MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
April 19, 2001
The Committee on Judiciarywas called to order at 8:06 a.m. on Thursday, April 19, 2001. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to Room 4401 of the Grant Sawyer Office Building, 555 East Washington Avenue, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. Mark Manendo, Vice Chairman
Mrs. Sharron Angle
Mr. Greg Brower
Ms. Barbara Buckley
Mr. John Carpenter
Mr. Jerry Claborn
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Kathy McClain
Mr. John Oceguera
Ms. Genie Ohrenschall
COMMITTEE MEMBERS ABSENT:
Mr. Tom Collins (Excused)
Mr. Dennis Nolan (Excused)
GUEST LEGISLATORS PRESENT:
Senator Margaret Carlton, Senatorial District 2
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Sandra Albrecht-Johnson, Committee Secretary
OTHERS PRESENT:
Chief R. Warren Lutzow, Department of Motor Vehicles and Public Safety, Division of Parole and Probation
Ed Gobel, President, Council of Nevada Veterans Organizations
Ray Kelsay, Air Force Sergeant’s Association
Juanita Clark, Charleston Neighborhood Preservation
Harriet Roland, Esquire, Vice Chair, Nevada State Bar Elder Law Section
Todd Torvinen, Nevada Trial Lawyers Association
Kathleen Buchanan, Public Guardian, Clark County
Don Cavallo, Public Guardian, Washoe County
Elyse M. Tyrell, Patricia A. Trent and Associates, and Member, Nevada State Bar Elder Law Section
Chairman Anderson declared that a quorum was present. He encouraged persons to testify and requested they sign-in at the door.
Senate Bill 31: Revises provisions pertaining to assault and battery. (BDR 15‑284)
Chairman Anderson opened the hearing on S.B. 31. Senator Margaret Carlton, Senatorial District 2, introduced her bill. She explained the bill was brought forth on behalf of a Parole and Probation Officer who was assaulted. The assault raised the concern that if it did not result in substantial bodily harm, the assault would be treated as a misdemeanor offense rather than a felony. She opined that all state employees, or employees of political subdivisions of the state, that were required to make home visits, deserved all the protection that could possibly be provided by the legislature.
Senator Carlton noted that page 1, Section 1, subsection 6, limited the employees to whom the bill would apply, namely, those employees whose duties required home visits. She cited that the last page of the bill specified a probationer, or a parolee, as the limited type of offender that would commit the battery against the employee, as addressed by S.B. 31. She noted the language specified, “whether or not substantial bodily harm results.”
Senator Carlton informed the committee she had received a request from Mr. Kelly Quinn, Field Representative, Emergency Medical Services, Clark County Health District (Exhibit C), to propose an amendment that would allow the bill to cover licensed ambulance employees. She neither supported nor opposed the recommendation from the Clark County Health District.
Chairman Anderson inquired if Senator Carlton had any qualms with the proposed amendment (Exhibit C). Senator Carlton responded that she had no problems with the acceptance of the proposed amendments, if it was the committee’s wish. Mr. Oceguera indicated the proposed amendments were acceptable.
Mrs. Angle inquired how ambulance attendants that were employed by the private sector, and taxi drivers, would be able to fit into the bill, since they would not be employed by the state. Senator Carlton indicated that S.B. 31 would be the best bill to include legislation to protect taxi drivers. She answered the ambulance attendant would be included as stated in the proposed amendment (Exhibit C), which would be a licensed ambulance attendant. She indicated that she could not explain how public or private ambulance attendants would be included, and that she was not clear if the committee would rather state “a public licensed ambulance attendant.”
Chairman Anderson requested clarification of whether Nevada Revised Statutes (NRS) 200.481 already legislated the battery of taxi drivers. Ms. Lang stated that NRS 200.481 and the bill did not cover just public employees. She clarified the ambulance attendant would be included under the definition of “Officer,” which was included under the employees of a public subdivision. She noted the taxi driver would not fall under that category. Mr. Carpenter pointed out that the legislation with regard to the taxi driver was passed several sessions ago.
Ms. McClain inquired if Senator Carlton wanted the proposed amendment to be accepted, with recognition that such an acceptance would require the bill to return to the Senate, for approval of the amendment. Senator Carlton indicated she did not wish to endanger the bill. She explained there was another bill that covered the assault of ambulance attendants, but she was not aware of its status. She presented the proposed amendment on behalf of Mr. Quinn, and she would present the bill again to the Senate, if the committee wished to accept the proposed amendment.
