MINUTES OF THE
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
June 9, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader, at 8:09 a.m., on Wednesday, June 9, 1993, in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Robert M. Sader, Chairman
Mr. Gene T. Porter, Vice Chairman Absent/Excused
Mr. Bernie Anderson
Mr. John Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. Ken Haller Absent/Excused
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Mr. Mike Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
OTHER LEGISLATORS PRESENT:
Assemblyman Erin Kenny, Assembly District No. 4
OTHER STAFF PRESENT:
Bob Erickson, Legislative Counsel Bureau Research Director
OTHERS PRESENT:
Trina Dahlin, Legal Interest
Ande Engleman, Nevada Press Association
Larry Rothchild, Pastor, Capital Baptist Church
James F. Poole, Citizen
Dick Young, Businessman
Tom King, Citizen
Jim Fontano, Real Estate Investment Advisor
Mr. and Mrs. Edwin Durand, Citizens
Larry Matheis, Nevada State Medical Association
George McNally, President, Nevada Trial Lawyers' Ass'n.
Allan Earl, Nevada Trial Lawyers' Ass'n.
Robert Barengo, Sunrise Hospital, Las Vegas
Jerry Zadny, Administrator, Div. Mental Hygiene/
Mental Retardation
William Prezant, The Doctors' Company
James Cathcart, The Doctors' Company
Brian Hutchins, Chief Deputy Attorney General,
Department of Transportation
Following roll call, Chairman Sader opened the hearing on AB 719.
ASSEMBLY BILL 719 - Clarifies that witness in legislative proceeding has absolute privilege to publish defamatory matter relevant to proceeding.
Before calling on testimony, Chairman Sader explained the bill had been requested and drafted by the committee after some discussion outside of committee meetings relating to an absolute privilege to testify in legislative proceedings. It was subsequently discovered there was no statute speaking to the subject. Although there was common law on the subject which appeared to be clear, this was not codified. The bill attempted to clarify the absolute privilege by borrowing language from the "Restatement of Torts - 590." This generally stated the common law concepts of civil actions by private citizens against each other; and as such, represented the common consensus on the subject as stated by legal scholars.
Ande Engleman, Nevada Press Association, testified in support of AB 719. She told the committee the Press Association, along with certain other witnesses, had experienced some intimidation, and on advice of counsel, she was limited to what she could say. A similar bill sponsored by Senator Dina Titus was now in the Senate, but the Press Association counsel agreed with the remarks Chairman Sader had expressed.
Trina Dahlin, a Carson City attorney, stated her support of AB 719, and submitted a written copy of her testimony, Exhibit C.
Testimony in opposition was heard from the following:
- Larry Rothchild, Pastor of Capital Baptist Church in Carson City, urged the committee to defeat the bill in the name of "truth."
- James F. Poole, a Gardnerville resident, continued with hypothetical examples presented to reinforce his opposition.
The committee discussed the interpretation and consequences of falsely testifying before a legislative committee.
- Dick Young, a businessman from Sparks, Nevada, believed granting "absolute" privilege would open the door to wholesale smear campaigns by some people. Examples were presented. He believed it was reasonable for people to be required to testify before the Legislature under oath.
- Tom King, Johnson Lane, Minden resident, said untruths were not acceptable in any way or form.
In response to Chairman Sader's question, Mr. King said he was employed by Laughlin Associates. After further questioning, it was found Mr. Poole was also employed by Laughlin Associates.
When questioned by Mr. Bonaventura, Mr. King said he believed the definition of "defamatory" was to knowingly lie.
- Jim Fontano, a real estate investment advisor, seminar speaker and District Chairman for the Boy Scouts of America, did not believe the admissibility of lying in testimony given to the Legislature was the kind of image to portray to the young people of the world.
Upon questioning, Mr. Fontano acknowledged he had presented seminars for Laughlin Associates.
Support for AB 719 was given by Edwin Durand. Mr. Durand informed the committee he was a victim of a "slap" suit brought by Laughlin Associations, Inc. of Carson City. Before Mr. Durand related the specifics of the lawsuit, the Chairman cautioned him to only relate the reasons for his support of the bill.
Continuing, Mr. Durand said he hoped for the good of all Nevadans the bill could be passed to allow people to come forward to present the facts and truths behind the issues without being intimidated.
Madalaine Durand, wife of Edwin Durand, said her husband had previously testified in good faith, and since that time they had been harassed and intimidated in many ways.
