MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
January 25, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1:30 p.m., on Monday, January 25, 1993, in Room 119 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B includes the Attendance Rosters from both Carson City and Las Vegas.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus
Senator Raymond C. Shaffer
Senator Ernest E. Adler
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Assistant
Maddie Fischer, Primary Secretary
Marilyn Hofmann, Committee Secretary
OTHERS PRESENT:
Kevin Higgins, Senior Deputy Attorney General, Office of the Attorney General, State of Nevada
George F. McNally, President, Nevada Trial Lawyers Association
James Jackson, Office of the Nevada State Public Defender
Charles Collenberger, Citizen's Committee on Victim Rights
Renata Ciri, Executive Director, Community Action Against Rape
Bebe Hoffman
Barbara Aupperle, Office of the Clark County District Attorney
Barbara Schell, Program Coordinator, Office of the Clark County District Attorney
Sandy Heverly, Mothers Against Drunk Driving (MADD)
Florence McClure, Soroptimists of Greater Las Vegas
Kim Alberro, Vice President, Families of Murder Victims
Judy Jacoboni, Victim Advocate, MADD
Laurel Stadler, Lyon County MADD
Lidia Osmetti, Office of the Washoe County District Attorney
Frank Barker, Las Vegas Metropolitan Police Department (METRO)
Susan Meuschke
Ben Graham, Nevada Distraict Attorney's Association
Anne B. Cathcart, Deputy Attorney General, Criminal Justice Division, Office of the Attorney General, State of Nevada.
Brian Hutchins, Chief Deputy Attorney General, Office of the Attorney General, State of Nevada
Senate Committee on Judiciary
January 25, 1993
Page 2
SENATE BILL 14: Increases permissible punishment for contempt of court.
Senator James stated there is currently a statute dealing with contempt, which provides for a fine not to exceed $500 or imprisonment not to exceed 25 days. He said this legislation would increase the prison time to "not more than 6 months," and in addition provides that time served in a contempt proceeding tolls the time running for any other jail term.
The first to testify in favor of S.B. 14 was Kevin Higgins, Senior Deputy Attorney General, Office of the Attorney General, State of Nevada. Mr. Higgins stated the attorney general's office had proposed the legislation to aid in inmate prosecutions. He provided the committee with a letter regarding the bill, which is set forth as Exhibit C. Mr. Higgins said the office currently prosecutes all crimes which occur in the prisons and added, "unfortunately many times our only witnesses are inmates...." He said there are times when inmates go to court as victims, then refuse to testify. Mr. Higgins stated an inmate witness can refuse to testify and "being threatened with contempt doesn't mean much to somebody that is doing several years in a prison...$500 and 20 days in the county jail has absolutely no impact on them." He said in civil cases they had little or no success with the levy of contempt charges against inmates who abuse the court system. Mr. Higgins indicated the purpose of the bill was to "...give us some leverage against those inmates when they are called to testify." He added, "It is always a tough situation prosecuting crimes where your only witnesses are criminals themselves, and we need all the help we can get."
Mr. Higgins said passage of S.B. 14 "...would bring us into line with federal case law and federal statutory law that allows federal judges to do the same thing." He said amending the statute would give a judge the power, "...if he chose to do so..." to toll a statute until an inmate testified.
Senator James asked if the bill was limited to criminal contempt, rather than both criminal and civil contempt, and Mr. Higgins agreed. He added that the two overlap, since a judge in a civil case can find a person criminally in contempt. The chairman indicated he was referring to a situation where the court's power to issue a contempt citation is utilized as a coercive method in a civil case. Mr. Higgins said that could be the case. Senator James stressed this legislation related to the "crime of contempt," and it would change the maximum penalty for that crime. He asked Mr. Higgins if the situation would be limited to a person who was already incarcerated. Mr. Higgins said the legislation would impact anyone found in contempt.
Senator James stated, "I am trying to figure out if this proposed legislation is overbroad...." He asked Mr. Higgins if there would be a situation where the bill, if passed, could operate to deny someone the right to toll a prison time, when "you wouldn't want it to." The chairman added, "What about somebody who is charged with a crime...cannot make bail...and is serving time in jail?" He also asked if this legislation would affect "time served." Mr. Higgins indicated that would be a "retroactive sentence," and if someone has had bail denied and was awaiting trial, "...there is no sentence to toll."
Senator Adler referred to the questions posed by the chairman and stated, "Typically people who are incarcerated...if they commit a subsequent offense, it runs consecutive to the primary offense...in essence this is no different...it cannot be run concurrently and cannot be used to toll the primary sentence." He said he believes the legislation is consistent with the law in that area. Mr. Higgins agreed, stating if a crime is committed in prison, and the prisoner is convicted, "...that time has to be run after the original time has run."
