MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
May 25, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:08 a.m., May 25, 1993, in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Robert M. Sader, Chairman
Mr. Bernie Anderson
Mr. John C. Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. Ken L. Haller
Mr. William A. Petrak
Mr. John B. Regan
Mr. Michael A. Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
COMMITTEE MEMBERS ABSENT:
Mr. Gene T. Porter, Vice Chairman
Mr. Scott Scherer
GUEST LEGISLATORS PRESENT:
Mr. Roy P.M. Neighbors, Assembly District No. 36
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Mr. Gary L. Stagliano, Chief, Nevada Department of Human Resources, Welfare Division, Investigations
Ms. Sheila Block, Deputy Attorney General, Nevada Department of Human Services, Welfare Division, Legal Services
Mr. Fred Welden, Chief Deputy Research Director, Legislative Counsel Bureau, Research Division
Ms. Barbara J. Raper, Nye County Lobbyist
Mr. Brian M. Callaghan, Executive Director, Nevada Pari- Mutuel Association
Mr. Anthony Cabot, Nevada Pari-Mutuel Association
Mr. George McNally, President, Nevada Trial Lawyers Association
Mr. Pat Cashill, Former President, Nevada Trial Lawyers Association
Ms. Mary Ellen McCarthy, Staff Attorney, Nevada Legal Services
Mr. Harvey Whittemore, Attorney, Lionel, Sawyer and Collins Mr. Robert M. Barengo, Attorney, Leroy's Race and Sports Place
Following roll call, Chairman Sader opened the hearing for testimony on bills scheduled.
ASSEMBLY BILL NO. 614 Revises restriction on issuance of nonrestricted gaming licenses to resort hotels located in certain counties.
Mr. Harvey Whittemore, attorney, Lionel, Sawyer and Collins law firm, testified in support of A.B. 614.
Mr. Anthony Cabot, Nevada Pari-Mutuel Association, testified in support of A.B. 614.
Mr. Brian M. Callaghan, Executive Director, Nevada Pari-Mutuel Association, testified in favor of passage of A.B. 614. He explained the Nevada Pari-Mutuel Association was comprised of 22 non-restricted gaming operations which operated primarily in Las Vegas. The association was involved in placing direct gambling bets at race tracks. He added gambling bets wagered in casinos went directly to the race tracks which limited the financial and fraud risks.
Mr. Cabot stated A.B. 614 would amend NRS 463.1605 which had been adopted during the Sixty-sixth Legislative Session and had been commonly known as the resort hotel bill. The original provisions authorized non-restrictive gaming licenses to those resort hotels in Clark and Washoe counties which had a minimum of 200 rooms, bar and restaurant. The purpose of the previous legislation was to insure new properties made equitable and fair capital contributions to enhance the continued growth of the industry prior to obtaining gaming licenses. The previous bill had contained exemptions for race and sports book establishments.
According to Mr. Cabot, the purpose of the original legislation was to accommodate Leroy's Horse and Sports Place, as well as the patriarchal, stand-alone sports book establishments which entertained moving their locations. At that time, the gaming industry had not objected to the amendment as both the City of Las Vegas and Clark County had ordinances which prohibited the installation of new, stand-alone sports book establishments or the addition of racing sports book to slot-machine only locations which were basically taverns, grocery stores, etc.
Mr. Cabot continued with the historical overview of the bill and stated, after the bill passed, the City of Las Vegas had made minor revisions to the ordinances which allegedly made them consistent with state law. However, a neighborhood tavern with 35 slot machines had applied for a sports books license. The City of Las Vegas had not amended its ordinance to accommodate this and had informed the sports book applicant the establishment was not allowed under the Las Vegas city ordinance. The establishment sued the City of Las Vegas in district court wherein the district court had determined the ordinance allowed the operation of sports book operations in neighborhood bars. Several neighborhood bars filed applications seeking sports book permits which caused substantial, negative, community reaction.
According to Mr. Cabot, the Las Vegas City Council had acted quickly and passed a new ordinance which closed the loophole. The Nevada Gaming Commission, upon unanimous recommendation of the State Gaming Control Board, had ruled against the location and cited neighborhoods were unsuitable locations for bookies irregardless of the City of Las Vegas' decision.
Mr. Cabot stated the purpose of the amendment to A.B. 614 was to prevent the establishment of sports books establishments in non-restrictive locations or areas which were licensed for 15 or less slot machines such as neighborhood bars, grocery stores, etc.
