MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      June 2, 1993

 

 

 

The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:10 a.m., Wednesday, June 2, 1993, in Room 332 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

      Mr. Robert M. Sader, Chairman

      Mr. Gene T. Porter, Vice Chairman

      Mr. Bernie Anderson

      Mr  John C. Bonaventura

      Mr. John C. Carpenter

      Mr. Tom Collins, Jr.

      Mr. James A. Gibbons

      Mr. William D. Gregory

      Mr. Ken L. Haller

      Mr. William A. Petrak

      Mr. John B. Regan

      Mr. Scott Scherer

      Mr. Michael A. Schneider

      Ms. Stephanie Smith

      Mr. Louis A. Toomin

 

 

COMMITTEE MEMBERS ABSENT:

 

      None

 

GUEST LEGISLATORS PRESENT:

 

      Assemblyman Myrna T. Williams, District No. 10

 

STAFF MEMBERS PRESENT:

 

      Ms. Denice Miller, Research Analyst

 

OTHERS PRESENT:

 

      Ms. Anne Cathcart, Deputy Attorney General Criminal Justice

        Division of the Attorney General's Office

      Mr. Paul Yohey, Attorney General's Office

      Lieutenant Jim Nadeau, Washoe County Sheriff's Office

      Deputy Larry Lodge, Washoe County Sheriff's Office

      Mr. David Sarnowski, Attorney General's Office

 

OTHERS PRESENT CON'D:

 

      Doctor Kaiser, Department of Prisons

      Mr. John Neal, Chief of Fiscal Service, Department of

        Prisons

      Ms. Victoria Riley, Nevada Trial Lawyers Association

 

ASSEMBLY BILL 678 -

 

      Authorizes department of prisons to confine in infirmary of department certain offenders who refuse medical treatment.

 

Ms. Anne Cathcart, Deputy Attorney General Criminal Justice Division of the Attorney General's Office, the requesting agency, testified on AB 678.  Ms. Cathcart discussed and distributed an Attorney General's opinion letter she prepared which explained the purpose of AB 678 (Exhibit C).  She explained the bill was not to force medical treatment on any inmate but rather to permit the department of prisons to house an inmate involuntarily in the infirmary if it appeared, in the opinion of two prison physicians, it was in the inmate's best interest.  In addition it might be in the best interests of other inmates to have a particular inmate segregated from the others.

 

Doctor George Kaiser, Medical Director, Department of Prisons, testified in favor of AB 678.  Dr. Kaiser pointed out his office requested the opinion letter from the Attorney General's Office several months ago when it was dealing with some inmates who had or were suspected to have self-inflicted illness.  He noted the same question was also brought up regarding issues of inmates who refused care who might have a contagious disease like measles or tuberculous which could be a threat to the prison environment.  He added there also was from time to time inmates who went on hunger strikes, and when an inmate declared himself or herself to be on a hunger strike, he felt it was in both the inmate's and the prison's best interest to put the person under observation.  He said for all of these reasons, as well as many others, it would be proper and prudent to have the ability to confine inmates to the prison infirmary.  He said his department did not plan to do invasive procedures without either an emergency or a court order, but the purpose of this would be first to contain contagious diseases and second to observe people in a closed observable environment to see what types of illnesses they were manifesting.

 

Mr. Sader expressed concern because he felt the language was open ended on lines 9 through 11 which said "In each case be ordered by two physicians employed by the department, based upon their concurring opinion that the confinement is medically advisable."  He suggested further clarification on what basis it would be medically advisable.  He mentioned the two circumstances noted in Ms. Cathcart's letter and mentioned by Doctor Kaizer were one, to avoid aggravating the offender's medical condition or two, to avoid exposure of other inmates to contagious disease.

 

Mr. Sader asked Dr. Kaiser if there were other circumstances which he thought would fall into this category where he would want to keep an inmate against his will other than those two situations.

 

Dr. Kaiser mentioned, regarding self-inflicted illnesses, he sometimes had seen inmates who after a surgical procedure purposely or accidently contaminated their wound or did physical exercise after a hernia repair operation, which was inappropriate.  He added this would be both a risk to the inmate as well as an on-going expense and liability to the state.

 

Mr. Sader asked Dr. Kaiser if a self-inflicted illness fell under an aggravation of the medical condition.  Dr. Kaiser answered correct.  Ms. Cathcart pointed out hunger strikes would also be an aggravation of a medical condition.

