MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session May 8, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 3:00 p.m., on Monday, May 8, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O. C. Lee COMMITTEE MEMBERS ABSENT: Senator Maurice Washington (Excused) STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Michael Fondi, Judge, First Judicial District Brian Doran, Court Administrator, Sparks Municipal Court Paula Berkley, Lobbyist, Alliance for Latinas in Action and Solidarity I.R. (Renny) Ashleman, Committee for Binding Arbitration/Dispute Resolution Committee James Jeppson, Chief Insurance Assistant, Insurance Division, Department of Business and Industry John P. Sande, III, Attorney, Lobbyist, Nevada Bankers Association Brian R. Hutchins, Chief Deputy Attorney General, Transportation Division, Office of the Attorney General SENATE BILL 329: Provides for certification of court interpreters for Spanish- speaking persons involved in judicial proceedings. The chairman opened the hearing of Senate Bill (S.B.) 329 noting Senator Washington was excused from the hearing due to a conflict in scheduling with other committee hearings. He turned to the chairman of the subcommittee assigned to work with the bill, reminding the subcommittee of his concern that the bill only addresses interpreters for one language. He asked for a report. Senator Titus, as chair of the subcommittee, explained the goal of the subcommittee was to address all the concerns raised at the initial hearing. Referring to a list of proposed amendments to the bill (Exhibit C), Senator Titus stated the question of having the bill limited to the Spanish language was addressed by amending section 2, line 5 to read "a language other than English, or non-English language" (amendment 2). Amendment 3 allows the court to determine which language has the greatest need and then to add other languages as funds allow. The subcommittee considered the makeup of the committee to ensure there is a proper representation of the various interested groups (amendment 1), the senator told. In an attempt to consider the special problems of the rural areas, amendment 7 adds a section to the bill which makes it only applicable to townships with a population greater than 25,000. Also, Senator Titus noted a section is added (amendment 8) which tells of the effective date for the legislation. Senator Porter referred to amendment 1, noting the judges to whom he spoke expressed a preference for the supreme court to establish the program for certification, rather than the court administrator, under section 2, line 3 of the bill. He reiterated the makeup of the committee would include two judges. Senator Titus asked Michael Fondi, Judge, First Judicial District, to speak to this concern. Judge Fondi explained he had an opportunity to review the amendments and concurred in the recommendation of Senator Porter, suggesting this section be amended to read, "the committee members are appointed by the Chief Justice of the Supreme Court, upon recommendations of the court administrator." The judge moved to discuss other amendments as proposed on Exhibit C. He stated he initially was concerned with language in amendment 5, but upon further discussion has concluded it is fine because it calls for the interpreter to interpret the questions being put to the witness. Amendment 7, he said, causes him serious concern because section 2, subcommitteesection d, line 15 states the regulations of the program shall set forth the "circumstances under which a court may require the services of an interpreter who is certified." An arbitrary population cutoff will overlook the possibility that a case is so important or weighty (as a capital case might be) that a certified interpreter simply must be used to provide the best interpretation possible, he stated. The judge suggested setting criteria for types of cases where it is essential to have competent interpreters. Senator Porter explained the population cutoff resulted from conversations with some of the rural judges who expressed the opinion that it will be very difficult to provide certified interpreters at initial appearances in evening courts that are many miles from the larger population areas that might provide a certified interpreter. This would require a postponement of the hearing or appearance for significant periods of time, the judges had represented. Senator Porter stated he understands Judge Fondi's suggestion to apply the requirement to certain cases, and this would not cause a problem. The judge opined it is imperative to have an interpreter if a serious charge is brought against some individual who does not understand English. The senators voiced support for the suggestion made by the witness. Senator Titus agreed it would be much more realistic and effective to allow the committee to establish the criteria for determining whether an interpreter is required or not. Senator McGinness wondered how the criteria would be established, felony, gross misdemeanor, or what basis might the committee use that would be readily engrossed in the statute. Judge Fondi responded the criteria would not be in the statute, but in the regulations propounded by the certification committee. He stated it is important to allow the committee enough "leeway" to gather information about the needs and restrictions of the rural communities, in order to formulate regulations that will be effective for all. Additionally, regulations are easier to adjust, and evaluate as the need arises, he said. The senator concurred, noting the judges who are very far from population centers need some latitude, in order to avoid using this requirement as a "ploy to delay the case because a certified interpreter is not there." Brian Doran, Court Administrator, Sparks Municipal Court, suggested the type of