Senator Titus asked Mr. Higgins to clarify whether the bill would apply only to people who were currently in prison. Mr. Higgins stated: "The biggest change would allow a judge to toll the sentence of an inmate or prisoner that didn't testify." He added that the first section of the bill, which changes the penalty to 6 months, would apply to anyone found to be in contempt. Senator Titus referred to a statement set forth in Exhibit C, indicating the statute has not been amended since 1913, and asked, "Why now...what has happened to prompt the real need for this?" Mr. Higgins said conduct in the courtroom "goes to extremes sometimes," and he believes judges need to "have the ability to sanction it appropriately." Senator Titus asked if there was a "recognized problem." Mr. Higgins answered it would bring the statute in line with misdemeanor statutes, which provide for 6 months' incarceration.
Senator Jacobsen asked Mr. Higgins if a judge had the right to "momentarily cite you for contempt...on the spur of the moment?" Mr. Higgins answered, "Yes." Senator Jacobsen asked if a contempt citation would show as an additional offense on an inmate's record. Mr. Higgins said an inmate could potentially be disciplined within the prison system, and a contempt citation would be on the inmate's record.
Senator Smith questioned the construction of section 2 (3) of S.B. 14. He said he would be tempted to believe the "sentence he was serving stopped on the day [an inmate] was found in contempt, and would then be in absence until [the inmate] had completed the contempt portion...." Mr. Higgins agreed, and said the inmate's current status in prison would be held in abeyance. He added this would be an added leverage over inmates, since the date of release from prison "...makes a lot of difference."
Senator McGinness questioned Mr. Higgins about the fiscal note which was not yet attached to the bill and asked if the numbers were available. Senator James said the figures were not yet prepared, although Mr. Higgins indicated he had provided the information to the Legislative Counsel Bureau (LCB). He indicated the approximate cost would be $73,000, because of longer incarceration.
George F. McNally, president of the Nevada Trial Lawyers Association, testified in opposition to S.B. 14. He stated, when a judge summarily issues a contempt charge, "...it is without hearing and without the right to counsel." He said the bill "presents some problems, especially for the folks who are there taking care of minor matters." Mr. McNally stated the statute can be abused even as it is in effect at this time. He said he believes the legislation "..should be looked at with a fine-toothed comb." He indicated he understood the problems set forth by Mr. Higgins but added he felt it was "...an across the board summary sentencing without right of counsel, without right of hearing."
Senator James indicated to Mr. McNally the legislation would increase the discretion a judge would have in handing down punishment for contempt. Mr. McNally agreed and added, "If an individual is charged with a criminal offense, is unable to post bail, remains in custody...and does something to be considered contemptuous...there is a good probability that person is going to have a contempt imposed...." He said at a later time, in the event of a conviction or guilty plea on the original criminal offense, the normal credit for good time served is dissipated. Mr. McNally stated he believed the legislation should be specific as to a "criminal inmate."
Senator Adler stated he felt the language of the bill indicated there would be a hearing on the contempt charge. He questioned if the statute would actually apply if the judge summarily held a person in contempt. Mr. McNally replied that may be a "possible reading" of the bill. Senator Adler asked Mr. McNally if he would "have a problem" with language providing for a 6-month sentence after a hearing, while retaining the 25-day time for a person "summarily" held in contempt. Mr. McNally responded that would be fair, particularly for those individuals who may be in court for the first time on a minor charge. Senator Adler remarked, "Once the judge cooled down, he might not give them 6 months."
Senator James indicated he could not imagine a situation where a person could be convicted of a crime without having a right to counsel, a hearing, and "...every other constitutional guarantee you are afforded." He said he assumed the statute under discussion would be read in conformity with those constitutional protections. He added his real concern was the taking away of discretion as to whether or not a contempt sentence can run concurrently with another sentence, and whether or not it is appropriate to "take away that discretion in every case...." Senator James pointed out what he believed the intent of the legislation to be, i.e., the addition of contempt sentencing to an inmate's prison term, not to hold other persons in contempt for "up to 6 months." He asked if there was a way the bill could be changed to address his concern, if it was a valid one.
Mr. McNally responded, "I agree with you...I think there is no room for discretion once imprisonment has been imposed...." He agreed with the chairman there was no room for discretion with regard to persons not incarcerated at the time of the contempt charge.