 

Mr. Sader said he would feel more comfortable if these two criteria were inserted in the bill; one, to avoid aggravating the offender's medical condition and two, to avoid exposing other inmates to contagious disease when considering the question of medical advisability.

 

Mr. Bonaventura asked how much it would cost.  Ms. Cathcart replied hopefully it would reduce costs.  She said for instance about a week ago she spent virtually an entire day gathering documents, affidavits and preparing a motion to get a court order to permit the department of prisons to keep an inmate in the infirmary.

 

Mr. Bonaventura asked if there was a fiscal note.  Mr. Sader replied there was none.

 

Regarding Section 1, subsection 1(c) which said "Not delay the date the offender is released from prison."  Mr. Regan asked Dr. Kaiser if a prisoner would be held beyond his release date if he were ill.  Dr. Kaiser answered no, he would make arrangements prior to the release date for the prisoner to be moved to an appropriate setting, be it a hospital, nursing home or convalescent center.  Dr. Kaiser explained he would have a social worker make those arrangements prior to the person's release from prison.

 

Mr. Haller asked Dr. Kaiser if HIV positive ranked as contagious.  Dr. Kaiser answered yes.

 

Mr. Toomin asked Dr. Kaiser if an inmate was in the infirmary, discharged from prison and sent to another institution where he did not want to stay, would it be a condition of his parole or probation.  Dr. Kaiser clarified it depended upon how the individual was being released whether it was on parole, expiration of sentence, or pardon.

 

There being no further testimony, Chairman Sader closed the hearing on AB 678.

 

Mr. Sader proposed an amendment to AB 678.  He recommended inserting "to avoid aggravating the offender's medical condition or to avoid exposing other offenders to a contagious disease" in Section 1, subsection 2(b), line 11 after the word "advisable."

 

      ASSEMBLYMAN REGAN MOVED TO AMEND AND DO PASS AB 678.

 

      ASSEMBLYMAN ANDERSON SECONDED THE MOTION.

 

      THE MOTION CARRIED.

 

      ASSEMBLYMAN BONAVENTURA OPPOSED THE MOTION.

 

ASSEMBLY BILL 667 -

 

      Makes certain changes concerning claims brought by prisoner or former prisoner to recover compensation for loss of his personal property.

 

Mr. Paul Yohey, Attorney General's Office, the requesting agency, testified on AB 667.  Mr. Yohey explained the original language in the bill was unconstitutional pursuant to Article 5, Section 21 of the Nevada constitution because the bill drafter had misunderstood what he was attempting to do.

 

Mr. Yohey explained his proposed amendment (Exhibit D).  He said the bill attempted to accomplish two things:  First, it would simplify the procedures for the Board of Examiners dealing with  inmate personal property claims; second, it would make the individual prisons somewhat more accountable for following the procedures in the administrative regulations of the Department of Prisons.  He explained every time an inmate was moved an inventory had to be done of the inmate's personal property and oftentimes officers did not conduct those inventories correctly, and the inmate would file a small claims action.  He indicated the bill would take out of each individual prison's budget the amount of the judgment for the inmate's personal property claim which would capture the attention of each individual warden.  He explained the bill would use the existing Nevada Department of Prison's grievance procedure to evaluate inmate personal property claims.  He noted the amendment to the bill established the original language he had proposed in his bill draft.  The misunderstanding which occurred between him and the bill drafter was because the bill drafter thought the bill was an attempt by the Legislature to tell the Board of Examiners how to handle these types of claims.  He clarified the bill was designed to allow the Board of Examiners the option to delegate its authority to the Nevada Department of Prisons to handle this particular type of claim.  He explained the amount of recovery an inmate could have was $500 for the loss of personal property which was contained in the Nevada Department of Prison's Administrative Regulations.

 

Mr. John Neal, Chief of Fiscal Services, Department of Prisons, spoke in favor of AB 667.  Mr. Neal said this bill was supported by the Budget Division and the Board of Examiners, as it would

reduce the amount of paperwork for the Board of Examiners.  The Department of Prisons had no problem with the suggested procedure as 97 percent of the claims were under $100 each.  He pointed out, due to what the Department of Prisons believed to be restricting language on the payment of the statutory contingency fund, his department needed the change in statute.

 

Mr. Sader said he realized the benefit of removing the burden of administering these claims from the Board of Examiners.  He pointed out he was contacted by the Legislative Counsel Bureau about this bill draft and was cautioned, in their view, Mr. Yohey's initial intention was unconstitutional.

