MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
March 29, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 2:00 p.m., on Monday, March 29, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
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
GUEST LEGISLATORS PRESENT:
Assemblyman James A. (Jim) Gibbons
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Marilyn Hofmann, Committee Secretary
OTHERS PRESENT:
Brian Hutchins, Deputy Attorney General, State of Nevada, Office of the Attorney General
Roger Comstock, Senior Deputy Attorney General, State of Nevada, Office of the Attorney General, Transportation Division
Anne B. Cathcart, Deputy Attorney General, State of Nevada, Office of the Attorney General, Criminal Justice Division
Pat McGaffin, State of Nevada, Department of Prisons
Marc P. Cardinalli, Deputy Attorney General, State of Nevada, Office of the Attorney General
Ben Graham, Nevada District Attorney's Association
The chairman opened the hearing on Senate Bill (S.B.) 227.
* Committee member only present for a portion of the meeting. This is noted in the body of the minutes.
SENATE BILL 227: Establishes venue for tort actions against State of Nevada and requires state agency to be named as defendant.
The first to testify were Brian Hutchins, Deputy Attorney General, State of Nevada, Office of the Attorney General, and Roger Comstock, Senior Deputy Attorney General, State of Nevada, Office of the Attorney General, Transportation Division. Mr. Comstock stated:
When the state waived its immunity from tort liability, it specified an action against the state could be brought in any court of competent jurisdiction throughout the state. That allows a suit for an automobile accident which occurs on an icy road ten miles south of the Idaho border, to be filed in Clark County and tried before jurors in Las Vegas ...who are not familiar with snow and ice conditions...who are not familiar with rural highways and problems of maintaining roads in winter driving conditions. Most witnesses of an automobile accident will normally reside in the area where the accident occurs...By having venue in the place where the accident happens, you avoid having to transport these witnesses great distances at the taxpayers' expense. By having the trial in the area where the accident happens, the jurors will also be familiar with the area...this saves having to prepare expensive video and photographic exhibits....
Mr. Comstock said the court systems in Clark and Washoe counties are overloaded, causing delays in going to trial. He said these problems could be eliminated by having the venue in the proper jurisdiction, which is where the accident happened. Mr. Comstock stated the change proposed in S.B. 227 would be fair to both sides of the issue. He added, "Counties, as a matter of law, are already entitled to have actions against them brought in the judicial district where the county lies...the state should get the same consideration." Mr. Comstock indicated the legislation also provides that state agencies may be sued in Carson City, the head of state government. Also, he added, jurors in this area will be more familiar with various state functions and procedures. Mr. Comstock stated the most preferable venue "is the one where the tort occurred, but as an alternative, Carson City would be a good secondary location."
Mr. Comstock said the second portion of S.B. 227 dealt with "designation of defendant." He said at this time, plaintiffs "need only to name the State of Nevada, without specifying what agency, board or commission committed the alleged tort." Mr. Comstock indicated passage of the bill would correct that situation and the appropriate agency would have to be served with any lawsuit. He said this would aid in placing the lawsuit "where it belongs in the
shortest possible time," and save time in attempting to find "where a lawsuit is supposed to go, when such a designation is not made."
Mr. Hutchins explained the specific sections of the bill to the committee.
Senator Titus entered the room at 2:15 p.m.
Senator Adler stated it would be inconvenient and an unnecessary expense for a plaintiff to have to serve a second copy of a lawsuit on the "administrative head of an agency," when it is first served on the secretary of state. Mr. Hutchins said that was one of the problems mentioned earlier. He indicated the secretary of state receives the lawsuit and sends it to the attorney general's office, instead of having the affected agency receive it directly. Mr. Hutchins stated the requirement to name a particular agency will be helpful and having the administrative head of the agency served will expedite the matter even further. Senator Adler pointed out the time and distance factor when serving the secretary of state and the agency, who may be in entirely different locations. Mr. Hutchins said he did not believe that would be a problem.
