MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session June 14, 1995 The Committee on Judiciary was called to order at 6:43 p.m., on Wednesday, June 14, 1995, Chairman Anderson presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth GUEST LEGISLATORS PRESENT: Lt. Governor Lonnie L. Hammargren Assemblyman Peter Ernaut STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Paula Treat, Nevada Judges Association Rick Bennett, President, NEVCAP Don Springmeyer, Esq., NTLA Richard Myers, Esq., NTLA Harvey Whittemore, Esq., R.J. Reynolds Co. Sam McMullen, Esq., Lobbyist Chairman Anderson announced the entire committee present. SENATE BILL 329 (FIRST REPRINT) - Provides for certification of court interpreters for persons involved in judicial proceedings who speak language other than English. Chairman Anderson stated Mr. Carpenter had concerns with S.B. 329, Section 4, line 18, and line 20 and the request therein to include the term "rural." Chairman Anderson called forward Paula Treat to comment. Paula Treat, representing Nevada Judges Association, agreed to the amendment and commented the judges were meeting in town at the present time and they had discussed S.B. 329 and the change to include "rural" would be very appreciated by the judge's association. Ms. Treat pointed out she has spoken with the primary sponsor of the bill, Senator Titus, who agreed to the inclusion of this language. Mr. Carpenter said this amendment relieved his concerns. ASSEMBLYMAN OHRENSCHALL MOVED TO AMEND & DO PASS S.B. 329 TO INCLUDE THE TERM "RURAL" AT LINES 18 AND 20 OF THE BILL. ASSEMBLYMAN MANENDO SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN STEEL AND STROTH VOTED NO. Chairman Anderson appointed Mr. Manendo for floor assignment of S.B. 329. SENATE BILL 314 (SECOND REPRINT) - Abolishes criminal defense of insanity. Chairman Anderson informed this bill was heard in the morning and an amendment was suggested at page 6, section 14, lines 5-7 to change "may" to "shall" and delete the remainder of the sentence which would take mental hygiene and mental retardation out of the section. Mr. Neilander explained another amendment was suggested at section 4, page 2, line 33, to clarify subsection 1 of section 4. ASSEMBLYMAN HUMKE MOVED TO AMEND & DO PASS S.B. 314. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. Chairman Anderson appointed Mr. Humke for floor assignment of S.B. 314. SENATE BILL 436 - Revises provisions governing reports required of state public defender. Chairman Anderson announced S.B. 436 was brought forth by the public defender's office in order to bring the statutes in line with 1993 legislation and no amendments have been proposed. ASSEMBLYMAN BUCKLEY MOVED TO DO PASS S.B. 436. ASSEMBLYMAN HUMKE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. Chairman Anderson appointed Ms. Stroth as floor assignment of S.B. 436. SENATE BILL 415 (FIRST REPRINT) - Revises general procedure for entry upon property subject to acquisition by eminent domain. ASSEMBLYMAN HUMKE MOVED TO DO PASS S.B. 415. ASSEMBLYMAN SCHNEIDER SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN PERKINS WAS NOT PRESENT FOR THE VOTE. Chairman Anderson appointed Mr. Schneider for floor assignment of S.B. 415. SENATE BILL 432 (FIRST REPRINT) - Ratifies corrections made to NRS and Statutes of Nevada 1993. SENATE BILL 496 - Makes various technical amendments to provisions of Nevada Revised Statutes. Mr. Neilander stated Brenda Erdoes, Esq., of the Legislative Counsel Bureau, indicated she received no comments from the committee regarding S.B. 432 or S.B. 496. The only suggested amendment is to S.B. 496 to change the effective date contained on line 1, page 35 to July 1, 1995 rather than upon passage and approval. Mr. Neilander reiterated this amendment was discussed in earlier testimony on the bill. In addition, there was a nonsubstantive amendment as well. ASSEMBLYMAN HUMKE MOVED TO DO PASS S.B. 432. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN PERKINS WAS NOT PRESENT FOR THE VOTE. * * * * * ASSEMBLYMAN BUCKLEY MOVED TO AMEND & DO PASS S.B. 496. ASSEMBLYMAN STEEL SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. Chairman Anderson appointed Ms. Ohrenschall for floor assignment of S.B. 432 and Mrs. Monaghan for floor assignment of S.B. 496. ASSEMBLY BILL 520 - Makes various changes to provisions relating to actions for medical malpractice. Chairman Anderson asked members from both sides of the bill to come forward to comment on amendments remaining on A.B. 520. Chairman Anderson asked if the gentlemen had an opportunity to review what is known as "Exhibit A" (PERIODIC PAYMENTS), attached hereto as (Exhibit C) which addresses Section 11 of the bill. The persons testifying identified themselves as Rick Bennett, Executive Director, NEVCAP; Richard Myers, Nevada Trial Lawyers Association; and Don Springmeyer, Nevada Trial Lawyers Association and all agreed they had reviewed the proposed amendment (Exhibit C) attached hereto and were in agreement therewith. Chairman Anderson announced the sections remaining for discussion on A.B. 520 and the panel agreed. ASSEMBLYMAN BUCKLEY MOVED TO DELETE SECTION 11(2)(3) OF A.B. 520. ASSEMBLYMAN MONAGHAN SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN GOLDWATER ABSTAINED. * * * * * ASSEMBLYMAN BUCKLEY MOVED TO ADOPT SECTION 6 TO INCLUDE THE AMENDMENTS OUTLINED IN PAGE THREE OF THE HANDOUT. ASSEMBLYMAN STEEL SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN GOLDWATER ABSTAINED. Mrs. Monaghan confirmed a letter to the division of insurance regarding training would be included. Ms. Buckley stated that was included in her motion. Discussion was held as to the decision of the panel being made with prejudice or without prejudice. Chairman Anderson brought the motion back to the floor. THE MOTION CARRIED. ASSEMBLYMAN GOLDWATER ABSTAINED. * * * * * ASSEMBLYMAN SANDOVAL MOVED TO DELETE SECTION 1 OF A.B. 520. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN MONAGHAN, SCHNEIDER, AND STROTH VOTED NO. ASSEMBLYMAN GOLDWATER ABSTAINED. In addressing Section 2, Mr. Carpenter proposed an amendment, attached hereto as (Exhibit D). Mr. Carpenter stated all involved parties have agreed to the amendment and it is very important in dealing with the OB-GYN provision especially in the rural counties. Mr. Batten stated he did not like the involvement of "gross negligence" and using that term would be difficult to prove for the victim. Ms. Buckley agreed in part stating the entire last paragraph of the proposed amendment was no good. The committee discussed the amendment in detail. Mr. Carpenter concluded this problem needs to be addressed and the amendment was accepted by both parties. ASSEMBLYMAN CARPENTER MOVED TO AMEND SECTION 2 OF A.B. 520 UTILIZING THE LANGUAGE PROPOSED IN (EXHIBIT D). ASSEMBLYMAN STEEL SECONDED THE MOTION. Chairman Anderson asked the panel to comment on the amendment. Mr. Myers of NTLA stated they support the amendment and it provides adequate patient protection. Further, he stated the term "gross" should remain together with "negligence" as that is the standard of proof outlined throughout the statutes. Mr. Bennett, NEVCAP, agreed the amendment met with their approval. Chairman Anderson brought the motion back to the floor. THE MOTION CARRIED. ASSEMBLYMEN MANENDO, BUCKLEY, AND BATTEN VOTED NO. ASSEMBLYMAN GOLDWATER ABSTAINED. The committee discussed immunity for retired physicians contained in Section 4 of the bill. Mr. Humke stated he would prefer to leave that section in the bill. Chairman Anderson announced a new section to the bill has been proposed with language for the closed claim study. Mr. Bennett, NEVCAP, stated there were three points their company proposes, contained in (Exhibit C) attached hereto. Those points are 1) incident reports should not be considered in the study; 2) only closed claims be considered in the study; and 3) go back five years rather than ten years. The reasons pertaining to these points is addressed in detail in (Exhibit C). Ms. Buckley asked why incident reports should be included in a claim study. Mr. Springmeyer, NTLA, stated there is only one opportunity to properly conduct the study so they do not believe there could be an over-inclusion of data and virtually a study of this nature cannot have too much information included. Mrs. Monaghan stated the study should include information on reserves and if that is