MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session June 15, 1995 The Committee on Judiciary was called to order at 8:10 a.m., on Thursday, June 15, 1995, Chairman Humke 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. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth COMMITTEE MEMBERS EXCUSED: Mr. Richard Perkins STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: J. T. Watson, Jr., U.S. Immigration & Naturalization Service Rick Eaton, U.S. Immigration & Naturalization Service Christina Chandler, 8th Judicial District Court Anne Cathcart, Attorney General's Office John Sande, Nevada Bankers Association Carlos Concha, Parole & Probation Chairman Humke announced bills would be taken out of order and Senate Bill 390 would be moved to Tuesday, June 21. Chairman Humke opened the hearing on Senate Bill 454. SENATE BILL 454 - Requires prisoners and former prisoners to exhaust administrative remedies before pursuing tort action against department of prisons. Ms. Anne Cathcart, Attorney General's Office, representing the Nevada Department of Prisons, submitted a letter of June 15, 1995 (Exhibit C) which describes the purpose of the bill. She reviewed the content of the letter and stressed inmate claims are usually minor--$500 or less. Mr. Anderson commented the $500 would probably be the total value of a prisoner's property in his cell. Ms. Cathcart explained inmates are prohibited from retaining property in excess of the $500 value and to them it is a lot of money. Mr. Anderson stated it would then be impossible for them to make a claim greater than $500. Ms. Cathcart answered yes; however, inmates will claim a loss greater than $500. In closing she stated this bill should save the Department of Prisons money and time in resolving the problems. Chairman Humke closed the hearing on Senate Bill 454 and opened the hearing on Senate Bill 475. SENATE BILL 475 - Provides for release of presentencing reports in Immigration and Naturalization Service of United States Department of Justice. Mr. J. T. Watson, Jr., Officer in Charge, Reno Office, Immigration and Naturalization Service, spoke in support of S.B. 475 and provided a packet of documents (Exhibit D.) A video was shown regarding their current activities with the Division of Parole and Probation (P&P) (Exhibit E.) He continued the cost to the state is negligible as the report is already completed by P&P. He added the comment by news commentator John Sasaki regarding testing the Fugitive Interdiction Strike Team (F.I.S.T.) in Reno due to their small office size was partly true with the other reason being the Team concept was developed by Rick Eaton, Assistant Officer in Charge, Reno Office. Mr. Rick Eaton, Assistant Officer in Charge, Reno Office, Immigration and Naturalization Service presented statistics showing 80% of the 71 people arrested were convicted of violent crimes or narcotic trafficking; 65% were foreign nationals; and 50-60% were fugitives. He asked for help in getting these people deported. He explained during deportation hearings a number of the individuals can be eligible for relief and be able to stay. These (criminal aliens) make claims of being good community members and supporting their families. The information to refute the claims are in the presentence report which at this time is not available to INS in Nevada as it is in other states. Mr. Carpenter asked under what conditions can the aliens be deported and can they be deported if they have a green card. Mr. Eaton answered yes, even if they are legally admitted into the United States, for certain criminal acts resulting in a sentence of a year or more in prison. He referenced the legal brief (Exhibit C) and reviewed the case particulars. Mr. Carpenter thought they must be sentenced to prison for a year or more. Mr. Eaton expanded his testimony stating for narcotic offenses it is not necessary. He reviewed reasons for deportation. Mr. Carpenter asked if a third time DUI was a deportable offense. Mr. Eaton responded the crime must involve moral turpitude; a DUI does not. Mr. Carpenter inquired if there was a way to keep track of the people after they are deported; he imagined most of them return. Mr. Eaton described enhanced prison terms if they return after being deported as a criminal alien. He gave some examples of process. Mr. Batten commented it is a good piece of legislation. Ms. Buckley echoed it is a good bill. Chairman Humke complimented Mr. Watson and Mr. Eaton on their excellent presentation. Mr. Carlos Concha, Acting Deputy Chief, Division of Parole and Probation (P&P), testified in support of the bill and advised they [P&P] work with INS in full cooperation. Chairman Humke closed the hearing on S.B. 475 and opened the hearing on