MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
June 2, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 2:15 p.m., on Wednesday, June 2, 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
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Marilyn Hofmann, Committee Secretary
GUEST LEGISLATORS PRESENT:
Assemblywoman Stephanie Smith, Clark County Assembly District 20
OTHERS PRESENT:
Harvey Whittemore, R.J. Reynolds
Marsha Berkbigler, Nevada State Medical Association
Bob Barengo, Amusement & Vending Operators of Nevada; Cellular One
Ernest K. Nielsen, Washoe Legal Services, Washoe County, Nevada
Kathryn Landreth, Washoe Legal Services, Washoe County, Nevada
Felix F. Stumpf, Treasurer, Washoe Legal Services, Washoe County, Nevada
Wayne Pressell, Executive Director, Nevada Legal Services
Randell Jones, Nevada Legal Services
Sheri Cane Vogel, Director, City of Las Vegas Senior Citizens Law Project
Despina Hatton, Director, Washoe County Senior Citizens Las Project
Mary Liberatti, State of Nevada, Department of Human Resources, Division of Aging Services
Harry Clemons, American Association of Retired Persons (AARP)
Helen Foley, Defense Trial Lawyers of Nevada; Sprint Cellular
Bob Hadfield, Nevada Association of Counties (NACO)
Thelma M. Clark, Nevada Senior Coalition, Inc.
Harold Zietz, District Manager, Cellular One Nevada
Rick Hackman, Manager, Consumer Division, Public Service Commission (PSC)
Paul G. Yohey, Deputy Attorney General, Office of the Attorney General, Criminal Justice Division
Senator James opened the hearing on Senate Bill (S.B.) 421.
SENATE BILL 421: Makes various changes relating to smoking of tobacco in public areas.
The first to testify were Harvey Whittemore, representing R.J. Reynolds, Marsha Berkbigler, Nevada State Medical Association, and
Bob Barengo, representing Amusement & Vending Operators of Nevada. Mr. Whittemore said he had earlier advised the committee all parties concerned with the legislation would work together to develop agreed language in the form of amendments to the bill.
Mr. Barengo explained the amendments to section 1 of the bill, which deals with cigarette vending machines. He said the language would "except out public buildings and hotels and motels when designated by the operator thereof." Ms. Birkbigler further addressed the proposed amendments in section 2, regarding health authorities and police authorities. Mr. Whittemore referenced section 3 and stated, "We are going back to the original law as it existed prior to the proposed changes in S.B. 421." Ms. Birkbigler stated an agreement has been made to delete the words "who are minors" on page 2, line 25, "...because it could create a problem for the school districts...there is occasion where pupils are 18 years old, and they don't want to leave the impression there is ever a time when any student could smoke on the premises."
After further explanation of the amendments by Mr. Whittemore, Ms. Berkbigler explained section 4 of the bill, which would make violations of Nevada Revised Statutes (NRS) 202.249 a misdemeanor, with an additional requirement that the $100 fine collected be accounted for and dedicated into a fund for the purpose of education. Ms. Berkbigler reminded the committee the reason for the legislation was "to put us back into a position where we were in compliance with federal regulations." She said one regulation would require all states to have laws which protect minors from access to cigarettes and exposure to cigarette smoke. Ms. Birkbigler stated the federal regulations also require the state laws to provide for enforcement and penalties.
Senator James asked whether jurisdiction for issuance of citations existed with health authorities or law enforcement. Mr. Whittemore answered under existing law, the only entity with authority was a county board of health. He pointed out the amendment to the bill
which would change "county board of health" to "health authority or police authority."
There was no further testimony on S.B. 421 and the chairman closed the hearing on the bill. He then opened the hearing on Assembly Bill (A.B.) 50.
ASSEMBLY BILL 50:Increases fees charged in civil actions to support legal services for indigent and elderly persons.