With no further testimony on AB 719, the Chairman opened the hearing on AB 705.
ASSEMBLY BILL 705 - Precludes admission in evidence of proceedings and records of committees for review of medical or dental care except under certain circumstances.
Larry Matheis, Nevada State Medical Association, said the present law was basically unchanged by AB 705. Only the phrase, ". . .and are not admissible as evidence in any proceeding. . ." as seen on page 1, line 11, had been added. This had resulted from concerns raised in a recent court case, Ashelman v. Rankin, which Mr. Matheis said was presently awaiting resolution in the Supreme Court.
Mr. Matheis drew attention to page 2, "Text of Repealed Section." He said the bill drafters had decided the statute should have been placed in NRS Chapter 48, dealing with "admissibility," instead of NRS 49, dealing with "privilege." In moving the Text, the language in paragraph 1.(b) had inadvertently been omitted.
The only change proposed to the Text of Repealed Section, was to add the phrase under 1.(a)(2) making it read, ". . .are not subject to discovery proceedings and are not admissible as evidence in any proceeding."
The question, Mr. Matheis pointed out, dealt with the regulations governing peer review committee records and deliberations. These facilities had a number of internal, sometimes overlapping, processes, among which were "quality assurance activities." Mr. Matheis believed the actual deliberations/record should be confidential and not discoverable. The intent of the bill was to clarify and prevent the use of such peer review material.
There were questions posed by committee members regarding the lawsuit prompting the bill.
Opposing testimony was heard from George McNally, President of the Nevada Trial Lawyers' Association. Drawing attention to the language on line 11, "and are not admissible as evidence in any proceeding," Mr. McNally suggested someone could go before a peer review committee and create a record knowing the record [document] would be protected and inadmissible in any other proceeding. This might later be inconsistent with the position taken by the person at a later date in a trial, for example.
He concluded the language of the bill would preclude someone from using the statement to impeach the witness by way of cross-examination.
Chairman Sader and Mr. McNally discussed legal implications and the manner in which to meet Mr. McNally's concern.
Mr. Scherer questioned whether the language posed a "privilege" or whether it dealt with "admissibility." He suggested different wording to allow impeachment in certain circumstances.
If this is a privilege situation, who holds the privilege? Chairman Sader asked. In response, Mr. Scherer did not believe it was clear from the statute, but he believed the peer review committee held the privilege. This was discussed.
Allan Earl, Nevada Trial Lawyers' Association, said he understood the concept of peer review problems and the reluctance to allow those documents and statements to be admitted into evidence. He opined a plaintiff's counsel should not be able to use such documents as a foundation for the plaintiff's case. However, if some member of the peer review committee made a statement, later testified as an expert and reversed his position, to not be able to cross-examine the individual would appear to be a violation of the plaintiff's rights. Thus, Mr. Earl thought the language should be replaced in the "privilege" section; and probably it could then be waived.
Chairman Sader asked Mr. Earl who he believed held the "privilege." In response, Mr. Earl said he believed the committee, as an entity, would hold the privilege. Discussion between Mr. Earl and Chairman Sader followed. Chairman Sader indicated his respect for Mr. Earl's opinion on these matters. Mr. Earl was one of the few individuals who had, in the past, represented both plaintiffs and defendants in medical malpractice actions and had credibility on both sides of the issue, Mr. Sader indicated.
Mr. Carpenter questioned whether the peer review committee meetings were subject to the "open meeting law" restrictions. After some discussion, Chairman Sader said he did not believe the bill would serve to make these meetings subject to the open meeting laws and even if they were, the bill would not make them confidential -- it would only prevent the material from being used in court.
Representing Sunrise Hospital in Las Vegas, Robert Barengo told the committee the quality review committees were extremely important to the hospitals to assure the function of the peer review committee and make sure there was adequate medical care in the hospitals. As the bill was written, Mr. Barengo said he was concerned they would not be meeting the standards of the Health Care Quality Improvement Act of 1986; and he believed it would put a chilling effect upon the open discussion in the meetings. The current statutes were adequate and effective, he stated.
Jerry Zadny, Administrator of the Division of Mental Hygiene/ Mental Retardation, said his Division operated two hospitals which were run by a public entity. If AB 364 (Government Affairs Committee) passed, the deliberations of their peer review and quality assurance committees would become a public record; and if this transpired, it would be important to statutorily restrict the records from being admitted at trial. Thus, he said, they supported AB 705.