Senate Bill 424. SENATE BILL 424 - Revises provisions governing deposits held in joint tenancy. Mr. John Sande, representing the Nevada Bankers Association testified the bill deals with joint accounts at banks and handed out a copy of the decision (Exhibit F) issued July 7, 1994 by the Nevada Supreme Court, STARR v. ROUSSELET. He stated the case indicates why bad facts make bad law and reviewed the facts of the case: the decedent (Rousselet) was a widower with three adult children; was in a platonic relationship with Ms. Starr living together, occupying separate bedrooms, for several years; he was hospitalized; and six days later Valley Bank processed a signature card adding Ms. Starr to the checking account of over $60,000. Evidence at the trial suggested this was done for convenience purposes so Ms. Starr could pay joint expenses while he was hospitalized. Mr. Rousselet died on January 14, 1990, a Sunday. Monday was a bank holiday and on Tuesday Ms. Starr closed the account and transferred funds into her own individual account. The litigation was to determine whether or not Ms. Starr was entitled to the funds and if she would have been entitled to the funds if this were a true joint account. It was established that there was a right of survivorship. Mr. Sande noted the court found it was not a joint account and awarded all the funds, as part of his estate, which went to his children. Mr. Sande stated the case reversed what everybody thought was the case; there were no magic words to set up a joint account with a right of survivorship. Most banks do not have right of survivorship language in their joint accounts; "they say, you're creating a joint account and either party has access to those funds." He referred to pages 6 and 7 (Exhibit F), noting how the Court struggles and in his opinion does not come up with a very clear decision, and quoted, "Neither the terms of statute ...evidence." He continued on page 8, Justices Young and Rose (dissenters) set forth clear reasons why this needs to be addressed by legislation since the majority's decision causes all sorts of problems. Mr. Sande quoted page 8 (Exhibit F), "The majority's decision calls into question the validity of the expectation...a surviving tenant in common." He stated the court of the majority did not address this and the minority goes on to ask if a new form of ownership is being created, that of joint tenants who may remove funds, but not keep them. Mr. Sande outlined the problem this has caused; there are many bank accounts in the state that do not have survivorship language and numerous people thinking they will avoid probate by putting their funds in joint accounts expecting, on their death, for funds to pass to their surviving spouse or to their children. He added, "We" think the intent of virtually all people who have put their money in joint accounts is the right of survivorship and believe, in those rare instances, the court could have reached a different conclusion by allowing parol evidence to show this was not truly a joint tenancy, it was done for convenience purposes only and Ms. Starr held these assets in trust for the estate of Mr. Rousselet. S.B. 424 makes it clear there are no magic words that are necessary to create joint tenancy. He continued beginning on Page 1, Line 28, of the bill, language, such as, "joint, joint account, jointly held, joint tenancy, or joint tenants with right of survivorship" will be allowed to establish an account is a joint account/joint tenancy account and, as NRS 100.085 is being amended, clearly pass to the survivor on the death of one of the tenants. Chairman Humke asked if Mr. Sande had written remarks he could offer. Mr. Sande responded no but he could prepare them (Exhibit G.) Chairman Humke requested they be submitted and directed, to obtain a full record the following questions and answers be transcribed verbatim. He acknowledged the Supreme Court is literally begging for some legislative history and clarity. He felt the proposed statute is quite clear but thinks it should be backed-up with a very clear record. Ms. Buckley noted Mr. Sande's testimony made a lot of sense and questioned, "If now joint tenancy would necessarily mean joint tenancy with right of survivorship. Are we now setting a precedent; saying there is really no difference between the two. I worry about blurring the legal line and that "magic language" by not being there, now automatically assumes that it is in there." She asked Mr. Sande to comment. Mr. Sande responded, "I think we are amending, (again this is only for bank accounts/deposits which is NRS 100.085), and I think it's clear (in there) that they are defining, if it is held as a joint tenancy, as that is defined in that statute under Subsection 