an area where incident reports would aid, then they should be included. Mr. Bennett stated a reserve is not established until a "claim" is opened. Mr. Sandoval asked if incident reports are a basis for premium increases. Mr. Bennett replied he did not believe so. Mr. Batten stated the inclusion of incidents would provide a more complete study and perhaps a better resolution to the situation. Mr. Bennett stated incident reports are internal communications only. ASSEMBLYMAN HUMKE MOVED TO INCLUDE LANGUAGE CONTAINED IN PAGE 4 OF (EXHIBIT C) IN A NEW SECTION 12 OF A.B. 520. ASSEMBLYMAN SANDOVAL SECONDED THE MOTION. Mr. Humke stated an independent contractor would be conducting the study and once they respond to an RFP they will bring back a provisional document as to what they will accomplish and therefore it will be at their discretion what to include and how far back the study should go. Chairman Anderson stated the contractor would be selected by an Interim Finance Committee. The committee discussed the ramifications of the contractor conducting the study and payment thereto. Chairman Anderson brought the motion back to the floor. THE MOTION CARRIED. ASSEMBLYMAN GOLDWATER ABSTAINED. * * * * * ASSEMBLYMAN HUMKE MOVED TO PLACE A SUNSET PROVISION ON A.B. 520 TO BE THE SAME AS THE END OF THE COMING BIENNIUM STARTING JULY 1, 1995 CREATING A NEW PROVISION TO THE BILL, EFFECTIVE JUNE 30, 1997. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. Mr. Humke stated the sunset provision would be contemporaneous with the end of the closed claim study which may bring out some need for changes. Ms. Buckley stated they have made assumptions due to the need for reform and the closed claim study will show if a true problem exists. The committee discussed the sunset provision in greater detail. Chairman Anderson noted they could always remove the sunset provision and brought the motion back to the floor. THE MOTION CARRIED. ASSEMBLYMEN CARPENTER, MONAGHAN, SCHNEIDER, STROTH AND SANDOVAL VOTED NO. ASSEMBLYMAN GOLDWATER ABSTAINED. * * * * * ASSEMBLYMAN BUCKLEY MOVED TO AMEND AND DO PASS A.B. 520 TO INCLUDE THOSE CHANGES MADE IN PREVIOUS WORK SESSIONS. ASSEMBLYMAN SANDOVAL SECONDED THE MOTION. Mr. Batten complimented the trial lawyers and doctors for working together on A.B. 520 to come up with a solution to tort reform. Mr. Batten largely supports tort reform; however, he does not believe A.B. 520 addresses tort reform because 1) there is no place in the bill providing for a reduction in frivolous lawsuits; 2) the bill should be consumer friendly and should result in insurance reductions to the consumer and that is not evident in the bill either. Mr. Batten concluded he voted yes to approve various sections of the bill because there is strong support evident on the committee to pass out the bill and he did not want to hold any processing of the bill. Chairman Anderson brought the motion back to the floor. THE MOTION CARRIED. ASSEMBLYMAN BATTEN VOTED NO. ASSEMBLYMAN GOLDWATER ABSTAINED. Chairman Anderson announced a break at 8:18 p.m. and the committee reconvened at 8:40 p.m. with a quorum present. ASSEMBLY BILL 467 - Revises provisions governing aid to certain victims of crime. Chairman Anderson announced the primary sponsor of the bill, Assemblywoman Jeannine Stroth, was called away and she is therefore excused from the remainder of the work session this date. Chairman Anderson requested the committee review the proposed amendment to the bill contained in the Work Session Document (Exhibit E) hereto so the committee could take action on the bill at a later date. ASSEMBLY BILL 622 - Revises provisions related to tobacco. Chairman Anderson asked the proponents of the amendment contained in the Work Session Document (Exhibit E) and the opponents of the bill to come forward. Ms. Ohrenschall disclosed she works for Sieroni Corporation which deals in tobacco products. However, the dealings are restricted to the gaming areas wherein no minors are present and they do not sell to minors so she will be voting on the bill. Harvey Whittemore, attorney with Lionel, Sawyer & Collins, appearing on behalf of R.J. Reynolds Co., announced present in the audience today was Jack