Chief R. Warren Lutzow, Department of Motor Vehicles and Public Safety, Division of Parole and Probation, testified in support of S.B. 31. He described the incident of the Parole and Probation Officer who was assaulted in Las Vegas during a routine house visit. He stated that fortunately, the officer was not severely injured. He indicated when the charges were brought before the District Attorney’s Office, they discovered there was no way to charge the assault on the officer as a felony. He stressed the main duties of Parole and Probation Officers required them to make home visits. He urged the committee to pass S.B. 31, and to provide them as much protection as possible.
Chairman Anderson called for any persons to testify in support of, against, or neutral to S.B. 31. There being no further testimony, he closed the hearing on S.B. 31, and requested that a motion be made.
assemblywoman koivisto moved to amend and do pass s.b. 31.
Chairman Anderson rejected the motion, and clarified there were already protections in place for ambulance attendants. He recognized the meritorious work the ambulance attendants performed, but suggested they either bring forth legislation of their own, or amend the statutes in another session. He did not want to endanger S.B. 31 by requiring it to pass through the Houses again.
assemblywoman koivisto moved to do pass s.b. 31.
assemblyman gustavson seconded the motion.
the motion passed unanimously. assemblyman carpenter was not present for the vote.
Senate Bill 34: Revises provisions relating to appointment of temporary guardians and to investment for minors of their proceeds of compromises from legal disputes. (BDR 13-1070)
Chairman Anderson opened the hearing on S.B. 34. Mr. Ed Gobel, President, Council of Nevada Veterans Organizations, introduced S.B. 34. He extended apologies from Senator Mark A. James, Senatorial District 8, for not being available to present the bill. Mr. Gobel described that without S.B. 34, anybody could declare that a person had a medical condition that made them incapable of handling their own financial affairs to obtain temporary custody. He mentioned that judges were regularly approving such declarations, and accepting opinions from persons that were not medical doctors.
Mr. Gobel described the extensive meetings between various parties to reach a consensus on a proposed amendment, which bifurcated the need for temporary guardianship protections from physical harm and need for medical attention from the need for temporary guardianship protections against financial loss. They concluded that if there was a need for medical attention, it should be determined by a medical physician or psychiatrist. He declared his support of the bill, and noted there were concerns with regard to the ease of understanding the bill by the general public. He opined that if he could understand it, anybody could. He implored the committee to pass the first reprint of S.B. 34.
Chairman Anderson indicated his desire to include another judicial issue in the bill that was not addressed in other legislation. He thanked the witness for appearing before the committee despite his recent stroke. Mr. Gobel added that Lillian Wallace was not able to attend the hearing, but wanted to indicate the support of S.B. 34 by the Seniors United Organization.
Mr. Ray Kelsay, Air Force Sergeant’s Association, stated his support of the first reprint of S.B. 34.
Ms. Juanita Clark, Charleston Neighborhood Preservation, testified in strong support of S.B. 34. She stated their concern about the deprivation of life, liberty, or property, without the due process of law. She mentioned that if someone was not an expert and licensed in the field were able to testify to the incompetence of a person, justice would not be served. She urged the committee to pass S.B. 34.
Chairman Anderson called for any further testimony in support of S.B. 34. He then called for Ms. Harriet Roland, Esquire, Vice Chair, Nevada State Bar Elder Law Section, to testify in opposition to S.B. 34. Ms. Roland summarized the bill was not clear enough to be effective. She agreed the law needed to require a medical doctor to certify incapacity. However, she believed that allowing a psychologist to certify the incapacity was too broad. She opined that it would lead to questionable findings of incapacity.
Chairman Anderson inquired if the proposed amendments to S.B. 34, included in the packet dated April 12, 2001 (Exhibit D), from Mr. James M. O’Reilly, Chair, Nevada State Bar Elder Law Section, which also included letters from the Honorable Jennifer L. Henry, Commissioner, Guardianship/Discovery, Eighth Judicial District Court, Family Division, Ms. Roland, and from the Honorable William O. Voy, District Judge, Eighth Judicial District Court, Family Division, were to be presented by Ms. Roland. Ms. Roland stated they thought the amendment that was adopted by the Senate Committee on Judiciary was the amendment that was agreed upon by all parties. However, she noted it was not that amendment.