Mr. Cabot stated, in consultation with Mr. William Bible, Chairman, Nevada State Gaming Control Board, the Pari-Mutual Association had agreed upon amendments which would address concerns with the overbroadness of the bill. He focused attention on A.B. 614, Section 1. Under NRS 463.1605, he proposed the committee retain the bracketed language, "other than for the operation of a race book or sports pool" and add the phrase, "at a non-restrictive location in conjunction with gaming devices and gambling games" as both were required. The provision would allow the Nevada Gaming Commission to issue non- restrictive licenses for race and sports book operations at any location in Clark and Washoe counties provided the establish-ments were conducting live games. According to Mr. Cabot, the proposed provisions would prevent the establishment of race and sports book in neighborhood bars which were not licensed to conduct live games. He described a live game as any table game where there was a dealer.
Mr. Cabot proposed a new Section 2 to A.B. 614 which would read, "Section 1 of this act does not prohibit the operation of race books and sports pools at an establishment that was issued a license for such operation prior to the effected date of this act unless the establishment ceases its race book or sports operation for more than two years", Exhibit C. All the provisions would do would allow establishments to continue to operate as long as they did not cease operations for two years and operated a race book or sports pool prior to the effective date of the act.
Mr. Cabot stated A.B. 614, Section 3, would allow stand-alone sports book establishments licensed prior to 1979 to move locations within the county. According to Mr. Cabot, the amendments had been agreed to by State Gaming Control Board Chairman, William Bible.
In response to Mr. Haller's concern, Mr. Whittemore stated the amendment would apply to those cities and counties which wanted to limit the sports book locations where non-restricted gaming or gaming was allowed which was done by way of ordinance. He added this was a zoning issue.
The law would provide, in conjunction with the statutes, counties, cities or towns could require resort hotels to meet specified standards as conditions for the issuance of gaming licenses.
Responding to Mr. Haller's additional question, Mr. Cabot stated there were concurrent jurisdictions between the state and local governments on the issuances of gaming licenses. However, in many jurisdictions, the local governments issued the licenses although they referred to the state licensing and state investigations.
As Mr. Anderson understood, the purpose of the suggested amendments to A.B. 614 was to grandfather in those sports books operations which were already in existence. Since the adoption of the bill during the Sixty-sixth Legislative Session, Mr. Cabot stated there had been numerous sports book applications at neighborhood taverns. One application had gone forward and two applications had been rejected by the Nevada Gaming Commission on the basis sports book establishments were unsuitable in neighborhood locations. He added no race or sports book operations had been approved in neighborhood locations within the past two years.
Ms. Smith asked why the City of Las Vegas had not taken up the issues locally since the changes were currently in the city ordinances. Mr. Cabot stated the city ordinances had addressed the issues, however, the purpose of the proposed statute was to avoid the problems confronted two years previously with the neighborhood taverns applying for sports book permits. State statutes would clarify race and sports book would not be permitted in slots- only locations.
Addressing Ms. Smith's additional concern, Mr. Cabot noted licenses were renewed every year. In effect, when establish-ments were granted licenses, they held property rights until such time the licenses were turned in or revoked. He explained the license had been denied on the application which had gone forward by the Nevada Gaming Commission. If the license had been granted, it was questionable as to whether or not the city ordinance allowed the retrieval of the gaming license as issues would surface on property rights, etc.
In response to Mr. Regan's concern, Mr. Cabot stated the Sport of Kings, Inc. gaming establishment fell under the exemption of the existing statute and had been grandfathered in under county ordinance.
Mr. William Bible, Chairman, Nevada State Gaming Control Board, stated A.B. 614 had been written in over-broad language. The proposed amendments contained in Section 1 addressed the problem and would allow the issuance of non-restrictive licenses to sports book operations provided there was no conflict with slot machines and live games. He alleged the other amendments might be combined.
According to Mr. Bible, A.B. 614, Section 2, should allow existing stand-alone race and sports book establishments the ability to move to other locations within the county. As the language was currently written, the provisions would preclude sports book operations, particularly the Sport of Kings, from moving its operations to another location within the county. He emphasized the proposed amendments solved the issues previously addressed.
Mr. Toomin asked if there were requirements on the number of slot machines or live games permitted in one facility. Mr. Bible replied, in this instance, there would not be any requirements. Slot machines and live games, which required non-restrictive licenses, would be permitted. In most areas, Clark County would be precluded by county ordinance to obtain approval. He pointed out there were a few locations where slot machines and poker tables operated. Under the proposed amendments, sports book operations would be allowed under different licenses.
