MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
April 5, 2001
The Committee on Judiciarywas called to order at 7:37 a.m. on Thursday, April 5, 2001. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, 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. Tom Collins
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Kathy McClain
Mr. Dennis Nolan
Mr. John Oceguera
Ms. Genie Ohrenschall
GUEST LEGISLATORS PRESENT:
Assemblywoman Bonnie Parnell, District 40
Senator Mark Amodei, Capital Senatorial District
Assemblywoman Sheila Leslie, District 27
Assemblywoman Vivian Freeman, District 24
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Rebekah Langhoff, Committee Secretary
OTHERS PRESENT:
Cathy Atchian, private citizen, Carson City, Nevada
Rick Correlli, private citizen, Carson City, Nevada
Nancy E. Hart, Deputy Attorney General, State of Nevada, Office of the Attorney General, Carson City, Nevada
Ann Price McCarthy, Legislative Representative, Nevada Trial Lawyers Association, Carson City, Nevada
Paula Berkley, Legislative Representative, Nevada Network Against Domestic Violence, Reno, Nevada
Mark S. Sertic, Chairman, Legislative Affairs Committee, Northern Nevada Human Resources Association, Reno, Nevada
Susan Cangurel, Corporate Vice President of Human Resources and Security, Peppermill Casinos, Inc., Reno, Nevada
Debra Jacobsen, Director/Government and State Regulatory Affairs, Southwest Gas Corporation, Las Vegas, Nevada
Greg F. Janson, Assistant General Counsel, Southwest Gas Corporation, Las Vegas, Nevada
Susan L. Reeder, Governmental Affairs Executive, Sierra Pacific Power and Nevada Power, Reno, Nevada
Mary F. Lau, Executive Director, Retail Association of Nevada, Carson City, Nevada
Keith M. Lyons, Jr., private citizen, attorney practicing primarily in the area of labor law, Las Vegas, Nevada
Susan Strauss, Management Analyst, Administrative Office of the Courts, Carson City, Nevada
Gemma Waldron, Legislative Representative, Washoe County District Attorney’s Office and Nevada District Attorneys Association, Reno, Nevada
Lora E. Myles, Attorney, Carson and Rural Elder Law Program, Reno, Nevada
Janice C. Pine, private citizen, Reno, Nevada
Suzanne Quilici, private citizen, Parish Nurse, St. Teresa of Avila Catholic Community, Carson City, Nevada
Kathleen Rossi, private citizen, Registered Nurse, Reno, Nevada
Patricia Glenn, Legislative Representative, Pro-Life League of Nevada, Nevada Right to Life, Reno, Nevada
Jan Gilbert, Legislative Representative, Progressive Leadership Alliance of Nevada, Carson City, Nevada
Lynn Chapman, Legislative Representative, Families for Freedom, Sparks, Nevada
Janine Hansen, Legislative Representative, State President, Nevada Families Eagle Forum, Sparks, Nevada
Juanita Cox, Legislative Representative, People to Protect America, Sparks, Nevada
Aaron Schumacher, Founder, Citizens Against Corrupt Government, Stead, Nevada
Joe Johnson, Legislative Representative, Toiyabe Chapter, Sierra Club, Reno, Nevada
Roll was called and a quorum was present. Chairman Anderson opened the hearing on A.B. 377.
Assembly Bill 377: Makes various changes regarding orders for protection against domestic violence. (BDR 3-978)
Assemblywoman Bonnie Parnell, representing Assembly District 40, joint sponsor of the bill, presented A.B. 377. Ms. Parnell stated the intent of the legislation was twofold because it included violators of temporary protective orders under the current 12-hour cool-down provision, and it attempted to lower the population cap currently required for counties to make court orders available 24 hours a day, 7 days a week. Ms. Parnell indicated current law provided that only counties with populations over 400,000 must make court orders available 24 hours a day, 7 days a week. Ms. Parnell felt the issue was equal protection under the law and stated she would be pleased if the cap was eliminated altogether. She indicated the proposed cap of 47,000 was suggested because Assemblyman John Carpenter was concerned about the dramatic increase in domestic violence cases in rural counties such as Elko County. Ms. Parnell provided two amendments to A.B. 377; one amendment was requested by local judges and deleted reference in the bill to specific bail amounts and one amendment was requested by the Attorney General’s Office and deleted the language “if such a violation is accompanied by a direct or indirect threat of harm” (Exhibit C and Exhibit D). Ms. Parnell also provided a letter by Scott L. Burau of the Carson City Sheriff’s Office for the record (Exhibit E).
Senator Mark Amodei, Capital Senatorial District, joint sponsor of A.B. 377, stated the need for the “tune up” in criminal matters, which the bill addressed, was, unfortunately, a result of incidents that occurred to people in his district. He reiterated the two objectives of the bill were to make court orders available 24 hours a day, 7 days a week, and to extend cool-off provisions. Senator Amodei noted the circumstances that gave rise to the legislation involved a homicide in Carson City, and he felt the issue was not population driven. He felt the bill represented the smallest “fix” possible to prevent a similar situation occurring in the future by providing more direction on how to handle similar situations and less opportunity for matters to fall between the cracks in discretionary circumstances.
Mr. Carpenter noted the amendment proposed by local judges suggested Section 8, subsections 6 and 13, should be deleted. Mr. Carpenter wondered why judges wanted to remove reference to specific bail amounts. Ms. Parnell thought judges were not pleased that discretion as to bail amounts had previously been taken away. Senator Amodei believed, in order to avoid a disagreement over bail issues, the amendment was an accommodation to the judges to prevent the committee’s attention from being distracted from the real issue. Senator Amodei indicated he understood Mr. Carpenter’s concerns, but felt the “fix” for domestic violence situations was more important than expending resources on a discussion about the appropriateness of a bail schedule.
Chairman Anderson noted there were some concerns regarding the high level of bonding for a first time offense, and he felt the judges were concerned about that issue in addition to the loss of discretionary power in setting bail. He noted that leaving the amount of bail to the discretion of the judge would be consistent with other actions the committee had taken this session.
