. who was in the business of resident agent for corporations. According to Mr. Sader, there was a history of disputes and litigations between Mr. Duran and Laughlin and Associates, Inc. As the result of the testimony presented by Mr. Duran, Laughlin and Associates, Inc. had filed defamation litigation against Mr. Duran.
Mr. Sader stated the generic lawsuit initiated by Laughlin and Associates, Inc. was unclear although the affidavit filed for an injunctive relief which specifically addressed the information imparted during the legislative hearing. He asserted common law provided for immunity and privilege for testifying during legislative proceedings. According to Mr. Sader, the Legislative Counsel Bureau research staff studied the issue and concluded there was no law in the state of Nevada which addressed the issue.
Mr. Sader maintained, during judicial and legislative proceedings, individuals were privileged to testify and were immune from litigation for defamation of character. Public interest was in concurrence with the free flow of information which should be allowed without fear of litigation.
Chairman Sader requested the passage of a bill draft which would grant statutory and legislative privileges to individuals who testified before legislative committees and subcommittees as well as other bodies of legislature.
Mr. Bonaventura asked if the press could be litigated against in circumstances where testimonial information which defamed certain individuals had been released. Mr. Sader responded negatively stating the press had first amendment privileges because the information had been obtained during public hearings.
Mr. Carpenter asked if parties could litigate against any persons who testified. Mr. Sader noted the issue of a definite policy question had been raised.
ASSEMBLYMAN TOOMIN MOVED TO REQUEST A BILL DRAFT FOR LEGISLATIVE PRIVILEGES AND IMMUNITIES TO INDIVIDUALS WHO TESTIFIED.
ASSEMBLYMAN GIBBONS SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMAN BONAVENTURA VOTED IN OPPOSITION. ASSEMBLYMAN SCHERER WAS ABSENT.)
Chairman Sader responded to Mr. Haller's concern and noted the privIleges pertained to defamation, slander and liable issues. He clarified Mr. Haller alluded to circumstances which pertained to job retaliation. This was being addressed by the Senate through the concept of slam suits. He concluded, when retaliations of this type were received, counter claims could be levied against individuals who initiated the actions.
ASSEMBLY BILL NO. 493 Provides for reimbursement of county by offender for services to victim of sexual assault.
Chairman Sader reminded the committee testimony had been received during a preceding hearing and the bill had been held for further action. The issues at the time related to the reimbursements offenders were required to pay. He informed the committee a subsequent bill had been passed which allowed counties to deduct certain expenses; another subsequent bill had been passed which permitted the state to deduct certain expenses.
Mr. Anderson asked what the impact would be if the original provisions had passed which would have allowed civil litigation and compensation to the victims. As Mr. Sader understood the preceding intent to be, inmates would not have been charged twice for the same work. He continued, courts could not grant damages twice once the resources had been paid. A.B. 493 allowed for the deduction from offenders' earnings. He clarified these were not judgments which allowed deductions in cases where offenders earned money while incarcerated. The bill was on parity with restitution to victims as well as expenses incurred by the offenders while incarcerated which could be deducted from support, etc. Conceptually, according to Mr. Sader, the bill should require reimbursement. He stated there was a bill pending before the Senate which addressed priorities and would appear before the Assembly.
ASSEMBLYMAN TOOMIN MOVED AMEND AND DO PASS A.B. 493.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
Mr. Regan requested the maker of the motion, Mr. Toomin, to rescind his motion and allow a change in the amendment contained in A.B. 493, Section 1, subsection 4, page 2, line 6, which stated, "for medical care and psychological". He requested the word "or" be changed to "and" which would include medical and psychological treatment.
Mr. Carpenter contended there were too many expenses imposed on incarcerated individuals. He concurred with the restitution to victims but attested inmates were not afforded the ability to repay debts. He noted prisoners exited the penal systems without any means of support which contributed to the crime factor. He opposed the concepts of A.B. 493 and would rather see tax dollars support medical care.
Mr. Petrak supported the concept of inmates being accountable for their incarceration expenses.
Ms. Smith stated there were requirements for stealing and incurring damages noting sexual assault was considered damage as well. She felt A.B. 493 was a loophole for those types of crimes.
Mr. Anderson believed A.B. 493 was a well-intended law although the intent had been missed. The counties would be reimbursed for treatment provided and the law should protect all citizens. He contended it was society's responsibility to maintain health care for victims of crime. He stated he would be voting against passage of the bill.
Mr. Toomin addressed A.B. 493, Section 4, which would mandate defendants reimburse the counties where the crimes had been committed. It appeared the state would pay for the cost of medical or psychological assistance. He supported the bill.