Also appearing in opposition to S.B. 14 was James Jackson, Office of the Nevada State Public Defender. Mr. Jackson stated he appeared before the committee as a municipal judge in 1991. He said he recalled legislation in that session which would have disallowed the use of contempt powers on traffic ticket and similar hearings. Mr. Jackson indicated the bill failed to pass the 1991 session. He agreed with Mr. McNally that "...if the goal of the attorney general's office is to coerce prison inmates into testifying, then let's direct it at them, not at the common citizen...." Mr. Jackson said when he was a municipal judge, the issuance of contempt citations was "...pretty much a spur of the moment thing." He added he was grateful he had no more than 25 days to impose and felt it was sufficient in order to coerce someone to pay the fine or do community service.
Mr. Jackson stated he had spoken with the president of the Nevada Judges Association, who had said he felt no need for the legislation. He pointed out to the committee what he felt the obvious reason was for a prisoner's refusal to testify, i.e., the "wearing of a snitch jacket" upon the inmate's return to prison. Mr. Jackson added he felt that was a "...prisoner's right, not only of self-preservation, but as a citizen even with limited rights."
Senator Titus reminded Mr. Jackson of the fact that a number of bills were passed during the last session which were aimed at reducing the prison population, such as alternatives to incarceration for non-violent crimes. She said this bill would "...now add something that doesn't seem to be really needed, that is going to cost possibly $73,000." Mr. Jackson added this was a point he wanted to make and added it would also create overcrowding. He said there would be both a local and statewide impact.
Senator James agreed with the point made by Mr. Jackson regarding the consequences a prisoner would face after testifying against another prisoner. Mr. Jackson stated that is a very real concern. Senator Adler said he was a former prosecutor, and pointed out the problems facing the prosecution when an inmate is an important witness, "...and everybody is depending upon this guy to tell the truth." He said the prosecutors are in a very delicate situation, and pointed out that "on the streets we call people who testify against criminals good citizens, and in prison somehow they become snitches." Mr. Jackson said he believed they were talking about two very different cultures or environments. Senator Adler indicated he did not recall anyone in the State of Nevada who testified in a major criminal case being injured or killed as a result of that testimony. Mr. Jackson responded he was not talking about what was in the mind of citizens, but rather what was in the mind of inmates. He added he often spoke to clients "on the inside" to tell them how safe they would be, but those inmates respond they would be "...known in the yard to have a snitch jacket, and they don't want it." Senator Adler replied: "I don't think this legislature needs to be concerned about that, I think what we need to be concerned about is that people, once they testify, tell the truth."
Mr. Jackson said that brought him back to one of the original points made by Mr. McNally, that is not to direct the legislation toward everybody who might go before a judge, but rather aim the bill toward prison inmates. Senator James asked how that might be done. He remarked: "Don't we run into a constitutional problem if we try to tailor this legislation...can we give more discretion to the judge in a case where you happen to be in prison already, than we do to the person who is not there?" Mr. Jackson replied there are enhancements for people who are already imprisoned and questioned why this could not be done in the case of contempt. He continued, "I think we could find a constitutionally correct way to achieve the goal that the attorney general wants, without having to overbroaden this particular statute. Mr. Jackson added there are specific statutes which speak to imprisoned persons who commit new crimes.
Senator Adler suggested different maximum contempt fines for municipal and justice courts than for district courts, where an enhanced penalty could be established by the legislation. The senator added, "You are in district court...you have a jury empaneled...Joe gang member blows out a case and you lose about $50,000 of investigative time...."
There was no further testimony on S.B. 14.
SENATOR SMITH MOVED TO INDEFINITELY POSTPONE S.B. 14.
SENATOR SHAFFER SECONDED THE MOTION.
Senator Adler requested a roll call vote, stating he believed the bill could be amended.
THE MOTION CARRIED. (SENATORS ADLER AND JACOBSEN VOTED NO.)
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SENATE JOINT RESOLUTION 2: Proposes to amend Nevada constitution to provide expressly for rights of victims of crime.
Senator James stated the bill proposed to add a section to the constitution in the area which now gives fundamental rights to the accused, with the addition of rights to victims of crime. He said he had asked Dennis Neilander to research the Nevada Revised Statutes (NRS) to find all places where the rights of victims of crime are protected. The chairman indicated all of the provisions included in the proposed language of S.J.R. 2 are in the law already. He cited NRS 176.015, NRS 178.5694, NRS 179A.120, NRS 209.521, NRS 213.130, and Chapter 17 of NRS. He said whenever the constitution is amended and broad language such as in S.J.R. 2 is included, "...you always have innumerable implications...[the constitution] is the supreme law of the state, so it takes precedence over any other provision in the NRS."
Senator James stated the question before the committee is, "Is there a need to elevate these protections that are already afforded by the statutes to the level of the constitution?"
The chairman advised the committee of the presence of witnesses who wished to testify from Las Vegas by teleconference.