Ms. Parnell reiterated the intent of the bill was to address two serious issues, and she reminded the committee that attempting to crowd too much into a bill increased the bill’s chances for failure.
Chairman Anderson noted the bill would require Washoe, Carson and Elko Counties to make court orders available 24 hours a day, 7 days a week, and would provide the opportunity for smaller counties to develop such a program if the counties had the resources to put such a program in place.
Chairman Anderson requested an explanation of Section 4 of the bill. Ms. Parnell indicated the purpose of the amendment to Section 4 was simply to make the language of the bill comply with Nevada Revised Statutes (NRS) 62.172, which set forth provisions regarding juvenile crimes.
Chairman Anderson noted that subsection 5 of Section 8 should also be deleted if the mandatory bail schedule was going to be removed from the statute. He asked Ms. Lang whether deleting the bail schedule created a constitutional issue. Risa Lang, Committee Counsel, noted the bill drafters copied language from subsection 5, which dealt with domestic battery, and she felt the issue should be looked at more closely if the committee decided to go forward with the bill. Ms. Lang noted there were some constitutional issues with admitting a person to bail after 12 hours, and she felt the bail schedule was included to ensure that there were no problems admitting a person to bail. She indicated she would look into the matter further.
Cathy Atchian, private citizen, testified in support of A.B. 377 (Exhibit F). Ms. Atchian told the committee her brother, Rick Albrecht, was murdered by a man who had been arrested only hours earlier for violating a restraining order. The man bailed out of jail with a credit card, and after retrieving a gun went directly to her brother’s home and shot her brother twice in the head. Ms. Atchian believed the outcome might have been different if the murderer had been forced to spend 12 hours in jail to cool off, and she urged the committee to pass A.B. 377.
Rick Correlli, private citizen, spoke in support of A.B. 377 and felt that the bill was necessary to save lives in the future. Mr. Correlli strongly urged the committee to pass A.B. 377.
Nancy Hart, Deputy Attorney General, State of Nevada, Office of the Attorney General, read from prepared testimony indicating the Attorney General’s Office supported A.B. 377 (Exhibit G). Ms. Hart also provided a letter for the record from Patricia Lynch of the Nevada Domestic Violence Prevention Council (Exhibit H). Ms. Hart told the committee there was an increased possibility of an escalation of violence once the criminal justice system became involved in a situation of domestic violence, particularly following a call to law enforcement or an arrest, and a victim’s ability to obtain a protection order was often critical in enabling the criminal justice system to hold the offender accountable for any subsequent abuse or contact. Under current law, a victim of domestic violence who was battered at night, during a weekend, or on a holiday in counties other than Washoe and Clark, must wait until the next business day to apply for and receive a protection order. Section 1 of A.B. 337 would require courts in mid-sized jurisdictions to be available 24 hours a day to issue protection orders. Accordingly, Ms. Hart indicated the Attorney General’s Office strongly supported A.B. 377 because the bill extended a mandatory 12-hour hold and certain bail requirements to persons arrested for violations of protection orders.
Chairman Anderson confirmed the amendment language proposed by the Attorney General’s Office would be inserted at Section 2, subsection 5. Ms. Hart indicated the phrase “if such a violation is accompanied by a direct or indirect threat of harm” should be deleted in every place it was found in the bill because the Attorney General’s Office believed that all violations of protection orders implicitly involved an indirect threat of harm, and the Attorney General did not see any particular reason to require the threat of harm because such a requirement did not appear elsewhere in the NRS concerning arrest.
Mr. Carpenter asked what the current bail schedule was for a domestic violence offense. Ms. Lang indicated the bail schedule for domestic violence was located in Section 8, subsection 5, and current law set the bail amount at $3,000 if there were no previous convictions, and applied only in instances where the person did not appear before a magistrate within 12 hours. Chairman Anderson noted that provision would only apply if the amendment proposed by the judges was not adopted.
Mr. Carpenter wanted to ensure the record reflected that under current law the bail amount was $3,000, and he noted the court did not have discretion as to that amount. He felt the bail amount was a significant deterrent.
Ms. Lang noted the bail amount of $3,000 for a person with no previous convictions was currently mandated, unless that person appeared before a magistrate within 12 hours and, in that case, the judge could set bail at whatever amount the judge felt was appropriate. Ms. Lang commented bail amounts were established in this manner because of due process constitutional rights that required a person to be released within a certain amount of time. In circumstances where a person was required to be held for 12 hours, bail schedules ensured that a person could still be released to bail if that person did not timely appear before a judge, while still allowing the court discretion to set bail if the person was brought before the judge within the 12 hours.
Chairman Anderson asked for clarification as to whether the judge had discretion to set a bail amount if the person was brought before the judge within the 12-hour time period. Ms. Lang confirmed that if the defendant appeared before the judge, the judge had discretion to determine the bail amount. She noted the bill made the provisions that were applicable to domestic violence orders, including bail schedules, applicable to all protection orders, and the judges were requesting that the bail schedule not be included.
Chairman Anderson indicated his impression that Mr. Carpenter wanted to include the bail schedule to be applicable to all protection orders. Mr. Carpenter indicated current law for domestic violence orders, and the bill as drafted without the proposed amendment by the judges, stated when a person was released on bail without appearing before a judge, the amount of bail must be $3,000. Mr. Carpenter felt there was precedent for keeping the bail amount, and reiterated his feeling that a high bail amount was indeed a deterrent.
Chairman Anderson asked whether there were any questions regarding the amendment proposed by the Attorney General’s Office. Ms. Hart stated the Attorney General’s Office would support the original language in the bill, which was based on precedent set in current law, and felt the bail amounts were an important deterrent to protection order violations.
Ann Price McCarthy, Legislative Representative, Nevada Trial Lawyers Association, indicated the Nevada Trial Lawyers Association supported the bill and the proposed amendments.