Appearing on behalf of the legislation were Ernest K. Nielsen, Kathryn Landreth and Felix F. Stumpf, all representing Washoe Legal Services, Washoe County, Nevada; Wayne Pressel, Executive Director, Nevada Legal Services; and Randell Jones, Nevada Legal Services. Mr. Nielsen explained A.B. 50 would increase the fees attached to filing a district court action by $7.00, for both the complaint and the answer. He said that fee would benefit four different organizations, the two legal service programs and the two senior law projects within the state. Mr. Nielsen stated Nevada Legal Services provides representation to indigent persons in Clark County and the rural counties, while Washoe County Legal Services provides that service to those indigent individuals residing in that county. Ms. Landreth said she was an attorney in Reno, Nevada, and served on the board of directors of Washoe Legal Services. She provided the committee with information concerning the agency, which is attached as Exhibit C. She explained the legal service organizations provide free legal assistance in all areas of law to indigent persons except criminal defense. Ms. Landreth said these organizations were "not-for-profit Nevada corporations." She said in order to be eligible a family must earn no more than 125 percent of the poverty level, which for a family of three would represent an annual income of $14,463. Ms. Landreth added, "A substantial number of our clients are part of the work force, but work where wages are low." She said the agency focuses on problems relating to housing, health care and public entitlements. Ms. Landreth indicated the demand for legal services in Washoe County "has been enormous," with approximately 8,000 requests being received in 1992. She said Washoe Legal Services was only able to address approximately 20 percent of those cases, "...because of their very limited resources." Ms. Landreth added a large number of their clients are children and a large portion of legal assistance goes to those children, "...who are not otherwise able to obtain legal representation."
Ms. Landreth stated the agency also assists veterans who have been denied eligibility for Veterans Administration (VA) medical treatment. She said she also wished to address the area of "broad impact" work which is done. Ms. Landreth said an example of that type of service is the work during the approval process of the Valley Bank and Bank of America merger. She continued:
Using the leverage of the Community Reinvestment Act of 1974, legal services corporations negotiated a commitment from Bank of America for $31 million annually, which would go to providing small business loans, consumer loans and residential loans which are designed to be more flexible so more people would qualify to enter the homeowners' market. This is the sort of thing that Washoe Legal Services and Nevada Legal Services has done very effectively to enforce the federal law that otherwise would have gone unenforced ...and brought $31 million annually into the community that otherwise would not have been here. Of that, $18 million over a 3-year period will go to affordable housing. As many of you may know, Nevada has the second worse problem in the nation in lack of affordable housing.
Ms. Landreth concluded, "The need for legal services is great...but the benefits of providing legal services are equally great...it not only benefits the individual clients but enhances the community as a whole."
Mr. Stumpf, the treasurer of Washoe Legal Services, identified himself as a project consultant with the National Judicial College. Mr. Stumpf stated, "Being the treasurer of any nonprofit organization these days is a very uncomfortable and trying undertaking....we are all suffering from scarcity of resources." He said "even in good times" it has been difficult to fund legal services. Mr. Stumpf said they depend on five sources, "National Legal Services Corporation; Nevada Law Foundation (a source that has drastically diminished); United Way (funding has also been cut); filing fees; and fundraising. He said fundraising "is not an easy task...with modest results." Mr. Stumpf referred to filing fees which have been a major source of funding for the organization. He said without an increase in those fees, "...we are likely to have to terminate the employment of one person, which would mean at least a drop of 20 percent in what we are able to do." Mr. Stumpf stated he believes the requested increase to be "modest...not excessive."
Mr. Pressel stated he had been asked by the "rural senators" to explain how accountable Nevada Legal Services is in the rural areas. He said that was an important question. Mr. Pressel indicated local boards of directors are picked by local bar associations and client groups, "...to insure accountability." Mr. Jones indicated he practiced law in Las Vegas, and was a member of the board of directors of Nevada Legal Services. He said he believed A.B. 50 was very important to the citizens of the state. Mr. Jones stated, "According to the 1990 census, there was a 74 percent growth in poverty in our state...50 percent higher than the growth in the population...." He said there are many instances which "very dramatically demonstrate what Nevada Legal Services has provided to our citizens," and he cited a lawsuit filed against the Las Vegas Housing Authority which returned nearly $3 million in rent overcharges to 3,200 families. Mr. Jones said it was his strong belief the increase in the filing fee "would be no impediment to people who can afford an attorney," but added failure to pass A.B. 50 would decrease personnel and "many people will not get into court...many of our citizens...almost one-sixth of the state's population...will not have access to legal services."