According to Mr. Bible, NRS 463.245 required and provided issuances of non-restrictive gaming licenses, one license per establishment, with the exception of sports book and race book operations. He stated this came about due to the expanded use of satellite operations within the industry. Leroy's Horse and Sports Place had been issued a non-restrictive gaming license in approximately 15 or 20 locations wherein they conducted business in other casinos. Under this exception, the Nevada Gaming Commission would be permitted to issue additional licenses at locations where there were both slot machines and live gaming. He noted, if small operations had live games, they would be able to obtain sports book permits under the suggested provisions. Those operations which conducted slots only gaming would not be able to receive sports book licenses.
Mr. Sader asked for committee consideration of Mr. Bible's suggestion to change the amendment and delete April 1, 1978 which would make the ability to move subject to those sports book establishments which had already been licensed. Mr. Cabot concurred and suggested the current date, "April 1, 1978" be substituted by the phrase, "prior to the effective date of this act".
Mr. Robert Barengo, attorney, representing Leroy's Race and Sports Place, concurred with the proposed amendment. He stated S.B. 535 had been introduced during the Sixty-sixth Legislative Session and the amendment to Section 3 had been made and ultimately passed through both houses without objection. He stated the amendments suggested by Mr. Cabot would solve the issues. He noted there were three stand-alone sports book operations in the state which were Leroy's, the Sport of Kings and the Turf Club. In 1981 there had been approximately 18 stand-alone clubs.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 614. He asked for committee consideration of the bill.
ASSEMBLYMAN SCHNEIDER MOVED TO AMEND AND DO PASS WITH THE AMENDMENTS PROPOSED BY MR. CABOT.
ASSEMBLYMAN PETRAK SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMAN ANDERSON VOTED AGAINST. ASSEMBLYMEN PORTER, SCHERER AND BONAVENTURA WERE NOT PRESENT FOR THE VOTE.)
Mr. Schneider was assigned to handle A.B. 614 on the Assembly floor.
ASSEMBLY BILL NO. 655 Revises provisions relating to state lien on recovery of proceeds from person liable for illness or injury of recipient of assistance to medically indigent.
The prime proponent for A.B. 655 was Ms. Sheila Block, Deputy Attorney General, Department of Human Resources, who represented the Nevada State Welfare Division. She stated, when Medicaid recipients suffered injuries or illnesses as the result of actions committed by third parties, the Medicaid program often paid for the medical treatment received. When recipients secured reimbursement for the injuries from the third parties, the Welfare Division, which administered the Medicaid program, was entitled to be reimbursed for the amounts which were paid on behalf of the recipients.
According to Ms. Block, the Welfare Division had experienced difficulties in pursuing such recoveries due to conflicting interpretations of NRS 422.293. A.B. 655 would assist the Welfare Division in obtaining reimbursement for benefits paid on behalf of Medicaid recipients from responsible third parties.
Ms. Block stated, in cases where the Welfare Division joined or intervened in civil actions with the recipients to recover damages against third parties, A.B. 655, Section 1, subsection 1, would mandate the Welfare Division would not pay attorneys' fees or costs absent written agreements which had been signed by the Welfare Administrator. The agreement between the Welfare Administrator and the plaintiff's counsel would specify the maximum amount of the costs for which the division would be liable. This would enable the Welfare Division to participate in the decisions regarding litigation expenditures for which the recipients often requested contribution.
According to Ms. Block, the need for the legislation was determined during a recent Medicaid subrogation case where a Medicaid recipient brought civil action against an insurance company. The Welfare Division had not been notified of the commencement of the action as required under subsection 4. The division had not been notified until one week before the trial date. Upon discovery of the action, the Welfare Division had filed a lien upon any settlement or judgment rendered to insure Medicaid reimbursement. The amount of the expenditures paid on behalf of the recipient of the Medicaid program exceeded $166,000. The recipient had been awarded a judgement of $3.2 million. A substantial portion of the award had been used to satisfy the legal costs, including attorney's fees, which were approximately $1.65 million. In response to the Welfare Division's attempt to seek satisfaction of the Medicaid lien, the recipient's legal attorney demanded the lien be waived entirely or reduced by an amount which represented a portion of the attorney's fees and costs associated with securing the judgment. The failure to notify the Welfare Division precluded its ability to participate in the action or oversee and approve expenditures associated with this litigation.