Senator Titus said when members of the Citizen's Committee on Victim Rights came to her to regarding a legislative proposal, she was chairing the judiciary committee. She stated she asked Dennis Neilander at that time to prepare a list of all the areas in the statutes where victims rights are already covered. Members of the citizens committee indicated they knew they were protected, but those protections were statutory, and up to the whim of the legislature. Senator Titus said while those rights are there, and this amendment may not necessarily expand the scope of those rights, they provide greater protection in terms of depth, because it is not so easy to change. She also cited the fact that victims would be mentioned in the constitution has considerable symbolic value.
The first to testify by teleconference from Las Vegas, was Charles Collenberger, representing the Citizen's Committee on Victim Rights and Families of Murder Victims. He read from a prepared statement, which is attached hereto as Exhibit D.
Senator James asked Mr. Collenberger if he agreed the language of S.J.R. 2 "...expressly subordinates the right of the victim to the right of the accused, and was that what the [National Victim Center] articulated to you when they mentioned that suggested change; secondly, would that analysis change your own opinion as to whether or not you would like to have that language stricken?" Mr. Collenberger stated he believed it would be better "...not to have the victim's rights be lowered by the defendant's rights." He added there was a problem if the defendant "was an innocent man," and indicated his rights should count primarily.
Senator Adler suggested the word "critical" could be substituted for "crucial," in section 2 of S.J.R. 2. He said he believed that would require the victim to be informed in any instance where the criminal defendant would have counsel present. Mr. Collenberger agreed to the language amendment. He added "...emotions were reawakened during a trial, and by being involved [the victim] can start to deal with the problems they are having." Senator Adler indicated the word "crucial" was not used in Nevada's criminal statutes, but "critical" is used as a "description of stages."
Next to testify was Renata Cirri, Executive Director, Community Action Against Rape and president of the Citizen Committee on Victim Rights. She read from a prepared statement, set forth as Exhibit E. She added there are 13 states which have legislation such as proposed in S.J.R. 2 and urged the committee to endorse the amendment to the constitution. Ms. Cirri stated the Citizen Committee would be in favor of the changes agreed to by Mr. Collenberger. Senator James asked if the Citizen Committee would be in favor of the elimination of the clause which expressly subordinates the victim's right to the right of the accused. Ms. Cirri indicated they would.
Bebe Hoffman testified as a "long time advocate of victim rights" and read from a prepared statement which is attached as Exhibit F.
The next to testify was Barbara Aupperle, a victim advocate with the Office of the Clark County District Attorney. Her prepared statement is included as Exhibit G.
Barbara Schell, Program Coordinator, Office of the Clark County District Attorney, Victim Witness Center, read a letter from the Clark County District Attorney, Rex Bell. The letter is attached to these minutes as Exhibit H. Senator James asked if Mr. Bell would be interested in answering particular questions as to how a constitutional amendment "...might manifest itself in the criminal process." Ms. Schell stated she would bring the question to Mr. Bell's attention.
The next to testify was Sandy Heverly, former National Director of Mothers Against Drunk Driving (MADD), and currently the Executive Director of Clark County MADD. She said their organization believes as follows:
Since the criminal justice system is unable at this point in history to adequately protect the public from criminal activity, it must assume responsibility to its victims by including them in the judicial process, thus preventing a second victimization from the system that is supposed to be fair and protect those who obey the law. MADD believes that victims should have rights, just as the accused are granted rights by the Sixth Amendment to the Constitution of the United States. Our goal is not to reduce the rights guaranteed defendants, but to assure equal rights for crime victims.
Ms. Heverly continued to say the crime victim, unless needed as a witness, "...is generally excluded from the criminal justice process." She added although Nevada had some form of statutory "victims' bills of rights," she believed them to be "easily amended and sporadically and intermittently enforced with no remedies when rights are denied." She pointed to an example of a statute which requires a victim be notified when an offender was placed in a program which released him or her into the community. Ms. Heverly stated that particular right "...has been blatantly violated by a program called '305.'" She said her organization believes "...amending the state constitution will grant crime victims a meaningful and voluntary opportunity to participate in the criminal justice system and provide a modest remedy to assure that the victims' voices will be heard." Ms. Heverly stated a constitutional amendment would "assure permanency," since it could be altered only by a vote of the people. She added they do not wish to diminish the rights of the defendant which are protected constitutionally. Ms. Heverly concluded, "In the name of millions of innocent victims and of equal justice, we ask that our rights also be included constitutionally."
Testifying on behalf of Soroptimists of Greater Las Vegas was Florence McClure. Ms. McClure indicated she has lobbied "every session of the legislature since 1975 for victims." She said each session she has "...had to have a duel with the district attorney's office in Washoe County." Ms. McClure said certain changes have been made with the cooperation of the Clark County district attorney's office. She referred to legislation in 1983 drafted by former Senator Sue Wagner, which she referred to as "Sue Wagner's Bill of Rights." Ms. McClure stated she has seen "...so many laws we had passed just flagrantly violated" and has witnessed many victims of crimes treated "cruelly by public officials." She said she believes the matter needs "constitutional status" in order to change the situation.