hearing might be the criteria which would determine the need for a certified interpreter. An arraignment, or first appearance may not require the certified interpreter, but could use a friend or relative who understands English and can explain to the accused what he or she is charged with. Senator Adler questioned whether a routine arraignment might be accomplished with the use of an audio or video tape in the language of the defendant. Mr. Doran replied this is sometimes done, has been done in the past. It has been suggested, he told, that a tape be made, along with a script of the tape in Spanish and English which could be evaluated by a federal interpreter to determine if the interpretation is accurate. Mr. Doran also noted the courts use a written handout at arraignments now, so if the defendant is able to read, they can use it. Senator James asked the members of the subcommittee about his additional concern with lines 40-43 of section 6, page 2 of the bill where it discusses the rights and privileges of the witness being granted to the interpreter. He observed there was some change made (amendment 6 of Exhibit C), but he still was concerned that the verbiage indicates the interpreter has the rights and privileges rather than simply acting as a "conduit" for the witness. Judge Fondi noted his agreement with the senator's concern. He opined the problem with this language might also be the interpreter is interpreting for a defendant that never becomes a witness in the case. It is very important the interpreter has access to the information "that the defendant, as opposed to witness" should be entitled to access. Senator James stressed his concern is the language, as it is written, will allow the interpreter to claim the rights of the witness or defendant and, for example, "take the Fifth [Amendment]" and refuse to testify. Senator Titus explained the subcommittee tried to address this concern, by speaking to Judge Vega, who opined the important thing is the interpreter's access to the evidence. She admitted there is a need to reword the section. Senator James suggested wording to the effect "has all the rights and privileges necessary to perform those duties." Judge Fondi noted he has been advised (by Ben Graham, Chief Deputy, Clark County District Attorney, Legislative Representative, Nevada District Attorneys Association, who was present in the audience) of another concern with this language, (i.e. the need to protect the interpreter, whether for the defendant or for another witness) so the interpreter when acting as interpreter is not waiving the Fifth Amendment right of the person for whom they interpret. He offered the scenario of an individual who is using an interpreter, and answers a question which might tend to incriminate them. The interpreter might understand they should not repeat the response, and might choose not to repeat it because it incriminates the witness/defendant. This, the judge opined, is an issue which needs to be addressed. The interpreter cannot be waiving the rights of the individual "by virtue of functioning as an interpreter." Senator James asserted the language of the bill says those rights can be waived by the interpreter, and once again suggested the language change to "has all the rights and privileges necessary to perform those duties, including access to" and "the right to examine all relevant material. Senator Adler added language is needed which protects the process of an interpreter interviewing a witness or defendant, wherein information might be revealed which should not be repeated, or which the defendant or witness states they do not wish to have repeated. He opined there needs to be language which allows "that in that process they are not waiving a privilege." He offered the example of a defendant confessing to the interpreter that he committed the crime. Here he opined, the prosecutor should not be able to call the interpreter as a witness to reveal this confession. Judge Fondi stated this is what he had been advised against. Senator Titus asked if Mr. Graham might be able to make a suggestion for language to address this concern. From the audience Mr. Graham stated he did not have a suggestion at that time. Senator James continued his suggestion noting the intent of the language should be to "... provide that the interpreter may not exercise or waive any rights of the witness or defendant." He stated it would be up to the bill drafters to come up with specific language. Judge Fondi asked if section 5 of the bill alleviates the concern. Senator Adler opined it does and it does not because a communication to an interpreter is not considered a privileged communication. The judge opined this section makes it a privileged communication. The senator opined section 5 needs to say the disclosure to the interpreter is privileged. Senator James observed section 5 does not cover the issue, but only addresses chapter 49 of Nevada Revised Statutes (NRS), which deals with privileged communications. He said that chapter outlines that a privilege or right is not waived simply by talking to the interpreter. Here, in the proposed language of section 6, it says the interpreter cannot inadvertently or otherwise waive the rights of the defendant or witness. The chairman explained the intent of the proposed change is to ensure the interpreter has all the rights and privileges necessary to perform the duties, including the right to examine all relevant material, provided that interpreter may not exercise or waive the rights of the witness or defendant. The chairman asked about a fiscal note on the bill. Senator Titus explained that with the formulation committee all serving as volunteers and the court administrator is not incurring a large amount of additional work, the fiscal impact should be minimal, especially if the certification