Senator James asked Mr. Comstock to explain the matter of "the exclusive venue provisions being subject to the power of the court." Mr. Comstock stated Nevada Revised Statutes (NRS) 13.050 provides cases in which a venue may be changed, i.e., when there is reason to believe an impartial trial cannot be obtained in the current venue, or the convenience of witnesses and the ends of justice would be promoted by the change. Passage of S.B. 227 would incorporated those same provisions.
Senator Titus asked if there was a connection between naming a specific department or person and the bill which failed earlier this session, which dealt with special verdicts. Mr. Hutchins answered, "Absolutely not...this only has to do with giving the state and the agency notice of suit."
There being no further testimony on S.B. 227, the chairman closed the hearing on the bill and opened the hearing on Senate Bill (S.B.) 320.
SENATE BILL 320: Clarifies provision governing minimum time to be served before prisoner is eligible for parole.
The first to testify were Anne B. Cathcart, Deputy Attorney General, State of Nevada, Office of the Attorney General, Criminal Justice Division, and Pat McGaffin, State of Nevada, Department of Prisons. Ms. Cathcart provided the committee with a letter regarding the bill, which is set forth as Exhibit C. Ms. Cathcart said at present, the state permits inmates to become eligible for parole when they have served approximately one-third of their sentence. However, she stated, some prisoners are serving concurrent sentences of differing lengths. Ms. Cathcart indicated the practice of the department of prisons has been to calculate the eligibility for parole on the longest concurrent sentence. She said S.B. 320 would simply clarify their statutory authority to do so. Ms. McGaffin added the bill was introduced to close a loophole within the law. She said if inmates were serving multiple concurrent sentences and were allowed to appear before the parole commissioners after serving one-third of the shortest sentence, if they were granted parole "...it would be to their disadvantage...they would essentially do more time in prison because their [credit] earning potential has been decreased by two-thirds."
Senator James closed the hearing on S.B. 320 and opened the hearing on Senate Bill (S.B.) 321.
SENATE BILL 321: Requires director of department of prisons to establish by regulation reasonable deduction from money credited to account of offender to repay certain costs.
The first to testify was Marc P. Cardinalli, Deputy Attorney General, State of Nevada, Office of the Attorney General. Mr. Cardinalli spoke on behalf of the Department of Prisons which proposed the bill. He said the courts have found a loophole in NRS 209.246, in that it does not specifically list certain deductions regarding inmate accounts. Mr. Cardinalli stated this was part of an effort by the attorney general's office, together with the Department of Prisons, to control inmate litigation in the state. He continued, "We are going to make the inmates make a choice of whether or not they want to buy a jar of chunky peanut butter or pay for legal postage." Mr. Cardinalli said the legislation will allow the department to deduct charges for legal postage and photocopying from inmate accounts. He said at this time in excess of $9,500 is spent each year by the department on legal postage, along with approximately $8,200 in photocopying costs. Mr. Cardinalli pointed out section 4 of the bill would allow the department to set up an administrative fee for inmates who are found or plead guilty to disciplinary violations, under the Code of Penal Discipline. He said this may be an incentive for inmates not to commit violations and "make them responsible for their own actions."