Ms. Block stated A.B. 655, subsection 1, would provide for the Welfare Division's participation in such actions which would eliminate recipients' ability to deny or postpone settlement of Medicaid liens. According to Ms. Block, settlement of the aforementioned case was still pending before the Supreme Court. A.B. 655, Section 1, subsection 3, would mandate liens be satisfied before the proceeds of recoveries or settlements were distributed to the recipients, or the attorneys, and prior to dismissal by the courts of the action.
Ms. Block noted the Welfare Division had experienced the effects of this legal maneuver after the division had paid medical bills and filed a medical lien in the amount of $125,000. The recipients attorney had negotiated an out-of-court settlement and the court had dismissed the action. The proceeds had been distributed to the attorney and recipient; the lien had been ignored. By dismissing the action, the court lacked jurisdiction to enforce the lien, thus, the Welfare Division was required to bring a separate action against the attorney and the client or recipient. A.B. 655, Subsection 3 would ensure payment of the Medicaid lien would be made on behalf of the individuals receiving the settlements and ensure the courts' ability to enforce the liens prior to dismissal.
Ms. Block addressed A.B. 655, Subsection 4, which established legal responsibility of the Medicaid recipients or successors' interest to notify the Welfare Division in writing, prior to commencing legal action or entering into settlement agreements. A.B. 655 would provide that failures to comply with the notice provision would result in waivers of any consideration of reductions of the liens as set forth in subsection 5.
According to Ms. Block, A.B. 655 would ensure the Welfare Division was afforded the ability to recover Medicaid expenditures from recipients who were able to secure cash awards from the responsible third-party sources. The Welfare Division would be ensured of receiving proper notices of action or settlements prior to considerations of reductions of liens. Further, the Welfare Division would have the ability to enforce the liens in civil actions. Without this legislation, the Welfare Division would continue to experience resistance with regard to settlement of these issues.
Mr. Gary Stagliano, Chief of Investigations, Nevada Department of Human Resources, Welfare Division, spoke in support of A.B. 655. In response to Mr. Haller's concern, he stated, in the case cited by Ms. Block, the recipient had secured private insurance and paid a monthly premium. When this patient incurred an illness, the insurance company had continued to raise the monthly premium until the patient had been effectively priced out of coverage.
Mr. Sader was not comfortable with A.B. 655 as he believed the provisions did not provide good public policy. According to Mr. Sader, the practice of claimants bringing third party actions was appropriate and assisted the Welfare Division in recovering costs. He believed paying for portions of the court costs and attorneys fees was acceptable although it compromised total recovery to some extent. This made individuals pay a portion of the cost of litigation although they might have their own attorneys. Mr. Sader stated he was concerned with those policies which would promote disincentiveness. He asked how the private agreements with the administrator were going to work and what incentive did the administrator have to make such agreements.
Ms. Block surmised Mr. Sader alluded to A.B. 655, Section 1, subsection 1, where the Welfare Division would not be required to pay any costs of actions or the attorneys' fees unless the administrator executed written agreements in advance and specified maximum portions. She stated, under this particular section, referencing the circumstances where the Welfare Division would join in as a party to the litigation, the Welfare Division would contribute to a portion of the costs and attorneys' fees. This would provide both parties with the understanding as to how much the Welfare Division would contribute toward the costs of the litigation, or what they were able to contribute based upon the amount of the liens, for example, how much had been expended. The Welfare Division Administrator would know if the department was joining in as a party and if they would be contributing to the attorneys' fees and costs. This would establish an agreement between the parties so both would be on notice as to how much would be contributed.
Mr. Sader noted, in the usual situation, recipients of welfare benefits who had causes of action against third parties would find attorneys and pay them contingency fees. The attorneys would understand there were subrogation claims and approach the Welfare Division regarding written agreements to share costs. The alternative would be, without the agreements, they would not get any. At that point, Mr. Sader asked what incentive did the Welfare Administrator have to enter into these agreements.
Ms. Block responded to Mr. Sader's statement and stated, in most cases where there were Medicaid liens, the Welfare Division was notified. The Welfare Division did not join as a party as indicated under subsection 1. The process which ensued in these types of cases was that the attorneys contacted the Welfare Division and stated they were trying to settle the cases at which time the attorneys provided scenarios of the injuries and the amounts of the potential settlements. The Welfare Division Administrator then made decisions as to how much the Welfare Division would contribute to or reduce the liens. Most often this was done prior to actions being filed, prior to trials, and in most circumstances, the Welfare Division was not a party. According to Ms. Block, the Welfare Division did not join in as a party but settled these cases with private counsel. They either reduced the liens by amounts to contribute to the attorney's fees and costs, or in appropriate cases, asked that the liens be satisfied in full. In the event the Welfare Division was to join into actions, it would be in the Welfare Division's and private counsels' best interest to know how much they would assist in the litigation expenses. The Welfare Division Administrator would reduce portions of the liens if the division continued as party to the litigation.