is expanded only as funds allow. Mr. Doran added he has explored the costs incurred by other jurisdictions with similar programs. He stated these programs are covering their costs through the fees charged to interpreters for certification. In Washington, the court administrator is required to maintain a file of who is certified and who is not, but this file maintenance duty can be passed to someone in the office without increasing the cost, he added. The chairman expressed a desire not to pass "an unfunded mandate." When asked, the vice chair opined the bill does not appear to be an unfunded mandate. Paula Berkley, Lobbyist, Alliance for Latinas in Action and Solidarity, took the floor to remind the committee that Nevada Hispanic Services had volunteered to do the record keeping, and the University of Nevada would provide expertise through the foreign language department to set up the test format and content. These volunteer efforts will reduce the fiscal note, she asserted. Once the program is in place, the courts should not have to do any more than is currently being done regarding interpreters. The only change will be an inquiry into whether or not the interpreter is certified, she noted. The chairman asked if the committee understood the proposed amendments. Senator Adler asked to make one other change, adding "a disclosure to an interpreter during the course of his duties is privileged." Senator James asked if NRS 49.385 does what the senator's proposal is intended to do. He reconsidered, noting it does not create an affirmative privilege. Senator Adler stated the statute is worded in such a way as to allow calling the interpreter as a witness regarding the contents of an interview between the interpreter and the defendant/witness. Senator James noted this change would set forth an affirmative privilege to disclosure to an interpreter during the course of the interpretation. This would include conversation between the two, not simply the counseling of the witness by the interpreter. The chairman summarized the changes to include a change in the proposed amendments outlined on Exhibit C number 6 as discussed above, as well as number 7. As well, there would be a change to have the chief justice select the committee, rather than the court administrator. Senator Porter was slightly confused, asking if the other references in the bill to court administrator would also need to be changed to supreme court. After some discussion, it was decided the only change of that wording would be in section 2, line 3 which addresses the committee selection. The chairman called for a motion to amend and do pass S.B. 329 . SENATOR TITUS MOVED TO AMEND AND DO PASS S.B. 329 AS OUTLINED ABOVE. SENATOR ADLER SECONDED THE MOTION. Senator James asked the drafted amendments be brought to him and Senator Titus to be examined and brought back before the committee for one last review. THE MOTION CARRIED. (SENATOR WASHINGTON WAS ABSENT FOR THE VOTE.) ***** The chairman closed the hearing on S.B. 329. SENATE BILL 358: Authorizes additional persons or entities to establish authenticity of records by affidavit of custodian of records. The hearing on S.B. 358 was opened. The chair questioned the need to add additional exceptions to the requirement that the custodian of records authenticate records. There already exists an exception for hotels, banks, and medical facilities, he told, and the bill proposes adding public utilities, package delivery services, and wire services. There needs to be a "rule of trustworthiness or an across-the-board regulation," Senator James observed, because soon there is likely to arise a need for accounting firms or restaurant companies to have the exception, as well. Senator Adler concurred with Senator James, speculating that "pizza delivery services" will be added to the exception. He suggested the use of a prior notice by one party to the other of their intent to use an affidavit of the custodian of records, similar to expert witness notification in driving under the influence (DUI) cases. At this point, the judge can determine, on a case-by-case basis whether the records are authentic. Senator James asked the attorney general, who requested this bill, to propose an amendment which would supplant this bill and offer a process similar to that proposed by Senator Adler, applicable to all businesses, in the same way. This concluded the hearing on S.B. 358. SENATE BILL 390: Revises provisions regarding arbitration of civil cases. Opening the hearing on S.B. 390, the chair noted this bill is designed to cure a problem with the Uniform Arbitration Act by repealing the trial de novo provision. He explained there has been a subcommitteestantive amendment proposed to the bill which would raise the dollar limit from $25,000 to $50,000. The senator called I.R. (Renny) Ashleman, Committee for Binding Arbitration/Dispute Resolution Committee, to comment on this proposal. Mr. Ashleman testified the sponsors of this bill had been contacted to inquire if they objected to its being used as a vehicle to further modify the "court annexed arbitration" program. There is no opposition to this, he reported. Further, the administrator of the Supreme Court finds the program to be very successful, with most of the cases that are referred settling before going to trial. Mr. Ashleman opined that $25,000 is a small jurisdictional limit "in this day and age," and raising the limit would expand the program to include a greater number of cases. He stated he supports this amendment. The chair asked Mr. Ashleman to explain the arbitration system. The witness explained if the case is "well-pled" and the monetary amount involved is less than $25,000 the case is referred to a panel of arbitrators. This panel, he noted, which is comprised primarily of attorneys, have all had a special