Mr. Carpenter asked whether Ms. McCarthy supported the amendment that would eliminate the bail schedule. Ms. McCarthy believed in judicial discretion, and felt that other areas of the bill were more important than the bail schedule. Mr. Carpenter asked Ms. McCarthy whether the bail schedule mandated in the domestic violence statutes was appropriate.
Chairman Anderson asked Senator Amodei to address the bail schedule issue and noted his understanding that the proponents of the bill agreed with the amendment proposed by the judges in order to keep from endangering the bill by bringing in a third issue to the overall discussion. Senator Amodei noted he did not necessarily disagree with Mr. Carpenter’s analysis of the amendment, but he reiterated the primary focus of the bill was to make protection orders available 24 hours a day and extend the 12-hour cool-off period to all protection orders. He noted the amendment by the judges was included merely as an accommodation to the judges and he did not want the amendment to change the focus of the bill.
Mr. Carpenter reiterated his position that the bail schedule should absolutely remain in the bill.
Chairman Anderson asked what would happen if the bail schedule was removed and a person did not appear before a judge within 12 hours. Senator Amodei responded that existing statute would cover that situation by setting forth the bail schedule. He noted if it was the committee’s pleasure, the committee could process the bill and leave in the bail schedule.
Paula Berkley, Legislative Representative, Nevada Network Against Domestic Violence, supported A.B. 377 and provided a letter for the record from Susan Meuschke, Executive Director of Nevada Network Against Domestic Violence (Exhibit I).
Chairman Anderson closed the hearing on A.B. 377 and asked for comments on the bill from the committee. He noted his feeling that committee counsel should look further at the impact of the amendments before the bill was processed.
Mr. Carpenter did not feel that leaving the bail schedule in the bill took any discretion away from the judge because if the defendant appeared before the judge within the 12-hour period, the judge could set the bail at whatever amount the judge felt was appropriate. He noted judges could be on call 24 hours a day to set bail for defendants and would not lose any judicial discretion, but felt that leaving the bail schedule in the bill was proper.
Ms. Lang indicated there were constitutional issues involved when a mandatory hold was placed on a person, and the bill drafters determined that it was necessary to include a manner in which to release a person after the 12-hour hold. The bail schedule was put in the bill to provide that opportunity.
Chairman Anderson felt there would be a constitutional issue raised if the amendment was processed, and wondered whether the committee had any desire to process the bill without the amendments.
Mr. Carpenter also felt there was a constitutional issue created by the amendment and strongly believed the bail schedule should remain in the bill. He felt the bail amounts were reasonable and did act as a deterrent.
Chairman Anderson noted that if the bill was passed without the proposed amendments suggested by the judges and the Attorney General the constitutional issue would not be raised.
Ms. McClain sought clarification that the proposed amendments raised the constitutional issue. Ms. Lang indicated the proposed amendments would require further review to determine whether a constitutional issue would be created, and she noted the due process rights of the person being held needed to be looked at seriously. Ms. McClain stated for the record that she agreed with Mr. Carpenter and felt the bail schedule should remain in the bill.
ASSEMBLYWOMAN KOIVISTO MOVED DO PASS A.B. 377.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY BY THOSE PRESENT. MR. COLLINS, MR. BROWER AND MR. OCEGUERA WERE NOT PRESENT FOR THE VOTE.
Chairman Anderson opened the hearing on A.B. 370.
Assembly Bill 370: Authorizes employers to obtain orders for protection against harassment in workplace and establishes procedures for obtaining such orders. (BDR 3-720)
Assemblywoman Sheila Leslie, representing Assembly District 27, presented A.B. 370 on behalf of the Northern Nevada Human Resources Association, and submitted two letters of support for the record (Exhibit J and Exhibit K). Ms. Leslie indicated the bill was developed in response to the growing problem of workplace violence and noted, on average, 20 people were murdered in the workplace in the United States every week. She advised there were four categories of perpetrators of workplace violence: violence by strangers, violence by clients or customers, violence by co-workers, and violence through personal relationships. Ms. Leslie indicated homicide was the second leading cause of death on the job, second only to motor vehicle crashes, and while robbery was the primary motive, disgruntled workers or customers or domestic violence caused other murders. She stated high-risk workplaces included taxicabs, liquor stores, detective or protective services, gas stations, and jewelry stores. Ms. Leslie advised 18,000 nonfatal assaults occurred in the workplace each week, and 12 percent of the incidents resulted in an injury to the victim, and 40 percent of the victims reportedly knew their offenders. She indicated the most common acts of violence were verbal threats and pushing and shoving, and the most common motives behind the violence were personality conflicts, family or marital problems, and work-related stress. Ms. Leslie advised the cost of workplace violence was enormous, and told the committee of a report by the Bureau of Justice which reflected that 1.8 million work days were lost each year resulting in over $55 million in lost wages.
Ms. Leslie indicated there were many environmental, administrative, and behavioral prevention strategies available to reduce the risk of workplace violence and noted A.B. 370 would be another tool to help employers address the issue. She told the committee A.B. 370 was modeled after Arizona legislation and California had enacted similar legislation. Ms. Leslie observed the bill allowed employers to apply for judicial protection by obtaining an injunction against workplace harassment. Employers would be allowed to appear before a judge and request an injunction, provided they could show a person had threatened to cause or committed an act in the workplace that caused bodily injury to himself or another person, damage to property, or substantial harm to the physical or mental health or safety of a person.
Ms. Leslie stated the Attorney General’s Office suggested amendments to ensure that the appropriate differences were noted between the provisions of A.B. 370 and temporary protection orders granted to domestic violence victims. She also stated she had just been advised the Nevada Trial Lawyers Association (NTLA) had a major problem with Section 17 of the bill and she indicated she would be happy to work with the NTLA to resolve the problem.
