MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
May 28, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1:00 p.m., on Friday, May 28, 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 Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus
Senator Ernest E. Adler
COMMITTEE MEMBERS ABSENT:
Senator Raymond C. Shaffer (Excused)
Senator R. Hal Smith (Excused)
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Sherry Nesbitt, Committee Secretary
OTHERS PRESENT:
David Gamble, Judge, Ninth Judicial District Court
Kenneth T. Scruggs, Lobbyist, Household International
Rob Calderone, Chief Juvenile Probation Officer, Washoe County
John Sande, Lobbyist, Nevada Bankers Association
Harvey Whittemore, Lobbyist, Citibank
Tim Terry, Deputy Attorney General, State of Nevada, Office of
the Attorney General
David D. Nicholas, Lobbyist, Nevada Health Care Association
Ben Graham, Lobbyist, Nevada District Attorney's Association
Senator James opened the hearing on Senate Bill (S.B.) 477:
SENATE BILL 477: Changes terminology and computation of
interest on retail installment sales. (BDR 8-1297)
Kenneth T. Scruggs, Lobbyist, Household International, provided testimony in support of S.B. 477. Mr. Scruggs advised he is representing Household Bank, N.A., a national bank with a limited charter, allowing it to issue credit cards. He advised the bank had recently moved its operation to Las Vegas. He stated S.B. 477 deals with a problem facing credit card banks around the country. The problem deals with a power which national banks are granted by law, allowing them to export interest so rates across state lines. This statute was affirmed by the United States Supreme Court in 1978 in a decision entitled Marquette. He advised the problem with this decision is it does not clearly define interest. The general definition of interest as a cost paid for the use of money over time, has, for the last 20 years, caused credit card banks to assume such things as annual fees and late charges are close enough to interest as to be covered by the Marquette decision. He advised a series of class action suits have recently been filed, the first being against Greenwood Trust. Greenwood Trust is the Sears credit card bank in the state of Massachusetts. Mr. Scruggs advised the appellate court in that case has agreed with the position that fees and interest are so close as to be the same. However, the decision referenced a statute in South Dakota, Greenwood Trust's home state, which is similar to the language requested in S.B. 477. He advised this language states interest means all of the charges which are charged for the use of money over time. He stated S.B. 477 will affirm Nevada's position that interest and fees, which are alright for Nevada's residents to be charged, are also alright for people in other states to be charged. This would not interfere with any ongoing class action lawsuits.
John Sande, Lobbyist, Nevada Banker's Association (NBA), testified that the NBA supports S.B. 477. He stated the NBA is also in support of the amendments to be proposed by Mr. Whittemore.
Harvey Whittemore, Lobbyist, Citibank, provided testimony in support of S.B. 477. Mr. Whittemore advised that through discussions with counsel for Citibank and J.C. Penny, he has discovered a concern for use of the term "interest" in the bill. He advised the attorney for J.C. Penny requested that the definition of "interest" and the term "time price deferential" be added in the same fashion as the new proposed language is for interest. This is based upon the concern of J.C. Penny as to a couple of cases which suggest the need for definition similar to "interest" also have application to "time price differential." Mr. Whittemore distributed to members of the committee, proposed amendments to S.B. 477. A copy of the proposed amendments is attached as Exhibit C. Mr. Whittemore explained each proposed amendment.
Senator James advised that S.B. 477 would be brought up at the end of this meeting for a vote. He stated that, because of a potential conflict due to his law firm representing an affiliate of Household International, he would not be voting.
Senator James confirmed there was no further testimony on S.B. 477, and closed the hearing.
The hearing was opened on Senate Bill (S.B.) 478.
SENATE BILL 478: Broadens basis for exercising jurisdiction over party in civil action. (BDR 2-1851)
Senator James advised that he requested this bill, which essentially deals with personal jurisdiction. He advised there exists a statute in Nevada which sets up a two-tiered analysis for analyzing personal jurisdiction. First, criteria for the long-arm statute must be met; and secondly, the constitutional analysis must be addressed. He advised the proposal of S.B. 478 is to avoid litigation over whether or not the litigant has committed a tortious act, owned property, and the criterion always in question, doing business in the state of Nevada. The bill would allow a California-style long-arm statute which simply says:
A court of this state may exercise jurisdiction over a party to a civil action on a basis not inconsistent with the constitution of this state or the constitution of the United States.
Senator Adler asked for and received confirmation that the language read by Senator James was the California statute.