course, set up by the Supreme Court, which provides special training in this kind of case. The cases do not deal with broad sweeping points of law, but "straight out...dollar fights," including personal injury, contract disputes, or small consumer cases, Mr. Ashleman stated. The chairman noted the payment for serving as arbitrators amounts to little more than a pro bono situation, with insignificant payment for the service. Mr. Ashleman explained the process which includes several hearings and the writing of an opinion by the arbitrator. This process does alleviate the pressure to the court system brought by such cases. He noted the decisions are not binding, currently, and this allows the parties to move the case to court, if they are willing to chance the possibility of an adverse decision with its concomitant costs. Senator James voiced his desire to move the curative portion of the bill, and asked the committee for their input. He noted there is recourse available if the parties find a gross miscarriage or procedural irregularities. Mr. Ashleman noted the provision that is being reinserted is under the Uniform Arbitration Act, as incorporated in chapter 38 of the NRS. Those sections apply to parties that agree to binding arbitration from the outset, and the appeal would be limited to fraud, and other gross miscarriages of justice. The court-annexed arbitration is fully appealable, he stated. This bill would not impact that at all. He observed the only change to the court-annexed arbitration program is the proposal to change the limit from $25,000 to $50,000. Senator Adler asked if the dollar limit change was really wanted, because the $25,000 limit had been arrived at by a poll of local attorneys, when the bill was heard last session. Mr. Ashleman guessed the $50,000 would be acceptable, based on sentiments he has heard around the Legislature. Senator Titus asked if the Assembly had a bill which would address this proposed change. Mr. Ashleman stated he had heard "some talk," but he had not seen a bill. Senator Titus stated she could support this kind of "tort reform" since it seems to be reasonable while providing options to the litigants. Mr. Ashleman agreed it is a method to induce early settlement where possible. Senator James also agreed this is a sort of tort reform that benefits everyone. He called for further comment. James Jeppson, Chief Insurance Assistant, Insurance Division, Department of Business and Industry, addressed the committee. He voiced the concern of the insurance regulators that the results of arbitration are binding on the parties. The provisions in the insurance code outline when arbitration can be binding and when it cannot, he explained. The insurance code prohibits binding arbitration on any policy for automobile liability or motor vehicle liability, he pointed out. In the section of the code dealing with group health insurance (690B.270) there is a requirement for binding arbitration in disputes concerning independent medical evaluations, which must be conducted pursuant to the rules of the American Arbitration Association. Additionally, the Insurance Division has procedures which prohibit provisions that require binding arbitration in insurance contracts for life and health insurance, Mr. Jeppson told, because insurance contracts are generally unilateral instruments known as contracts of adhesion. These contracts are presented to the consumer without an ability to negotiate the terms, he explained. Thus, the division does not believe the consumer should be required to waive their right to a trial that might result from conflicts over insurance policies they purchase. He observed the division is not opposed to alternative methods of dispute resolution, noting the division requires any auto insurer that files rates in Nevada to provide information on their procedures for training their staff regarding the various laws in the state on alternative dispute resolution. Basically, the insurance code has specific provisions regarding arbitration, Mr. Jeppson reported, noting he is unsure what effect S.B. 390 will have on these provisions. Senator James opined the bill would not affect the insurance code, because it does not impact what provisions might be included in a contract. This bill, he explains, provides that if a party validly agrees to enter binding arbitration, then the provisions of chapter 38 of the NRS apply. The bill does repeal the right to a trial de novo as a matter of right. It does not affect parts of the law that allow contracts to require or prohibit the use of arbitration, he noted. Mr. Ashleman concurred with the chairman's appraisal of the bill's effect. He noted it is "completely neutral" as to whether parties do or do not arbitrate. He explained the bill only tells how to enforce a subcommitteepoena or order of an arbitrator and the conditions under which an agreed upon arbitration might be appealed to the court system. There was no further comment on the bill and the chairman called for a motion. SENATOR LEE MOVED TO AMEND AND DO PASS S.B. 390 INCLUDING THE REMOVAL OF A RIGHT TO A TRIAL DE NOVO AND THE RAISING OF THE DOLLAR LIMIT TO $50,000. SENATOR ADLER SECONDED THE MOTION. Senator Adler asked the record reflect the bill is subcommitteeject to the provisions of the insurance code which describes their arbitration provisions. Senator James agreed adding it is also subcommitteeject to the provisions of the other statutes mentioned. THE MOTION CARRIED. (SENATORS TITUS, PORTER, AND WASHINGTON WERE ABSENT FOR THE VOTE.) ***** SENATE BILL 404: Provides for organization of banks as limited-liability companies. Senator James opened the hearing on S.B. 404. John P. Sande, III, Attorney, Lobbyist, Nevada Bankers Association, explained the proposed amendments to the bill. He noted there was discussion with