Mark S. Sertic, private attorney, and Chairman, Legislative Affairs Committee, Northern Nevada Human Resources Association, told the committee human resource personnel frequently encountered situations, involving disgruntled former employees or current employees who were involved in domestic situations where threats were being made, and the employer was reasonably concerned about the possible outcome of the threats. Mr. Sertic stated under the present law the remedy available to employers was very limited and only allowed for the filing of a lawsuit based on an underlying tort in order to appear in court to seek an injunction. If an injunction was granted by the court, the employer would be required to post a bond before the injunction became effective. Mr. Sertic stated the current process was cumbersome and did not allow the threat to be dealt with adequately. He noted frequently the employer did not have legal standing to bring a lawsuit because the threats were not made against the employer entity but against an individual, which required the individual to undertake the filing of the complaint.
Mr. Sertic stated A.B. 370 provided a vehicle for the employer to obtain an injunction in a quick, inexpensive, and simple manner by filing a verified application in justice court, presumably without the assistance of an attorney. He commented that the process would allow employers to take a proactive role and prevent some acts of workplace violence.
Mr. Sertic told the committee he recently dealt with a situation in which a person was making vague threats against an employee. Mr. Sertic went to the police who were sympathetic but hesitant to act because they did not believe there was evidence that a crime had been committed. He told the committee of another situation in which an anonymous caller reported that a supervisor was verbally abusing employees and brought a handgun to work. An investigation proved the supervisor had been abusing the employees and had indeed brought a gun to the workplace. The supervisor was terminated and the employer was concerned that the supervisor might come back to the work site. Mr. Sertic noted that A.B. 370 would have allowed the employer to get an injunction against the supervisor, and the supervisor would have been visited by a peace officer when the injunction was served on him. Mr. Sertic felt a visit by a peace officer served as a serious warning and might prevent whatever acts a person was contemplating.
Mr. Sertic stated it was important to note that A.B. 370 did not seek to change the obligations of an employer to provide a safe work environment. He noted Section 17 of the bill provided immunity for an employer for obtaining or seeking an injunction in good faith, and also provided immunity if the employer did not seek an injunction. Mr. Sertic noted employers should be encouraged to obtain injunctions to prevent potential violence, and the bill did not seek to expand or contract the current state of the law with regard to an employer’s liability for providing a safe workplace.
Mrs. Koivisto noted the case of a man who drove into the SIIS building in Las Vegas because he felt he was not being treated fairly by the SIIS, and asked how A.B. 370 would affect that type of situation. Mr. Sertic indicated if the SIIS had any prior knowledge of the man making threats, the SIIS could have gone to a justice of the peace and obtained an injunction which would have been served by a policeman on the person. Mr. Sertic noted that an injunction would not stop everybody, but it might stop some people.
Mrs. Angle asked how the bill would apply to federal employees, public servants, and/or the press. Mr. Sertic replied the legislation applied to any employee in the state of Nevada, public or private. Chairman Anderson added that any person working in the state, in any capacity, would be protected in state courts by the bill, but not in federal courts. Mr. Sertic agreed with the Chairman and noted federal employees in the state of Nevada would have the same right to protection in state court.
Mr. Nolan indicated he had experience dealing with the types of situations being discussed, and noted there were experts who felt that when a uniformed police officer approached somebody who was already contemplating an act of violence, it only enraged that person and caused that person to go directly to the workplace after the confrontation. Mr. Sertic indicated the situation described by Mr. Nolan was a real possibility, and noted the same situation occurred in the area of domestic violence, however, the consensus in that area was that temporary protection orders generally had a beneficial effect.
Susan Cangurel, Corporate Vice President of Human Resources and Security, Peppermill Casinos, Inc., read from prepared testimony in support of A.B. 370 (Exhibit L). Ms. Cangurel provided the committee with four pertinent situations the Peppermill dealt with in the last year and a half, and indicated the bill would provide her company with a needed course of action to deal with those situations.
Debra Jacobsen, Director, Government and State Regulatory Affairs, Southwest Gas Corporation, stated she appeared in support of A.B. 370.
Greg F. Janson, Assistant General Counsel, Southwest Gas Corporation, stated he represented the Human Resources Department at Southwest Gas and noted the department had a situation that reflected the limitations of the current law to address violence or harassment in the workplace. He told the committee a male employee, who had an intimate personal relationship with a female employee, was terminated and the personal relationship ended. The female employee was able to get a protective order, but the harassment spread to other people in the department and disrupted the entire department because the group socialized together. Southwest Gas could not get an injunction without filing a lawsuit showing imminent and irreparable harm, and the co-workers in the department similarly could not get an injunction without filing a lawsuit for emotional distress. Mr. Janson indicated A.B. 370 would have helped control the situation because imminent and irreparable harm would not have to be shown to apply for an injunction, and the employer could have obtained one injunction to protect all the employees. Mr. Janson also provided the committee with a copy of an article entitled Casting The First Stone (Exhibit M).
Susan L. Reeder, Governmental Affairs Executive, Sierra Pacific Power and Nevada Power companies, indicated her support for A.B. 370.
Mary F. Lau, Executive Director, Retail Association of Nevada, stated she did not want to repeat testimony the committee had already heard in support of the bill. She stated she fully supported the bill but would withdraw her support if Section 17 was removed. She noted Section 17 provided immunity from civil liability, whether an employer took action or not, but she submitted that small employers had no training, staff, or ability to make judgment calls of this order, and the intention of the bill was to enable employers to help in these situations and, accordingly, employers should be immune from liability either way.
Chairman Anderson questioned whether Ms. Lau felt the bill would be helpful if an employer’s protection from civil liability was removed. Ms. Lau felt without immunity from liability, the bill could be a lawsuit nightmare for small employers.
Chairman Anderson noted there were several persons in attendance from the Northern Nevada Human Resources Association who did not wish to speak, and he asked those persons to stand in support of the legislation.
Chairman Anderson provided nine e-mails for the record that he received in support of A.B. 370 (Exhibit N).