Mr. Sader referenced A.B. 655, Section 1, which would create an incentive if the Welfare Division did not like the proposals made by the recipients' attorneys for cost sharing. According to Mr. Sader, conceivably, the Welfare Division Administrator could say, "I'll file my own action and then I would not have to pay anything". He stated independent claims for subrogation where the plaintiffs' counsel had already brought or joined action would not be mandated to pay without written agreement. Ms. Block added they would be paying for the costs of their own litigation but would not be contributing to the costs of the plaintiffs' litigations if they were required to bring their own actions as in subsection 2 where third parties had not brought the actions and the Welfare Division had to bring actions independently. Ms. Block requested, in circumstances where the Welfare Division brought forth the actions, the division be reimbursed for their costs and attorneys fees provided the Welfare Division had to pursue the actions in order to be reimbursed for the Medicaid expenditures.
To further clarify the provisions contained in A.B. 655, Mr. Sader presented a scenario where there was an independent cause of action. The recipient elicited the services of an attorney and entered into a standard contingency fee contract. The attorney worked on the case and, before a lawsuit was filed, got the third party defendant to a point to where he wanted to settle the case. In this example, the attorneys had to negotiate with the Welfare Division due to the cost sharing and the payment which might be the crucial issue as to whether or not there would be a settlement. At this point, the Welfare Division had not done anything in this case. However, the Welfare Division did not like the distribution proposal and could not come to an agreement, so it filed its own suit. In this circumstance, the division would get paid all its costs and fees first as the division had an independent cause of action.
Ms. Block did not believe this was the intent of the proposed legislation. To clarify the matter in the presented scenario, she stated the Welfare Division had paid all the medical expenses the recipient incurred when injured and paid at the reduced rate. Mr. Sader interjected and noted this would be taxpayer money which would have been paid to a recipient and should be recovered to the fullest extent. Ms. Block alleged the intent of the bill was to clarify the existing statute so cases would not be dismissed and proceeds would not be distributed while ignoring those Medicaid liens which had already been filed.
Ms. Block stated provision 5 would allow the Welfare Division Administrator to determine what amounts would be contributed toward incurred costs and fees. She did not request this concern be amended or addressed at this time.
Mr. George McNally, President, Nevada Trial Lawyers Association, testified in opposition to A.B. 655. He maintained state agencies should be reimbursed in cases where there were agreements. He believed there would not be any problems as the bill allowed for reimbursement to the attorneys representing the parties and to the administrator. In cases where there were no agreements, he alleged the matters should be left up to the discretion of the judges instead of an administrator.
Mr. Pat Cashill, former president, Nevada Trial Lawyers Association, testified in opposition to A.B. 655. He believed the most direct route would be to not allow trial judges to dismiss actions until the liens had been resolved. Issues would not occur as cases would not be dismissed until the state had received the money. The state would need to file the liens and be joined in the actions for the limited purpose and would not have to put up the money, prosecute the cases, or become involved in any decisions as to how to prosecute the cases. If the state chose to join the actions, it could do so by agreement. If the state did not wish to participate, the cases could not be dismissed unless the liens had been satisfied and approved by the trial judges.
Mr. Sader referenced A.B. 655, Section 1, subsection 3, page 2, and asked if this was similar to the language discussed previously. Mr. McNally concurred but added these liens must be satisfied in full. He pointed out, if the claimants did not agree with the settlements, this might force the cases to go to trial and settlement monies would dissipate. The verdict might return in favor of the defendant.
Mr. Sader referenced A.B. 655, Section 1, subsection 3, subsection (a), page 1, lines 19 through 21. He suggested deleting the term "in full" in the language, "Such a lien must be satisfied in full, unless reduced..." and in Section 1, subsection 3 (b), page 2, lines 1 and 2, "A dismissal by any court of any action..." According to Mr. Sader, the issue was addressed in the language and the action was dismissed the same time the money was passed. If the provisions required the money be paid to the state before the actions were dismissed, the defense attorneys might have problem with the timing.
Mr. Sader focused on the original A.B. 655, Section 1, subsection 3, page 2, lines 15 through 19 which read, "a person who fails to comply with the provisions of this subsection shall be deemed to have waived any consideration." He stated the language pertained to notifying the Welfare Division in writing before entering into settlement agreements or settle in the cases. Individuals wave the right otherwise provided by subsection 5 for the administrator to reduce the liens.