After a short break, Chairman Sader opened the work session beginning with AB 598.
ASSEMBLY BILL 598 - FIRST REPRINT - Requires establishment of program of regimental discipline for certain juvenile offenders.
Chairman Sader reviewed the progress of the bill, submitted Exhibit E, and told the committee if the bill was processed by the committee, it would have to be referred to Ways and Means Committee because there was a fiscal note attached.
Bob Erickson, Legislative Counsel Bureau Research Director, explained the amendments contained in Exhibit E.
Mr. Erickson pointed out currently, a young person from boot camp still could not go in the service when released, because of his criminal record. According to the Legislative Counsel, this would not be the case unless the individual was tried as an adult for his offense. The type of juveniles going into the program being discussed would be those convicted of a non-violent offense.
Given the current unfavorable fiscal position, Chairman Sader said it was very unlikely AB 598 would be enacted during this Legislative session. The prime sponsor of the bill, Assemblyman Erin Kenny, Assembly District No. 4, acknowledged this and suggested perhaps an interim study could be made on the effectiveness and application of the proposed measures.
ASSEMBLYMAN SCHERER MOVED TO AMEND AND DO PASS AB 598.
ASSEMBLYMAN TOOMIN SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMAN REGAN VOTED NO, ALL OTHERS VOTED YES.)
ASSEMBLY BILL 310 - Provides that only one cause of action for medical malpractice arises from single action or omission or series of actions or omissions.
In reviewing the progress of the bill, Chairman Sader told the committee William Prezant (representative of The Doctors' Company and prime proponent of the bill) had submitted a proposed amendment. The subsequent amendment, which had been rewritten by the Chairman, had been unacceptable to The Doctors' Company. Chairman Sader reviewed the proposed language, and explained the earlier testimony had centered around the Reuben case and the fear this case would create a major new problem for insuring which would increase premiums and add to problems in the medical malpractice area.
Mr. Prezant said the only language The Doctors' Company objected to related to informed consent. Drawing attention to Exhibit F, Mr. Prezant said the unacceptable language was, ". . .unless one of the causes of action is for failure to obtain a patient's informed consent to a medical or surgical procedure and the other cause of action does not involve informed consent."
James Cathcart, representative from The Doctors' Company based in Napa, California, stated the first portions of the proposed amendment in Exhibit F were appropriate. The Doctors' Company believed the last phrase would have the unintended effect of memorializing actions against the aggregates.
Examples and hypothetical legal situations were discussed.
ASSEMBLYMAN SCHNEIDER MOVED TO AMEND AND DO PASS AB 310 BY PLACING A PERIOD AFTER THE WORD "INJURY" AND DELETING THE REMAINING LANGUAGE ON THE LAST THREE LINES OF EXHIBIT F.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
A roll call vote was taken.
THE MOTION FAILED. (ASSEMBLYMEN REGAN AND SCHNEIDER VOTED YES, ALL OTHERS VOTED NO.)
Following a short discussion, Mr. Prezant recognized the amendment would be unacceptable in light of his clients' position. He said he would have no objection if the bill was indefinitely postponed.
ASSEMBLYMAN COLLINS MOVED TO INDEFINITELY POSTPONE AB 310.
ASSEMBLYMAN BONAVENTURA SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMEN ANDERSON AND SMITH VOTED NO, ALL OTHERS VOTED YES.)
ASSEMBLY BILL 705 - Precludes admission in evidence of proceedings and records of committees for review of medical or dental care except under certain circumstances.
Chairman Sader and Mr. Scherer discussed the issue of "privilege." Finally, Chairman Sader asked for a motion to amend and do pass. The amendment would insert the word "privilege" on line 11, as suggested by Mr. Scherer making it read, ". . .are privileged and are not subject to discovery proceedings and are not admissible. . .". The Chairman recommended no language be included to deal with impeachment. He believed it would create mischief as to what might then be discoverable. Although Mr. Scherer maintained the "privilege" language should be added, he yielded to the Chairman's recommendation. Nonetheless, an amendment was needed to add the repealed provision inadvertently left out, 1(b), Mr. Scherer pointed out.
ASSEMBLYMAN REGAN MOVED TO AMEND AND DO PASS AB 705 BY INCLUDING THE 1(B) SECTION FROM THE REPEALED TEXT.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.