Ann Price McCarthy, Legislative Representative, Nevada Trial Lawyers Association, stated the association felt A.B. 370 was a wonderful bill, but the association had some minor concerns. Ms. McCarthy noted that pursuant to Section 7, the only people who could file an application for a temporary restraining order were the employers or their authorized agents. Section 17 gave complete immunity to the employer. Ms. McCarthy observed a situation could occur in which an employee had a real, verifiable concern but for whatever reason an employer chose not to apply for a restraining order. She noted the employee had no recourse whatsoever, and Ms. McCarthy suggested the problem could be remedied by providing the employee with the ability to appeal an employer’s decision not to apply for a restraining order. Ms. McCarthy understood the reasons for providing immunity to employers, but she felt immunity could make the employer less likely, in certain circumstances, to apply for a restraining order. She felt providing an employee with remedies beyond the employer, might make the legislation work for everyone.
Chairman Anderson confirmed the NTLA would support the provision that gave employers immunity from civil liability if a provision was added to provide employees with a remedy beyond the employer. Ms. McCarthy indicated Chairman Anderson was correct, and noted the NTLA did not like the immunity provision but understood why it was necessary. Ms. McCarthy stated she was available to work with the committee on amendments.
Nancy Hart, Deputy Attorney General, State of Nevada, Office of the Attorney General, read from prepared testimony indicating the Attorney General’s Office supported A.B. 370, and distributed a letter from the Nevada Domestic Violence Prevention Council in support of the bill (Exhibit O and Exhibit P). Ms. Hart noted domestic violence did not stay at home when its victims went to work, and indicated it affected productivity, increased absenteeism, and raised the risk of violence in the workplace. Ms. Hart felt A.B. 370 provided an effective mechanism for employers to prohibit the abuser from a victim’s workplace, and stated the bill would make an important contribution to domestic violence prevention efforts.
Ms. Hart indicated the Attorney General’s Office offered several amendments to clarify and simplify what an employer would need to keep the workplace safe from harassers, while distinguishing those provisions which more properly pertained to protection orders against domestic violence (Exhibit Q). The amendments primarily deleted references to full faith and credit and to the creation of a repository for the protection orders. Additionally, Ms. Hart noted Section 8 provided for a hearing after the denial of an application and she was not sure why such a provision was necessary.
Chairman Anderson confirmed that Ms. Leslie and Mr. Sertic had reviewed the Attorney General’s proposed amendments. Mr. Sertic indicated he reviewed and agreed with all proposed amendments by the Attorney General’s Office, with the exception of Section 8, paragraph 5. Mr. Sertic indicated the reason for the language in paragraph 5 was that the court could determine it did not have enough facts on the application and deny the application immediately but allow the employer to return with witnesses and provide further information to allow the court to issue the injunction.
Chairman Anderson asked Ms. Lang why Section 8, paragraph 5, was included in the bill. Ms. Lang indicated the bill was modeled after the domestic violence temporary restraining order chapter and Arizona statute.
Ms. Hart offered an additional clarification regarding the amendment to Section 12, and suggested that the police officer be allowed to write on the face of the employer’s copy of the protection order the date and time any order was served, which would ease the burden on law enforcement.
Ms. Buckley indicated she supported the bill, but was concerned that the bill not be used in a strike situation against people who were picketing. She noted Section 18 did not prohibit free speech, including speech involving organized labor, but commented there might be an allegation of a threat, which would be more than just free speech. Ms. Buckley did not want the bill to be drug into labor disputes, since it was so clearly aimed at workplace violence, and suggested a new paragraph be added to Section 18 to clarify that the bill did not apply to employees or former employees or others involved in a labor dispute. Ms. Leslie indicated she was agreeable to adding such a provision to the bill and felt the provision would strengthen the bill.
Keith Lyons, private citizen, attorney practicing primarily in the area of labor law, felt the bill was very necessary, but indicated he had a couple of concerns. He told the committee he had seen several situations in which an employee went to the employer with legitimate complaints of workplace violence and the employer refused to take any action or discipline employees involved in workplace violence. For that reason, Mr. Lyons believed Section 7 should be modified to allow an employee who went to the employer and advised the employer of a problem, to take steps to file an application if the employer refused to take any action.
Mr. Lyons further indicated he did not see a problem providing immunity from liability to an employer who sought an injunction, however, he felt an employer should not be provided immunity if the employer refused to take any action after being advised of a danger. Mr. Lyons believed Section 17 should be modified to include language providing that if an employer failed to seek an order for protection against harassment and there was a good faith reason for not seeking the order, immunity would be afforded to the employer. Additionally, Mr. Lyons felt the provisions of subsections (a) and (b) in Section 2 were conflicting.
Chairman Anderson restated and confirmed Mr. Lyons’ proposed amendments, and requested Mr. Lyons to provide suggested language to Nick Anthony, Committee Policy Analyst.
Susan Strauss, Management Analyst, Administrative Office of the Courts, indicated her office took a neutral position on A.B. 370. Ms. Strauss planned to address Section 15 of the bill regarding the repository, however, since that section was proposed to be deleted by the Attorney General’s amendments, she simply reminded the committee of the impact the increased number of protection orders would have on the workload of the court.
Chairman Anderson closed the hearing on A.B. 370 and indicated he intended to collect the various proposed amendments and put the bill to the next work session.
Chairman Anderson opened the hearing on A.B. 417.
Assembly Bill 417: Revises provisions concerning admissibility of evidence in certain cases involving domestic violence. (BDR 4-1175)
Assemblywoman Sheila Leslie, representing Assembly District 27, brought A.B. 417 forward on behalf of the Washoe County District Attorney and the Nevada District Attorneys Association and turned the presentation of the bill over to Gemma Waldron.
Gemma Waldron, Legislative Representative, Washoe County District Attorney’s Office and Nevada District Attorney’s Association, explained to the committee that under current law, a defendant who was charged with a violent crime could bring in expert testimony and evidence to make the claim of self-defense by showing that the crime committed by the defendant was a result of being abused over many years. However, the state was not allowed under current law to bring in experts to discuss the cycle of violence in order to explain the testimony given by a victim who had been battered by the defendant and testified in a manner that assisted the defense rather than the state, by minimizing the actions of the defendant. Ms. Waldron stated most jurors were not aware of the consequences of the cycle of violence and could not understand how the state could bring a case against a defendant despite testimony by the victim that minimized the behavior of the defendant. Ms. Waldron indicated without any mechanism to explain the victim’s testimony, it was difficult to convict the defendant. A.B. 417 would allow the state to bring in an expert witness to explain why a victim of violence would minimize a batterer’s behavior.