Mr. Haller voiced his intent to concur with the amend and do pass motion.
Mr. Carpenter addressed two concerns he had with A.B. 493. The first concern pertained to the concept counties were to be reimbursed and not the victims. The other issue related to the monies earned while incarcerated. He contended, if the honor camps were closed, it would further erode inmates' earning ability. He contended the only means of support after release from prison would be to revert back to crime.
Ms. Smith stated individuals charged with DUI offenses or illegal drugs were required to pay for lab expenses. She maintained it would be beneficial for them to realize the medical costs involved. She did not feel this would affect reimbursement to victims.
Mr. Regan referenced the section which pertained to liens on offenders' properties. He noted, if the inmates had not paid restitution while incarcerated, they would after exiting prison through civil actions. He supported the amend and do pass motion.
Chairman Sader reminded the committee members the motion was amend and do pass A.B. 493. One modification would be made on line 6, page 2, which changed the word "or" to "and". A roll call vote was called and a 7 to 7 tie vote resulted. Mr. Scherer was absent for the vote.
THE MOTION TO AMEND AND DO PASS A.B. 493 FAILED.
Chairman Sader stated he would hold A.B. 493 until a more opportune time.
Chairman Sader brought to the attention of the committee members the draft on the proposed resolution. He advised Mr. Collins had initiated this through A.B. 306 and A.B. 171 which would make substantial changes in the laws relating to concealed weapons. The proposal had been an Assembly Joint Resolution which requested local law enforcement agencies to review the administration of concealed weapons permits. They would provide input on legislative intent relative to the permit law. This was a request for a bill draft.
ASSEMBLYMAN PORTER MOTIONED FOR A BILL DRAFT REQUEST.
ASSEMBLYMAN GIBBONS SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMAN TOOMIN WAS OPPOSED. ASSEMBLYMAN SCHERER WAS ABSENT FOR THE VOTE.)
ASSEMBLY BILL NO. 244 Makes identifying information First Reprint concerning victim of sexual assault confidential.
Chairman Sader advised the committee members A.B. 244 had been heard earlier in the session and had been designated the rape shield law. He maintained the original thrust of the bill restricted the press and addressed court actions although the orientation had been "thou shall not publish". Testimony had been received as to how this would be unconstitutional and in violation of the first amendment rights, etc.
Assemblyman Christina R. Giunchigliani and Chairman Sader had drafted an amendment which changed the thrust of public records and confidentiality. Ms. Giunchigliani summarized the changes, Exhibit C. She informed the original direction of the bill had been changed. The recommended amendments contained the declaration of legislative intent which established victims of crime had been under a different standard. She referenced Section 2, Exhibit C, which pertained to the declaration.
Ms. Giunchigliani informed A.B. 244, Section 3, outlined the items which should not be allowed. She referenced page 3, Section 3, subsection 4. She had worked in conjunction with the Press Association to obtain additional language to confirm it was not unlawful for individuals to use false names (pseudonyms) in situations where court reporters or police officers provided the names. Hopefully, the policy to release the pseudonyms would set into place although this dealt with a potentially unconstitutional issue. Ms. Giunchigliani maintained there was a statute in Texas which allowed the use of pseudonyms. The bill would allow victims the discretion as to whether or not their names would be released for publication. A.B. 244 allowed non-profit organizations to provide specific services to victims.
Chairman Sader informed the committee the Press Association had been given a copy of the proposed amendments to A.B. 244, Exhibit C. He noted Ms. Engleman, Press Association Legislative Liaison, had reviewed the proposed amendments and had no objection. He stated the proposed amendments had been reviewed by the legal counsel and had brought attention to the handwritten changes contained in page 3, Section 4 (a), Exhibit C, which read, "The publication or broadcast by the press of" which was an exception. Nothing in the section prohibited the publication or broadcast of sexual assaults. Mr. Sader reiterated, the Press Association had no objection. Mr. Gibbons suggested the language read "press or media" for clarity as all news or media sources were the focus.
Chairman opened the hearing for committee discussion on the proposed amendments to A.B. 244, Exhibit C.
Mr. Regan related a case in Clark County where a young female had been kidnapped. As he recalled, the media became quickly involved and there had been substantial publicity as to her capture. As the case turned out, the incidence was a sexual assault. Mr. Regan asked if the media was protected under this type of scenario. Chairman Sader responded affirmatively. He clarified, even if the media had handled the situation as a sexual assault, they would not be penalized which was the intent of the proposed statute.
Mr. Regan alluded to the final page of the proposed amendments to A.B. 244, Exhibit C, "the damages may be brought about for further action to recover". He asked if all parties involved would be protected under this circumstance. Chairman Sader affirmed, provided the information was disseminated at the time of the alleged incident, there would not be any basis for violation. The point where there was a suspected sexual assault would change the situation.
Mr. Porter addressed A.B. 244, Section 3, page 2, Exhibit C, which read, "except as otherwise provided in section all court records including testimony from witnesses". He referenced page 3, Exhibit C which read, "concerning sexual assaults which includes the photograph, likeness, name, address, telephone number or other fact or information revealing the identity are confidential". Mr. Porter informed there was a tool used during trials where prior recorded testimony could be used to impeach the subsequent testimonies of witnesses. In other words, when individuals testified one way under oath and then attested another way under oath, the prior recorded testimony would be permitted to impeach the witnesses' credibility. He emphasized making all court records confidential including testimony from witness.
Mr. Porter referenced A.B. 244, Exhibit C, Section 4, page 4 which pertained to the use of pseudonyms by victims. He questioned the impact of the confrontation clause of the Constitution which allowed the right of the defendant to be confronted by the accuser. He queried how pseudonyms would interact in the courtrooms in the context of the defendants' right to confront their accusers.
Mr. Sader queried if witnesses would be excluded or closed hearings conducted when identity information was being taken. Mr. Porter interjected and stated even if witnesses were excluded juries still sat in on the hearings. He asked what impact, if any, would this have on the confrontation clause of the Constitution. As Mr. Sader understood, it did not prohibit or restrict information from being brought into court proceedings, it only made the records confidential. Mr. Porter asked if the defendants would be required to testify as to their pseudonyms. Mr. Sader responded affirmatively.
Ms. Giunchigliani stated, in these types of proceedings, the defendants chose to take pseudonyms. Mr. Porter questioned the use of pseudonyms during courtroom proceedings. Chairman Sader added individuals could do this if the law permitted. The question was the real names of the individuals and whether this was relevant to the prosecution of the defense; this would be up to the courts to decide. He did not see any problem with providing this information to the juries if it was relevant under the circumstances. He clarified A.B. 244 pertained to whether the records were confidential. He was uncertain as to whether the same public policy applied to all victims of crimes.
Mr. Anderson understood A.B. 244 had been intended to address the victims of sexual assault as well and noted the concern was in defense of the identities of the defendants. He alleged there had been a number of sexual assault cases in Washoe county where the victims withdrew their testimonies. Meanwhile, the media had reported the incidences and the individuals had lost their jobs. He maintained the identities of the defendants were not being protected. He asked if there were objections to amend A.B. 244 so the identities of the victims and defendants were protected prior to the trial.
In response to Mr. Anderson's concerns, Ms. Giunchigliani informed the committee the legal staff had asserted this could not be done. She appreciated the allegations made against perpetrators but believed it would convolute the direction of the bill as the intent was not to address the victims and their rights. Mr. Anderson understood the purpose of the legislation was to prevent the media from sensationalizing sexual assault cases which would provide for fair trials. Ms. Giunchigliani stated the intent was to focus on the public's need to know.
Mr. Anderson asked if there was any reason why defendants could not be protected prior to the trials. Chairman Sader stated this situation could extend to any defendant who might have been falsely accused. This raised first amendment questions with the press. He suggested different bills to address this as A.B. 244 narrowly focused on rape victims due to a particular trauma associated with it and the unfortunate baggage which went along with the accusations. Mr. Sader did not want A.B. 244 loaded up with this issue.
Mr. Haller alluded to the phrase, "media and press" which he believed was redundant because the press was part of the media. He suggested the term "media" alone would suffice.
ASSEMBLYMAN GIBBONS MOVED AMEND AND DO PASS.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
Chairman Sader noted Mr. Porter had raised legitimate issues in regard to defendants' abilities to properly conduct defenses. He suggested retaining the amendment prior to proceeding to the floor and answer the questions posed to confirm they had been adequately answered to protect defendants.
THE MOTION PASSED. (ASSEMBLYMAN PORTER ABSTAINED.)
ASSEMBLY BILL NO. 499 Revises penalties for drinking First Reprint under influence of intoxicating liquor or controlled substance.
Chairman Sader stated A.B. 499 related to DUI cases and addressed the treatments for alcohol and substance abuse for offenders. He informed the committee of a proposed amendment. He had not heard from the appointed subcommittee and surmised there were no problems. He noted the proposed amendment was a cooperative effort between the proponents of the bill and the subcommittee. He alluded to copies of the redrafted bill with noted the changes, Exhibit D. A.B. 499 addressed the issue as to whether DUI offenders should be clinically evaluated for substance abuse. Changes had been made as to the burden of evaluations on everyone and whether these evaluations would be readily available.
Ms. Roxane Clark-Murphy, City of Las Vegas Municipal Court, DUI Assessment Center Coordinator, informed the committee members that in population centers where the population exceeded 200,000 people, the duty should be relegated to the courts. In Las Vegas there were a number of treatment centers. She believed a mandate was needed to maintain the authority of the courts in those particular population centers. Chairman Sader noted this alluded to enabling language. In Las Vegas where the courts administered the program, they could continue to do so. Washoe County applied in this case as the situation could be dealt with publicly or privately through the courts or another administrative agency.
Mr. Sader noted A.B. 499, Section 4, Exhibit D, changed the threshold to evaluate. The language basically required a .15 blood alcohol concentration (BAC) or a second DUI offense. Ms. Clark-Murphy maintained the .15 BAC was recognized by the National Council on Alcoholism and the American Journal of Psychiatrists as being the indication level for alcohol tolerance. The intent was not to involve social drinkers and clog the courts with DUI cases.
Chairman Sader addressed A.B. 499, Section 5, Exhibit D, which related to an issue alluded to during the preceding legislative session. The previous language had provided treatment centers the discretion to determine whether individuals would be incarcerated in inpatient care and, if so, the extent of time. The governor had vetoed the bill due to impermissible extension of the discretion to incarcerate beyond the court to independent, private or public entities with financial interests. This change made it enforceable upon the order of the court.
Ms. Clark-Murphy added the language, "the court at its discretion", presented judges with the required discretion. If judges chose not to court order individuals to treatment, it would still place offenders in a position where they had an evaluation which indicated recommendations.
Mr. Bonaventura referenced A.B. 499, Section 4, Exhibit D, and requested the amendment to read, "if a person is found guilty of a BAC .15 or higher and the violation was a second violation of NRS 484". He stated this would pertain to second DUI offenses and charges of .15 BAC or higher. As he understood, first DUI offenders would not be evaluated due to the issue of costs. He alleged there was a large fiscal note attached to A.B. 499.
Mr. Gibbons questioned if failure to complete the program under the proposed amendment would result in additional penalties. Mr. Sader noted the provision alluded to had been deleted.
Chairman Sader informed the committee the amend and do pass motion would entail the amendment submitted by the subcommittee, Exhibit D.
ASSEMBLYMAN REGAN Moved AMEND AND DO PASS A.B. 499.
ASSEMBLYMAN PETRAK SECONDED THE MOTION.
Mr. Bonaventura requested to amend the motion to amend by changing the word in A.B. 499, Section 4, from "or" to "and" which would allow for a second DUI offense with a .15 or more BAC.
ASSEMBLYMAN BONAVENTURA MOVED TO AMEND THE PREVIOUS MOTION BY CHANGING "OR" TO "AND" IN SECTION 4.
ASSEMBLYMAN GREGORY SECONDED THE MOTION.
It was Mr. Anderson's contention if the word "or" was changed to "and" it would require second DUI offenses. The second DUI offense would be required to be .15 BAC which was a higher standard than in a first DUI offense.
Mr. Sader spoke against the amendment to A.B. 499 as it appeared DUI offenders were dealt with in the same manner as other offenders. He noted these individuals had substance abuse problems although the stringent prohibitions of the law had effectively changed much of this behavior. Most offenders arrested on DUI charges would not change their behaviors until their substance abuse problems were addressed. The system did not require substance or alcohol abuse evaluations and did nothing to address the problems such as providing referrals and treatment. He contended changing the language to first DUI offenses largely gutted the basic thrust of the bill because most offenders with first time DUI offenses and .15 BAC or more were problem drinkers. He spoke in opposition to the motion to delete the first DUI offense.
As Mr. Carpenter understood, the intent of A.B. 499 was to get first time DUI offenders into treatment centers. He rationalized most DUI offenders picked up on first time DUI offenses had been consuming alcoholic beverages for a substantial period of time. He contended this defeated the intent of the bill if the provision was changed to the second DUI offense. He reiterated the provisions would assist first time DUI offenders.
Mr. Bonaventura withdrew his motion to amend Mr. Regan's motion to amend and do pass as he did not want the .15 BAC included in the provisions. Mr. Gregory, the maker of the second to the motion, concurred. Chairman Sader advised the motion on A.B. 499 before the committee was amend and do pass.
