The Committee on Judiciary was called to order at 8:10 a.m., on Tuesday, April 20, 1999. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Mr. Bernie Anderson, Chairman

Mr. Mark Manendo, Vice Chairman

Ms. Sharron Angle

Mr. Greg Brower

Ms. Barbara Buckley

Mr. Jerry Claborn

Mr. Tom Collins

Mr. Don Gustavson

Mrs. Ellen Koivisto

Ms. Sheila Leslie

Ms. Kathy McClain

Mr. Dennis Nolan

Ms. Genie Ohrenschall

COMMITTEE MEMBERS ABSENT:

Mr. John Carpenter

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Frankie Sue Del Papa, Attorney General, State of Nevada Attorney General’s Office

Following roll call, Chairman Anderson opened the hearing on S.B. 359.

Ed Gobel, president, Council of Nevada Veterans Organization, said S.B. 359 addressed the change in chapter 159 of the Nevada Revised Statutes with regard to temporary guardianship. The statute stated any petitioner for temporary guardianship could swear under oath that someone faced substantial and immediate risk of financial loss or physical harm or needed immediate medical attention and lacked the capacity to respond to those risks.

Mr. Gobel pointed out current law allowed everyday citizens to testify they believed someone had a medical condition. Doctor’s notes were required for school and time off work, but in a case where it was possible for a person to lose their assets and their freedom, a note from a doctor or a psychologist was not required.

S.B. 359 would require the petitioner to present a certificate signed by a physician or psychologist licensed to practice in Nevada which stated a proposed ward was unable to respond to a substantial immediate risk of physical harm or an immediate need for medical attention. S.B. 359 would close a loophole in the guardianship law which at present could be abused by almost anyone.

Chairman Anderson commented in the past there was a certain reliance on the discretion of the judge hearing the case to make an informed decision regarding such actions.

Mr. Gobel agreed one would hope judges would exercise proper discretion in such matters. Laws, however, should not be based on hope. He felt the courts could appreciate S.B. 359.

Ray Kelsey, representative, Air Force Sergeants Association, spoke in support of S.B. 359. Mr. Kelsey told the committee veterans were also citizens and when inequities such as those addressed in S.B. 359 were found, the association tried to correct them. He said an elderly family in Las Vegas had been declared incompetent by a granddaughter. The elderly people had to hire legal counsel to fight the charge brought by their own family member, which was a very traumatic experience for them emotionally as well as financially.

Assemblywoman Buckley said she did not disagree with the concept behind S.B. 359. She wondered if someone lacked the capacity to respond to harm and guardianship was appropriate, how the people could be protected if that guardianship was not issued.

Mr. Gobel replied an amendment (Exhibit C) stated a doctor’s certificate would not be required under certain circumstances, such as if a protective services worker or public guardian attested the proposed ward had refused to be seen by a doctor or psychologist.

Assemblywoman Buckley asked how a situation could be handled if a family with a problem member did not want to involve the government. Mr. Gobel responded the intent was not government intervention but rather protection for its citizens.

Betsy Kolkoski, elder rights attorney, Nevada Department of Human Resources, Division for Aging Services, testified in support of S.B. 359. Ms. Kolkoski told the committee elder abuse was a serious problem in Nevada. As people aged, they became vulnerable to predatory practices of others. Requiring a physician’s or psychologist’s certificate, however, would hinder the protective service workers, particularly in rural areas and with public guardians. Ms. Kolkoski said she was in support of S.B. 359 subject to the approval of the proposed amendment.

Chairman Anderson asked if Ms. Kolkoski was aware of any instances where people had been placed in such situations and had to go to great extent to get out of them. He asked if so, were the occurrences common. Ms. Kolkoski said such a thing had happened once in the 6 years of her experience, but that was a devastating situation.

Assemblywoman Buckley said she understood there was a process in the courts which included a 10-day temporary guardianship followed by a permanent petition. Ms. Kolkoski said while she did not practice in a courtroom setting, she was aware of the steps. S.B. 359 would accelerate those steps toward permanent guardianship. She knew in rural areas it was difficult to get a physician to assist in an emergency. A lot of cases involved self-neglect where people at risk of harm, either from themselves or others, did not understand the situation. S.B. 359 would allow a private individual to seek assistance from a public guardian or protective service worker. The answer addressed in the bill was perhaps not ideal, but it was functional.

