MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
June 22, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 5:00 p.m., on Tuesday, June 22, 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
OTHERS PRESENT:
John H. Sarb, Administrator, Department of Human Resources, Division of Child and Family Services
Valerie J. Cooney, Nevada Trial Lawyers Association
Sharon E. Claassen, Private Attorney, Carson City, Nevada; Legislative Chair, Nevada Network Against Domestic Violence
Lucille Lusk, Nevada Coalition of Concerned Citizens (NCCC)
Ivan R. (Rene) Ashleman, Southern Nevada Home Builders Association
Former Senator Helen Foley, representing Defense Trial Lawyers of Nevada
Sheila A. Block, Deputy Attorney General, State of Nevada, Department of Human Resources
Jeanette Hills, Chief of Eligibility and Payments, State of Nevada, Department of Human Resources, Welfare Division
Mary Ellen McCarthy, Senior Attorney, Nevada Legal Services
Beth Carl, Private Citizen
Lawrence Semenza, representing Circus Circus Enterprises
Mark Brown, representing MGM Grand Hotel and Theme Park
Senator James opened the hearing on Senate Bill (S.B.) 546.
SENATE BILL 546: Facilitates adoption by former stepparent.
The chairman read into the record a letter from the law firm of Greenman, Goldberg, Ruby & Martinez in Las Vegas, Nevada, which was received by the chairman with a request for passage of S.B. 546. The letter is attached hereto as Exhibit C. Senator James pointed out the letter states the bill is endorsed by the Division of Child and Family Services.
The first to testify was John H. Sarb, Administrator, Department of Human Resources, Division of Child and Family Services. Mr. Sarb stated the bill "speaks to a very isolated and rare set of circumstances." He indicated as a rule he believes it is a bad idea to legislate for "the extremely unusual." Mr. Sarb stated the following circumstances would have to apply:
A couple is married; one parent is the biological parent of the children and the other biological parent is either dead or has relinquished his or her parental rights. The couple is divorced; some time after divorcing they conclude that the former spouse of the biological parent wants to also be the adoptive parent of the children.
Mr. Sarb said the question becomes, "Why didn't the stepparent adopt the children while the couple were married?" He stated he "would have to wonder about the stability of the entire familial arrangement, when the stepparent wants to adopt, even though the couple is divorced." Senator James asked what the "down side" of the situation would be and Mr. Sarb answered he could not find one. He added, "It is certainly unusual, and we have played with all the scenarios we can imagine, and we cannot really find a problem."
The next to testify were Valerie J. Cooney, Nevada Trial Lawyers Association and Sharon E. Claassen, Private Attorney, Carson City, Nevada. Ms. Cooney said she and Ms. Claassen had several concerns regarding S.B. 546, particularly with respect to the language in section 3 of the bill, which she described as "confusing." She said it was very difficult to understand who the bill refers to in the language, "consenting natural parent," since in most adoptions, both parents must consent. Ms. Cooney said there were at least four references to "consenting parent" and it is unclear if it is the consenting mother or the consenting father. She then referred to Mr. Sarb's comment that there were no legal consequences to the legislation and indicated she disagreed, saying:
The legal consequences are, although a natural parent can consent to the adoption of his child, his legal rights that relate to that parent-child relationship will not be altered by virtue of the adoption...he will retain certain parental rights. In addition, we are creating another parent, the new adoptive stepparent...that parent also has rights. Now we have, hypothetically, three parents who have legal rights to a child...the right to visitation...now the child has hypothetically three sets of grandparents, all of whom may wish to exercise visitation rights.
Ms. Cooney said section 3 of S.B. 546 establishes that three parents will have the right to a relationship with the child, then states in the latter sections of the bill that the natural parent's rights will be severed. She continued, "The natural parent is still out there, has visitation rights, but no legal obligation to the child." Senator James asked if that same situation were not present if a natural parent's rights were terminated so someone could adopt. Ms. Claassen answered "no." She said in a normal stepparent adoption, where there are two living parents, both parents must sign a consent. Ms. Claassen said when that consent has been signed by the absent parent, his or her rights are terminated. She said a full-fledged adoption can then occur, and the absent parent has no further obligations. Ms. Claassen said if S.B. 546 were rewritten to indicate "...in a case where the parental rights of a parent have been terminated or the parent is deceased....," it would fit the scenario.