Mr. Kevin Kelly, represented the Nevada Attorneys for Criminal Justice and proposed, if A.B. 499 passed, it would mandate attorneys be appointed for first and second time DUI offenses. The Supreme Court had determined in cases which involved incarceration and court orders to attend in-patient rehabilitation programs, it was tantamount to lack of liberty and thus required the appointment of counsel.
Mr. Sader clarified the proposed amendment changed the section which would eliminate mandatory provisions as per A.B. 499, Section 5, page 2, which gave courts the discretion to order defendants be confined to the facilities. In this sense, there was no difference in the discretion of the courts to sentence individuals to six months in the county jail.
Mr. Kelly stated, in typical misdemeanor cases such as trespassing, vagrancy, etc., during the defendant's initial appearances, the courts would request the services of the district attorneys if jail time was sought. If the courts considered mandating treatment, he did not see the difference as to whether the state or the city sought jail time versus the courts determining the offenders were in need of inpatient rehabilitation. This was a good idea for rehabilitation although the incentive would be the records would be expunged. It would require the defendants voluntarily attend treatment programs.
As Mr. Sader understood, there was a two day mandatory jail time on first offense convictions. This provided an additional sentencing option for the courts which might involve confinement to treatment facilities which was a liberty interest. According to Mr. Sader, there was no difference in the courts' ability to sentence defendants up to six months in jail. Mr. Kelly added, if they did, it would require the appointment of counsel. This was one reason for not having lengthy jail sentences as the overwhelming volume of cases would require the appointment of counsel which usually fell under the jurisdiction of the public defenders office. Mr. Sader asked if it was the practice in Clark County to appoint counsel in first time DUI offense cases. Mr. Kelly replied this was not the case unless the Clark County District Attorney indicated the courts were seeking substantial jail time; two days was not substantial time for incarceration.
Mr. Sader surmised it would require counsel if courts imposed treatment. In response, Mr. Kelly stated this was true in cases where courts required individuals to attend six-months of counseling. As Mr. Kelly understood, this changed the original bill which referenced inpatient care; there was no such provision in the proposed amendment.
Mr. Sader contended he was not aware counsel would be appointed under first time DUI offenses or any circumstances. He noted the Clark County Counsel required taxpayers to pay for these. Mr. Kelly responded by stating he was not aware of any DUI cases where the judge had asked the prosecutor if he sought six months jail sentence. Mr. Sader asked what difference would it make whether the prosecutors sought the sentence as the judge could apply sentences of up to six months. Mr. Kelly interjected and contended this would be the case if the judges had some sense they were going to do that.
Mr. James Jackson, Nevada State Public Defender, stated counsel was appointed in the rural counties in almost every first offense DUI indigent case. The judges appeared to take the opinion, if jail time was sought, public defender or public counsel would be appointed. Mr. Kelly stated it was the burden of the state to apprise the judges of the intent as to apply more than what the minimum requirements were.
Ms. Smith asked how many cases were referenced. Mr. Kelly surmised there were approximately 1,000 cases which involved .15 BAC or higher.
Mr. Sader advised the committee members there had not been any testimony from local government representatives or the public defenders on the issue of representation at taxpayer expense.
Mr. Toomin asked, if the suggested amendment altered the fiscal note, would A.B. 499 proceed on to the Ways and Means Committee.
Ms. Elizabeth M. Breshears, Chief, Nevada Department of Human Resources, Rehabilitation Division, Bureau of Alcohol and Drug Abuse, stated the fiscal note to A.B. 499 had been developed prior to the work session and any amendments suggested. Representatives of the bureau had not seen the proposed amendments. She added the population had been restricted which would require research of the content of the amendment.
Mr. Sader advised the committee A.B. 499 would be held as the bill would be killed in the Ways and Means Committee as currently languaged. He asked the maker and second of the motion, Mr. Regan and Mr. Petrak respectively, if they would entertain withdrawing their motion until the issue of the fiscal note was addressed. Chairman Sader confirmed A.B. 499 would be held until reconciliation of the fiscal issue.
ASSEMBLY BILL NO. 204 Requires reporting of tort claims First Reprint against governments.
Chairman Sader advised the committee members A.B. 204 had been introduced by Mr. Williams and was designated the "Sunshine in Government Act." A.B. 204 would prohibit the courts and litigants from releasing confidential information. The bill would also prohibit court records, which related to certain types of proceedings in settlements, from being sealed. The provision dealt with actions made against governments where damages had been alleged and monies paid.