Ms. Waldron provided the committee with a document that showed the proposed modifications to the current law (Exhibit R). She noted a significant change was found in paragraph 2, which allowed the prosecution or defense to call an expert to explain the effects of domestic violence over time on behalf of the victim. Ms. Waldron contemplated the experts called in such cases would be persons with specialized knowledge of the cycle of violence. She noted the amendment proposed in Section 2 made the bill effective in 2002, in order to provide the opportunity for rural communities to train persons, such as members of local advocacy groups, to testify adequately in court.
Chairman Anderson asked whether the bill would allow the defense to present expert testimony as well as the prosecution. Ms. Waldron indicated the bill simply added the opportunity for the state to offer expert testimony, and stated the defense would continue to have the opportunity to bring in its own expert witness.
Chairman Anderson asked whether the public defenders had reviewed the proposed amendments. Ms. Waldron indicated she had reviewed the amendments with public defenders.
Ms. McClain asked if the disposition of cases involving violent crimes would reflect domestic violence when the disposition was reported to the central repository. Ms. Waldron indicated that Washoe County alleged domestic violence in the criminal complaint whenever a domestic relationship was involved, regardless of the charge, however, she was not sure whether that information was reflected in the disposition.
Nancy Hart, Deputy Attorney General, State of Nevada, Office of the Attorney General, read from prepared testimony indicating the Attorney General’s Office supported A.B. 417 because it provided for crucial, expert testimony concerning domestic violence, which would enable prosecutors to inform the court and juries about the impact of domestic violence on victims (Exhibit S).
Chairman Anderson closed the hearing on A.B. 417.
ASSEMBLYWOMAN MCCLAIN MOVED AMEND AND DO PASS A.B. 417 WITH THE AMENDMENTS PROVIDED.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY BY THOSE PRESENT. MS. BUCKLEY AND MR. CARPENTER WERE NOT PRESENT FOR THE VOTE.
Chairman Anderson opened the hearing on A.B. 471.
Assembly Bill 471: Revises provisions governing declaration to withhold or withdraw life-sustaining treatment and durable power of attorney for health care. (BDR 40-867)
Assemblywoman Vivian Freeman, representing Assembly District 24, presented A.B. 471 to the committee stating the bill dealt with powers of attorney and the ability to withdraw life-sustaining treatment. She noted doctors in hospitals very often ignored documents giving power of attorney, and the bill was brought forward to address changing issues in the health care industry. Ms. Freeman provided the committee with a letter from Robert Payant, Catholic Legislative Liaison, before turning over the presentation of the bill to Lora Myles (Exhibit T).
Lora E. Myles, attorney, Carson and Rural Elder Law Program, a nonprofit legal services program for seniors, stated the bill was requested as a result of interaction with seniors, churches, physicians, hospice care workers, and other health care providers. Ms. Myles noted the bill did not change the ability of an individual to choose to execute a living will, but simply amended the statute to clarify certain provisions which created loopholes or problems encountered in trying to utilize a living will in the proper manner.
Ms. Myles discussed the amendments the bill proposed section by section (Exhibit U). She stated the proposed amendments in Sections 7 and 8 made additional changes to directives to allow for more choice of care or denial of care in the event of terminal illness or end stages of chronic illness. Ms. Myles noted the additional language concerned life support as well as “do not resuscitate” (DNR) language. She offered an example of a client who was diagnosed as terminally ill with cancer and had less than six months to live. The client had previously executed an old directive form, which stated that no life support was to be given if the client was terminally ill. Three months after his diagnosis, the client had a major heart attack. Ms. Myles stated that because cardiopulmonary resuscitation (CPR) was not considered life support, medical personnel spent two and a half hours bringing the client back to life, and the last month of his life was a “living hell.” Ms. Myles indicated that Sections 7 and 8 changed the current statute so that, if a person was terminally ill or in an irreversible coma, not only would life support be withheld, but CPR or other resuscitative measures would also be withheld, if so elected by the patient and put into a directive.
Chairman Anderson asked whether a physician could be held liable for providing life support or resuscitative measures if the physician was not aware that the patient was terminally ill and/or that a directive existed. Ms. Myles indicated that if a physician was unaware that there was a directive or a durable power of attorney in place, the physician would not be held liable, and she noted she often advised her clients to carry a copy of their directive with them.
Chairman Anderson asked about elderly persons suffering from dementia who might not remember that they had such a directive. Ms. Myles indicated that the elderly person’s agent or caregiver would normally be aware of the directive or durable power of attorney and would make a copy available to medical personnel.
Mr. Oceguera indicated his understanding that resuscitation measures would be included as life support for the purposes of a directive requiring no life support measures. Ms. Myles indicated resuscitation efforts were not considered life support in the medical field. She noted there was a difference between a “do not resuscitate” order and the current statute governing a durable power of attorney, which simply referred to life support, which was interpreted to be life-extending machinery.
Mr. Oceguera asked Ms. Myles to explain how A.B. 471 would change the current law. Ms. Myles responded that the bill added DNR language to the language that currently existed in the statutes, so that if a person was terminally ill that person would not only not receive life support, if that was their choice, but they would also not receive any extraordinary life-saving measures. Ms. Myles indicated hospitals and doctors did not interpret CPR to be life support.
Ms. Freeman interjected that Mr. Oceguera’s concerns reminded her that a different protocol applied to firefighters and first responders to accidents, but hospitals needed the clarification proposed by A.B. 471.
Mr. Nolan stated his understanding was the same as Mr. Oceguera’s understanding, and indicated a DNR order not only covered resuscitation efforts but also any type of long-term care or invasive devices that would sustain life for a terminally ill person. Mr. Nolan noted that in an emergency situation a simple method was needed so that a decision could be made quickly, and that was why the DNR orders and bracelets entered the picture.