Senator Jacobsen asked Mr. Jones if he had ever had a client question the amount of a court filing fee, and Mr. Jones answered he had not. Mr. Pressel indicated the filing fee was last raised, by $2.00, in 1989.
The next to testify on the bill were Sheri Cane Vogel, Director, City of Las Vegas Senior Citizens Law Project, and Despina Hatton, Director, Washoe County Senior Citizens Law Project. Ms. Vogel stated the Las Vegas project provides free legal services to any resident living in Clark County who is 60 years of age or older. She provided an informational packet to the committee, which is set forth as Exhibit D. Ms. Vogel said the packet contained sample letters from persons who have utilized the service. She added, "The most compelling testimony I could give today can't hold a candle to the letters you will see from the recipients of our service." Ms. Vogel referred to the issue of "advance directives," a result of passage during the last legislative session of the Nevada Uniform Act on the Rights of the Terminally Ill. She said that legislation provides for the preparation of a "living will" and a durable power of attorney for health care. Ms. Vogel stated she believes her agency has prepared over 3,000 advance directives. She indicated agency representatives go to hospitals, nursing homes, group care facilities and hospice facilities on a monthly basis in order to prepare the directives for people who are terminally ill. Ms. Vogel asked the committee's support of A.B. 50, "...so we can attempt to meet the legal needs of persons who live in Clark County...."
Ms. Haddon said the Washoe County Senior Law Program is staffed by one attorney, one paralegal, one legal secretary and one half-time receptionist. She said in 1992 the agency saw over 2,000 clients. Ms. Haddon indicated the agency needed the additional funds "just to maintain our service level...we do not anticipate expanding any services." She closed by saying the program "emphasizes legal needs which are not being met by others in the community."
The next to testify were Mary Liveratti, Deputy Administrator, State of Nevada, Department of Human Resources, Division for Aging Services, and Harry Clemons, representing the American Association of Retired Persons (AARP). Ms. Liveratti indicated there were limited federal funds available for both senior law programs but indicated there had been no increase in the past 3 years. She stated she believed the programs were "very strong advocates for low-income seniors and frail seniors who would have difficulty accessing the legal system." Mr. Clemons indicated he was speaking as a consumer of the senior law program in Washoe County. He asked the committee's approval of a $2.00 increase in filing fees to support the programs. Mr. Clemons stated the legal services provided to seniors in Washoe County "are of great value...."
Senator Jacobsen asked Mr. Clemons if legal services were "a number one priority with seniors," and Mr. Clemons answered he believed the first priority would be health care. Ms. Vogel also responded saying health care issues overlapped with legal issues, since seniors in failing health very often are in need of legal services because of their illnesses. Senator Jacobsen asked if the senior centers heard many cases of seniors being "scammed" and bilked out of savings, and Ms. Vogel answered, "We see too many." She said she had also seen "an unbelievable amount of seniors who are being abused and exploited by their own family members."
The next to testify was former Senator Helen Foley, representing the Defense Trial Lawyers of Nevada. Ms. Foley stated that organization's support of A.B. 50.
Appearing on behalf of the Nevada Association of Counties (NACO) was Bob Hadfield, its executive director. Mr. Hadfield said the previous witnesses had done an outstanding job in describing the important and valuable services supplied to the communities by legal service organizations. He stated his comments would be confined to the funding of those services. Mr. Hadfield stated:
It is important to us as an organization of counties for you to understand that we are becoming increasingly concerned about the historic revenue base to fund county services, not only being used to fund other services, but continuously being expanded to expand those needed services. We sat on the sidelines when these programs were established and they chose to use the historic county fee base for filing fees to fund these services, because we believe those services were valuable to our communities... We still believe that to be the case. I feel compelled to point out to you that the county filing fees that go to county governments to support the organization of the courts have not been increased since 1981. We need those fees to be addressed. Unfortunately, what happens to us when we enter into a dialogue on attempting to identify the counties' needs for funding these services, one of the obstacles we run into is the high cost of filing fees....