Senator James asked Ms. Cooney and Ms. Claassen if they would be in favor of the legislation if it was rewritten as indicated above. Ms. Cooney answered, If language could be fashioned to "specifically reference the scenario this supposedly is limited to...."
Ms. Claassen said one of the problems is the law relating to stepparent adoptions requires the parties be married, therefore the couple in the original scenario would not qualify. In that case, she said, a full-fledged adoption would have to be done.
The next to testify was Lucille Lusk, representing Nevada Coalition of Concerned Citizens (NCCC). Ms. Lusk indicated the two previous speakers had addressed her major concerns and added the circumstance described is "so unusual and isolated...the only way you could have a solution is to have a judge review the case and make a decision in the best interest of the child." She added, "The language you have before you when automatically the natural and adoptive parent have joint custody may not be in the best interest of the child and should not be automatically assumed in the law."
Senator James asked Ms. Cooney and Ms. Claassen if they would contact the attorney who proposed the legislation, to see if any language could be fashioned which would clarify the bill's provisions. He said he felt the legislation "may be worthy to deal with," although it is late in the session.
Senator James closed the hearing on S.B. 546. He then opened the hearing on Senate Bill (S.B.) 554.
SENATE BILL 554: Makes retroactive certain limitations on actions involving real property after prescribed period.
Ivan R. (Rene) Ashleman, representing Southern Nevada Home Builders Association was the first to testify. He explained the legislation:
We have through a series of legislative enactments and supreme court pronouncements, a very interesting situation in Nevada. The statutes of repose, which essentially are a series of statutes that limit under various conditions liability of people who construct buildings or improvements thereto, apply to buildings which are built after 1983, but do not apply if they were built before 1983. Since the statutes of repose are supposed to protect owners, architects, engineers, builders, contractors, etc., from stale or late claims or construction defects, that is an extremely anomalous situation...that the older the building, the more a statute of repose should protect it...the less protection it has by these series of events.
Mr. Ashleman provided to each committee member a legal memorandum which outlines the situation. That memorandum is attached hereto as Exhibit D.
Mr. Ashleman indicated S.B. 554 is meant to "fix the latest defect the supreme court found," when it indicated, "When you made the statute of repose retroactive you didn't allow anybody who had a then accrued or possible legal claim time to file...you instantly cut off their rights, and that was not the correct thing to do." He said the present legislation has been devised "which reenacts the retroactivity of the statute of repose and picks up the pre-1983 group, but allows 1 year for people to come in to file the claim so we don't repeat that mistake."
Mr. Ashleman indicated the bill has no opponents to his knowledge. He added the Nevada Resort Association, Associated General Contractors, homebuilders statewide, architects and engineers have endorsed the legislation.
The next person to testify was former Senator Helen Foley, representing Defense Trial Lawyers of Nevada. Ms. Foley indicated the present statute has worked well since 1983 but does need a clarification to cover the buildings completed prior to 1983. She stated the defense trial lawyers support S.B. 554.
There was no further testimony on the bill and the chairman indicated he would accept a motion.
SENATOR SMITH MOVED TO DO PASS S.B. 554.
SENATORS ADLER AND SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
* * * * *
The hearing was opened on Assembly Bill (A.B.) 520.
ASSEMBLY BILL 520: Accommodates provision for dividing income and property of married couple to federal requirements.
Appearing before the committee were Sheila A. Block, Deputy Attorney General, State of Nevada, Department of Human Resources, Jeanette Hills, Chief of Eligibility and Payments, State of Nevada, Department of Human Resources, Welfare Division and Mary Ellen McCarthy, Senior Attorney, Nevada Legal Services, Carson City, Nevada.