Mr. Cashill's concern was there be some provision with the suggested language, "absent special circumstances" wherein the failure to notify the Welfare Division in writing would constitute waivers. He contended there needed to be some enumerating circumstances which would allow for judges' discretion.
Mr. McNally alleged there were attorneys who would not be aware of the statute. He suggested language which might read, "immediately upon notification to the state agency of some action commence they shall file a notice of lien." He maintained this would afford the attorneys the time and notify as to settlements or trial dates, etc.
Mr. Sader noted most competent personal injury attorneys were aware of the need to research for assignments and liens, particularly with clients who had modest means. Mr. Cashill stated a worthy public purpose could be served by requiring the state agency to file and serve notices to all parties involved in the cases. The more individuals provided with notices of the existence of liens would increase the likelihood of reimburse-ment to the state.
As Mr. Sader understood, the language on page 1 was contested. He stated the language contained in page 2 could be amended to satisfy the concerns.
Ms. Mary Ellen McCarthy, attorney, Nevada Legal Services, informed the committee the firm represented low income individuals and did not represent personal injury actions which were considered fee generating cases which was the focus of A.B. 655.
Ms. McCarthy addressed concern with two aspects of the bill. She brought attention to Section 1, line 7, the bracketed language, "to the extent of all such costs." She questioned the removal of the bracketed language as it had not been specifically addressed during the testimony. Her understanding of third party liability was the Welfare Division was subrogated to the extent of what had been paid out and nothing else. She believed the language should stay as it was as the parties were entitled to be reimbursed for everything paid out, but nothing more.
Ms. McCarthy stated the other concern with Section 1 was the provisions might have a chilling effect on individuals with modest means to obtain attorneys. In many of theses cases, there were individuals who were disabled or women with minimal earning capacities. Her concern was would the provisions contained in A.B. 655 inhibit private attorneys from taking the cases due to the requirement to enter into agreements and be up front about what they were going to recover dependent on the determination of the Welfare Division Administrator.
With respect to Mr. Cashill's comments, Ms. Block stated A.B. 655 addressed the satisfaction of the liens before dismissals as indicated in subsection 3. She maintained the bill allowed the Welfare Department to file liens which they did when noticed of actions. Difficulties arose when the department did not file actions although they were settled prior to filing. Often the Welfare Department did not receive notice. This was the reason for the provision in subsection 4 where the Welfare Division asked to be noticed prior to entering into settlements where causes of action had not been filed with the courts.
Mr. Sader addressed the language contained in A.B. 655, page 2, line 5, which read, "must be satisfied in full". The concern was with the language where there were reductions authorized by the administrator, possibly the liens could not be reduced. Ms. Block clarified, in cases where the administrator had agreed to reductions of the liens, these amounts would be paid. Mr. Sader believed deleting the term "in full" would clarify the issue.
Ms. Block focused attention on A.B. 655, Section 1, page 1, line 7, which read, "[to the extent of all such costs]" and stated the bracketed language could be deleted. Mr. Sader addressed A.B. 655, Section 1, lines 5 and 6, which read, "satisfied in full unless reduced pursuant to". He claimed the term "in full" should be retained with the qualification as it would allow for reduction in appropriate cases.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 655. He requested committee consideration of the bill. He suggested they delete the revisions contained in A.B. 655, page 1 and accept the revisions on the second page with amendment. He stated the bill drafter would adjust lines 5 through 10 to not allow liens to be paid in full before court dismissals. This provision would permit filing because insurance companies did not like to give checks away and have them cashed prior to dismissals on cases.
Mr. Gibbons suggested deleting the word, "before", and insert the phrase, "at such time as." Mr. Sader concurred with the proposal. Mr. Sader addressed an additional suggestion to A.B. 655, Section 1, subsection 2, lines 15 and 16, which pertained to failing to notify and add an exception for extraordinary circumstances and let the court decide.
Mr. Sader contended he could not support the changes contained in A.B. 655, page 1, although he supported an amended bill. He stated the amendment would be contained in Section 1, subsection 3, page 2, lines 5 and 6 where it read, "such a lien must be satisfied in full, unless reduced pursuant to subsection 5,..." The term "in full" would not be deleted due to the modification contained in the next clause which related to reducing this. He suggested adding the phrase, "extraordinary circumstances", or similar language, in lines 15 through 19 which would deal with unusual cases and amend out all the changes on the first page.