Chairman Anderson asked Ms. Roland if she felt there was a substantive change to the amendment than what was agreed upon, or if it was simply a difference of verbiage. Ms. Roland stated there were both substantive and verbiage changes that were not agreed upon. She pointed out that the first reprint of S.B. 34 provided less protection than was included in the collaborated proposed amendment. According to the first reprint of S.B. 34, a medical certificate would not be required to declare a person financially incompetent. Chairman Anderson explained the Legislative Counsel Bureau bill drafters were the persons that wrote the language for all of the NRS. He also described his concern that conceptual ideas of the proposed amendment were not present in the bill.
Ms. Roland opined that if the Nevada State Bar Elder Law Section took several days to be able to understand the bill, it would not be understandable by the typical users of the law. She expressed her concern that the courts would be over-burdened, and that normal citizens would not be able to understand the law, and would therefore not be able to utilize the law as written in the first reprint of S.B. 34. She also opined that, to a certain extent, a medical doctor should be the only person who could certify the conditions that would take rights away from individuals.
Mr. Todd Torvinen, Nevada Trial Lawyers Association (NTLA), testified in opposition to the bill as written. He opined the language was very convoluted and incomprehensible. The passage of the first reprint of S.B. 34 would have immeasurable unintended consequences. He referred the committee to the proposed amendment that was agreed upon by all the interested parties. Chairman Anderson informed Mr. Torvinen he did not have a copy of the document that Mr. Torvinen was referring to. Chairman Anderson then identified the documents he had in possession to enter into the record, which were the packet dated April 12, 2001, from Mr. O’Reilly (Exhibit D), and a letter of concern dated February 19, 2001, from Dara Goldsmith, Esquire, of Goldsmith and Guymon (Exhibit E). Mr. Torvinen referred to Exhibit D, which included the proposed amendments that were agreed upon by the State Bar, the Washoe County Public Guardian, the Clark County Public Guardian, Mr. Gobel, and the NTLA.
Mr. Torvinen stated that NRS 159.047, before amendment, was designed to allow an interested party to seek temporary guardianship to protect a person who needed protection for a medical emergency, a financial emergency, or substantial bodily harm. He mentioned the NTLA opposed the original form of the bill because it did not exclude minors. The difficulty with the bill not exempting minors was that incidents occurred frequently where a parent would disappear on a drug run leaving the grandparents to care for the children. He noted it would be unreasonable and practically impossible for those grandparents to retrieve medical information to obtain the temporary guardianship of their grandchildren. He explained that the persons who would be seeking the temporary guardianship were typically not able to obtain medical information to present as proof to the court. If the state expected its population to follow the law, the law should be understandable. The first reprint of S.B. 34 was not understandable.
Mr. Torvinen described some specific concerns with the bill. He noted the bill included a provision for the risk of substantial bodily injury of an adult ward, and the immediate medical attention of an adult ward, that would require the provision of the affidavit signed by either a medical physician or a psychologist. He stated it was a substantial change to that section of the bill, which the NTLA did not agree with. He mentioned his concerns with the parts of the bill that addressed the immediate risk of financial loss of an adult ward. He pointed out that it did not require an affidavit from a physician to be provided.
Mr. Torvinen cited the substantive problems with the portion of the bill that dealt with minors. He described that the bill did not address the immediate financial risk of a minor. He related the concerns of the Honorable Jennifer Henry, Commissioner, Guardianship/Discovery, of the Eighth Judicial District, Family Division, that the bill would not provide for temporary guardianship to protect a minor from immediate financial risk. He implored the committee to not pass the first reprint of S.B. 34, and to accept the proposed amendment, included in Exhibit D, which was unanimously agreed upon by the interested parties.
Chairman Anderson stated it was not the intent of the legislators to take rights away from a person because of a disability of some type, when that person did not wish to surrender their rights. He agreed with Mr. Torvinen that any person should be able to read and clearly understand the laws of the state. Chairman Anderson requested Mr. Torvinen and Ms. Roland to assist the committee with the language changes to S.B. 34.
Chairman Anderson called for Ms. Kathleen Buchanan, Public Guardian, Clark County, and Mr. Don Cavallo, Public Guardian, Washoe County, to testify with regard to S.B. 34. Ms. Buchanan referred the committee to her written testimony (Exhibit F), and stated the first reprint of S.B. 34 was unusable and incomprehensible. She noted the requirement for an affidavit from a physician or psychologist would be almost impossible for them to fulfill, due to the lack of doctors available to make house calls. She urged the committee to read Exhibit D, and stated her support of the proposed amendment that was included within it.