Senator James advised it merges the state long-arm statute and the constitution. He advised in the case Pavlakowski vs. Superior Court, the court never got to the constitutional analysis, but said the plaintiff had not done business within the meaning of the long-armed statute. He stated the provisions of S.B. 478 would extend somewhat the sweep of Nevada's long-arm statute over people who enter the state, whether tortiously or to do business. He stated it might eliminate some litigation over the criteria. It would not do away with all of the state jurisprudence, as there exist a number of supreme court decisions which sound like they merge the two prongs. Therefore, many times an out-of-state firm is able to cite these Nevada cases and say that in Nevada the two prongs are merged, and the statute can be ignored. He advised the other side, including the Pavlakowski case states the statutory criteria cannot be ignored.
Senator Adler stated his concern regarding the specific discussion in the bill regarding personal service. He stated the date of completion of service of process is only instructive to the judges and courts.
Senator James advised he would ask the bill drafters to review that section of the bill.
Senator James confirmed there was no further testimony on S.B. 478, and closed the hearing.
The hearing was opened on Senate Bill (S.B.) 479.
SENATE BILL 479: Expands original jurisdiction of justices' courts and municipal courts in certain counties to include proceedings concerning juveniles charged with minor traffic offenses. (BDR 5-1672)
Judge David Gamble, Ninth Judicial District Court, provided testimony regarding S.B. 479. Judge Gamble advised that juvenile traffic offenses are handled in three or four ways in Nevada. He stated in Clark County, under the current state of Nevada Revised Statutes (NRS) 62.040(2), justice and municipal courts in Clark County have initial jurisdiction over minor juvenile traffic offenses. In Washoe and most other counties in Nevada, these cases are handled by juvenile masters, or the juvenile departments themselves. He advised that in Douglas County, he and the other district judge have chosen to handle juvenile cases themselves, without having a master. He advised their next step in the expansion of the judiciary in Douglas County would be to appoint a master, but they are attempting to save money as long as possible. He advised the intent of S.B. 479 is to allow the judges to transfer the juvenile traffic minor offenses to the justice court, to free up what is a fairly substantial part of their juvenile calendar. He stated the intention is to do this as innocuously as possible with regard to the other counties. The previous bill failed due to the original language of the bill. He referred to a memorandum he had provided to the committee with proposed substitute language. A copy of this memorandum is attached as Exhibit D. He advised this language was suggested by Judge McGee, through Mr. Calderone of the Juvenile Probation Department. Judge Gamble advised the original bill gave all justice courts initial jurisdiction over juvenile traffic offenses, which was opposed by other counties. He advised the proposed revised language attempts to go back to the original plan, making it as optional as possible. The new language allows the juvenile or family court to exercise an option and refer or enable the justice and municipal courts to hear minor juvenile traffic matters on a routine basis. He stated his memorandum requests all proposed changes currently in the bill be removed, and to replace NRS Chapter 62.040(2) with the language in the memorandum.
Rob Calderone, Chief Juvenile Probation Officer, Washoe County, testified in support of S.B. 479, with the proposed amendment. He stated he had spoken to Paula Treat, Lobbyist, Justice and Municipal Court Judges, who indicated that her organization would have no problem with the proposed language.
Senator McGinness asked if this would change the operation of the courts in rural Nevada.
Judge Gamble replied it would not. He stated a master currently hears the juvenile traffic caes in the Third Judicial District. The proposed language of the bill would give the judges the option of how to handle these cases.
Senator McGinness asked for and received confirmation that all judicial districts in the state would have an option regarding hearing of these cases.
Judge Gamble stated he believed his is the only district in which district judges still hear these cases.
Senator James confirmed there was no further testimony regarding S.B. 479 and closed the hearing on this bill.
The work session was opened to discuss bills previously held in committee.
Senator James opened the hearing on Assembly Bill (A.B.) 73:
ASSEMBLY BILL 73: Prohibits criminal neglect of patients in medical facilities. (BDR 15-501)
Senator Titus advised that, as chairman of the A.B. 73 subcommittee, she met with Mr. Terry of the Medicaid Fraud Unit, and representatives from the nursing home industry. She stated there were two main problems with the bill. The first was putting owners back into the bill, as being held responsible for negligent acts. The second was the provision on page 2 of the bill requiring people in the fraud unit to have certain qualifications. Senator Titus advised the Attorney General's Office believed this was too limiting, primarily because the fraud unit is already in place. She advised the nursing home industry has no problem with eliminating the section regarding qualifications. She stated, regarding facility owners, there are good arguments for not just including the term "owner." That could include minority owners, stockholders, or doctors having a small interest, but who are not involved. She stated Mr. Terry had proposed language to narrow down the term "owner." She further advised Senator Adler suggested adding another phrase which came out of some civil rights cases.