 

Mr. Sader asked Mr. Yohey if he had specifically discussed with the bill drafter the issue of the Board of Examiners delegating the ability to adjudicate claims to the Department of Prisons.

 

Mr. Yohey replied not specifically, but he had discussed with the bill drafters NRS 353.190 which allowed the Board of Examiners to delegate authority to settle claims to the Clerk of the Board of Examiners.  Mr. Yohey felt the Board did have the authority with the sanction of the Legislature to delegate its powers to either the Clerk of the Board of Examiners or, as this bill proposed, to the Nevada Department of Prisons.

 

Mr. Sader asked for clarification on what NRS 41.031 addressed as it was referred to in the proposed amendment on page 1, Section 1, subsection 3 which said "Filing of administrative claim is not a condition precedent to the filing of an action pursuant to NRS 41.031. ....." and the last sentence of the same subsection 3 which said "Actions in which an administrative remedy has not been filed within six months of the date of loss shall be dismissed by the court...."  Mr. Sader asked Mr. Yohey what NRS 41.031 addressed.  Mr. Yohey explained NRS 41.031 was his agency's waiver of sovereign immunity which allowed the state to be sued in the courts.

 

Mr. Sader asked if the two sentences in subsection 3 of Section 1 were in conflict.  He pointed out the first sentence said it was not a condition precedent to the filing of an action against the state, and the last sentence said a person could not file an action against the state unless a person satisfied administrative remedies.  Mr. Yohey explained the sentences were not in conflict because a section in NRS Chapter 41 said a person had to go through the administrative remedies before pursuing an action; although it did not read this way, this was the only way it made sense.  He further clarified "a condition precedent" would allow an inmate to file the action in small claims court at which point the action could not go forward until administrative remedies were exhausted.  The bill did have provisions for the matter to first be in small claims court for the justice court to stay the action.

 

Mr. Sader asked Mr. Yohey what the normal statute of limitations was.  Mr. Yohey replied two years.

 

Mr. Sader asked if a claim was barred unless an administrative claim was filed within 6 months.  Mr. Yohey answered yes.  Mr. Sader stated then it must be a condition precedent to an action because it would cut off the statute of limitations.  Mr. Yohey clarified it was not necessarily a condition precedent because an inmate could file his claim two days after the loss occurred and he could proceed to satisfy his administrative remedies.

 

Mr. Sader asked what happened if a person filed a claim 6 months and 2 days after it occurred.  Mr. Yohey answered then the justice bar would dismiss the claim.

 

Mr. Sader asked Mr. Yohey if subsection 7 was necessary as it was already the law.  Mr. Yohey answered it was the law already but it made the procedure clearer.  Mr. Sader suggested subsection 7 of the amendment be deleted.  Mr. Yohey agreed.

 

Mr. Sader suggested Mr. Gibbons, Mr. Yohey and the bill drafter work out some acceptable language for the bill.

 

There being no further testimony, Mr. Sader closed the hearing on AB 667.

 

ASSEMBLY BILL 677 -

 

      Makes various changes relating to punishment for crimes.

 

Ms. Victoria Riley, Nevada Trial Lawyers Association, the requesting agency of AB 677, requested the bill be heard at another time since some proponents from Las Vegas were unable to attend the hearing.

 

Mr. Sader asked if anyone in the audience wished to testify.

 

Mr. David Sarnowski, Attorney General's Office, opposed AB 677.  Mr. Sarnowski preferred to wait until the bill resurfaced and the proponents testified.

 

Mr. Sader postponed the hearing on AB 677.

 

ASSEMBLY BILL 658 -

 

      Requires administrator of mental hygiene and mental retardation division of department of human resources to appoint person to assist victims of certain crimes and their families.

 

Assemblyman Myrna T. Williams, District No. 10, the prime sponsor testified on AB 658.  Mrs. Williams explained the bill was a result of meeting with families of murder victims who  oftentimes after a traumatic event within the family were unable to recognize the proper place to turn. Therefore, the bill would require an advocate within the mental health system to help family members face emotional problems as a result of traumatic events and treat medical side effects resulting from stress.  She revealed a large fiscal note was attached and the bill would be referred to the Committee on Ways and Means.  She recognized there was no money, but she hoped something could be worked out where the Mental Health Division could provide a service to these people who were desperate and confused at a very critical time in their lives.