representatives from the financial institutions division. He referred to Exhibit D which outlines the amendments, noting the first clarifies the intent to limit the limited-liability companies to those doing banking business. Secondly, there is a new section added which amends NRS 661.175 which was inadvertently omitted when the bill was drafted. Finally, there have been several technical changes such as amending NRS 86.141 to allow banking business. Mr. Sande represented these amendments are with the input and blessing of Scott Walshaw, Commissioner, Financial Institutions Division, Department of Business and Industry and Douglas Walther, Deputy Attorney General, Financial Institutions Division, Department of Business and Industry, who support the bill with the amendments. Senator James asked what the bill proposed for NRS 659.125 on page 6 of the bill. Mr. Sande explained this changes "from a corporation or limited-liability company... with the words bank or banking" to "any business entity," which was proposed by the representatives of the Department of Business and Industry. This is cleanup language, he noted, adding, the department wants "to make sure that any type of business entity cannot use bank or banking in its name without complying with the banking laws." The chair called for further questions from the committee. There were none and he called for a motion to amend and do pass the bill. SENATOR ADLER MOVED TO AMEND AND DO PASS S.B. 404. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS TITUS, PORTER, AND WASHINGTON WERE ABSENT FOR THE VOTE.) ***** SENATE BILL 415: Provides additional procedure for entry upon property subcommitteeject to acquisition by eminent domain. The final bill for the work session was S.B. 415. Mr. Sande reminded the committee of the intent of the bill as enabling local governments to go upon property for the purpose of conducting environmental tests, as well as creating a procedure whereby the government could go on the property even if the landowner does not consent. The bill was originally patterned after a California law, Mr. Sande reported. He noted there were several other agencies interested in the outcome of this legislation, particularly the Nevada Department of Transportation, which already operates under the regulations of another statute (NRS 408.493) and hope to avoid any changes to that circumstance. Mr. Sande and Brian R. Hutchins, Chief Deputy Attorney General, Transportation Division, Office of the Attorney General, worked together to amend the bill to change NRS 37 so it provides the same pre-condemnation rights as the transportation department uses. These amendments are outlined in Exhibit E, Mr. Sande explained. Senator James asked Mr. Hutchins to explain which types of condemnation cases NRS 37.050 applies to. Mr. Hutchins reminded the chair the discussion is not really about condemnations, but rather the ability of entities to enter land to inspect and make a determination about the status of the property. He stated the chapter of the statutes applies to state and local governmental entities, except that chapter 408 specifically applies to the Nevada Department of Transportation. The department has not utilized chapter 37 or considered it to apply to them, he noted. Senator James asked if the proposed amendment brought chapter 37 in line with chapter 408. Mr. Hutchins stated the two chapters will be virtually identical with the proposed changes. Mr. Sander noted section 6, lines 20-21 tells to what the provision applies. In chapter 37 the term "person" is used, and "person" does not mean government or a government agency, therefore, it was necessary to include a new definition of "person" for the purposes of the chapter. This definition includes government, governmental agency, or political subcommitteedivision of a government. Section 6 has not been changed with the proposed amendments (Exhibit E), he observed. Senator James asked if the damages provision is different from the original bill. Mr. Hutchins told the new language was taken verbatim from NRS chapter 408, and does make a subcommitteestantive change in chapter 37. He stated the department does not have a preference on that provision, and if the committee prefers the original language can be reinstated. The chair opined the provision is "duplicative" because if there are actual damages sustained by the owner, it would naturally include damages from negligence, wantonness, or malice. The damages are a strict liability issue, and the new provision encompasses everything that is being taken out of the old provision, the senator stated. The consensus was to go ahead with the proposed new language. Senator Adler questioned Mr. Hutchins as to whether the department has experienced any problems with the procedure, any lawsuits. Mr. Hutchins replied there have been no problems. Senator Adler concluded the process must work, and Mr. Hutchins agreed it works for the Nevada Department of Transportation. Mr. Hutchins stated the department rarely even has to go to court to get the permission of the landowner to enter. Senator James called for a motion to amend and do pass S.B. 415 as outlined on Exhibit E. SENATOR ADLER MOVED TO AMEND AND DO PASS S.B. 415. SENATOR LEE SECONDED THE MOTION. Senator Washington asked for a slight clarification of the proposed amendment. The chairman explained it for him. THE MOTION CARRIED. (SENATORS PORTER AND TITUS WERE ABSENT FOR THE VOTE.) ***** Senator James reminded the committee the rules of the Senator Committee on Judiciary call for a deadline for committee introduction of bills as May 15, 1995. This rule will apply absent exigent circumstances, he stated. There was no further business before the committee and the hearing was adjourned at 4:45 p.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary May 8, 1995 Page