Mr. Hadfield said his comments were not directed toward opposing legal services but added:
I simply don't want our efforts to increase our fees that we desperately need to fund county government to be prejudiced or preempted by the granting of other fee increases for services that are funded out of our historic county fee base. We are stuck in the middle...we have the taxpayers saying they don't want to pay more taxes...we have the users saying they don't want to pay any higher fees...yet other valuable and important services need your funding and your support...we continue to have to divert other revenues to support these functions of government.
Mr. Hadfield agreed the programs were worthy of the committee's support but added:
Every time we come forward with an attempt to help ourselves, we are caught in the middle...we don't oppose them, but we don't want anybody else to oppose us on the basis there is no room to increase these fees to pay the cost of the court clerks...because we have given those fees away to support other activities.
Senator Jacobsen asked Mr. Hadfield to set out what increases they had asked for. Mr. Hadfield answered, "The last increase was in 1981, from $32.00 to $47.00; we are asking for it to go to $65.00.
The last person to testify on behalf of A.B. 50 was Thelma Clark, representing the Nevada Senior Coalition, Inc. Ms. Clark indicated the Division of Aging Services has distributed federal funding to the senior legal services in an amount equal to what was provided last year. She indicated the senior program was a needed one and said the Nevada Senior Coalition, Inc. supported the legislation.
There was no further testimony on A.B. 50; the chairman closed the hearing on the bill and opened the hearing on Assembly Bill (A.B.) 462.
ASSEMBLY BILL 462: Requires suppliers of mobile telephone service to provide free access to emergency telephone numbers and provides penalties for theft of mobile telephone services.
The first to testify was Assemblywoman Stephanie Smith, Clark County Assembly District 20. Ms. Smith spoke from a prepared statement, attached hereto as Exhibit E.
Following explanation of the bill, Senator Jacobsen asked how a mobile telephone unit could be changed "to make it do other than what it was intended to do?" Ms. Smith answered the telephones are composed of microchips which could be altered. She referred to a method of "tumbling" which consists of removing a microchip which is replaced by another. Ms. Smith indicated a more sophisticated form of chip replacement was known as "cloning." She said there was also a method of subscription fraud, wherein "cellular bandits" provide fraudulent names, addresses, social security numbers and credit information to carriers, "making billing impossible."
Senator James asked Ms. Smith if there had been concern in the assembly committee regarding section 4(6), which provides criminal penalties to "publish a plan for a device designed to receive mobile telephone services without full payment." He asked if there could be a criminal penalty for publishing something. Senator James stated he would be interested in knowing if the courts have ruled on the question, "Can you make a restraint on someone for publishing a plan." Ms. Smith indicated the legislation was directed at those persons who "offer seminars on how to defraud equipment...they are teaching other people how to do it." Senator James indicated he needed to explore the constitutionality of making such activities a crime. Ms. Smith indicated this issue was not discussed during hearings on A.B. 462 in the assembly committee.
The next to testify was former Senator Helen Foley, representing Sprint Cellular. Ms. Foley read from a prepared statement, set forth herein as Exhibit F. She indicated she could not address Senator James' question regarding constitutionality but indicated there was a great deal of discussion and debate regarding the penalty phase of the bill in the assembly. Ms. Foley stated the committee felt it was more appropriate to reduce the penalty from 10 years to 6 years.
Senator Jacobsen asked a question regarding emergency calls, and Ms. Foley indicated it was the policy of Sprint Cellular to allow all emergency calls to be made free of charge.