Jeffery from the Tobacco Institute. Also present to testify was Sam McMullen from McMullen Strategic Group representing Phillip Morris, USA. Sam McMullen, stated he was also representing the Las Vegas Chamber of Commerce, and in the audience today was the Smokeless Tobacco Council and their representatives, and the Retailers Associations and Grocers Association represented by Mary Santina. Harvey Whittemore stated they agree with the proposed amendment which deletes Section 1 dealing with classifying a juvenile as a delinquent or a child in need of supervision. Continuing with the amendments, Mr. Whittemore suggested deleting lines 3-10 of Section 2 of the bill relating to delinquency or criminal act of the minor and other amendments to Section 2. Mr. Whittemore acknowledged the concerns of Ms. Buckley and Mr. Carpenter regarding the bill going too far pertaining to inspections indicating their willingness to address those concerns. Mr. Whittemore and Mr. McMullen discussed the issue of identity of the juvenile contained in the bill and concluded there will be no photograph for use of the retail establishment. They again appreciate the committee's insight with this provision. Mr. Batten stated in addition to those amendments pertaining to the photograph a provision should be included that the child should be searched prior to going into the establishment, speaking from his experience as a police officer. Mr. McMullen stated his understanding was there would likely have to be more protocols developed for purpose of the unannounced inspections. Mr. Whittemore stated they were looking for a policy decision from the committee regarding the question of whether the internal inspections conducted by anyone other than the Attorney General's Office (AG) should be illegal. He strongly argued those individuals not associated with the AG conducting their own investigations will create difficulty with regard to the standards and statistics used in showing the rates of compliance. While the industry understands the committee's concerns are that making such conduct criminal may go too far but they asked the committee to deliberate the issue. Although they believe the language in the referenced section is appropriate they understand other solutions to the issue may be available. Mr. Whittemore concluded the remaining amendments to A.B. 622 as set forth in the Work Session document are supported fully by the people introduced earlier. Chairman Anderson restated the amendments for clarification purposes. Mr. Carpenter expressed his dissatisfaction in the steps being taken to do a compliance check. He further did not understand why kids were being used. He concluded he is opposed to the entire bill. Chairman Anderson announced the proponents of the bill have indicated the reason for the bill was because of the SYNAR amendment in Congress and the potential for BADA money and other funds attached to it. In addition, there is a major push to address and curb teenage smoking. Steven A. Shaw, Administrator, Rehabilitation Division, Bureau of Alcohol and Drug Abuse (BADA) stated it was difficult to testify on the amendments since he just received them ten minutes ago. Mr. Shaw declared there was nothing in the SYNAR amendments or even in the Nevada Revised Statutes outlining procedures for police conducting an investigation. The procedures in A.B. 622 appear burdensome for law enforcement to follow and further would not be admissible in a court action and would not bring them in compliance to receive BADA federal funds. Further discussion was held regarding random unannounced inspections and Mr. Shaw's concern that law enforcement do not even enforce the law so how can they possibly go out and do compliance checks. Mr. Batten stated the procedures set forth in the bill are necessary. However, at the proposed new Section 5, the juvenile and the person selling the tobacco should each receive a summons and there should be a violation letter issued to the retail establishment for monitoring purposes and future action. Mr. Whittemore replied by addressing specific language in the bill "unless he has actual knowledge of the transaction" which deals with Mr. Batten's concerns. Regarding