Ms. Block presented a prepared statement, which is set forth as Exhibit E.
Senator Jacobsen asked how long the federal requirements had been in place, and Ms. Block answered since the 1988 Medicare Catastrophic Act was passed in September, 1989.
Senator Adler referred to language set forth in a proposed amendment to the bill which states, "An agreement...or decree...may not be binding on the welfare division...," and referred to an instance where a temporary order is entered by the court dividing assets, "making the institutionalized spouse eligible," and then the Welfare Division determines the decree was beyond the guidelines. He asked if the institutionalized spouse would be required to refund those monies to welfare. Ms. Block answered:
When an application for Medicaid is made, we would be provided with a copy of the petition and the order entered at that time. The Welfare Division then has 45 days to seek modification of that order. In the meantime, the eligibility is in a pending status until that issue is resolved. There would not be an overpayment.
Ms. McCarthy presented a copy of the amendments which were originally provided to the assembly committee, but were later "radically changed" by the bill drafter. Those amendments are attached as Exhibit F. She stated, "The bill drafter's office did not look at the federal statute to see if the changes they were making were substantive or stylistic." Ms. McCarthy added, "The bill you have is not the bill which was voted on in the assembly judiciary committee...it is the bill drafter's version of what they thought was voted on." She said the bill in its present form "violates federal law instead of being in conformity with federal law." Ms. McCarthy stated the state needs to be in conformity with the "very complex federal statute."
Ms. McCarthy said "all of the relevant parties" have agreed to the language set forth in the amendment to the bill and indicated she has discussed the matter with Assemblyman Bob Sader, chairman of the assembly judiciary committee. She said Mr. Sader told her he was "very glad they were on top of it."
Senator James said because of the concerns which have been raised, together with the complexity of the bill itself, he would appoint a subcommittee to be composed of himself and Senator Adler in order to study the legislation further.
The chairman closed the hearing on A.B. 520 and opened the hearing on Assembly Bill (A.B.) 637.
ASSEMBLY BILL 637: Provides under certain circumstances in criminal proceedings for admissibility of evidence of domestic violence and related expert testimony.
The first person to testify was Sharon Claassen, Legislative Chair, Nevada Network Against Domestic Violence. She indicated the legislation was the result of "fairly extensive discussions between myself, the Nevada Trial Lawyers Association, and the Nevada District Attorneys Association. Mr. Claassen said it was hoped the bill would "provide additional ability both to educate attorneys regarding defenses which should be raised and to make it clear to judges these are important issues."
Senator James said he believed it was a significant change that "...you are going to take into consideration domestic violence that not necessarily occurred at the time the crime is committed." Ms. Claassen answered previous domestic violence could be brought up as a basis for a drug transaction, for instance. She stressed "relevance was still an issue" and indicated a judge would be ruling in that regard.
Senator McGinness asked if it would be a defense if a person who was battered as a child now battered his wife. Ms. Claassen answered if the coercion statute were to be used, the person would have to show "a mother, in some way through her abusive action, forced her son into battering his wife." Senator James cited Nevada Revised Statutes (NRS) 200.200:
If a person killed another in self-defense, it must appear that (1) the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and (2) the person killed was the assailant, or that the slayer had really, and in good faith, endeavored to decline any further struggle before the mortal blow was given.
Senator James said now evidence of domestic violence as defined in NRS 33.018 "is admissible...and in rebuttal...when determining whether it is in self-defense." Ms. Claassen stated the definition of self-defense would be expanded to include situations such as the situation of the "burning bed," where there was prior abuse which led to a crime.
Senator Adler said the legislation "keeps the standard defenses," and adds that in viewing the standard defenses, "...you look at the perception of the defendant as to why they acted the way they did in view of the domestic violence." He added this "does not necessarily afford them a defense in a 'burning bed' situation."
Ms. Claassen described the defense as follows. "The knife does not have to be at the throat when the gun is fired."