Assemblywoman Buckley commented when assistance was sought from a court, such as a temporary restraining order, evidence of need must be presented. If a doctor’s certificate could not be obtained, was other evidence required. Ms. Kolkoski deferred the question to other speakers who were better informed.

Judge William Voy, district court judge, Eighth Judicial District, testified next on S.B. 359. Judge Voy said he was guardianship judge for Clark County. He commented while he did not see frequent abuse of the system, there was room for it to happen. A petition for temporary guardianship did not require medical documentation, which made it rather uncomfortable for a judge to sign those petitions. He felt a requirement for such documentation was a good idea. Originally he had concerns with S.B. 359 as written, but the proposed amendment (Exhibit C) helped. He suggested a change to some of the wording of that amendment. The word change would allow flexibility so a petition would not have to be brought by a public guardian or protective service worker, especially since some counties did not have a public guardian. Judge Voy said the change would certainly increase his comfort level with petitions.

Chairman Anderson said he understood temporary guardianships took place because people needed immediate help, and petitioners could not find a physician or guardian, and judges were accessible. A judge would then hear the petition and award guardianship on a temporary basis. For the guardianship to become permanent, a doctor’s certificate would then be required. He wondered what effect S.B. 359 would have on guardianships.

Judge Voy said the bill would at least ensure an opinion from a professional as to substantial risk to a person. He stated as a judge he would not have proposed the bill to begin with, but since S.B. 359 had been advanced and supported, the proposed amendment would provide some flexibility.

Assemblywoman Buckley asked if there was any guidance currently in statute with regard to standards utilized for granting temporary guardianships. Judge Voy responded he was going to propose a good cause statement, but the amendment addressed the issue in a workable fashion, at least for Clark County.

Judy Johnston, public guardian, Clark County, spoke in opposition to S.B. 359. Reading from a prepared statement (Exhibit D), Ms. Johnston said the language in section 2, subsections 2 and 3, was contradictory. The proposed language required a medical certificate for physical needs but did not require proof of financial dangers. Since both physical harm and financial loss were listed together throughout Nevada Revised Statute 150.052, there was confusion as to when a medical certificate would be required.

Ms. Johnston said regardless of the language, S.B. 359 defeated the purpose of obtaining temporary guardianships, which were filed to authorize medical care for those who could not help themselves or who were under the influence of others who denied them care.

Ms. Johnston told the committee her office had filed about 250 temporary guardianships over the past 5 years, and in each case minutes and hours counted in protecting the person involved. S.B. 359 would make those guardianships difficult to institute. A family member would have little chance of getting the person in need away from someone intent on harm in order to get the required certificates. Public guardians did not have resources to get involved when there were responsible family members who could handle the problem.

May Shelton, director, Washoe County Social Services, spoke next regarding S.B. 359. Ms. Shelton said with the passage of A.B. 158, which incorporated the Adoptions and Safe Families Act, she felt there would be more guardianships applied for by relatives. She was confused as to how S.B. 359 would affect Child Protective Services. She would rely on legal counsel that drafted the amendment and would go forward with the bill to see what those effects were. She said the department would return in the next session if there were problems. Ms. Shelton hoped there would be no problems.

Madelyn Shipman, assistant district attorney, Washoe County District Attorney’s Office, said she had received calls from the public guardian’s office and others who expressed concern with S.B. 359, but she felt the amendment would allow needed flexibility in the bill. Ms. Shipman felt there were sufficient ways to get voluntary guardianships without going through the processes delineated in Nevada Revised Statute 159, since otherwise there could be a cost to the county to obtain doctor’s certificates.

Chairman Anderson asked if there might be a third interested group such as law enforcement that might wish to be added to the bill. Ms. Shipman replied law enforcement already had an option in statute for immediate pick up and holding of someone in immediate danger. Normally there would be contact with relatives or the public guardian in those cases. She did not think officers on the street would be the ones seeking temporary guardianship.

Henry Cavallera, private citizen, opposed S.B. 359. Mr. Cavallera said he practiced law in the area of senior legal issues. He had implemented guardianships to protect elders from abuse. He presented exhibits furnished by two other speakers in opposition to the bill (Exhibit E). That exhibit involved the case of the father of the women who would testify shortly. That case was one of financial exploitation. Mr. Cavallera explained a young lady had attempted to exploit the father and had influenced him to give her over $15,000 in a period of a few months. The gentleman had residual damage from a stroke, his wife had passed away in the prior 10 months, he was depressed, and many changes were happening to his life. The daughters feared the lady would influence their father to change his accounts with his broker, which amounted to over $750,000. Because of the father’s lack of cooperation, it was not possible to get a doctor’s certificate. Protective services would not intervene. Mr. Cavallera was concerned as to how he could get a guardianship petition into court without a certificate. After obtaining statements from the daughters, Mr. Cavallera presented the case to the courts. By that time the young lady had been persuaded to return about $5,000 of the money she took.

There was nothing in the request Mr. Cavallera filed which gave the daughters access to their father’s estate. They did not want to touch his checking account. Mr. Cavallera asked only for the ability to freeze the accounts and the authority to set up a consultation with a psychologist.

Mr. Cavallera told the committee about a similar case in Washoe Valley in which a woman had a history of not caring for herself physically. Her son asked a geriatric care manager to check on her, and she was found with many open sores on her body. The geriatric care manager, who was also a nurse, was very concerned about the woman’s condition. She referred the son to Mr. Cavallera who obtained a report from the geriatric care manager and a statement from the son that his mother refused medical care. The problem was the son did not want to force his mother into getting care, but there was the possibility he would later be accused of abusing her by not getting her proper care. Again, there was no access to a doctor, but fortunately the judge ordered intervention.

Mr. Cavallera opposed the proposed amendment because it limited the ability of the family to assist their loved ones.

At that time, Chairman Anderson left the committee to testify in another committee, and left the committee in the hands of his Vice-Chair Assemblyman Manendo.

Mr. Cavallera continued he felt S.B. 359 was inherently unfair, and thought families should first be relied upon to assist their own before governmental intervention was appropriate.

Assemblyman Brower asked if Mr. Cavallera believed current law should not be changed or if he just disagreed with the amendment to S.B. 359. Mr. Cavallera responded Nevada Revised Statute 159 already limited power of petitioners and set forth the requirement for documentation and evidence for temporary guardianship cases. He felt neither the bill nor the amendment would work.

Vice-chair Manendo closed the hearing on S.B. 359 and opened the hearing on S.B. 326.

William Henry, senior litigation counsel, city of Las Vegas, testified in support of S.B. 326. Mr. Henry said at present no city or county in Nevada had the power to prevent sexually oriented businesses from opening their doors wherever they pleased, including residential neighborhoods. In September 1998, the Ninth Circuit Court of Appeals considered a situation in Las Vegas where a business applied for a license to operate a bookstore in a neighborhood zoned c-2. The neighborhood contained a retirement home, a theatre, a church, a library, and private homes. The city of Las Vegas suspected the licensee might intend to operate a sexually oriented business so a temporary license was issued. After the license was issued, an audit was conducted which determined the business was indeed sexually oriented, and the petitioners were denied a permanent license. The business owners then sued in federal court claiming, among other things, a violation of the first amendment because it was a prior restraint on their symbolic speech because they were a sexually oriented business. The case was lost in federal district court and appealed to the Ninth Circuit Court of Appeals, where the case was won on a vary narrow issue. The Ninth Circuit held that requiring a first amendment business to be licensed was a prior restraint which could only be permitted if there was prompt and certain judicial review. That meant if the parties asked for a license and were refused, the matter could be taken to court and the court must rule promptly. The Ninth Circuit Court of Appeals noted chapter 34 of the Nevada Revised Statutes merely provided that when there was a petition for judicial review the court might consider it and need not render an opinion within any certain period of time. Because of that, the Ninth Circuit held the statutory scheme in Nevada was unconstitutional. S.B. 326 would cure that defect by requiring that in instances of petitions for judicial review alleging a prior restraint of the first amendment, district judges must rule and must do so within 30 days.

Mr. Henry said he believed if S.B. 326 passed, it would cure the defect and restore to the cities and counties of Nevada the power it was thought to have to regulate the placement of sexually oriented businesses.

Assemblywoman Buckley supported the concept of S.B. 326. She asked why an ordinance could not be drafted to set up an appeal procedure which would be quick and certain instead of changing chapter 34 of the Nevada Revised Statutes. Mr. Henry responded the Ninth Circuit, referring to opinions of the United States Supreme Court, noted that for prior restraints to be tolerated by law they must provide for judicial review. Chapter 34 of the Nevada Revised Statutes and Nevada case law emanating from the Nevada Supreme Court provided that the means of reviewing administrative decisions was by petition of writ of mandamus to the district court. The city of Las Vegas was not in a position to enact ordinances which told district court judges to do anything. The decision of the Ninth Circuit stated a permanent injunction should be issued against the city, preventing the city from utilizing its business license code to prevent the establishment of such businesses so long as the applicable bookstore licensing and zoning ordinances failed to provide for a prompt hearing and prompt decision by a judicial officer. Mr. Henry had pointed out to the court the legal scheme in Nevada was such that the cities did not have the authority to enact ordinances to instruct judges, that was the province of the legislature. However, he supposed he did not make the point with sufficient weight to sway the court.