Senator James referred to two phrases set forth in the bill, "repay the costs" and "defray the costs," and asked if the two words were used differently. Mr. Cardinalli stated it was his understanding, for example, the Department of Prisons now charges an inmate a $4.00 fee "to go toward" or "defray" the cost of a medical visit, which helps lessen inmates' "hypochondria." Senator James also said the language "...regardless of whether the offender consents to the expenditure" bothered him, together with the phrase, "...deductions may include, but are not limited to...." He added, "Why make a list, if it is not the full list?" Mr. Cardinalli answered the major genesis of the bill were two lawsuits filed by inmates, challenging whether or not the department could deduct for repayment of legal postage and photo-copying. He said the court indicated they had the "constitutional authority" but did not have the "statutory authority" to do so. Senator James pointed out inmates are "constitutionally entitled to have access to the courts...you have to give them postage...you have to give them photocopying, and let them prepare their petitions...etc. Mr. Cardinalli agreed, but added, "You are correct...but the courts also say the Nevada Department of Prisons has the constitutional right to get that money back." Senator James reiterated a possible problem with the wording, "...are not limited to...," and questioned whether the department could made a deduction from a prisoner's account for any reason they wished. Mr. Cardinalli answered if an inmate wishes to incur a charge, such as postage, they must sign for that charge, which is then debited to their inmate account. He said when that inmate receives money from the outside, a certain percentage, usually 50 percent, of that money is then applied to their debt. Mr. Cardinalli indicated the charges could not be recovered from all inmates, only those who received money from the outside. Senator James responded, "This says, '...regardless of whether the offender consents to the expenditure...,' which would leave it open for you to deduct things...they didn't consent to." Mr. Cardinalli said as far as he knew, "no inmate has consented to the deduction of anything from his account." He added inmates have argued that since they have a constitutional right to postage, they do not consent to the department providing postage because the department is required to do so. Mr. Cardinalli stated many inmates "deliberately and artificially" keep the amount in their accounts low, "...by constantly spending their money, rather than paying the debts they have incurred to the state Department of Prisons...those are the loopholes we are trying to shut down."
Senator James indicated he would like to see the bill "drafted more carefully," adding if he presented it to the full senate, there would be many of the same questions discussed above. Mr. Cardinalli answered the department "could not think of everything we want to put on the list." He added if an inmate "comes up with something...that is not listed in the particular statute," the department would have to wait another two years to amend the statute legally. Mr. Cardinalli stated the director of the Department of Prisons "has broad discretion...which has not been abused." He added all rules and regulations must be examined for constitutionality and approved by the attorney general. Mr. Cardinalli said he believed the language, "...but not limited to..." was necessary because "inmates are endlessly inventive." Senator James asked Mr. Cardinalli to attempt to modify the bill to clarify the language in question. Mr. Cardinalli answered he would work with legislative counsel to clarify the intent.
Senator Jacobsen asked if the federal or state constitutions set forth what is or is not allowable with respect to collection from inmates. Mr. Cardinalli answered they have litigated the question in the federal courts, which have agreed "we are permitted to collect the money we have expended in inmates' behalf back from the inmates." He continued, "The United States Supreme Court requires us to provide certain things to indigent inmates; however, the department has the discretion...to get the money back, if the inmates are no longer indigent."
In response to a further inquiry from Senator Jacobsen, Mr. Cardinalli stated the Code of Penal Discipline has been rewritten in order to permit the department to sanction inmates who engage in frivolous litigation.
There was no further testimony on S.B. 321. Senator James opened the hearing on Assembly Bill (A.B.) 141.
ASSEMBLY BILL 141: Prohibits resale of ticket to athletic event or entertainment at price in excess of original price of ticket.
The prime sponsor of the legislation, Assemblyman James A. (Jim) Gibbons, explained the reason for the bill. Mr. Gibbons said "it had its origin in a sold-out Garth Brooks concert in Reno...wherein a young lady with two minor children...was offered tickets to the sold-out concert at a price almost 10 times the original amount...$300.00." He said A.B. 141 would prohibit the sale or offer of sale of a ticket to an athletic or entertainment event at a price higher than what is stated on the ticket, "without the permission of the original ticket seller," better known as "ticket scalping." Mr. Gibbons stressed the bill would not prohibit the legal sale of tickets by ticket centers which buy bulk rate tickets at a discount, with the permission of the issuer. He said the legislation would crack down on the persons who buy a large block of tickets, thereby making them unavailable for others to purchase, "...then pray upon the least able person to acquire a ticket." Mr. Gibbons stated he believed the passage of this legislation would "improve Nevada's image...and allow greater accessibility to entertainment by all levels of society."