Senator James commented:
Under existing law...all those things which would bear upon whether or not you had to, under the self-defense statute ...all of the things which would bear upon whether or not you should try to extricate yourself from the situation or deal a mortal blow...and all the things which bear on your state of mind for the other statute, already are admissible. The only real effect this has is if it is interpreted as extending beyond those immediate things in dealing with evidence of domestic violence in the setting of the household.
Sharon Claassen stressed prior violent acts which before were not admissible, will be admissible under A.B. 637. Senator James agreed.
The next to speak was Beth Carl, Private Citizen. She stated she had done initial research for the development of the legislation and had talked to persons locally and nationally regarding what the best language would be for the bill. Ms. Carl said she believed the bill, as it came out of the assembly, "is the best wording we have found nationally...it is open enough to be inclusive, and closed enough that it will not initiate a brand new defense." Ms. Carl said often when this type of evidence is admitted, "...it is construed as motive for murder, because it cannot fall under the sanctions of the immediacy our self-defense laws hold." She added there needs to be a law which allows expert testimony that says a woman knows she is in danger. In response to a question posed by Senator James, Ms. Carl indicated other states use the language set forth in A.B. 637 and added they had chosen from 10 states which have such statutes.
Senator James asked if "state of mind" would not be an assumption. Ms. Carl said that was the value of expert testimony from a psychiatrist, for example, "...who knows what happens to the mind of an abused person...."
There was no further testimony on A.B. 637 and Senator James indicated he would accept a motion.
SENATOR ADLER MOVED TO DO PASS A.B. 637.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
The chairman opened the hearing on Assembly Bill (A.B.) 744.
ASSEMBLY BILL 744: Establishes safety requirements for amusement parks.
The first to testify was Lawrence Semenza, representing Circus Circus Enterprises. Mr. Semenza spoke in favor of A.B. 744, which has become known as "safety of amusement parks act of 1993." He said the bill was necessitated because the entertainment and resort industry in the state is moving towards an "all-encompassing entertainment field." Mr. Semenza said Circus Circus would be opening "Grand Slam Canyon" in Las Vegas in August, 1993. He said the legislation sets forth the rights and responsibilities of owners and operators of amusement parks which are "permanent facilities." Mr. Semenza stated the law will also set forth the obligations of the passengers on rides in the parks, i.e., they cannot throw objects from the rides and must follow the instructions given to them by the ride operators. Mr. Semenza said there was "only one minor immunity section" in the bill, which would protect the individual, as well as the owner-operator, if they refuse to allow on a ride a person they believe to be under the influence of intoxicating beverages and/or controlled substances. He added the law will require any injured person to file a report within 120 days of the incident.
The next person to speak was Mark Brown, representing MGM Grand Hotel and Theme Park. Mr. Brown indicated senior management of the resort went throughout the world looking at amusement and theme parks and found "there was a circle of people who traveled from park to park with the intent to disobey rules in hopes of being able to get into a situation in which they could sue the theme park." He said that prompted the research and ultimate drafting of A.B. 744. Mr. Brown stated the resort was confident the rides in the theme park would be "state of the art" and would meet all safety requirements, but added the bill would give them added protection.
Senator Jacobsen asked how the resort's insurer felt about the legislation, and Mr. Brown indicted the insurer supported the legislation. He added they are "in no way trying to take away the rights of an individual who is legitimately harmed." Mr. Semenza stated, "Circus Circus did not consider what the insurance carrier was interested in...we are interested in insuring that the patrons are protected by our actions by insuring our rides are safe...."
Senator Adler pointed out the posted notices must indicate where the filing of a report can be done, but said the legislation does not say the patron must be notified of the length of time in which to file such claim. Mr. Semenza answered a patron would not lose rights to file a lawsuit if a report was not filed within the 120-day time period.
Senator Titus asked if the legislation would cover water theme parks, such as "Wet and Wild," and bungee-jumping devices, and Mr. Semenza answered that it does.
There was no further testimony on A.B. 744.
SENATOR ADLER MOVED TO DO PASS A.B. 744.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
There was no further business to come before the committee and 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 22, 1993
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