The next to testify from Las Vegas by teleconference was Kim Alberro, Vice President of Families of Murder Victims. She read from a prepared statement, attached hereto as Exhibit I. Her testimony was followed by that of V. H. Ueckert, who identified himself as a "father of a murder victim." His statement is included as Exhibit J. He said his case is "...probably a prime example of the poorest handling of the criminal justice system in Clark County in the last decade."
The chairman asked those who testified if they were in agreement as a whole with the excising of language referring to rights of the accused, and they indicated they were. Senator James then pointed to language suggested by Mr. Collenberger, specifically, "...the right to be heard at all criminal proceedings at which the defendant has the right to appear...," and the witnesses in Las Vegas agreed to that language as well.
Senator Adler reiterated he found the language "crucial stages" limiting as to which proceedings a victim could attend. He again referenced the words "critical stages of the proceedings" and said he believed that phrase would be "...more useful in that there may be instances where the defendant is not appearing, where the victim may want to appear...," such as hearings by the parole and probation committee. Senator James said it was a question of wording, whether the scope would be increased or decreased. He said he felt those who testified from Las Vegas were "...interested in keeping the rights of the victim as broad as possible."
Senator Jacobsen agreed with Senator Adler's statement and asked who currently makes the decision whether victims are present for certain hearings. Senator James pointed to statements by the witnesses indicating "existing laws were not being enforced." Senator Adler said the problem exists because "nobody is really monitoring" the situation, and it is "fairly spotty" as to who is actually enforcing the law. Senator James stated if S.J.R. 2 were passed, the legislature would have to consider a statutory mandate over the public official who is charged with insuring the victims' rights are protected.
The first witness present in Carson City to testify on S.J.R. 2 was Judy Jacoboni, the Victim Advocate for MADD in Lyon County. She said she was a member of the National Organization for Victim Assistance. She stated for most victims, the crimes committed against them or their loved ones, "...are clearly the most traumatic events in their lives." Ms. Jacoboni continued:
The [victims] are poorly equipped at this crucial period and very vulnerable and unable to insure that their needs are met. Victims' needs include protection from further violence or retribution, restitution to recover economic loss, and also information about and participation in opportunities in the criminal justice system." Only amending the state constitution to provide expressly for rights of victims of crimes, will insure the appropriate consideration of the victim's perspective by the criminal justice system.
Ms. Jacoboni added she was a "secondary victim" of crime, since her 22 year-old daughter was killed by a drunk driver. She said the offender received a 20-year sentence less than three years ago and has been released back into the community recently. Ms. Jacoboni indicated she has not been informed into which community he was released, and she wishes to avoid contact with that offender. Senator Adler asked Ms. Jacoboni if she felt it would be beneficial to have a "central person" to complain to if the statutes are not enforced. Ms. Jacoboni said she felt it would be helpful at the state level. Senator Adler suggested there might be one individual statewide who would be responsible for the follow-up of complaints.
Senator Jacobsen asked Ms. Jacoboni if she had been advised the offender was going before the parole board to request an early release for the "house arrest" program. She responded she had not, since victims cannot testify at such hearings. Ms. Jacoboni indicated a probation department employee, who knew she had an interest in the case, called her personally to advise her the release had been completed. Senator Jacobsen suggested it may be valuable to invite a member of the parole board to testify in front of the committee regarding its policies.
Senator James stated there were a number of victims' protections in force, and the fact that the request for a constitutional amendment was made indicates the laws are not being enforced. He agreed with Senator Jacobsen's statement to expand inquiry into the situation.
The chairman reminded those in attendance, both in Carson City and Las Vegas, that a constitutional amendment must pass two sessions of the legislature "in identical form." He said since language changes were being requested, they should be "very comfortable" with those changes.
Next to testify was Laurel Stadler, a member of Lyon County MADD. She indicated she wished to support the passage of S.J.R. 2. Support was also expressed by Lidia Osmetti, Office of the Washoe County District Attorney, Victim-Witness Assistance Center.
Frank Barker, Las Vegas Metropolitan Police Department (METRO), stated Sheriff John Moran and METRO support victims' rights. He said the department hires a victims' advocate at this time. Mr. Barker added victims and witnesses who understand the process "...lend a lot to successful prosecution of criminal cases." Senator Jacobsen asked how victims "were advised" by METRO and questioned if those victims were fully told of all necessary procedures. Mr. Barker answered, "Our victim advocate tries to inform the victim at all stages of the law that apply to their rights...and also coordinate financial assistance...and try to provide them with all resources of the community that are there to help the victim...."