Chairman Sader apprised the committee testimony had been received from representatives of the Las Vegas Metropolitan Police Department and the Press Association relative to these issues. Representatives of the press had been opposed to permitting confidentiality. The problems arose with the legislature dictating to the courts the determination on orders of confidentiality. The issue of the separation of powers arose in this situation.
Mr. Sader advised the committee members there were practical administrative problems with the language contained in A.B. 204. He had inquired of the sponsors of the bill and asked if Mr. Williams would concur with a different approach which would deal with the issues of public records. It would require the different governmental entities to make compilations of these types of cases and disclose the information on a periodic basis as well as make the issues public. It was Mr. Sader's perception most local governments had the information in a readily available fashion. Reports would be required under this approach but it was not an unreasonable administrative burden.
Chairman Sader had walked through the changes proposed in A.B. 204, Exhibit E. Mr. Williams had agreed it was an acceptable approach. He supported the bill as amended in this fashion. Mr. Sader informed the committee the Press Association was also in support of the bill. A portion of the amendment read, "require compilation of an annual summary by local government and state government on or before February 1st of each year", Exhibit E. The provisions applied to the previous calendar year and one month had been designated to compile the information.
Mr. Sader continued, "all claims paid of any amount, no exclusions, including the name of the claimant, the amount paid, and that included fees and costs, if paid attorneys fees, and the type of wrong alleged", Exhibit E. He clarified the type of wrong pertained to false arrest charges or alleged assault or battery cases, etc.
The second proposed amendment to A.B. 204, Exhibit E, pertained to judgments entered but unpaid. These were not paid claims and would not be addressed in the first suggested amendment although they would be considered obligations.
According to Mr. Sader, the third proposed amendment, Exhibit E, referenced claims paid although still pending and specified the same basic information. This referenced claims alleged and dealt with those claims disputed and pending.
The fourth suggested amendment to A.B. 204, Exhibit E, addressed the summary and required the same information be compiled in a different fashion, i.e. summary of the total claims made and paid by catagory of wrong alleged.
Mr. Sader concluded by recapping the proposed amendments to A.B. 204. The final suggested proviso would provide there be no court order to conceal the information. This would be valid to authorize local governments to omit this from the compilation. In this provision, it would not dictate to the courts. These records were concealed daily although local governments were required to disclose the information. He surmised the purpose for sealing the records was lost if local governments would be required to disclose the information. Mr. Sader alleged this was fundamentally a better approach than mandating the courts what they could or could not do.
Mr. Gibbons raised an issue in A.B. 204 as to whether or not the provision would have an impact on claims submitted by juveniles for false arrests under criminal charges wherein in the minors' names and identities were protected because of their age. Mr. Sader asked if juveniles' claims would be protected in civil proceedings for damages. Mr. Gibbons asked if false arrest claims could relate back to the juveniles' arrest. Mr. Sader responded negatively. He elaborated, in cases where juveniles pursued civil actions and were awarded monetary damages paid by the taxpayers, the juveniles lost confidentiality in these cases. Mr. Gibbons noted, in civil actions, minors were represented by guardians or some other legally recognized adults. The juveniles might not have their names disclosed. He inquired as to whether or not this would have an impact.
Mr. Carpenter referred to the fifth proposed amendment to A.B. 204, Exhibit D. He stated it appeared the courts ordered the records sealed although the amendments would allow the records unsealed by mandating local governments provide this information.
Mr. Sader added often the stipulation of confidentiality moved defendants to settle cases. This was taxpayer money which was different from private party resources. Here the responsibility to account for how and why monies were paid was stipulated. This overrode the interest in confidentiality.
ASSEMBLYMAN SMITH MOVED AMEND AND DO PASS A.B. 204.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
Captain Randy Oaks, representing Sheriff John Moran, Las Vegas Metropolitan Police Department, annexed further testimony in support of A.B. 204. He stated there had not been any comment received from the LVMPD Fiscal Affairs Division although he suspected the department was not opposed to the proposed amendments. The information which would be requested under the proposed amendments was available upon request and had been presented to the Assembly Judiciary Committee as well as the Senate Judiciary Committee. He surmised there did not appear to be a problem. It might be possible to indicate in sealed files the amount of money paid on the type of claim without revealing the name of the claimants.
Mr. Anderson voiced his concern with the third proposed amendment to A.B. 204, Exhibit D, and the smaller communities' ability to retrieve information still pending whereas the information would be more expeditious in larger communities. In response to Mr. Anderson's additional inquiry, Mr. Sader replied the provisions pertained to actions which involved injury or property damage against local or state governments.