4 on Page 1, if it is defined like that when people put it into a joint account and specifically says, as these deposits agreements do say, that either party, or any party that on the account, has the right to those funds, that they will pass to the survivor on the death so that there's certainty. I think we are creating certainty and also that it was the way everyone anticipated things were done in the past; for example, there's reference in the decision to a case which had an irrebuttable presumption. The McKissick case we rejected dictum in an earlier case which suggested that oral evidence could be admitted to remedy any deficiency in a written instrument [unintelligible] to establish ownership in joint tenancy. In addition, we stated, "since joint tenancy is a method by-which property may be passed upon death of a written instrument specifying such an intention, is essential. I think there is another case they make reference to a ...." Ms. Buckley interjected for a follow-up. Mr. Sande stated he would get the reference to the case where it was an irrebuttable presumption. Ms. Buckley asked, "Why couldn't a bank say; check box `A' or check box `B'. `A': Joint tenancy means a share either one can withdraw and if one of you die it goes to the will; and `B': joint tenancy with right of survivorship means whoever the second name on the account is, gets the money. Why doesn't that work." Mr. Sande responded, "Well, first of all, I suppose you could do that. One of the reasons for this bill is we have a whole lot of accounts out there that are already like joint accounts and there are a lot of people relying upon the fact that they're passed by right of survivorship. But as a practical matter, and the reason why I think this is good policy, is how is a bank to know whether or not someone has died, unless, the person that's withdrawing the funds says, "Oh, by the way, I'm doing this because my spouse passed away." The bank has millions of transactions and people come and go, so, from a policy standpoint, I think it's important for some certainty and they're not violating the law because somebody has died." Ms. Steel stated she had a lot of problems with the concept. "We have different forms of property besides banking property and this different termination [terminology]; most people deal with banks and once they get accustomed to your definition of joint property ownership they may assume that in other areas, in other properties. I really have a problem with muddying-up that water. I think, I agree with Ms. Buckley, that it would be simpler to just put on your forms, "alert-this could happen", and maybe send out a little letter to your other people that have this. You mentioned that bad facts make bad laws but knee jerk reactions to isolated incidences also make bad law. Mr. Sande replied, "Maybe I misspoke myself. I think that every person that I have ever worked with (and I practice in the estate area) that's ever put a deposit in a joint account, almost universally, understands that it passes to the survivor. Number one, you have, like I said, thousands of accounts out there. If this legislature is taking the position that these are not joint accounts with right of survivorship; if you are taking that position, what kind of account is it? Is it a tenant in common? At least I would argue, and I think this is the case, you're going to have to probate every single one of those accounts if someone passes away. So you have a $100,000 account and you have to go to probate and hire me as an attorney, it's going to cost you an awful lot of money and an awful lot of the residents of our state. Secondly, is I'm not aware of any (joint tenancy to me means that it passes on death to the survivor) I've never seen a joint tenancy created in Nevada that was intended not to pass to the survivor upon death. If you want to have some type of joint ownership and not have it pass to the survivor, it's called tenants-in-common. You can specifically set that up. We even created a type of property--I drafted the bill, which was community property--with right of survivorship. The reason we did that is because of the advantage from a tax stand point when one of them dies. But, I guess, the point I would make is I think what we are doing here is clarifying what the intent of the people of Nevada is right now when they set up a joint account. In almost all cases they believe it's going to pass to the survivor. In those rare instances, such as this, where somebody did it for convenience only and did not really understand the import of it, you have, in my opinion, the ability to go into court and to go and to stop the person taking those funds by using undue influence. This is really a case of undue influence