Chairman Anderson inquired as to how many people were employed in Ms. Buchanan’s office. Ms. Buchanan responded there were 15 guardianship case managers. Chairman Anderson verified the public guardian’s office had a legal staff. Ms. Buchanan responded they utilized private attorneys that were not located on the premises of their office. She noted the public guardian’s office had over 700 guardianship wards in their office, of which many of them were cases of exploitation. Chairman Anderson inquired how many of the guardianships were of elderly people as opposed to juveniles. Ms. Buchanan responded that approximately 92 percent of the wards were elderly people. Ms. Buchanan also submitted, for the record, a letter from Patricia A. Trent, Esquire (Exhibit H).
Mr. Cavallo expressed his objection of the first reprint of S.B. 34. He explained he had taken part in the discussion that arose to the proposed amendment (Exhibit G), which was the same proposed amendment as included in Exhibit D, and stated he supported the right for competent individuals to make their own decisions. He described the process to acquire guardianship. He indicated that the submission of a medical affidavit was routine in cases to obtain guardianship by his office. He explained the provision of the medical affidavit had historically been submitted to the courts after the ten-day temporary guardianship at the hearing, which would determine if further guardianship was necessary. He noted there would occasionally be an extension of guardianship to 30 days, as authorized by the NRS, at which point the affidavit would always be submitted to acquire permanent guardianship.
Mr. Cavallo explained that temporary guardianship allowed them to quickly help persons in cases of exploitation, abuse, and self-neglect. Many of the elderly would isolate themselves for many reasons, which included fear of the government. Further, many of those persons had not seen a doctor for over ten years, and it was difficult to obtain any medical information on those persons to submit to the courts. Without temporary guardianship, it was difficult to review their financial position to determine if there were financial resources available to them, such as Medicare, and other forms of community support.
Mr. Cavallo expressed his concern of the impact of the first reprint of S.B. 34 on the rural areas such as Elko and Winnemucca, and the impact it would have on “pro pers.” He explained the first reprint of S.B. 34 would make it extremely difficult for family members to help their loved ones who were in need of assistance.
Chairman Anderson thanked the witnesses and indicated his concerns with the bill. Mr. Carpenter expressed his discontent with the first reprint of S.B. 34, and opined that it would not accomplish the bill’s intent. Chairman Anderson thanked the witnesses for their hard work and dedication to assist and care for the elderly when they were in need. The Chair then called for any persons to testify with regard to S.B. 34.
Ms. Elyse M. Tyrell, Patricia A. Trent and Associates, and Member, Nevada State Bar Elder Law Section, testified in opposition to the first reprint of S.B. 34. She pointed out that the bill only required the medical affidavit in temporary guardianship cases of physical harm, and was not required for cases of financial risk. She opined it would be important to require the medical affidavit to prevent exploitation by family members who would pursue guardianship in cases where it was not necessary. Chairman Anderson inquired if the concern was addressed by the proposed amendment (Exhibit D) that the State Bar had discussed. Ms. Tyrell indicated the concerns were addressed in the proposed amendment from the State Bar (Exhibit D).
Chairman Anderson re-called Mr. Ed Gobel, President, Council of Nevada Veterans Organizations, to comment on the concerns raised. Mr. Gobel indicated the requirement for medical affidavits to be submitted in cases that involved immediate financial risk did not exist in the law. The Legislative Counsel Bureau bifurcated the bill to conform to their requirements, and it was done in conjunction with the compromised proposed amendment. Mr. Gobel expressed his support and admiration of Mr. Cavallo for his work as Public Guardian.
Chairman Anderson inquired if Mr. Gobel agreed to the proposed amendment (Exhibit D). If so, the Chair stated that the proposed amendments would be resubmitted to bill drafting, with a request for them to be sure to incorporate the intended changes of the proposed amendments into the bill. Ms. Lang explained the language of the first reprint of S.B. 34 appeared to mirror that of NRS 159.052, with the exception of the requested changes with regard to adults to separate the sections to govern adults and children. She expressed her willingness to revise the language to attempt to suffice the concerns. Mr. Gobel responded that he agreed to the proposed amendments (Exhibit D).
Chairman Anderson closed the hearing on S.B. 34.
Senate Bill 47: Provides for judicial approval of certain contracts involving minors. (BDR 11-260)
Chairman Anderson opened the hearing on S.B. 47. He called for any persons to testify with regard to S.B. 47. There being no testimony, and no presenter for the bill, the Chair closed the hearing on S.B. 47.
Chairman Anderson called for any business to be brought before the committee. There being no further discussion, the Chair adjourned the meeting at 9:20 a.m.
Sandra Albrecht-Johnson
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: