The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:00 a.m., on Monday, May 3, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

GUEST LEGISLATORS PRESENT:

Assemblyman David E. Goldwater, Clark County Assembly District No. 10

Assemblyman John J. Lee, Clark County Assembly District No. 3

STAFF MEMBERS PRESENT:

Laura Adler, Committee Secretary

OTHERS PRESENT:

Chairman James opened the hearing on Assembly Bill (A.B.) 467.

Lorenzo J. Fertitta, Commissioner, Nevada Athletic Commission (NAC), stated the NAC is a tax collecting body. The NAC was put in place to protect the interest of the state, and ensure the health and safety of the participants in unarmed combat events in Nevada. He said the purpose of A.B. 467 is to allow the NAC to regulate more effectively. Mr. Fertitta submitted prepared testimony (Exhibit C ) detailing what the proposed language would accomplish, and why the NAC is requesting the changes.

Chairman James stated he understands the information would only be confidential if the NAC did not consider it in granting a license. Mr. Fertitta articulated that only those portions of a physical or psychological evaluation used to determine fitness would be public record. He said the bill would help the commission obtain the relevant information needed to make good decisions.

Senator Care inquired how the public would know what medical information the commission did consider relevant.

Kirk D. Hendrick, Chief Deputy Attorney General, Office of the Attorney General, and Counsel to the Nevada Athletic Commission, responded the NAC is a public body and subject to the open meeting law. He said if the document received is agenda-supported material, then the document would be public record.

Senator Care asked if there were any objection to changing "may" to "shall" in section 1, subsection 2. Mr. Hendrick stated no objection.

Senator Wiener pointed out in section 1, subsection 1, paragraph (b), that the word "consider" would require revealing a whole document. Mr. Hendrick explained the commission has a medical advisory board that usually reviews documents and makes recommendations. He said it is only the information in the recommendation that would become public record.

Senator Washington noted that section 2, subsection 3 has a list of criteria, and wanted to know how much of the criteria the person has to meet; and if other states use the same criteria for determining conditional licensing. Mr. Fertitta answered the person has to meet all of them, since most other states have similar criteria. He commented that the conditional license allows the NAC to ask a little more of an applicant with circumstances to make the applicant comply, otherwise the commission can take the applicant’s license.

Luther Mack, L.H.D., Commissioner, Nevada Athletic Commission, stated he echoes the aforementioned statements.

Assemblyman David E. Goldwater, Clark County Assembly District No. 10, said he observed in the past members of the commission stating they needed statutory authority to act. He and the bill’s cosigners believe A.B. 467 will give the commission the authority to act, and improve the sport in Nevada.

Senator Washington inquired how relevant psychological or medical information may be to the public. Assemblyman Goldwater stated that everything about a person’s life is not relevant, and may cause personal embarrassment for the applicant. He added the commission need only know enough to determine fitness.

Senator Care stated that part of the world of boxing is litigation, and queried as to the NAC’s policy regarding subpoenas. Mr. Hendrick responded that is why section 1, subsection 3, is in the bill to allow a hearing process for a court to balance the situation, and make a determination.

Glenn Carano, Commissioner, Nevada Athletic Commission, stated the commission wants to make boxing a better sport. He said the goal is to make the NAC one of the best commissions in the world. He believes A.B. 467 will accomplish a lot towards the regulation of boxing in Nevada.

Marc Ratner, Executive Director, Nevada Athletic Commission, stressed that passage of A.B. 467 will go a long way to making the NAC more competitive around the country.

Tom R. Skancke, Lobbyist, Nevada Resort Association (NRA), remarked that the NRA is in support to preserve the integrity of the gaming industry, as well as the NAC.

There being no further testimony, Chairman James closed the hearing on A.B. 467, and opened the hearing on A.B. 282.

Assemblyman John J. Lee, Clark County Assembly District No. 3, emphasized, from prepared text (Exhibit D), that his reason for the bill is to keep blatantly nude pictures from the children that have malleable young minds and to prevent them from straying down the dark and addictive path of pornography. Assemblyman Lee showed examples of the acceptable and unacceptable material (Exhibit E. Original is on file in the Research Library.).

Senator Titus asked if this material would be illegal under the current definition of nudity. Assemblyman Lee replied that it was not. He emphasized the prevalence of the material freely viewable by children, and that is why he wants the use of opaques for certain areas of the body.

Senator Care pointed out the difference in law between obscene and pornographic. He asked if the intent was to keep the obscene material out of the reach of children. Assemblyman Lee responded that if the bill can get the opaques placed on the breasts and genitalia, then that is the best we can do. He said adults will have no problem identifying the body areas, but a young child would not understand and could be confused. He emphasized that pornography is a dark thing that can take over people’s minds, and if pornography can be kept away from children until they are old enough to understand, then this bill will be doing something right.