where somebody took advantage of somebody. But, in most cases, most people are putting it in there because they anticipate they want it to pass to their child, they don't want to create a trust, they don't want to have to probate it, they want it to pass to their surviving spouse and avoid probate. I think that we should clarify that as the Legislature; you should clarify this as the Legislature and make sure we don't have that type of difficulty in the future. Like I said, there are thousands of accounts out there and if this bill doesn't pass, I think the banks will say that's putting us on notice that if we know someone's died we can not release that to the survivor." Chairman Humke asked Ms. Steel if that was satisfactory. Ms. Steel wished to follow-up. She asked, "If I have my name on an account with Mr. Humke--we don't even live in the same house and we have two different families--but we have a joint account; we both have equal rights to the money in that account: is that correct?" Mr. Sande responded, "Under any interpretation either of you could take all the funds out of that account." Ms. Steel inquired, "So, I don't understand the problem from the bank's point of view or why you feel that you have to not give the money out because, by the law, you would have to give the money to whoever asks you for it, anyway. So I don't understand your concern on the death of a person, I guess." Mr. Sande replied, "If you were saying that--well, that's exactly what happened in this case. But, if you were saying joint tenancy does not include right of survivorship, unless it's specifically in there, then as a bank, as long as both you and Mr. Humke are alive, yes, we could go and release the whole funds. If we know, though, that Mr. Humke passed away and you come in and say I'd like to have those funds, we can't do it; you're not entitled to them anymore because of this weird decision. All of a sudden that death has basically terminated, you can not have that as a survivor. That's what's weird about this case. That's the bad result. That's what she did in this case. She went in after the death of Rousselet and she took the funds and the Court said, "No, you can't do that because you're not entitled to those funds on the death of one of the tenants.", and that's what the dissent points out. The dissent points out that this is wacky; this creates a real unusual situation and the dissenting opinion says, what are we creating here, now? Have we created a tenancy-in-common? If we've created a tenancy-in-common both owners have 50% in interest. So, in that case, Mr. Rousselet's heirs would only get 50% and she would get 50%. I really think this is a case of undue influence where the court should have admitted parol evidence for the purposes of saying there was not an intent to create a joint tenancy. She was put on there not to have any rights to take those funds for herself. She was put on there for the sole purpose of paying their expenses and helping him out when he's in the hospital. They could have done that; they could have set a constructive trust. Instead, again, bad facts. They tried to craft something and they ended up with a law, I mean, I don't know what happens now on death. Ms. Steel asked as follow-up, " So, as a result of this case did your bank, or did the bank, that released the funds to Ms. Starr suffer any penalties. Mr. Sande replied, "No. No, there's no penalties because of what they did. She got the funds; there's a lawsuit initiated; there's an injunction placed upon her from not disposing of those funds; and ultimately the Court said, several years later, these funds belong not to you, they belong to the estate of Rousselet." Ms. Steel asked, "So, how does it impose responsibility upon you, I guess, at the bank if you hear somebody dies." Mr. Sande responded, "Well, if you are saying that this is not a joint account with right of survivorship and if you're saying there's a legislative policy, you turned out this legislation, then the banks are put on notice, basically, that the Legislature says unless you have specific language creating survivorship you don't have a right of survivorship. So, if we're put on notice that Mr. Humke has died and we allow you to withdraw the funds, we may be in trouble because Mr. Humke's heirs may come and say, "How could you go and let those out; that was not a right of survivorship. You know Mr. Humke was dead. You should have gone and allowed his estate to come in and take those funds; at least claimed part of them." We don't want to be put in that situation and furthermore, we think, if you turn this down and some client comes into me I'll say, hey, we can't go and pass these funds over to the survivor. We have to probate them. We have