Tim Terry, Deputy Attorney General, State of Nevada, Office of the Attorney General, provided the committee with a proposed amendment to A.B. 73, a copy of which is attached as Exhibit E. Mr. Terry advised his understanding that the primary concern with the all-encompassing definition of "professional caretaker" was that it would include minority shareholders of a corporate owner, who had nothing to do with the day-to-day operations or hands-on care and treatment of the patients. These people, who are in some cases physicians, could face loss of their licenses if the corporation was criminally convicted. He stated the proposed amendment would hopefully resolve that difficulty.
Senator James asked what is addressed by Chapter 449.
Mr. Terry replied Chapter 449 is the specific chapter which licenses facilities.
Senator McGinness asked if the proposed amendment would take responsibility away from county commissioners.
Mr. Terry stated perhaps a specific reference to county commissioners should be included.
Senator McGinness advised that in rural, county-owned hospitals, the commissioners do not have day-to-day control, but are ultimately responsible.
Senator Titus asked if that could be added after the phrase "this term does not include a corporate shareholder" in the proposed amendment.
Mr. Terry stated he would have no objection to that addition.
Senator Adler asked for and received confirmation that the only people liable would be those who have knowledge of criminal neglect of the patient, and those who fail to report the neglect. He asked to whom could they fail to report the neglect.
Mr. Terry replied neglect could be reported to any law enforcement agency which is currently authorized by statute to take reports of abuse or neglect. Those agencies would also include the Department of Human Resources and the Division of Aging Services.
Senator Adler asked if the failure to report makes them criminally liable.
Mr. Terry stated it did not seem appropriate to attempt to immunize someone who had actual knowledge of criminal neglect of a patient. He stated, for example, a corporate shareholder who had been to a facility and seen criminal neglect of a patient, would be liable if the neglect was not reported.
Senator Adler stated this has to be a fairly high standard, as some of those people are not on the premises every day. He stated, however, in civil rights cases in which liability is present for upper level officials, deliberate indifference to a serious medical need must be shown. This would mean the person has knowledge of the neglect and is indifferent. He stated the way he saw an owner or shareholder being liable is if they had knowledge of the neglect and did not attempt to correct the problem or take any action.
Mr. Terry asked if the phrase "a deliberate indifference response to reporting" could be substituted for "failure to report."
Senator Adler stated his concern was someone who knew about a condition and did not report it, but instead called in a physician to attempt to help the patient. In that case, the person would still be criminally liable even though they are attempting to do the right thing.
Senator Titus reiterated Mr. Terry's suggestion to substitute in the deliberate indifference language.
Mr. Terry stated he could see that as a possibility. He asked if deliberate indifference would include a failure to report to a law enforcement agency.
Senator Adler stated his concern was if the person did not see the failure to report as criminal neglect, but as a serious medical problem.
Mr. Terry stated his belief that if the person referred the problem to the type of caretaker Senator Adler spoke of, that would be proof that the person was not deliberately indifferent.
Senator Adler agreed this would take care of the problem.
Senator Jacobsen asked what criminal neglect encompasses.
Mr. Terry stated section 1 of A.B. 73 sets forth instances of criminal neglect in several subsections. He reviewed these subsections.
Senator Jacobsen asked if the bill would increase problems in, for example, a medical facility for prisoners.
Mr. Terry advised medical facilities are defined in sections 4 and 5 of the bill, with the statutory definition from NRS 449.0151. He stated he does not believe this section includes prison facilities.
David D. Nicholas, Lobbyist, Nevada Health Care Association, provided testimony. He stated the proposed language is an improvement over the original bill. He advised he would like to see the language in a more formal stance to better determine how the association views the change. He reviewed several portions of the bill which have been removed, and which he agrees should be removed. He asked if it would be possible for him to view the change in a more formal format.
Senator James advised it was his intention to request the proposed language be put in the form of an amendment, and wanted to move the bill at this hearing. He asked if Mr. Nicholas could review the changes expeditiously.
Mr. Nicholas asked Mr. Terry for a copy of the way the bill would read with the proposed amendments. He stated the regulations in the proposed amendment may still be too much, but it is an improvement.
Senator James asked Mr. Nicholas if he believed the proposed language goes far enough to insulate people.
Mr. Nicholas replied the use of the phrase "corporate shareholder" relates to almost all major employees of a major corporation involved in a nursing home. Therefore, a number of people who might have been possibly culpable will, in a sense, be eliminated. He stated however, that criminal law probably takes care of most of this.