Senator James asked Mr. Gibbons if he was aware of the local ordinances in this regard and whether the various cities in the state have enacted ticket scalping regulations. Mr. Gibbons answered some communities have enacted various provisions regarding this issue, but it is not uniform across the state. He added his research has shown there are 31 states which have enacted statewide legislation since 1991 which makes ticket scalping a crime. Senator James asked if there were concert event centers in Reno or Las Vegas which have policies regarding scalping on the premises. Mr. Gibbons indicated he did not know the answer to the question but reiterated a broad statewide policy was needed. Senator James asked if another solution to the problem would be to limit bulk purchases of tickets. Mr. Gibbons answered the enforcement of that type of law would be difficult, since it would require the person selling the tickets to "make a judgment call whether [the person] was buying for his use or for the purpose of reselling tickets." He added an "entrepreneur" could hire ten people, each of which would buy a smaller group of tickets for resale.
Senator James asked if the legislation would allow a person who simply wished to resell a ticket he had purchased for a slightly higher price, to "cover the cost he went through to get it...." Mr. Gibbons responded that would make the law "permissive in its application" and said he knew of no criminal statute which is permissive as to the degree of wrong. Senator James asked if the bill would have room to add a percentage factor, which if exceeded could become the act which the bill contemplates as "scalping." Mr. Gibbons said he believed that was a policy question which the committee would have to answer, i.e., "Do we want to make a policy decision as to the amount of profit that is taken in one of these tickets the deciding factor?"
Senator Jacobsen expressed concern regarding the passing of "complimentary tickets" which may later be sold. Mr. Gibbons answered the "gift" of tickets would not be a crime, but if the last holder of the ticket sold it for more than the face value, it could fall under the criminal provisions of the bill.
Senator Smith stated it might be preferable to approach the problem from a taxation standpoint, such as "failure to pay tax on the sale price." Mr. Gibbons stressed the "ticket scalpers" were not legitimate business persons who would pay taxes in the first place. Senator Smith asked how these persons might be apprehended by the tax division, and Mr. Gibbons indicated that would be up to that agency. Mr. Gibbons also pointed out the lack of a business license as another possible offense.
Senator McGinness asked why the reference to the "distance to a facility" was removed from the original drafting of A.B. 141. Mr. Gibbons stated the original bill included a provision restricting "sales within 100 feet." He said that provision was removed by amendment to clarify the purpose and intent of the bill. Mr. Gibbons also referred to a concern raised by the Nevada Press Association regarding commercial free speech restrictions, with which he does not totally agree. However, he said, "I did accede to their concern and removed the advertising provision."
Senator Shaffer asked if a "gratuity" could be accepted if a ticket was sold for the face value. Mr. Gibbons answered this was not covered in the legislation, unless the gratuity became part of the purchase price.
Senator James stated it would be difficult to "police" ticket scalping, if the legislation is passed, and agreed with Senator Shaffer that a higher sale price could be disguised as a gratuity. He asked Mr. Gibbons if he were concerned about the manpower which might be required to enforce the statute. Mr. Gibbons responded that was "the most perceptive policy question of any law that we pass, when we create a crime...how is it going to be policed? Are we going to dedicate resources that are precious to our cities...to controlling such an event?" He added what he was trying to do with the bill was not necessarily dictate to the communities that they have to dedicate a certain number of resources, but rather say it is the "policy of the state that we do not approve of this type of conduct." Mr. Gibbons stressed if a person is caught ticket scalping, then they must suffer the punishment which is meted out for any other misdemeanor enacted in the statutes. Senator James agreed with Mr. Gibbons, but reiterated it was a situation where a law was enacted which would be difficult to enforce.
There was no further testimony on A.B. 141, the chairman closed the hearing on the bill and opened the hearing on Assembly Bill (A.B.) 81.
ASSEMBLY BILL 81:Makes various changes relating to filing of criminal informations.
Testifying on behalf of the Nevada District Attorney's Association, sponsor of the legislation, was Ben Graham. Mr. Graham described the bill as "an environmentally friendly, Greenpeace of legislation." He said it was primarily a "paper and labor saving matter." Mr. Graham explained the process of being charged with criminal offenses in justice court. He said when a preliminary hearing is waived and negotiations are entered into regarding multiple charges, there is extra paperwork involved. Mr. Graham stated the district attorneys are asking for authority to prepare only the information which the defendant is going to plead to, i.e., the charges he has not waived. He added if the defendant changes his mind, decides "not to take the deal" and wishes to go to trial, they can then do the extra paperwork.