The next to testify was Susan Meuschke, who provided a prepared statement, attached hereto as Exhibit K.
Senator James asked George McNally, president of the Nevada Trial Lawyer's Association, if the criminal bar of the association had taken a position on S.J.R. 2. Mr. McNally responded it was a sensitive subject, and he was unaware of whether it had been discussed as a board topic. He said it was tough to defend someone accused of a criminal offense and to cross-examine a victim or a surviving dependent of a victim. Mr. McNally stated the association "...would not do anything to undermine something which would advocate victims' rights." He indicated he would present the question to the board, and return to the committee with a position.
The chairman asked Mr. McNally if "...we need to say something here about the rights of the accused, or is the fact they are already in the constitution enough?" Mr. McNally responded, "I would think this country's Bill of Rights protects the accused...we are safe to move forward...knowing the accused's rights remain inviolate." He stated, however, some of the stories which had been heard by the committee today, showed victims do not always have a voice, and "...maybe it is time they need one."
In response to a query by Senator Jacobsen regarding variances in the severity of crimes and how the victims may be treated, Mr. McNally stated, "It is not fair to say that because a victim's injuries are less than serious bodily injury or death, that victim is any less harmed and less entitled to present their tragedy when their chance is given."
Senator James asked James Jackson, Office of the Nevada State Public Defender, if he wished to testify in favor or opposition to S.J.R. 2. Mr. Jackson said he agreed with Mr. McNally regarding the rights of victims. He said his only concern was that there be a strict definition of "who a victim is...and not allow just anybody who might have an interest in the case...come in and testify as a victim." Mr. Jackson stated he did not believe any interested group who desired to do so should be allowed to go forward to indicate "...what sort of damage this crime does to society as a whole." Senator James indicated he had questioned the word "victim" as well. He indicated a statutory definition could be changed, whereas a constitutional amendment could not be. The chairman said the statutory definition of victim was: "A person against whom a crime has been committed; a person who has been killed or injured as a direct result of the commission of the crime, or the surviving spouse, parents or children of such a person." Senator James stated he felt this was a "limiting definition." Mr. Jackson indicated he was familiar with a case in rural Nevada, where a number of victims groups were able to present testimony in a case, which he believed went "...well beyond the
statutory definition...but also what is contemplated in the constitutional amendment."
Senator James asked Mr. Jackson if he believed the existing language, "...to the extent these rights not interfere with the constitutional rights of the accused," should be removed. Mr. Jackson said he felt the language was placed in the legislation for the purposes of cross-examination of a victim, so a victim could not make a statement which could not be disputed.
The next to testify was Ben Graham, Nevada District Attorney's Association. He said the chairman's question regarding the removal of the language discussed above from the amendment would not in any way denigrate the rights of the criminally accused. He continued, "On the other hand, it might create some lawsuits and confusion by putting it in there." He said the benefit of any doubt goes with the defendant, and his or her constitutional rights would be recognized.
Senator James stated, "The chair is comfortable with taking that language out...because we have something we are trying to accomplish...that is to raise the victims' rights to a constitutional status." He said he believed the inclusion of the language was unnecessary, "...in that it might tend to subordinate this right, and secondly it creates a great ambiguity, because you mention one constitutional right within another, which I have not seen done before." Senator James referred to Senator Adler's suggestion regarding a change from the word "crucial" to "critical," because the word "critical" is used in the criminal code at this time.
Senator Smith reiterated earlier concerns regarding statutory language which would implement the law. Senator James agreed but suggested that may be done after moving to amend S.J.R. 2.
Senator James recessed the hearing until 4:00 p.m., when the hearing was called to order once again.
The chairman asked Dennis Neilander to read the language of S.J.R. 2 set forth as amended. Subsection 2 would read as follows:
The legislature shall provide by law for the rights of victims of crime, personally or through a representative, to be informed, to be present, and when relevant to be heard, at all critical stages of criminal proceedings, and to be treated by agents of the state with dignity, respect and sensitivity throughout a criminal investigation or proceeding.
SENATOR SMITH MOVED TO AMEND AND DO PASS SENATE JOINT RESOLUTION 2.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
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SENATE BILL 15: Requires special verdict in action in which state or its political subdivision is sole named defendant.
The first to testify on behalf of S.B. 15 was Anne B. Cathcart, Deputy Attorney General, Criminal Justice Division, Office of the Attorney General, State of Nevada. Ms. Cathcart provided the committee with a letter of explanation, which is set forth as Exhibit L. She explained further, indicating under present state law the statutes provide that special verdicts be rendered in cases where the state or a political subdivision is a named defendant, and there are other named defendants, whether or not those defendants end up as actors in the acts which were alleged to have been committed. She said this permits the state to know which party or parties were responsible for the wrongful acts, and under what legal theory a party is to be held responsible. Ms. Cathcart said the proposed legislation would require special verdicts where the state or a political subdivision is the sole named defendant. She said the reasoning behind the amendment is so "...the state will know, as it is entitled to know, under what legal theory the state is being held responsible...is it respondeat superior...and whether or not the individual who is alleged to have committed the wrongful acts was acting in his or her official capacity or in his or her individual capacity." Ms. Cathcart indicated this was a "clean up" bill, which corrects an omission when legislation was previously enacted. She said the attorney general's office felt "...juries would be less likely to award verdicts solely because of sympathy for a plaintiff, and because of some perception of a 'deep pocket' defendant." Ms. Cathcart indicated judges and juries would also be compelled to specify a responsible person or entity under a proper legal theory, rather than simply naming the "deep pocket" defendant. She said the attorney general's office believes the amendment would encourage governmental responsibility for the acts of its agents.
Ms. Cathcart indicated the language should be corrected in subsections 2(a) and 3 of S.B. 15, to read "...is a named defendant," rather than "...the sole named defendant." She said this would apply regardless of whether the state or political subdivision is the only named defendant or whether there are other named defendants.
Senator James asked what the "interplay" of this legislation was with the governmental tort immunity part of the statute. Ms. Cathcart indicated she would have to research that question, but she did reply it may "...have an effect on the $50,000 limitation, and the state's decision...as to whether or not pay for an individual defendant who was found to have committed the wrongful act...if he was acting inside or outside the scope of duties of his employment." Senator James continued: "In order to find the state liable...you have to find the state did something...doesn't the state have a defense if the person was not acting within the course and scope of their employment?" Ms. Cathcart agreed.
Brian Hutchins, Chief Deputy Attorney General, Office of the Attorney General, State of Nevada, joined Ms. Cathcart at the witness table at her request. He stated he was formally the chief of the criminal division. He advised the chairman he was correct in his statement regarding the state's liability under NRS 41.0349 or NRS 41.035, if the individual actor acted outside the course and scope of his duty or committed a wanton or malicious act. He said the basic effect of the requested legislation was to "...give us the opportunity, as guardians of the public interest for the state...an idea of what theory we are being held responsible for...was it the individual acting by himself...or was it the state's duty?" Mr. Hutchins said the attorney general's office wants to be able to receive some information as to why the state is being held liable. He said it is already in the law that "...whenever both the state and the present or former officer are named defendants, there has to be a special verdict." He stated often a plaintiff's attorney does not name that individual state employee, but "...simply name the state."
Senator James asked Mr. Hutchins the following question, "Under current law, the jury has to find...the person was acting in the scope and course of their employment, or you do not get the respondeat superior..is that correct?" Mr. Hutchins answered affirmatively. The chairman asked if the purpose of the legislation was to require the jury to disclose that information as part of a special verdict, and Mr. Hutchins agreed. Senator James said attorneys who name the state only, must be governed by the rules governing indispensable parties, and if a person is an indispensable party, "...he has to be joined if he is indispensable." The chairman asked, "With all those things already there...is there still a problem, and are there still sympathy verdicts coming in?" Mr. Hutchins stated he was not as concerned with the sympathetic jury verdict aspect as he was with trying find out the details of an action, so it could be corrected. He added when a suit is filed against a governmental entity or employer, "...especially under the theory of respondeat superior...you do not need to name the individual agent or actor...he is not indispensable."
Senator James reiterated if a suit was filed under the theory an individual was acting under the scope and course of employment, that individual did not have to be joined as a tortfeasor. Mr. Hutchins agreed and added it would depend on the case and the different theories which were propounded by the plaintiff's attorney. He stated again, the attorney general's office had as its main concern, the receipt of information as to the identity of the responsible individual or individuals who make the state ultimately liable.
In response to a question from Senator Shaffer, Mr. Hutchins stated there are times during a trial when the state does learn the identity of the individual actor or actors. He said they are, by this legislation, "...trying to find out what the jury says...why the state is liable."
Senator James stated the state would learn who was involved after the case went to a jury, pointing out that a "special verdict" forces a jury to answer a question, and they would have to say, "this is the person, and they were acting within the course and scope of their responsibility." Mr. Hutchins agreed.
Senator Jacobsen asked if a "sympathy verdict" usually went against the state. Ms. Cathcart indicated that "was difficult to tell," because verdict forms do not generally ask that question. She said many attorneys would state, as a matter of experience, that a verdict was "primarily the result of...sympathy for the plaintiff's condition...but there are no statistics."