Testifying next were Robert Barengo, representing Cellular One and Harold Zietz, District Manager, Cellular One Nevada. Mr. Barengo stated A.B. 462 was developed in accordance with a model act prepared by the Council of State Governments but indicated it had to be "modified so it would actually work." He referred to Senator James' earlier question regarding constitutionality and indicated he was "probably correct regarding the word 'publish.'" Mr. Barengo said there could not be a crime connected with the publication of an article regarding the inner workings of a cellular telephone. He added, "While all the industry supports an emergency service...this is already a Public Service Commission (PSC) regulation, and Cellular One does not feel it is necessary to place it in the statutes."
Mr. Barengo pointed to the fact the legislation would be effective on passage and approval and indicated there is criminal activity in the state at this time.
Mr. Zietz stated Cellular One supported the legislative efforts to aid in the reduction of fraudulent use of cellular telephones. He also stressed he saw no need to legislate the matter of free access to emergency numbers. Mr. Zietz stated Cellular One "works real closely with governmental agencies to provide free cellular service in emergency situations." Senator James stated the reason for the inclusion of section 8 was "an assurance legislatively that there will always be free access...." Mr. Zietz stated it is already a PSC regulation and added, "I cannot imagine a time where it would not be in anybody's best interest."
Senator Titus asked why there would be a problem if section 8 were left in the bill. Mr. Barengo answered, "It is the age-old question ...why do we need things in the statute that are already in regulation?"
Senator Jacobsen said in the law enforcement agencies there was a "net which is exclusive to itself," and everyone was not in on that network. He asked Mr. Zietz if he saw the possibility of intervention by cellular use on that type of a system. Mr. Zietz said the systems were separated and there was no way to combine them. He added, "They are different spectrums...they are allocated for different purposes."
The last person to testify on A.B. 462 was Rick Hackman, Manager, Consumer Division, Public Service Commission (PSC). Mr. Hackman stated his testimony would be limited to section 8 of the bill, which would require a company to provide 911 calls free of charge. He indicated there was a technical clarification and said the matter of such calls was not set forth in regulation, but rather "a voluntary tariff filing that all companies agreed to make. Before any companies could stop providing free 911 calls, they would have to obtain the commission's permission to do so." Mr. Hackman stated the PSC was "ambivalent" regarding the matter of placing the provision in the statutes.
The committee was in recess for 20 minutes, then returned to begin a work session on bills previously heard.
Senator James referenced S.B. 421 and said he would request that amendments discussed earlier be drafted and presented to the committee.
The chairman indicated he would accept a motion on A.B. 50.
SENATOR SMITH MOVED TO DO PASS A.B. 50.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS AND SENATOR McGINNESS WERE ABSENT FOR THE VOTE.)
* * * * *
Senator James returned to a discussion of A.B. 462 and reiterated his concern over any ban on publication of information regarding cellular telephones. He proposed to amend the bill by removing language regarding such publication, at the same time retaining the provisions regarding the "making of a plan or kit." Senator Smith made reference to section 4 of the bill and requested the addition of the word "supplier" following "payment to...." Senator James indicated the feeling of the committee was to retain language regarding free 911 calls.
SENATOR ADLER MOVED TO AMEND AND DO PASS A.B. 462.
SENATOR McGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR MCGINNESS WAS ABSENT FOR THE VOTE.)
* * * * *
Senator James then turned to the three bills listed on Exhibit A to be discussed in the work session, Senate Bill (S.B.) 4, Senate Bill (S.B.) 352, and Senate Bill (S.B.) 475.
SENATE BILL 4: Expands governmental immunity with regard to inspections.
Senator James stated the legislation would not be acted on at this meeting.
SENATE BILL 475: Eliminates Nevada racing commission and transfers responsibilities to Nevada Gaming Commission.
Senator James stated he had discussed the bill with the chairman of the Senate Committee on Finance who agreed it should be rereferred to that committee for consideration.
SENATOR SMITH MOVED TO REREFER S.B. 475 TO THE SENATE COMMITTEE ON FINANCE.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR ADLER VOTED NO. SENATOR MCGINNESS WAS ABSENT FOR THE VOTE.)