Senator James closed the hearing on A.B. 81, and moved to a work session on bills heard previously.
SENATOR SHAFFER MOVED TO DO PASS A.B. 81.
SENATOR SMITH SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.)
* * * * *
The chairman referred to the earlier testimony on A.B. 141, and questioned why the term "an entertainment" was not set forth as "an entertainment event." Senator Smith said he wondered "who we are trying to save...who is the willing buyer and who is the willing seller, and have they come to some kind of agreement?" He asked if they needed to "save everybody from womb to tomb from all of their indiscretions." Senator Smith stated he did not believe the bill was in the public interest. Senator James said he believed it was correct to attempt to control those persons who buy blocks of tickets for resale, thereby depriving others of the ability to get such a ticket. He referred to his earlier questions regarding "a less restrictive alternative" but indicated that had evidently been explored in the assembly committee and disregarded. Senator James also indicated the idea of allowing a percentage increase would be difficult to establish.
Senator McGinness stated he supported the legislation and said perhaps persons who are offered tickets at a high price, will take the initiative to turn the "scalpers" in to the police. Senator Shaffer said the people who are selling the tickets are "innovative" and will use the gratuity method of moving the tickets. He said the important thing, however, was to place a law on the books.
SENATOR McGINNESS MOVED TO DO PASS A.B. 141.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS TITUS AND SMITH VOTED NO.
SENATOR ADLER WAS ABSENT FOR THE VOTE.)
* * * * *
Senator Shaffer pointed out the suggested amended language to change "an entertainment" to "an entertainment event.
SENATOR McGINNESS MOVED TO RECONSIDER THE MOTION.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.)
* * * * *
SENATOR McGINNESS MOVED TO AMEND AND DO PASS A.B. 141.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS TITUS AND SMITH VOTED NO.
SENATOR ADLER WAS ABSENT FOR THE VOTE.)
* * * * *
Senator James asked for a motion on S.B. 320.
SENATOR SHAFFER MOVED TO DO PASS S.B. 320.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.)
* * * * *
The chairman stated he would accept a motion on S.B. 227.
SENATOR SMITH MOVED TO DO PASS S.B. 227.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.)
* * * * *
Senator James indicated he had a request for a bill draft from an attorney in Las Vegas regarding a stepfather's right to joint custody of a child whom he did not adopt, when a divorce occurs. He pointed out such legislation would allow a divorced stepfather to adopt a child, if the mother is in agreement.
SENATOR SMITH MOVED TO REQUEST A BILL DRAFT AS SET FORTH ABOVE.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.)
* * * * *
The chairman stated he had been asked for a bill draft by Senator Neal, who received a request from a group of bail bondsman. Senator James said such legislation would allow exoneration from a bond at the time a person either pleads or is found guilty, and is in custody. He said he would have Dennis Neilander explore the subject to see if a bill draft should be requested, at which time he would bring it before the committee again. Senator Jacobsen suggested perhaps Senator Neal should appear before the committee to address the request. Senator Titus stated perhaps others who requested legislation should do likewise, and since they are not normally asked to do so, "Senator Neal should be given the same courtesy." Senator James indicated he would like more information, preferably from Senator Neal, through Dennis Neilander.
Senator James stated he had received a letter from Chief Justice Robert E. Rose, which requests the committee to initiate the process of amending the Nevada Constitution to establish an intermediate court of appeals.
SENATOR SMITH MOVED TO REQUEST A BILL DRAFT AS SET FORTH ABOVE.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS VOTED NO. SENATOR ADLER WAS ABSENT FOR THE VOTE.)
* * * * *
There being no further business to come before the committee, the hearing was adjourned.
RESPECTFULLY SUBMITTED:
Marilyn Hofmann,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
??
Senate Committee on Judiciary
March 29, 1993
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