Testifying in opposition to S.B. 15 was George McNally, President, Nevada Trial Lawyers Association. He questioned why the legislation was needed. He said the bill seemed to "cloud the issue." Mr. McNally stated if he were handling a case, and the State of Nevada was the only defendant he could find, he would set forth the specific department of the state which he felt was responsible for the act or omission. He indicated in order to win the case for his client, "...I have to prove the case and have to show that the agent or employee of the state was in the course and scope of employment...that they had an obligation to perform...that their conduct fell below the standard...and as a result, injuries ensued." Mr. McNally indicated a "special verdict" form is used when there are multiple defendants. He said it "allows a jury to assess attributable responsibility or negligence to the various parties involved in a lawsuit." He continued to explain why the trial lawyers association opposed the legislation:
If you start letting a jury say...the only named defendant in a case...was 75% at fault...but [the employee] was 25% at fault, and [the employee] has never been a named defendant...the Supreme Court says 'when you begin assessing contributable fault to a defendant that is not a party to a lawsuit, that is considered to constitute a reversible error.'
Mr. McNally repeated his concern regarding a need for the bill. He said the law was clear at this time. Senator James stated S.B. 15 would not require the jury to "assess percentages of fault." He continued:
The special verdict has to answer three questions: whether the individual defendant...this other entity...was a tort feasor; whether that person or entity was acting within the course and scope of his public duty or employment; and whether his acts...if it is an individual defendant or agent, were wanton or malicious.
Senator James said although he did not disagree with Mr. McNally, he did not concur with what he said regarding "what it requires the special verdict to find." He indicated the question he has is, "Why do we need to make it in black letter law that there always has to be a special verdict in this case?" He asked Mr. Hutchins to return to the witness table and questioned him regarding the language "wanton or malicious." He inquired if the state was liable for acts which are wanton or malicious on the part of an agent. Mr. Hutchins indicated that was not the case, and it was used as a defense.
Mr. Hutchins reiterated the only reason for the legislation was to require a jury "...to tell us who they found to be the individual actor...in those cases where it may not be clear." Senator James indicated the purpose would be to "...do that at a place where the individual defendant is not already a party." Senator James asked Mr. Hutchins what the Nevada Rules of Civil Procedure say about special verdicts at this time and questioned if a special verdict can be requested at any trial. Mr. Hutchins answered it was "...up to the discretion of the judge." The chairman asked if the defense was often denied the ability to obtain a special verdict. Mr. Hutchins answered, "Most judges frown upon special verdicts...they don't like special verdicts...."
Senator James stated he was "concerned" any time the state is given more "arrows in its quiver" in litigation than the individual is given. He added this was "increasing the burden on an individual litigant when he comes up against the state." Mr. Hutchins answered that the state should have "all of its arrows in its quiver" in such actions. The chairman answered, "It should have all of them, but...we give the state more power in litigation than the person who is coming against the state...we are adding something to the burden of the individual in recovering against the state." Mr. Hutchins said he did not understand the chairman's comments. He indicated the statutes now provide for a special verdict when the case involves both the state and an individual, and we are only asking "...that there be a special verdict when it is just the state...all we want is information from the jury as to what they found...." Mr. Hutchins stated, "Government has a responsibility to fix something if we are on notice that we have a problem...but if we don't know who went wrong, or where, we cannot fix it."
Senator Titus stated she felt Mr. Hutchins' argument regarding the need to know who was responsible was a good one. She asked, "Does this play in the appeal process, by knowing who was responsible?" Mr. Hutchins answered he saw no benefit to the state if the matter were appealed.
Senator James asked if the judges had taken a position on S.B. 15. Mr. Hutchins indicated he did not know, but said "...judges don't like to have discretion taken away from them, and...they don't like special verdicts." The chairman questioned Mr. Hutchins, "Doesn't the state have the ability to find out who was doing the wrong thing...the ability to find out who the actors were...you have depositions and discovery...unlimited means in litigation to find out where the bodies are buried...." Mr. Hutchins replied, "If that is the case, I don't see any problem putting it in the legislation." Senator James stated, "The jury can only find from the evidence...it doesn't affect appeal, because you appeal the case on the record." He said if no one acted within the course and scope of their responsibility, "...you are going to get reversed." Mr. Hutchins reiterated the attorney general's request to simply "get the benefit of the jury's knowledge." Senator James replied, "You are giving the state something...no company would have if they were being charged with respondeat superior."
There being no further business to come before the committee, the chairman adjourned the meeting at 4:45 p.m.
RESPECTFULLY SUBMITTED:
Marilyn Hofmann,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
MN1-25JD.mjh
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Senate Committee on Judiciary
January 25, 1993
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