ASSEMBLYMAN GIBBONS MOVED TO AMEND AND DO PASS.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY. (ASSEMBLYMAN PORTER AND SCHERER WERE ABSENT.)
Mr. Gibbons was assigned to handle A.B. 655 on the Assembly floor.
ASSEMBLY BILL NO. 530 Revises provisions governing
First Reprint amount of money paid to jurors and witnesses for their service and travel.
Mr. Roy Neighbors, Assembly District 36, stated the purpose of A.B. 530 was to authorize counties to increase the compensation for jurors and witnesses who were required to travel significant distances to testify or sit on juries. Although the existing statute specified the compensation for jurors and witnesses, the amounts were inadequate for meals and lodging.
According to Mr. Neighbors, in rural Nevada, travel distances were great and time away from work was costly. A.B. 530 provided an alternative whereby counties could elect to increase the compensation for per diem and travel to be consistent with travel payments for state employees. A.B. 530, Section 1, amended the statute which related to jurors; Section 2 extended provisions to witnesses. A.B. 530, Section 1, subsection 3, page 1, lines 12 and 13, maintained, in addition to the regular fees, jurors were entitled to receive per diem allowance equivalent to state employees.
Mr. Neighbors stated A.B. 530, Subsection 4, page 1, lines 21 and 22, authorized payment of travel allowances at the state rate which was currently 24 cents per mile, instead of the statutory rate of 15 cents per mile. Likewise, Section 2, page 2, lines 36 and 37, authorized counties to pay witnesses travel allowances at the state rate of 20 cents per mile rather than the statutory rate of 19 cents per mile, as per Section 2, page 2, line 33. This would also authorized payment of per diem equivalent to the rate for state employees as per page 2, line 48 and page 3, lines 1 and 2.
Mr. Neighbors submitted copies of the handout entitled, Introductory Comments and Example, Assembly Bill 530, Exhibit D, and referenced page 3, subtitled, Example and Comparison of Compensation. He used as an example the town of Pahrump which was located 165 miles from the county seat in Tonopah. He focused attention on the subheadings, Compensation for Juror, Existing Provisions, and Provisions of A.B. 530. He referenced the subheading, Compensation for Witness Within County, Existing Provisions and Provisions of A.B. 530. Mr. Neighbors alleged the statistics were not overly generous as the individuals must be away from home, work and maintain two households for the periods of their service.
Mr. Neighbors read correspondence from Tonopah District Court Judge John Davis, which read: "There is no allowance for meals while jurors are serving and the fifteen dollars per day under the current law will not even cover the meal. Most jurors are working people, and many do not get paid by their job for the days they serve, and many are self employed and have to close their business in order to serve. Fifteen dollars per day does not even come close for making up for lost wages or income but puts an extreme financial hardship on most families, especially a single income family. Even witnesses are paid $25 a day, and a juries job is just as important or more important than that of the witnesses, and it is mandatory as part of the American Judicial system. Many people are not just reluctant to serve, but many become hostile, especially when told how much money they will receive for it."
Mr. Neighbors' concluding comment referenced the fiscal impact. One of the values of A.B. 530 was the provisions were not mandatory. The bill would authorize counties, which had the power to increase their compensation schedule if they so desired, while allowing other counties to retain their existing payments.
Mr. Fred Welden, Chief Deputy Research Director, Legislative Counsel Bureau, Research Division, addressed the proposed amendments to A.B. 530. According to Mr. Welden, in reviewing the bill, it appeared there was a slight duplication in the drafting. A.B. 530, Section 1, subsection 5, as pointed out in Exhibit D, page 2, lines 3 through 7, provided lodging allowances under existing law for jurors. Similarly, the per diem would be allowed under Section 1, page 3. The new language also included lodging allowances although it did not specifically state this, according to Mr. Welden. He noted there was a question as to which lodging allowance would be provided as one stated 60 miles and the other did not. This duplication could be eliminated by adding a 60 mile provision in the new language on page 1 and on page 2, line 3, make the subsection 5 apply, "only if a board of county commissioners does not adopt the rate of compensation pursuant to subsection 3", the new alternative. Mr. Welden stated this was a bill drafting duplication and not a substantive duplication.
Mr. Toomin asked why a fiscal note was not attached to A.B. 530. Mr. Neighbors reiterated the reason no fiscal note had been addressed was due to the permissive language in the bill. The county commissioners were not mandated to comply.
In response to Mr. Haller's concern as to why the bill was necessary, Mr. Neighbors stated individuals were subpoenaed to court and had to drive substantial distances to attend court proceedings which entailed meals and lodging.
In response to the additional concern of Mr. Haller's, as Mr. Neighbors understood, jurors who were state or county employees would receive their regular pay, but when the reimbursements processed through, the employees were mandated to return the travel monies back to the counties.
Mr. Gibbons asked if A.B. 530 was permissive with regard to the counties' enactment would the provisions give counties the ability to distinguish between payment of juror fees at a different rate for civil suits versus criminal suits. Mr. Welden stated it appeared the provisions would not. This would be a blanket type ordinance as the county would go with one option or the other. Mr. Gibbons noted the provisions did not give them the latitude to distinguish because civil suites were paid by the losing party for fees incurred versus the criminal suit. Mr. Welden replied, under local ordinances, counties could choose to opt for one or the other. Mr. Gibbons contended, if they were given this permissive latitude, then jurors were going to be opting for one type of case over the other. As Mr. Welden understood, local governments would choose to either pay the individuals more money or not to pay them more money across the board.
Mr. Neighbors added the issue could be addressed by resolution as opposed to ordinances. When new boards came in and did not like the provisions they had the option to revert back. Mr. Gibbons believed it was good legislative policy to have equality as to reimbursements in all jury trials to prevent jurors from opting out of one type of trial for another. He suggested the option be enacted equally for both criminal and civil matters.
Ms. Barbara J. Raper, Nye County lobbyist, testified in support of A.B. 530. She submitted copies of handouts, Exhibit E. She stated Nye County was expansive and individuals who drove to Pahrump for jury duty could drive as far as 180 miles and receive nothing in the way of compensation for the travel and lodging expenses. She estimated 90 percent of individuals called for jury did not work in occupations where they would received reimbursement for the time served on jury duty. Jurors might be required to serve jury duty for many days and not be reimbursed for lodging, food or gas.
Mr. Neighbors addressed AJR 32 which would allow the counties to move the district courts; he alleged a constitutional issue surfaced with this. The only way district court judges could sit in another jurisdiction would be if other judges were hired.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 530. He opened the floor for committee discussion on the bill.
Chairman Sader noted the bill drafter would have to reconcile the two conflicting provisions in A.B. 530, subsections 3 and 5, which pertained to housing allowances.
Chairman Sader addressed Mr. Gibbon's concern and stated there would not be any distinction made between civil and criminal matters which would be helpful for future interpretation. He agreed with Mr. Welden there appeared to be a conflict and an amendment would be needed to reconcile the conflicting provisions on housing.
ASSEMBLYMAN SMITH MOVED AMEND AND DO PASS.
ASSEMBLYMAN GIBBONS SECONDED THE MOTION.
Mr. Petrak noted Clark County reimbursed jurors for travel expenses. He asked if any county could elect to pay travel expenses if they wished to do so. Chairman Sader noted the mileage provisions were set in statute. What the provisions addressed was when counties elected to reimburse more to compensate for expenses. Jurors received what was mandated in the statute. Mr. Sader explained what had been alluded to before were instances where jurors lost money on the trips. Chairman Sader brought attention to Exhibit D, page 3, which was a good illustration of the 10 day trial. Under the subtitle, Existing Provisions, the example was provided what the fees would be under the provisions of A.B. 530 if counties passed enabling legislation. There would be increases in the mileage and meal allowances which did not currently exist.
Chairman Sader reminded the committee members the motion on the floor was amend and do pass.
THE MOTION CARRIED. (ASSEMBLYMAN HALLER VOTED IN OPPOSITION. ASSEMBLYMEN GREGORY, SCHERER AND PORTER WERE NOT PRESENT FOR THE VOTE.)
ASSEMBLY BILL NO. 594 Prohibits court from finding existence of implied agreement to hold certain property as if it were community property.
Chairman Sader noted there were no individuals present during the hearing to testify either in support of passage of A.B. 594 or against. The bill had been requested by representatives of the Domestic Law Committee of the Clark County Bar, Las Vegas. Proponents of the bill had noticed Mr. Sader they were unable to attend the hearing to testify. Chairman Sader placed A.B. 594 in the drawer.
Chairman Sader stated he would bring committee introductions of bill draft requests to the floor for a brief meeting so they would be introduced that day.
There being no further business to come before the committee, Chairman Sader adjourned the meeting at 9:52 a.m.
RESPECTFULLY SUBMITTED BY
Jessie A. Caple
Committee Secretary
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Assembly Committee on Judiciary
May 25, 1993
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