Ms. Myles indicated the DNR orders and statutes that Mr. Nolan and Mr. Oceguera referenced applied only to 911 situations. She noted nursing homes and other facilities did not follow that statute because it was tailored to 911 situations.
Mr. Nolan felt a legal review of the issue was in order because the intention of DNR orders applied to the same situations discussed by Ms. Myles.
Mr. Brower indicated he understood why a person would want to have a directive in place providing for no life support measures, but he wondered why a person would not want to be resuscitated in an emergency situation. Ms. Myles responded a classic example would be an older female with osteoporosis whose rib cage could be caved-in by CPR, causing more serious damage. Another example would be an older person with congestive heart failure. CPR would simply prolong the process of dying because the person was already dying of heart failure.
Mrs. Angle asked why the statute was written in the positive rather than the negative. She noted on the directive that if a person desired a particular treatment they must initial a box, and she wondered why the form did not indicate that if a person did not desire a particular treatment they must initial the box. Mrs. Angle felt the assumption should be that people wanted treatment unless they specifically declined the treatment or procedure.
Chairman Anderson noted A.B. 471 did not change the section of the statute Mrs. Angle referred to, and her question dealt with a compromise reached in drafting the original legislation.
Ms. Myles responded to Mrs. Angle’s question by noting the idea behind requiring a person to check a box if they desired a particular treatment was that the person was forced to actually think about what they were asking for before making a choice.
Ms. Myles indicated she was aware of the concern raised by the Nevada State Medical Society that the new language would aid in physician-assisted suicide. Ms. Myles pointed out the language did not, in any way, allow physician-assisted suicide, and noted NRS 449.670, which was not being modified by the bill, specifically prohibited the use of directives or powers of attorney for the purpose of physician-assisted suicide.
Ms. Myles explained Section 11 would allow a court-appointed guardian to work with a physician to choose whether to allow for or discontinue the use of life support. She indicated there was some concern over allowing a guardian to make such a decision and she pointed out that guardians were totally accountable to the court and the decision must be made in consultation with a physician. Ms. Myles noted there was some difference in opinion as to whether current statute already allowed a guardian to make decisions about life support for a ward, and the proposed changes would specifically allow a guardian to make life support decisions in conjunction with a physician. Ms. Myles stated Section 24 of the bill addressed the same issue and put the language in the statute under guardianships. She noted the bill would make it permissible, rather than mandatory, for the guardian to consult with family members, and offered an example of a client whose children had attempted to kill her several times. The public guardian was appointed guardian for the woman, and Ms. Myles felt it was detrimental in such circumstances for the guardian to be required to consult with family members regarding end-of-life issues. Ms. Myles also noted it would be inappropriate for the guardian to consult the family about end-of-life issues in cases of elder abuse, or in cases where there had been no family contact for a considerable number of years.
Ms. Myles noted Sections 12 through 17 addressed how health care providers responded to living wills, declarations or powers of attorney, and told the committee that current statutes governed only the health care provider’s response to a declaration, not a power of attorney, which created a loophole because physicians often ignored powers of attorney.
Ms. Myles concluded by drawing the committee’s attention to Section 21 of the bill, which allowed, under a power of attorney, for the admission of an elderly individual to a mental health facility for the purpose of determining appropriate drug therapy for irresponsible or aggressive behavior where the senior had already been diagnosed with Alzheimer’s disease, senile dementia, age-related dementia, or complications from stroke. Ms. Myles noted that under current statute a power of attorney was not adequate for admitting a senior to a mental health facility, even though the power of attorney may have been completed in advance with the full knowledge of the eventual possibility of admission to a mental health facility. Currently, the only option for family members was to obtain a guardianship, which could be expensive and prohibitive.
Ms. Freeman closed the presentation of A.B. 471 by commenting that she appreciated the concern for the difficult issue and noted that not all families were caring people who looked after the needs of their elderly members. Ms. Freeman felt statutes needed to be in place to allow for the kind of flexibility and assurance proposed by A.B. 471.
Ann Price McCarthy, Legislative Representative, Nevada Trial Lawyers Association, indicated the association’s support for A.B. 471.
Janice Pine, private citizen, indicated she supported A.B. 471. She told the committee of a recent situation which occurred in her family and stated it was very comforting to have information in writing, and she did not feel that a person could supply their loved ones with too much information.
Chairman Anderson indicated the committee would hear testimony in opposition to A.B. 471.
Suzanne Quilici, Parish Nurse, St. Teresa of Avila Catholic Community, told the committee she was also a nurse practitioner employed by the University of Nevada, Reno, and read from prepared testimony in opposition to A.B. 471 (Exhibit V). Ms. Quilici believed in the intent of a durable power of attorney for health care, but she did not believe the original intent or spirit of the law included the withholding of preventive care. Ms. Quilici provided the committee with several examples in which preventive care should be given, but could be withheld under the provisions of A.B. 471. Ms. Quilici urged the committee to eliminate the amendments, which she felt exceeded the intent of the original document.
Kathleen Rossi, private citizen and Registered Nurse, read from prepared testimony regarding concerns raised by A.B. 471 (Exhibit W). She noted many people lived with incurable or terminal conditions, and felt the language should not be modified in the opening paragraph of the declaration in Section 7. Ms. Rossi believed language regarding pain management in Section 7, subsection 2, was an excellent addition, and, as to Section 7, subsections 3 and 4, Ms. Rossi felt it was unwise to make blanket statements about the care they would want before the situation presented itself.
Patricia Glenn, Legislative Representative, Pro-Life League of Nevada, Nevada Right to Life, submitted prepared testimony for the record, and briefly indicated she had some real concerns with the proposed modification to the original language of the statute (Exhibit X).
Chairman Anderson closed the hearing on A.B. 471. Ms. Freeman indicated she and Ms. Myles would like to meet with staff on amendments, and Chairman Anderson asked that all amendments be provided to Mr. Anthony by Tuesday, April 10, 2001.