THE MOTION CARRIED. (ASSEMBLYMEN ANDERSON AND CARPENTER OPPOSED. MR. SCHERER WAS ABSENT.)
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.
Chairman Sader advised the committee members there was an amendment to A.B. 310, Exhibit F, which further narrowed the thrust of the intent of the bill.
Mr. Bill Prezant, attorney, appeared on behalf of the Doctors Company in support of the passage of A.B. 310. He advised the committee members there had been specific questions raised during the preceding hearing with respect to the proposed legislation. The suggested amendment addressed a greater portion of the issues raised with respect to the scope of law. The provisions currently mandated, "no person may bring more than one cause of action for medical malpractice arising from a single action, or omission, or series of actions or omissions, resulting in the same injury by a provider of health care or a hospital in rendering services".
Mr. Prezant recalled from testimony presented during the preceding hearing, one concern raised was there might be instances where two plaintiffs would have a claim for relief or cause of action against a doctor. The proposed legislation would clarify this issue. He alleged the subsequent issue pertained to the vague language contained in the original bill which addressed medical malpractice. He suggested the provision be clarified to state the provisos referenced claims or causes of action for medical malpractice. The issue arose as to whether or not a series of visits to a physician was in the same course a treatment, therefore, the injury which resulted would be the same injury for those visits to the physician.
Mr. Prezant noted the term "by provider of health care" broadened the language to include physicians and other providers of health care. The term "provider of health care" did not define a hospital as a provider of health care although an employee of a hospital was a provider of health care. He believed the changes suggested to A.B. 310 were consistent with the issues raised by members of the committee during the previous testimony.
Chairman Sader reminded the committee members of the issue which arose from the Supreme Court case where the controversy related to what the case did and did not do. The representative of the Doctors Company had alleged the provision might expand the interpretation of insurance policies. The question arose as to what constituted an occurrence to each office visit. Mr. Sader advised the trial lawyers had suggested cases could not be interpreted in this way and provided additional arguments against passage of A.B. 310.
Mr. George McNally, President, Nevada Trial Lawyers Association, addressed the same concern. He was not in support of the amended language or the concept behind A.B. 310. Under these provisions, he maintained no one could bring more than one cause of action. There might be many different causes of actions arising from one incident. He contended this issue had not been addressed. He contended the phrase, "resulting in the same injury" was the basis for the Doctors Company wanting to limit the provision to one injury per incident. He alleged the Doctors Company was limiting this so as not to bring more than one cause of action.
Mr. Sader clarified the provisions intended to read, "no person may bring more than one cause of action against a provider of health care or a hospital for an action which resulted in the same injury". To clarify, he used the scenario where there were several physicians involved in the treatment of an individual and the claimant wished to bring separate causes of actions against each of the health care providers and the hospital. The provisions would not restrict the individual from doing this. The bill permitted one claim for medical malpractice which arose from each injury but there could be separate claims levied against a series of providers. He asked if the provisions would limit the number of persons who could be litigated against.
Mr. McNally replied the provisions might allow this as the bill limited the scope to individuals with one cause of action. He noted there were numerous claims of causes of action which might arise from one incident. The provisions contained in A.B. 310 appeared to limit to one person.
Mr. Sader alleged the proposed amendment had not been distributed widely enough. It appeared the amendment did not accomplish this as it read, "no person may bring more than one cause of action". He surmised, in the example where there were five individuals and each had a cause of action, it was permitted. If claimants had more than one cause of action against different individuals, the provisions permitted this as well. As he understood, if the cause of action arose out of the same injury, the proposed amendments would stop this action. Mr. McNally concurred.
Mr. Prezant interjected and stated this was what A.B. 310 had been designed to do. There might be multiple causes of action but there was only one cause of action for medical malpractice, or medical negligence, arising out of the acts which resulted in the same injury. He reiterated there might be other causes of action but there was only one cause of action for medical malpractice.
Mr. Porter contended, if he was personally drafting a complaint, he would allege numerous causes of action, some of which might be brought about by another party. Mr. Prezant focused on the change made in reference to medical malpractice which determined one cause of action. For the purpose of contention, Mr. Porter altered the term medical malpractice to negligence as the claims pertained to negligence of duty, standard of care or breach of duty, causation and damages. He alleged the suggested amendments allowed one negligence claim.
Mr. Prezant understood the term medical malpractice was defined as a term of art in Chapter 41A. Mr. Sader clarified medical malpractice was based on negligence as a variation of potential facts related to breach of duty. Medical malpractice or negligent actions were defined in Chapter 41A. Mr. Porter ascertained several duties might be breached. Mr. Prezant contended Chapter 41A defined the scope of medical malpractice as negligence in the provision of health care services. Mr. Porter asked if individuals would be precluded under Chapter 41A from pleading common law negligence and medical malpractice action. Mr. Prezant believed individuals would be.