Section 7 of A.B. 622, Sam McMullen stated there was a letter distributed from the federal government indicating there was some question regarding Nevada law and so they have attempted to address the concerns in the letter. The letter incorrectly stated there was an exemption of employers because they create training programs from inspections. That is incorrect as there is no exemption for any retail business from any unannounced, random inspection. Steve Shaw, BADA, commented the bill is overburdensome for law enforcement. Secondly, Section 4 mandates the AG perform inspections which is ludicrous when the law is not enforced. Dorothy North, Chairman, Commission on Substance Abuse Education Prevention Enforcement and Treatment, expressed her concern that the amendments as a whole transfers what is currently in the hands of the Health Department to the Attorney General's Office. Dorothy North concluded, considering the legislation that has passed this session pertaining to drug treatment, if the SYNAR amendment takes money out of the treatment field for the next two years, the committee should consider the same. Chairman Anderson discussed funds received for drug treatment if A.B. 622 was adopted. Mr. Shaw stated, in his opinion, if A.B. 622 were to pass, the SYNAR amendment would be more difficult to enforce. Mr. Batten expressed his discomfort with the fact nothing happens to the retail establishment under A.B. 622. Considering Mr. Shaw's comments pertaining to current compliances being met under the SYNAR amendment, why is A.B. 622 needed? Sam McMullen replied the bill creates a sense of balance. In addition, the bill involves a new program never instituted but is required by federal law. Ms. Buckley stated as a committee member on this committee as well as Health and Human Services, she has heard approximately five hours on the SYNAR amendment and is very familiar with the same. Ms. Buckley agreed with Mr. Shaw that nothing needs to be done in order to remain in compliance with the SYNAR amendment. However, she understands the concerns of Mr. McMullen and Mr. Whittemore for procedures to insure enforcement is present. Ms. Buckley went on to express concerns with paragraph 4 whereby a person is criminalized from doing an inspection just to see if there is compliance. Mr. Batten concurred. Mr. Carpenter announced he understands the use of undercover operations for alcohol and drugs but does not find them necessarily for something that is not illegal--like smoking. At the same time they want to do an undercover operation and at the same time these tobacco giants spend millions trying to get kids to smoke and then want the Legislature to get them off the habit. Mr. Carpenter insisted A.B. 622 was the worst bill he has seen in ten years. ASSEMBLYMAN BUCKLEY MOVED TO AMEND & DO PASS A.B. 622 TO INCLUDE THE AMENDMENTS IN THE WORK SESSION DOCUMENT AND TO DELETE THE PROVISION WHEREBY A GROUP WOULD BE GUILTY OF A MISDEMEANOR IF A TEST IS CONDUCTED. ASSEMBLYMAN HUMKE SECONDED THE MOTION FOR PURPOSES OF DISCUSSION. Mr. Manendo remarked he had many concerns about the bill along the same lines as Mr. Carpenter. Mr. Batten stated funds should not be lost if accurate records are maintained by law enforcement. ASSEMBLYMAN CARPENTER MOVED TO AMEND THE MOTION TO AMEND & DO PASS BY DELETING THE AMENDMENTS PROPOSED EXCEPT SECTION 3(1) AND ENFORCE THE CURRENT LAW TO REMAIN IN COMPLIANCE. ASSEMBLYMAN STEEL SECONDED THE MOTION. Further discussion pertaining to the motions was held. Chairman Anderson brought the Carpenter motion back to the floor. THE MOTION FAILED. ASSEMBLYMEN CARPENTER, HUMKE, STEEL AND MANENDO VOTING YES. ASSEMBLYMEN STROTH WAS NOT PRESENT FOR THE VOTE. ASSEMBLYMEN ANDERSON, BUCKLEY, SCHNEIDER, MONAGHAN, PERKINS, BATTEN, OHRENSCHALL, GOLDWATER, AND SANDOVAL VOTED NO. Chairman Anderson brought the Buckley motion back to the floor. Mr. Humke called for the question. THE MOTION CARRIED. ASSEMBLYMEN CARPENTER AND STEEL VOTED NO. ASSEMBLYMAN STROTH WAS NOT PRESENT FOR THE VOTE. There being no further business before the committee, the meeting was adjourned at 10:02 p.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary June 14, 1995 Page