Senator James advised this only deals with vicarious liability. If the person has actual knowledge of the wrongdoing, they are put in a position of liability. Therefore, if a corporate shareholder is involved in the caretaking and does not live up to the standard, that person is still liable.
Mr. Nicholas asked for further clarification of vicarious liability.
Senator James advised that simply being an owner and not being involved in the actual events which constitute the neglect is vicarious liability. This liability is being taken out of the bill with the elimination of corporate shareholders, unless that person has actual knowledge of the criminal neglect and has failed to report the neglect.
Mr. Nicholas asked if that person would not be culpable under criminal law, in any event.
Senator James stated this might be the case.
Mr. Nicholas stated his preference would be to leave the language as it came from the assembly involving this particular issue. He stated the proposed amendment is an improvement over what was there before. He stated he could not approve the inclusion of the basic language wholly; however it is better than it was.
Senator James asked Mr. Nicholas if, since the assembly has adopted this language, he would be comfortable in discussing the proposed amendment in the context of whether or not the assembly is likely to concur.
Mr. Nicholas stated he did not know that he could. He had talked to some people in the assembly about the issue, and knows those people are fairly firm.
Senator James stated if the assembly will not concur with the amendment, the differences will have to be worked out, and Mr. Nicholas could address his concern in that context.
Senator Titus stated she had spoken with Susanne Ernst from the Commission on Aging. Ms. Ernst stated her agency wanted to see the term "owner" included. Ms. Ernst advised there had been some situations in which the owner who was responsible would not be covered by the present language. Senator Titus stated she is sympathetic to corporate shareholders and elected officials, but believes if a person is an owner and has knowledge, that person should be responsible.
Senator Adler asked for confirmation concerning the new language regarding liability. He stated the language "serious medical needs of a patient" indicates a higher standard than that of a person not reporting a situation. This would indicate the person had knowledge of a serious problem and did not act.
Senator James asked if more problems would not be created by putting in an undefined term. He advised the entire statute deals with the term "criminal neglect," and then defines that in fairly detailed format. He stated his belief that this same term should be used.
Senator Titus suggested using the language "has actual knowledge of the criminal neglect of a patient and shows deliberate indifference to such neglect."
Senator Adler agreed this language would be more acceptable.
Senator James confirmed the language. He confirmed there was no further testimony regarding A.B. 73.
SENATOR TITUS MOVED TO AMEND AND DO PASS A.B. 73.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS SMITH AND SHAFFER WERE ABSENT FOR THE VOTE.)
* * * * *
The hearing was opened on Assembly Bill (A.B.) 393.
ASSEMBLY BILL 393: Permits imposition of sentence without presence of defendant under certain circumstances. (BDR 14-1311)
Senator James briefly explained the bill.
Ben Graham, Lobbyist, Nevada District Attorney's Association, provided the committee with a proposed amendment to A.B. 393. A copy of the proposed amendment is attached as Exhibit F. Mr. Graham explained the proposed amendment.
Senator Jacobsen asked if the bill provides any advantage to the defendant.
Mr. Graham stated the defendant generally initiates the request. The person is frequently incarcerated in another jurisdiction, and because Nevada has a hold on the person, he or she cannot get into rehabilitation, or start credit for good time. He advised these are the less serious offenses where the term of incarceration would be relatively short.
Senator Jacobsen asked if Mr. Graham saw any possibility of a loophole which could be used by a defendant to come back at a later time stating he or she was not able to be present.
Mr. Graham advised that is always a possibility, however the provisions of the bill are as constitutionally valid as possible.
Senator James asked for and received confirmation that only the defense would attempt to use these provisions.
SENATOR JACOBSEN MOVED TO AMEND AND DO PASS A.B. 393.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS SMITH AND SHAFFER WERE ABSENT.)
* * * * *
Senator James reopened the hearing on S.B. 477. He confirmed everyone understood the proposed amendments.
SENATOR TITUS MOVED TO AMEND AND DO PASS S.B. 477.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS SMITH AND SHAFFER WERE ABSENT FOR THE VOTE. SENATOR JAMES ABSTAINED FROM THE VOTE.)
* * * * *
Senator James confirmed there was no further business to come before the committee. He advised that any senate bill not ready for hearing by Friday, June 4, 1993, would not be considered by the Senate Committee on Judiciary. The meeting was adjourned at 2:10 p.m.
RESPECTFULLY SUBMITTED:
Sherry Nesbitt,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
??
Senate Committee on Judiciary
May 28, 1993
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