Chairman Anderson recessed the meeting and indicated his intention to reconvene the committee immediately following the floor session in order to hear A.B. 435.
Chairman Anderson reconvened the Committee on Judiciary and determined a quorum was present prior to opening the hearing on A.B. 435.
Assembly Bill 435: Revises provisions pertaining to strategic lawsuits against public participation. (BDR 3-248)
Assemblywoman Genie Ohrenschall, sponsor of the bill, presented A.B. 435 to the committee. Ms. Ohrenschall told the committee about the misuse of lawsuits involving a “big guy” suing a “little guy” for the purpose of obtaining a retraction of statements made by the “little guy” against the “big guy.” The lawsuit often became so burdensome to the “little guy” that the “little guy” was forced to provide the retraction simply to make the lawsuit go away. Ms. Ohrenschall noted laws had been put in place to afford protections to the “little guy” but she felt protection of “good faith communication in furtherance of the right of petition” should be broadened. Ms. Ohrenschall indicated an issue had arisen over the words “good faith communication” that forced the court to concentrate on an issue of fact, motive, or intent by which the communication was made, rather than looking at protected freedom of speech or freedom of the right to petition. Accordingly, A.B. 435 sought to remove the words “good faith communication” and replace them with the words “an act in furtherance of a person’s right of petition or free speech.”
Ms. Ohrenschall also suggested three minor editorial changes to eliminate the redundancy in the statement “any written or oral statement or writing” and asked the committee to consider adding the words “and shall also grant court costs and attorney’s fees to the prevailing party” on page 2, at line 35, Section 4 of the bill, because she felt that was the only way to ensure that the victim would be made whole. Chairman Anderson indicated he understood the intent of Ms. Ohrenschall’s changes and would have the bill drafter prepare the proper amendment language.
Chairman Anderson asked for Ms. Lang’s opinion on the statement “any written or oral statement or writing.” Ms. Lang indicated the statement was taken verbatim from the California law. Ms. Ohrenschall did not feel the statement changed the meaning of the statute, she simply felt the statute would read more smoothly if the words “or writing” were removed.
Ms. Ohrenschall noted she previously had been asked whether the bill was too broad, noting she did not feel that the bill was too broad, because if statements that could be construed as defamatory were excluded from the protection of the statute, much of the purpose of the statute would be defeated.
Jan Gilbert, Legislative Representative, Progressive Leadership Alliance of Nevada, related her experience in which neighbors in Washoe Valley were opposed to a golf course planned for their community. Ms. Gilbert stated the wealthy individual who wanted to build the golf course filed a suit against the organizers of the neighborhood group, which had a chilling effect on the community. Ms. Gilbert urged the committee to pass A.B. 435.
Mr. Claborn asked whether the legislation would reinvent the old “lemon law,” which allowed a person to park a car in front of a car dealership with lemons painted on it in order to get some satisfaction from the car dealer. Ms. Ohrenschall indicated A.B. 435 would protect the person who parked the car in front of the dealership.
Lynn Chapman, Legislative Representative, Families for Freedom, indicated she was in favor of A.B. 435, and provided the committee with newspaper articles regarding her encounter with the Department of Motor Vehicles (DMV) while attempting to obtain signatures on a petition (Exhibit Y). Ms. Chapman noted the director at the DMV told her she did not have permission to collect signatures at the DMV, and a copy of the petition must be provided to the director prior to the director giving his permission. Ms. Chapman stated she was told the DMV parking lot was private property, although the property was admittedly owned by the state.
Janine Hansen, Legislative Representative, State President, Nevada Families Eagle Forum, indicated she was very pleased to support A.B. 435, and felt it was very important that the statutes better defined and protected freedom of speech. Ms. Hansen read from Article 1, Section 9, of the Nevada State Constitution, which provided for freedom of speech, and indicated that if there was no place on public or private property where a person could exercise that right, there was essentially no opportunity to exercise the right of free speech or petition. Ms. Hansen found that when a person disagreed with the petition she was circulating, the person would go inside the building and complain, and therefore, Ms. Hansen felt her opportunity for free speech was destroyed because someone disagreed with her. She noted there was a lawsuit pending against the United States Post Office regarding the right to petition. Ms. Hansen felt it was important to define the protection afforded freedom of speech and freedom of petition to prevent the protections from being violated by the government.
Juanita Cox, Legislative Representative, People to Protect America, submitted prepared testimony for the record in support of A.B. 435 (Exhibit Z).
Aaron Schumacher, Founder, Citizens Against Corrupt Government, believed the protections afforded by A.B. 435 were contained within our constitutional rights. He supported A.B. 435 because he felt freedom of speech was very important. Mr. Schumacher voiced concern regarding the double standards surrounding acceptable speech and self-expression.
Joe Johnson, Legislative Representative, Toiyabe Chapter, Sierra Club, stated for the record the Sierra Club was in support of A.B. 435.
There were no witnesses present to testify in opposition to the bill, and Chairman Anderson closed the hearing on A.B. 435.
Mr. Claborn reserved his right to vote against the bill on the Floor and indicated he wished to learn more about the bill.
ASSEMBLYMAN GUSTAVSON MOVED TO AMEND AND DO PASS A.B. 435 WITH THE AMENDMENTS BEING THOSE DISCUSSED AND TO BE PROVIDED BY BILL DRAFTING.
ASSEMBLYMAN MANENDO SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY BY THOSE PRESENT. MS. BUCKLEY, MR. BROWER, MRS. ANGLE AND MR. COLLINS WERE NOT PRESENT FOR THE VOTE.
Chairman Anderson told the committee there was a small change in the work session schedule for the next day and noted A.B. 577 would replace A.B. 446, and A.B. 446 would be scheduled for a later work session.
There being no further business to come before the committee, Chairman Anderson adjourned the meeting at 1:42 p.m.
RESPECTFULLY SUBMITTED:
Rebekah Langhoff
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: