MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session May 22, 1995 The Senate Committee on Judiciary was called to order by Vice Chairman Jon C. Porter, at 9:40 a.m., on Monday, May 22, 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 Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O.C. Lee COMMITTEE MEMBERS ABSENT: Senator Mark A. James, Chairman (Excused) STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Marilyn Hofmann, Committee Secretary OTHERS PRESENT: Anne B. Cathcart, Senior Deputy Attorney General, Litigation Division, Office of the Attorney General George Weeks, Assistant Director, Department of Prisons Louis Ling, Deputy Attorney General, Office of the Attorney General Howard L. Skolnik, Assistant Director, Industrial Programs, Department of Prisons Senator Porter opened the hearing on Senate Bill (S.B.) 454. SENATE BILL 454: Requires prisoners and former prisoners to exhaust administrative remedies before pursuing tort action against department of prisons. The first person to testify was Anne B. Cathcart, Senior Deputy Attorney General, Litigation Division, Office of the Attorney General. Ms. Cathcart presented a letter to the committee, a copy of which is attached as Exhibit C. She then introduced George Weeks, Assistant Director, Department of Prisons. Ms. Cathcart indicated Exhibit C explains what the legislation would intend to accomplish. She indicated she wished to clarify that the bill did not refer to "constitutional claims...or constitutional litigation, but rather state actions." Mr. Weeks explained inmates often file grievances with the department while at the same time filing an action with the court, in addition to writing to the Governor's Office. He stated the inmates would do this before the department has had a chance to attempt to resolve their grievance. Mr. Weeks said this creates an administrative burden on the department, because they must now respond to the Governor and utilize attorneys for the court action. He said S.B. 454 would cause the inmates to go through the administrative procedures first. Senator Lee asked why this type of legislation has not been addressed prior to this time. Mr. Weeks said the process is set out for inmate property claims, and this legislation would add the areas of property damage and personal injuries. Senator Washington asked how the grievances were handled administratively. Mr. Weeks said an inmate files a grievance, in addition to a personal property claim. He stated if the claim is less than $500, it is handled within the prison system. Mr. Weeks indicated there were three levels in the grievance procedure, and if at any level it is determined that the loss was the fault of the prison system, they execute payment. He stated if the claim is more than $500 the grievance must go to the State Board of Examiners for approval. There was no further testimony on the bill, and Senator Porter closed the hearing on S.B. 454. He then opened the hearing on Assembly Bill (A.B.) 40. ASSEMBLY BILL 40: Revises provisions that prohibit employers from taking certain adverse actions against employees who serve as witnesses. Appearing to speak on the bill was Louis Ling, Deputy Attorney General, Office of the Attorney General. Mr. Ling stated he presently represents the labor commissioner as well as the pharmacy board. He said the bill was a simple one, which extends the same protection which already exists for witnesses who testify in court proceedings to witnesses compelled to testify in administrative proceedings. Mr. Ling said in his job as counsel to the labor commissioner, he was having difficulty getting employees to testify in cases of "employee versus employer," without offering some form of protection regarding their jobs. Senator Washington asked if passage of the bill would encourage employees to testify against their employers, or would those employees still be concerned about peer pressure from their fellow workers. Mr. Ling answered, "This is a good first step." He indicated the bill would protect an employee from termination or threats of termination. Senator Washington asked what would keep an employer from retaliating against the employee, even if he could not fire that employee. Mr. Ling answered A.B. 40 "...would not reach that far." He indicated language addressing that situation was removed by amendment in the Assembly. Mr. Ling stated the Assembly apparently felt they might be creating a new cause of action for employees against employers. There was no further testimony on the bill. Senator Porter closed the hearing on A.B. 40 and opened the hearing on A.B. 106. ASSEMBLY BILL 106: Provides for forfeiture of good-time credit on account of frivolous civil action. Appearing again before the committee was Anne B. Cathcart, together with Howard L. Skolnik, Assistant Director, Industrial Programs, Department of Prisons. Ms. Cathcart stated the bill was introduced at the request of prison industries. She said at the time of hearing by the Assembly committee on the original bill, there were some questions regarding the standard which was set forth for determining whether or not an action was frivolous. Ms. Cathcart indicated the committee felt it was best to track the language of Nevada Civil Rule 11, which is the court's standard for determining whether or not an action has been taken in good faith, or was frivolous. She said the second reprint of A.B. 106 reflects the Assembly committee's adoption of that court standard. Ms. Cathcart stated there was a mechanism within the department for the removal of good-time credits, which are not granted as a constitutional right. She said the Legislature can impose restrictions and limitations on the application of good-time credits, for instance, when an inmate has been perceived to have violated a provision of the department's Code of Penal Discipline. Ms. Cathcart said if the disciplinary committee determines that the inmate has filed a frivolous action, after notice and hearing, the committee has the option of imposing certain discipline. She said they would ask that the Legislature provide an option for the Director of the Department of Prisons to remove good-time credits. Ms. Cathcart indicated the hope is this will take away the incentive to file frivolous actions. She said the single most important thing to inmates is the good-time credit, "...because that means inmates get out earlier." Mr. Skolnik stated the legislation was requested to attempt to "control our frequent filers." He said approximately 5 percent of administrative time in the department is spent on lawsuits, "...many of them frivolous." Mr. Skolnik mentioned some examples of frivolous suits: peanut butter being crunchy instead of smooth; the 9:30 p.m. count disrupted the sleep patterns of an inmate, causing him severe distress; the department has provided an inmate with jeans which are too tight, inducing epileptic seizures. He stated at the Ely prison, three inmates, two of whom had been terminated for cause from prison industries, and one who had resigned from the shop, file a lawsuit against the private company which carried the contract for marketing. Mr. Skolnik said the inmates drafted a lawsuit, obtained a list of all the company's customers, and sent copies of the lawsuit to all the customers. He said that resulted in a sudden and total loss of business by the company and the prison. Mr. Skolnik stated the company has incurred over $7,000 in legal fees. He said the department has never recovered from the effects of the lawsuit, and has no recourse of action against the inmates filing the action. Senator Lee asked what types of situations occurred in a prison which would result in an inmate's losing good-time credits. Ms. Cathcart stated within the Code of Penal Discipline, there are set forth different types of violations. She said the major violations were the most serious, and consisted of acts such as arson and murder. Senator Lee asked if the department was requesting to add the matter of filing frivolous suits to that Code of Penal Discipline, and Ms. Cathcart answered that was correct. Ms. Cathcart said unless a person is involved in the litigation process, it is difficult to comprehend the financial cost and impact on the state of the lawsuits filed by inmates. She stated it entails the work of six full-time persons in the Office of the Attorney General, together with the work done by prison staff. Ms. Cathcart said the ability to hire and keep good personnel is affected by their having to deal with litigation of this type. Senator Titus asked how a ruling would be made that a case was frivolous. Ms. Cathcart stated the Office of the Attorney General can make a motion, asking the court to make a finding that an action has been taken frivolously, or the court on its own motion can make that finding. She indicated the federal court has been very reluctant in Nevada to impose sanctions on inmates. Ms. Cathcart said the federal court would prefer to make a finding that a suit is frivolous and should result in sanctions, and then let her office forward the matter to the department for imposition of sanctions. She also said the courts have determined the department is in the best position to determine what sanctions would be most effective to an individual inmate. In response to a question posed by Senator Titus, Allison Combs, Senior Research Analyst, stated under the truth-in-sentencing legislation, good-time credits could only be deducted from the maximum sentence, and do not affect the minimum time, which must be served. Senator Porter asked what would happen to an individual outside the prison system who filed a frivolous lawsuit. Ms. Cathcart answered a court could either impose monetary sanctions or dismiss the case. Senator Adler confirmed if a private individual filed such a suit, that individual would face heavy monetary sanctions, including payment of attorney fees and costs to the defendant. He added, "You would never see an attorney file this stuff." Ms. Cathcart stated the inmates file with "indigent status," so monetary sanctions would never deter an inmate. Senator Porter asked if there were specifics in determining what constituted a frivolous lawsuit. Senator Adler answered one of the factors was that there was "no real damage," and another was bringing a suit on a legal point which had already been settled by the court. Ms. Cathcart stated A.B. 106 reflected language used by the court at this time for the determination of what is a frivolous suit. Senator Lee pointed out a bill was passed recently from the committee which related to frivolous suits in the private sector, and asked what the relationship was between that and A.B. 106. Senator Adler responded the provisions were very similar. Senator Adler asked if inmates who were in prison with a life without possibility of parole sentence would be at all affected by passage of the legislation, and Ms. Cathcart answered they probably would not, because good-time credits would not apply to them in most cases. There was no further business to come before the committee, and Senator Porter adjourned the hearing. RESPECTFULLY SUBMITTED: Marilyn Hofmann, Committee Secretary APPROVED BY: Senator Jon C. Porter, Vice Chairman DATE: Senate Committee on Judiciary May 22, 1995 Page