* * * * *
SENATE BILL 352: Creates lien upon earnings and property of offender for costs of incarceration.
Senator James indicated he had "real concerns" about the bill. He said he had reviewed the proposed amendments provided by the attorney general's office, together with mail from families of incarcerated persons. The chairman stated the original bill did not deal with the question of "whether or not this lien has priority over any other lien or judgment...." He added the committee was concerned about child support obligations and victim restitution. Senator James stated the proposed amendment would add language to specify that the court would consider those elements in each case. He added he was still concerned about "really hurting the families of people who already don't have very much money...the children...the wives...didn't commit a crime...." Senator James stated, "It would be very fair for somebody who had a lot of money." He continued, "I am worried this is not enough protection in situations where that is not the case...." The chairman indicated he was not certain the proposed language in the amendment would protect the families, "...since there is a strong mandate that the state is going to get its money...." He said the amendment does not set forth what the standards are nor what the minimum requirements for support are.
Senator Adler stated he had some of the same concerns as the chairman. He agreed the state has an interest in recovering money but indicated low-income families could be forced into bankruptcy. Senator Adler also pointed out there is no provision for division of assets to the non-incarcerated spouse.
Appearing before the committee was Paul G. Yohey, Deputy Attorney General, State of Nevada, Office of the Attorney General, Criminal Justice Division. Mr. Yohey stated the intent of the bill "was never to make anyone destitute...especially the families." He indicated he had written the legislation and was well aware of the problem of limited resources. Mr. Yohey stated he could understand the committee's concern but added, "We are not looking to attach anybody's wages." He said he believed the committee's concerns could be addressed in the bill by stating wages could not be attached below a certain monetary amount or in the alternative, prohibit the attachment of wages at all.
Mr. Yohey stated it costs $15,000 per year to house an inmate and indicated those costs could be recovered from an inmate who was wealthy. Mr. Yohey referred to a letter submitted to the committee regarding execution of judgments, which is set forth as Exhibit G.
Senator Adler suggested implementing a wage exemption which would be added to standard statutory exemptions. In response to further concern expressed by Senator James regarding possible inheritance which would be payable to children and which might provide them with a college education, Mr. Yohey indicated perhaps income from inheritance could also be exempt. He added, however, "If there is an inheritance of $100,000 and there is $1,000 per month income paid directly to the inmate, why shouldn't we have that?" Senator James commented:
I can't get away from the situation...some child is 5 years old...for some reason his or her dad is sent to prison...then the fortunes change and that family gets an inheritance ...it is going to change that child's life. Can the state come in and take it all away? The child's right back where he started. You're not just dealing with an offender; you are dealing with the innocent parties.
...
I am concerned about making it so these people never have a chance to get out of the cycle of problems they are already in.
Senator James stated the bill has significant problems and added the committee may not have time at this point in the session to spend the time the issue deserves to work out those problems. Senator Adler said there may be ways to "fix" the bill, such as exempting all income up to $100,000 or capping the amount which could be collected.
Mr. Yohey responded:
You did say the one chance that would help someone out...of the cycle of poverty...I think you have to change the word would to could...Most actuarial figures will tell you that any windfall insurance or inheritance is dissipated within 7 years...it is not invested...it is not spent on education ...it is not spent on the kinds of things we would like to see people use to help themselves out of the cycle of poverty...it is basically wasted income.
Senator James appointed a subcommittee consisting of Senator Adler, Senator Shaffer and Senator Jacobsen who were asked to work on amendments to the bill and report back to the committee.
Senator James referred to Senate Bill (S.B.) 291, which was amended by the Assembly Committee on Judiciary.
SENATE BILL 291: Makes various changes to provisions governing victims of crime.
SENATOR SMITH MOVED TO CONCUR WITH THE ASSEMBLY COMMITTEE ON JUDICIARY AMENDMENT TO S.B. 291.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS AND SENATOR MCGINNESS WERE 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:
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Senate Committee on Judiciary
June 2, 1993
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