Chairman Sader asked Mr. Scherer to handle the bill on the floor.
ASSEMBLY BILL 719 - Clarifies that witness in legislative proceeding has absolute privilege to publish defamatory matter relevant to proceeding.
ASSEMBLYMAN SCHERER MOVED TO DO PASS AB 719.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
Mr. Scherer did not view this bill as being a significant departure from existing Nevada law. Although "slap" lawsuits might be justified, Mr. Scherer saw the issue of being able to speak freely and not be threatened by the dollar cost of defending the suit as the more important consideration.
Although Mr. Bonaventura agreed with Mr. Scherer's premise, he did not believe the committee should be "sending a message," or implying it was acceptable to appear before the Legislature and tell a lie.
ASSEMBLYMAN BONAVENTURA MOVED TO AMEND THE MOTION BY DELETING "DEFAMATORY MATTER" ON LINE 3 AND INSERTING "TESTIMONY," MAKING IT READ, "A WITNESS IS ABSOLUTELY PRIVILEGED TO PUBLISH TESTIMONY AS PART OF A LEGISLATIVE PROCEEDING IN WHICH HE IS TESTIFYING OR IN COMMUNICATIONS PRELIMINARY TO A PROCEEDING."
Discussion followed. If the committee wished to implement some kind of different language, Mr. Scherer suggested, he would prefer the words "publish any matter" rather than "testimony."
THE MOTION TO AMEND THE MAIN MOTION FAILED FOR LACK OF A SECOND.
(NOTE: Bob, there is a great deal of discussion between committee members with their mics turned off. Do you want me to try to retrieve it? Most of it appeared to be off the subject.)
Chairman Sader asked for a vote on the motion to do pass.
THE MOTION CARRIED. (ASSEMBLYMEN BONAVENTURA AND CARPENTER VOTED NO, ALL OTHERS VOTED YES.)
Ms. Smith was asked to handle the bill on the floor.
ASSEMBLY BILL 80 - THIRD REPRINT - Revises definition of value as it relates to eminent domain.
Brian Hutchins, Chief Deputy Attorney General for the Department of Transportation, reviewed and explained Senate amendments 375 and 692 to AB 80 (Exhibit G). Mr. Hutchins stated there were no substantive changes to the bill. The Department of Transportation and the Attorney General's Office was satisfied with AB 80, Third Reprint, and urged concurrence.
Mr. Anderson questioned the language on page 1, lines 12-15 regarding fair market value. Mr. Hutchins explained the language on page 1, lines 7-9 of the Second Reprint, beginning with the word "other," had been clarified and given the same meaning in the Third Reprint on page 1, lines 12-15. Mr. Hutchins explained the process of determining fair market value and indicated the proposed language was just a codification of existing law.
ASSEMBLYMAN REGAN MOVED TO CONCUR WITH SENATE AMENDMENTS 375 AND 692 TO AB 80.
ASSEMBLYMAN SCHERER SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMAN CARPENTER VOTED NO, ALL OTHERS VOTED YES.)
SENATE BILL 89 - Confers powers of peace officers upon certain employees of mental hygiene and mental retardation division of department of human resources.
Chairman Sader recalled SB 89 had been indefinitely postponed earlier in the session.
ASSEMBLYMAN SMITH MOVED TO RECONSIDER SB 89.
ASSEMBLYMAN BONAVENTURA SECONDED THE MOTION.
The Chairman stated he did not intend to hear testimony again as he believed everyone understood the bill sufficiently.
In response to Mr. Scherer's question regarding a fiscal note, Chairman Sader said if the committee decided to resurrect the bill, they should place the language in AB 575, as AB 575 would amend all the statutes, including SB 89, with a conflict amendment.
Mr. Anderson said he wanted to go on record in support of SB 89.
THE MOTION TO RECONSIDER CARRIED WITH A TEN TO TWO MAJORITY. (ASSEMBLYMEN CARPENTER AND SCHERER VOTED NO, ALL OTHERS VOTED YES.)
The Chairman explained the manner in which he proposed to organize and take testimony on SB 466 the next day.
There being no further business, the meeting was adjourned at 10:30 a.m.
RESPECTFULLY SUBMITTED:
Iris Bellinger
Committee Secretary
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Assembly Committee on Judiciary
Date: June 9, 1993
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