Mr. Gibbons asked Mrs. Williams if it would be possible to restructure the bill to avoid the fiscal note by allowing contributions of services by individual agencies or individual professions.  Mrs. Williams hoped this was possible and she pointed out a centralized clearing point easily identified by the families of these victims was needed.

 

Mr. Regan asked Mrs. Williams about the possibility of federal grants.  Mrs. Williams answered most of the federal grants available in this area were already being used to capacity. 

 

Mr. Regan suggested the University system where family centers were being developed.  Mrs. Williams explained many things had been tried and one of the problems was the scattered services.  By the time an individual was referred to six or seven different places, the situation was exacerbated and he really needed a centralized person who could at least get him started.

 

Mr. Petrak suggested dating the bill 24 months from now to get the law on the books.  Mrs. Williams noted the message needed to be sent to these people someone cared and they needed someplace to turn now.

 

Mr. Carpenter asked Mrs. Williams if there was someway to coordinate this bill with the present mental health budget or with the personnel currently available in the agency.  Mrs. Williams explained there was nothing left in the mental health budget beyond critical need, and if there were further budget cuts the critical need portions would be gone as well.

 

Mr. Jerry Zadny, Administrator of Mental Health/Mental Retardation, spoke in favor of AB 658.  Mr. Zadny indicated most federal grants for victims programs were transferred from the Department of Mental Health/Mental Retardation to the Division of Child and Family Services.  He explained if the bill was to proceed he recommended any position be assigned to the Division of Child and Family Services and not the Department of Mental Health/Mental Retardation.  Mr. Zadny added as part of the budget reductions which occurred a year ago all out-patient counseling services in Clark County, Henderson, Washoe and Reno were terminated.

 

Mr. John Sarb, Administrator of Division of Child and Family Services, testified on AB 658.  Mr. Sarb questioned whether the bill was the best way to solve the problem.  He noted in Clark and Washoe counties for instance, there were victim assistance programs presently operating.  He pointed out, there were victim assistance programs in the District Attorney's Offices, in the Las Vegas Metropolitan Police Department as well as in private non-profit consortium of agencies.  He believed these agencies were better positioned to identify these victims and their families and better positioned to offer the financial services the law allowed for certain victims of crime.

 

Mr. Scherer asked Mr. Sarb why the federal grant administration representative could not be a focal point to refer individuals to the various programs.  Mr. Sarb explained the federal grant administrator did this currently since frequently people called him and requested such information.

 

Mr. Scherer suggested using some of the federal grant money to create a separate telephone line which people could call.  He added the telephone service could be advertised so people who needed help would know where to call to get referrals to specific programs.   Mr. Sarb explained it would have merit if it was done in the rural counties, but it would be a problem for Clark and Washoe, who have had years of developing their victim assistance networks, if his division intruded upon their programs.

 

Mrs. Williams discussed the concept of the bill. The bill was not intended for the actual victim of the crime but for those family members or people who were within the extended family who had been traumatized by a crime which had occurred to somebody close to them.  The bill would provide access to the kind of services which might be needed to allow them to continue on with their lives in the best possible way.

 

Mr. Smith stressed the importance of having a person or a phone line where people could call to direct them to the services they needed.  Mr. Sarb agreed with Ms. Smith but believed it should be on the county level because the state agencies would refer those people back to the county level.

 

He explained the direction of victim assistance across the country had been to move the victim assistance services closer to the time of the crime through the district attorney's offices or the police departments.

 

Mr. Anderson asked Mr. Sader if the bill passed would it be an  unfunded mandate to carry out at the county level.  Mr. Sader explained no, it was not an unfunded mandate; since it was already an existing law, it would simply inform more people of the services available from the county, but it would definitely increase the county's workload.

There being no further testimony, Mr. Sader closed the hearing on AB 658.

 

Mr. Sader requested committee introduction of BDR14-739 which makes various changes in criminal procedure.

 

Mr. Sader requested committee introduction of BDR16-1555 from the Department of Prisons which provides forfeiture of good time credit on account of frivolous civil actions.

 

      ASSEMBLYMAN TOOMIN MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT REQUESTS.

 

      ASSEMBLYMAN ANDERSON SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.

 

There being no further business to come before committee, the meeting was adjourned at 9:15 a.m.

 

 

      RESPECTFULLY SUBMITTED:

 

 

                             

      CHANDRA PENDERLAND

      Committee Secretary

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Assembly Committee on Judiciary

June 2, 1993

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