Senator Porter and Chairman James observed that what is depicted in the pamphlets is already against the law, and wanted to know why the law is not being enforced.

Assemblyman Lee stated that the City of Las Vegas has had to prioritize the use of their officers. However, after recent discussions, the city has assured him the inappropriate distribution of sex pamphlets will be addressed. Assemblyman Lee added that what has happened is the companies who produce the material have been revealing a little bit more over a period of time, so it is not noticed right away. He emphasized the amount of total nudity and loose availability have substantially increased, and now is the time to clarify ambiguities in the law so law enforcement can do a better job of enforcement.

Senator Care summarized the current definition of nudity is the graphic depiction below the waist. What A.B. 282 would do is expand the definition of nudity to include graphic depiction of the female above the waist. The bill addresses only distribution of graphic material, and not exhibition.

John M. Cummings, Lobbyist, Hillsboro Enterprises Inc., stated he was in support of the bill, since Hillsboro Enterprises Inc. has always used opaques in their publications, until he heard the bill referred to as "phase one." He stated that a phase one indicates the next phase is to completely destroy his client’s business, and that he cannot abide. He noted that in 1997 Hillsboro Enterprises Inc. had a female in a bikini on the cover of one of their publications and the Las Vegas Metropolitan Police Department (Metro) issued 500 citations. He said the Ninth Judicial District Court found his client not guilty. Mr. Cummings emphasized that more revealing female bodies have been on billboards, and not one single casino in Las Vegas has ever been cited for their billboard advertisements depicting nude females. He pointed out that his client was even denied including just the female head in their Yellow Pages ad for which his client is licensed to conduct business. He concluded by asking the committee to amend the bill so clients like his who operate within the law are not harassed.

Senator Care stated he reads the bill as a means to expand the definition of nudity in printed material that should not be available or distributed to minors.

Mr. Cummings stressed that the use of "phase one" by Assemblyman Lee indicates he is being deceitful about his intentions, and he strongly objects.

Assemblyman Lee explained that phase one is the bill, and phase two is to put pressure on Metro and the City of Las Vegas to be more proactive regarding the availability of printed sex material to minors.

Testimony on A.B. 282 was closed, and the hearing on A.B. 624 was opened.

David W. Wasick, Administrative Counsel, Clerk of the Supreme Court, Supreme Court, articulated the bill basically clears the way for the court to clarify and expedite the process for having attorney’s file motions for attorney’s fees prior to or shortly after a final judgment is reached. He said the bill would allow the court to not only hear the appeal from the district court final judgment, but also the attorney’s fees issue. He claimed by hearing these actions together it would clear and clean up the court process.

Chairman James inquired as to why the language, "motion for attorney’s fees" is being stricken. Mr. Wasick replied that the language may cause confusion when the Nevada Rules of Appellate Procedure (NRAP) 3 (a) and (b) are amended so one notice of appeal can be filed.

Chairman James observed removal of subsection 4 may lead some to believe that if there is a motion for attorney’s fees pending, the time for appeal is tolled. Mr. Wasick acknowledged the point, and added there are numerous cases to reaffirm that 30 days from final judgment is the time for filing notice of appeal.

Chairman James suggested leaving subsection 4 in the bill, and amend NRAP to state the motion has to be made by a certain time. Mr. Wasick agreed the court could make a rule that would clarify Nevada Revised Statutes (NRS) 18.010 without conflicting. However, the bill drafter believed there would be difficulty in clarifying the NRS by leaving subsection 4 in the bill.

Chairman James asked if they were considering making a motion for attorney’s fees tolled at the time for appeal. Mr. Wasick responded that rather than calling it a tolling motion, the court would go back to the standard that says an appeal can be taken from final judgment after everything is decided, including attorney’s fees. The appeal would come 30 days after the court issued an order deciding everything, including the attorney’s fees. Mr. Wasick elaborated the court enters what is now considered a final judgment. Shortly after a final judgment the attorneys asked for attorney’s fees and costs. The attorneys will file a notice of appeal after the final judgment, and another notice of appeal after the court awards attorney’s fees and costs. Subsequently there are two separate notices of appeal. He surmised what the court is doing is turning those two different appeals into one appeal. The way to do that is the first order from the district court case would not become a final judgment until after the attorney’s fees and costs issue was decided. He said after the judgment was issued on the underlying case and the attorney’s fees and costs were determined, then that would be considered a final judgment. When that final judgment was determined, then there would be 30 days to issue the notice of appeal. He concluded that would eliminate the court having to deal with two appeals versus one appeal.

Chairman James acknowledged that he now understood the intent. Hearing no further testimony on A.B. 624, the hearing was closed.

There being no further business, the meeting was adjourned at 10:40 a.m.

RESPECTFULLY SUBMITTED:

Laura Adler,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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