to file the probate because they are not the property of the survivor. The survivor can't get those funds. If there's not the right of survivorship you have no right to those funds and you, and it's either tenancy-in-common, you divide it fify-fifty, or you figure out who put the funds in there originally. I guess that would be the question. Ms. Steel inquired, "So, it's only joint if you're both still alive." Mr. Sande answered, "Under this case." Ms. Steel added, "And under the law?" Mr. Sande replied, "The way the Supreme Court, the majority decision, seemed to suggest. That's why the minority had so much problem. They said, what are we creating? The court really doesn't address that issue and that's again when you have bad facts and you try to go and craft a result you end up with a lot more questions that were not resolved in this decision. I don't know the answer to that." Mr. Carpenter asked, "Why didn't you include the wording of community property with the right of survivorship." Mr. Sande responded, "That's a general statute that doesn't apply to deposit agreements. It applies to real property and there's specific language you have to use to create it. It deals primarily with holding title to real property; it doesn't apply to bank accounts. To my knowledge they don't have any bank accounts like that. Another thing too, with bank accounts; the reason for community property with right of survivorship and I'll just go through this real quick. When you die, any property that you have in your estate gets a step-up in basis for purposes of income tax. What that means is, if you had, for example, a home that you bought for $20,000 and when you die it's worth a $100,000 and on your death if your estate sells that property for $100,000 the basis will be $100,000, the value the date at death. So you pay no income tax on the difference of $20,000 and the $100,000 which you sold it for. So, in other words, you avoid capital gains on that amount. I don't know if everybody follows that, but, basically if you had sold that house when you were alive that basis would be $20,000 and you sold it for $100,000 you would have an $80,000 gain. That's one of the few tax breaks you get when you die. Where the problem came up is where you have it owned by husband and wife. The IRS has said if it's community property, and you own a home as community property, you and your spouse, when you die it's worth $100,000 you get a step-up on both halves because it's owned equally by the two of you. You get a step-up on both halves even though one of the tenants, or community property members is still alive you still get a step-up basis on the whole value of the property. On the other hand, if it's joint tenancy or tenants-in-common and not community property you get a step-up on only one-half. So you take one- half of the value of the property, so that means $50,000 would be the basis in your half and your spouses half, if you bought it for $20,000, would be $10,000. So the whole basis would be $60,000 and you pay a tax on $40,000 if you sold it for $100,000. The IRS, since they assess for community property, we wanted to create a statute in Nevada that said, try to make it community property. So we created community property with right of survivorship so people could own property and get the tax break on death. The reason it doesn't apply to joint bank accounts because a bank account doesn't have any capital appreciation in it. The bank account is cash and whatever the value it is, that's the basis. It hasn't appreciated in value so there's no need to have it as community property with right of survivorship. Mr. Carpenter acknowledging Mr. Sande as the lawyer and the expert, stated, "But, I think there's a lot of wills made out that refer to community property with right of survivorship. As I understand it, it passes to the remaining spouse. You're not taxed at that time; but, when that spouse dies, the second spouse, it is certainly going to be taxed. I don't agree with you on this stepped-up basis; that's on a home that you've lived in a certain time. I really think you ought to, I don't see any reason for not having that in there. I think it would maybe clarify some of these situations that, where there's wills left that refer to community property with right of survivorship. And, under this bill, why the fellow that established a relationship with this lady, if he had wanted to put it into a joint tenancy with right of survivorship he could have done that, right?" Mr. Sande responded, "Well, you have two questions, there. First of all, I think you are talking about, when you are talking about, there's no tax when you have a spouse that passes by right of survivorship; that's an estate tax. What I was