Mr. Sader illustrated a common type of medical malpractice action which was breach of duty and informed consent. To further clarify, he presented a scenario where doctors had not provided adequate information. Based on this, the patients did not have informed consent and it was negligence on the part of the doctors. Another common type of case pertained to negli-gence in treatment. He provided situations where both circumstances applied. He asked if the claimants were prohibited from bringing both charges as they arose from separate sets of facts, one from the injuries and treatment and the second from the failure of the doctors to provide enough information for the client to have informed consent. He asked if these scenarios would entail two causes of action for medical malpractice.
Mr. Prezant stated the lack of informed consent as to the scope of treatment as the result of injury was the issue. He noted Mr. Sader had raised a good point and maintained this was not the intent of the amendment. If the provisions could be defined in terms of negligence and the injured party could assert both claims, he would support the amendment.
Mr. McNally surmised every breach or omission of duty might give rise to separate negligence claims. He agreed the language would prohibit those separate claims. Mr. Prezant did not agree with the statement made by Mr. McNally. Mr. Sader suggested the definition be more clearly defined. The essential issue was understood. If there was one injury treated and subsequent courses of treatment which entailed separate office visits, the intent was to prohibit separate causes of action for each of the office visits in the course of treatment. Mr. Sader clarified the question had been raised there were different causes of actions based on different sets of facts which would come under the umbrella of the bill. He maintained this was not the intent of the bill, therefore, additional work was required. Mr. Prezant contended the only hypothetical issue was that of the informed consent.
Chaiman Sader suggested drafting additional language to clarify A.B. 310. The bill would be discussed during the following work session scheduled for May 28, 1993.
ASSEMBLY BILL NO. 575 Consolidates provisions conferring First Reprint powers of peace officer.
Chairman Sader reminded the committee members suggested amendments had been applied to A.B. 575 during the preceding hearing. The Police Officer Research Association of Nevada (PORAN) had attempted to place all instances of grants of police officer powers into one chapter of the Nevada Revised Statutes in place of various chapters which would make it difficult to retrieve and ascertain the delegation of powers.
Chairman Sader advised the committee testimony had ensued during the preceding hearing and no attempt had been made to increase or decrease the police officer powers of any particular group or entity. Any changes as the result of the amendment were unintended. Mr. Sader noted a series of amendments had been received from PORAN and SNEA, Exhibit G, after the preceding hearing. Testimony had been received from the State of Nevada Employees Association and the Public Employees Retirement System to delete outmoded provisions which had been concurred with and were included in the suggested amendment. The Las Vegas District Attorney had also requested police officer powers. Mr. Sader stated he had testified the bill was not designed to increase police officer powers as issues would arise as the result of this action. Mr. Sader informed the committee members an issue had been raised by the Wool Growers Association and others as to whether or not the SPCA would have enhanced police officer powers. He added, if this was the case, it was not intended as A.B. 575 was not designed to enhance police officer powers to any group.
Chairman Sader requested the Legislative Counsel Bureau and the research staff review the proposed amendments to substantiate there was no enhancement or decrease of police officer powers on behalf of any entity. He also wished to confirm the suggested language conformed so there was not an interpretation issue as to the express purpose of the amendments.
Mr. Bonaventura asked if the legislative police officers had law enforcement authority under A.B. 575, Section 9. Mr. Sader confirmed legislative police retained law enforcement powers.
Mr. Collins requested the proposed amendments to A.B. 575 be rereferred and brought before the Judiciary Committee in conjunction with written confirmation from the research division that the provisions did not enhance police officer powers. Ms. Denice Miller, research analyst, Legislative Counsel Bureau, confirmed she would comply with the request and provide the Assembly Judiciary Committee members with the statement of non- enhancement of police officer powers.
Mr. Gibbons focused attention on A.B. 575, Section 16 and 17. He moved for deletion of those sections which might be researched as increasing the police powers of animal rights agencies as per the concern of the Wool Growers Association. He added if those rights were found not to be expanded he stated he would reserve the motion.
ASSEMBLYMAN ANDERSON MOVED TO AMEND AND DO PASS.
ASSEMBLYMAN TOOMIN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
There being no further business to come before the committee, Chairman Sader adjourned the meeting.
RESPECTFULLY SUBMITTED,
Jessie A. Caple
Committee Secretary
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Assembly Committee on Judiciary
May 21, 1993
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