talking about was the income tax. The income tax still applies and if that spouse has property that the surviving spouse turns around and sells, she will pay income tax unless there is a step-up in basis, and that's what I was talking about." Mr. Carpenter stated, "We'll discuss that later. Your accountant and my accountant have two different opinions. But anyway,...." Mr. Sande interjected stated, "The second thing is what did he intend to do. I think what he intended to do; the testimony indicated that he did not intend to create a joint tenancy with right of survivorship. He probably didn't even know what he was doing, quite frankly; he's in the hospital." Mr. Carpenter asked, " If he had wanted to he could have done that, right." Mr. Sande replied, "Well, I think the facts in this case indicated he...." Mr. Carpenter interrupted, "If I want to give my money to my girlfriend after my wife dies there's nothing preventing me from doing that, right?" Mr. Sande stated, "Well, I wouldn't do that. Let me point out, in this case, Mr. Rousselet was in the hospital. But, let me point out, what I'm saying is 99.9% of the people that go to the bank and set up a joint account and put somebody on that account anticipate that it's going to pass to the survivor on their death. They're not all sophisticated, they haven't been before this Committee and understood exactly what goes on, but, that's what we're trying to address; those people who believe (and 99.9 % believe) that they're setting up a joint account with right of survivorship. And that's how we've done it for years and we never had a problem until this case." Mr. Carpenter stated, "Still didn't answer my question." Chairman Humke commented, "Well, Mr. Carpenter, that's what the hearing is for. Do you wish to pose another question? Do you wish us to come back to you?" Mr. Carpenter answered, "I'm only saying that after my wife dies and it's in joint tenancy and then it passes to me (at that time my children have nothing to do with it because I'm still the only one in control) and then if I suddenly get this girlfriend and I want to pass my bank account to her then we can go into a joint tenancy situation at that time and she would get the bank account." Mr. Sande replied, "I think you're accurate there. I think what the problem here was that's exactly what Mr. Rousselet did and the Court said that he really didn't mean to do that. Even though he signed the document he didn't mean to go and set up a joint account with right of survivorship; he didn't even mean to give her access to those funds; he didn't intend to create a joint account. He put her on the account, he's in the hospital, so somebody could pay his bills. And that's what the Court found in this case. Even with the bill we're proposing there's always the ability for somebody to come in and say, "Lookit, I signed this but I really didn't know what I was doing at the time and undue influence was exercised over me at that time and I signed something under duress."" Chairman Humke asked Mr. Carpenter if his question had been answered. Mr. Carpenter answered, "After consultation with my number one lady lawyer, we know where we're at here." Mr. Goldwater commented, "I have a unique perspective on this issue, some fine legal minds on this Committee, but I was a bank teller. I can tell you that there is no more troublesome issue for we, as bank tellers, than joint accounts. It's problem enough while people are alive, but to think there's a problem when people die to have to say, now, on every joint account," prove that the other person is alive before you withdraw this money", would be unbelievably troublesome and burdensome and create even more chaos where chaos already exists. The logic of this, I know, from legal point of view is one thing; but, for us simpletons--bank tellers--it would be unbelievable, so I am in full support of this bill. Chairman Humke asked Mr. Sande if he had any response. Mr. Sande replied, "I think that was brilliant." Ms. Buckley noted, "I was convinced that during the dialog with Ms. Steel that this is the only way to go with regard to bank accounts because they are different and what you said about having to prove whether someone's alive or dead certainly is quite accurate. I did want to comment, though, this discussion is harkening me back to the days of property in the first year of law school and I would like to know if you can still recite the rule in Shelly's Case." Mr. Sande replied, "Absolutely not. I can remember the book, though." Chairman Humke wished to state for the record, "Not seeing Ms. Ohrenschall here, I know, were she here, she could recite the rule in Shelly's Case." Chairman Humke related a personal note regarding his law school studies in property law. He then asked if Mr. Sande had any concluding remarks. Mr. Sande replied, "No, that's all I have and I will provide some written testimony." Chairman Humke closed the hearing on S.B. 424. He addressed Co-Chairman Anderson and continued there was desire to take some votes and most of the bills today could be voted upon, being largely without controversy, and asked if he wished to proceed in work session. Mr. Anderson noted the lack of a quorum but he would like to take a previous night's work document regarding Assembly Bill 606. Chairman Humke suggested working on the bills pending from the previous night. Further discussion ensued regarding the schedule for the remaining time. The meeting recessed. Chairman Humke reconvened the meeting in work session beginning with Assembly Bill 606. ASSEMBLY BILL 606 - Revises provisions governing criminal and civil liability for crimes motivated by certain characteristics of victims. Chairman Humke asked Mr. Neilander if there were some proposed amendments. Mr. Dennis Neilander, Research Analyst, noted an amendment submitted by Assemblyman Jan Evans, the prime sponsor of the bill in consultation with Assemblyman Buckley, which resolves the conflict with Senate Bill 139 and amends Section 1, to refer to the "hate crimes" in a more specific manner and adds an amendment suggested by the Criminal History Repository, Department of Motor Vehicles and Public Safety, to consolidate the reporting so only one reporting, versus having a second report, is required. Chairman Humke reminded Committee members this bill will be referred to Ways and Means. ASSEMBLYMAN BUCKLEY MOVED TO AMEND AND DO PASS ASSEMBLY BILL 606. ASSEMBLYMAN MONAGHAN SECONDED THE MOTION. Discussion ensued. Ms. Steel asked if it was decided gender was not something people hate and a reason to be murdered. Ms. Buckley responded Ms. Evans was anxious to include it, if it would work. Discussion with Ms. [Kim] Morgan determined there were fears by the district attorney and judge who introduced the bill it would add confusion into the bill, making it vague and get away from the actual hate crimes in the bill. Ms. Steel commented she did not really champion the gender issue. Mr. Neilander interjected many of the crimes enumerated in the bill have a gender issue in the basis of the crime itself, so it is taken into account. THE MOTION CARRIED. ASSEMBLYMEN PERKINS, BATTEN, AND SANDOVAL WERE NOT PRESENT FOR THE VOTE. ASSEMBLYMEN SANDOVAL AND BATTEN INDICATED LATER THEY WERE IN FAVOR OF THE MOTION. Mr. Anderson requested reconsideration of Assembly Bill 520. ASSEMBLY BILL 520 - Makes various changes to provisions relating to actions for medical malpractice. Mr. Anderson noted Section 13 had caused a problem and would require the bill to be amended at another point, a possible stumbling block. He asked the Amend and Do Pass be reconsidered to remove Section 13, the sunset clause. ASSEMBLYMAN ANDERSON MOVED TO RESCIND THE AMEND AND DO PASS OF ASSEMBLY BILL 520 TAKEN ON JUNE 14, 1995. ASSEMBLYMAN HUMKE SECONDED THE MOTION. Ms. Buckley stated she supports both motions but was not aware the parties had discussed the sunset in conjunction with other items and had negotiated it away. She added, in regard to the important policy matters, "we can change any law we want, next time." Ms. Steel also noted her support as any perception problems by the Committee need to be cleared-up. Ms. Monaghan stated she was still in opposition but the closed case study should help. Mr. Carpenter agreed with Ms. Monaghan. THE MOTION CARRIED. ASSEMBLYMEN GOLDWATER, SANDOVAL, AND PERKINS WERE NOT PRESENT FOR THE VOTE. ASSEMBLYMAN SANDOVAL LATER INDICATED HE WAS IN FAVOR OF THE MOTION. Chairman Humke entertained new motion. ASSEMBLYMAN ANDERSON MOVED TO AMEND AND DO PASS ASSEMBLY BILL 520 REMOVING SECTION 13. ASSEMBLYMAN HUMKE SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN BATTEN VOTED NO. ASSEMBLYMAN GOLDWATER ABSTAINED. ASSEMBLYMAN SANDOVAL WAS NOT PRESENT FOR THE VOTE BUT LATER INDICATED HE WAS IN FAVOR OF THE MOTION. Mr. Dennis Neilander presented Assembly Bill 467. ASSEMBLY BILL 467 - Revises provisions governing aid to certain victims of crime. Mr. Neilander explained the bill was assigned to Ms. Stroth to assist the proponents in working out the amendment submitted at the initial hearing. There was a question regarding the notion of unjustly enriching the offender since the bill expands the list of victims who may receive compensation. The amendment states compensation must not be awarded if the award would unjustly enrich the offender. Mr. Neilander noted the provision is stated in a different manner under Subsection 3a; it is a matter of choosing the wording. He deferred to Ms. Stroth as she had worked with Mr. Brian Nix, Coordinator of the Victims of Crime Program. Ms. Stroth stated Mr. Nix originally had problems with including victims of domestic violence, living under the same roof, as it might be a financial burden to include these people, but has since agreed to the amendment. It is a compromise between the two parties. She thought the compensation issue was covered in Subsection 3a; the amendment change was alternative wording. ASSEMBLYMAN STROTH MOVED TO AMEND AND DO PASS ASSEMBLY BILL 467. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. Mr. Carpenter asked what was being done about "that" [compensation] situation. Ms. Stroth responded it is in Subsection 3a. Ms. Steel hoped this would not deplete the fund as it appears there are enough requests and including another category could add 50% more than they are getting. Ms. Stroth commented the issue had been discussed and the parties involved believed the perpetrators who commit the crimes will be contributing to the fund and there will be no net loss. THE MOTION CARRIED. ASSEMBLYMEN ANDERSON, SANDOVAL, PERKINS, AND GOLDWATER WERE NOT PRESENT FOR THE VOTE. Mr. Neilander announced to the Committee Assembly Bill 576 had been withdrawn by the proponents. ASSEMBLYMAN BUCKLEY MOVED TO INDEFINITELY POSTPONE ASSEMBLY BILL 576. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. Chairman Humke stated the motion would be accepted with the understanding the Chairs may wish to revive the bill for a particular purpose later due to the difficulty of getting a `bill jacket' this late into the session. THE MOTION CARRIED. ASSEMBLYMEN ANDERSON, SANDOVAL, GOLDWATER, AND PERKINS WERE NOT PRESENT FOR THE VOTE. Mr. Neilander presented Assembly Bill 633. ASSEMBLY BILL 633 - Revises provisions relating to offers of judgment. Mr. Neilander explained the bill resulted from an informal study requested by the Supreme Court and conducted by Mr. Polsenberg. The parties were directed to work out some amendments. The parties have requested additional time. Chairman Humke assigned Ms. Buckley and Ms. Steel to a subcommittee on the bill to work out the differences. Mr. Neilander presented Assembly Bill 575. ASSEMBLY BILL 575 - Authorizes court to issue orders which are in best interests of minor children for whom guardian has been appointed. Mr. Neilander explained it has been suggested to use the bill to amend NRS, Chapter 159 to add the ability of guardians to invest the property of a ward in money market mutual funds without court approval (NRS 159.117.) Chairman Humke commented the suggested change is a worthwhile addition to the statute. He noted A.B. 575 had been effectively withdrawn, to have no further action, based on the request of the proponents, Nevada Trial Lawyers Association. The bill is therefore available to use in this manner. Mr. Carpenter asked how risky are money market mutual funds. Mr. Goldwater, noting his experience as a bank teller and financial education, responded the least risky is a government treasury bond and the next step up is probably a money market. He stated there is always risk. Chairman Humke asked Mr. Neilander to speak to the fiduciary responsibilities of a guardian. Mr. Neilander explained the money market mutual fund can only invest in certain areas which are basically government backed, Fannie May, U.S. Postal, and U.S. Treasury bonds. It can not invest in other financial instruments other than what is listed. The guardian is ultimate responsibility is to the ward. Chairman Humke felt this would be an appropriate measure. ASSEMBLYMAN BUCKLEY MOVED TO AMEND AND DO PASS ASSEMBLY BILL 575 BY REMOVING THE ORIGINAL LANGUAGE AND ADDING NEW LANGUAGE. ASSEMBLYMAN GOLDWATER SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN PERKINS WAS NOT PRESENT FOR THE VOTE. Assemblyman Anderson presented Assembly Bill 648. He testified he had agreed to the changes suggested by Ms. Madilyn Shipman. The original language presented a problem this session. The amendment would replace the bill with new language. ASSEMBLYMAN BUCKLEY MOVED TO AMEND AND DO PASS ASSEMBLY BILL 648. ASSEMBLYMAN BATTEN SECONDED THE MOTION. Ms. Steel wished the amendment to be reviewed. Mr. Neilander explained the amendment would clarify legislative intent with regard to forfeitures making them remedial rather than punitive in nature. THE MOTION CARRIED. ASSEMBLYMAN PERKINS WAS NOT PRESENT FOR THE VOTE. There being no further business before the committee Chairman Humke adjourned the meeting at 10:25 a.m. RESPECTFULLY SUBMITTED: _________________________________ Jacque Sneddon, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman _______________________________________ Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary June 15, 1995 Page