Assemblywoman Buckley asked if there was any other kind of lawsuit to which S.B. 326 would apply except the type of case he had just described. Mr. Henry replied the law would apply to any situation where the petitioner sought a writ of mandamus based on the argument of an unconstitutional prior restraint under the first amendment. Typically, the concept of writs of mandamus was they applied only when there was a clearly established duty on the part of a government actor to do or to forebear from doing a certain thing and he or she refused to do so.

Assemblyman Brower asked for an explanation of why Nevada law regarding a writ procedure applied in a federal case. Mr. Henry said the federal court looked to Nevada procedure for judicial review of administrative denials of licensing in first amendment matters. Nevada, by statute and case law, had chosen to provide for judicial review of administrative denials by means of a writ. If some other procedural means had been provided, as long as that procedure did not require a judge to rule and to rule promptly within a set period of time, the court would have found the same.

Mr. Henry said if the committee passed S.B. 326, he would ask for an amendment to make the law effective immediately. When the Ninth Circuit decision was rendered, he went to the Eighth Judicial District Court and asked that rules be amended to impose a requirement to rule within 30 days on themselves. The Supreme Court recently entered that order provisionally. Reading the decision of the Ninth Circuit, Mr. Henry was not sure that action was sufficient. He thought only an amendment to chapter 34 of the Nevada Revised Statutes would comply with the court’s dictates. Even if the action of the Supreme Court proved sufficient, it would only help in Clark County, and would leave the rest of Nevada unable to deal with the problem on the local level.

Ben Graham, representative, Nevada District Attorneys Association spoke in support of S.B. 326. Mr. Graham said in bringing S.B. 326 to the committee, the city of Las Vegas asked for procedures to be put into place that were not necessarily substantive but would ensure prompt judicial review which would meet constitutional muster. Mr. Graham urged the committee to pass S.B. 326.

Chairman Anderson returned to the committee at that point. Vice-Chair Manendo asked for a motion on the bill.

ASSEMBLYMAN ANDERSON MOVED AMEND AND DO PASS AS AMENDED S.B. 326.

SECONDED BY ASSEMBLYWOMAN KOIVISTO.

MOTION CARRIED UNANIMOUSLY.

Chairman Anderson closed the hearing on S.B. 326 and opened the hearing on S.B. 361.

Frankie Sue Del Papa, attorney general, State of Nevada Attorney General’s Office, asked the committee to consider S.B. 361, which addressed Nevada’s habeas corpus statutes (Exhibit F). Habeas corpus was used to challenge a conviction or sentence, or the computation of time served, and so forth. S.B. 361 had passed in the Senate and was amended to remove the controversial provision that specified that ineffectual counsel would not be sufficient argument for the failure to raise a claim. The changes in sections 1 through 4 of the bill simply clarified existing statutes concerning the timeframes and other procedures for responding to habeas petitions. Section 1 provided a response to a petition must be filed within 45 days. Section 4 clarified that the court considering the habeas petition must order the district attorney rather than the attorney general to respond in cases in which the petitioner challenged a conviction or sentence in any case originally prosecuted by the district attorney. The court would only order the attorney general to respond where the attorney general was the original prosecutor or where the prisoner was only challenging whether time credits were properly calculated. Those clarifications would help avoid delays or confusion in habeas proceedings.

Attorney General Del Papa said section 5 of S.B. 361 would allow the forfeiture of good-time credits to be made by the director of the Nevada Department of Prisons where a state court had concluded that a prisoner had abused the legal system by filing abusive or unsubstantiated claims in a habeas court. Although it was believed such was already permitted in Nevada Revised Statute 209.451, the Nevada Supreme Court had held that statute allowing forfeiture did not include civil habeas cases within the meaning of civil cases. Prisoners sometimes filed as many if not more frivolous cases and documents in habeas cases as they did in traditional civil cases.

Attorney General Del Papa assured the committee it was not her desire to deter prisoners from seeking legal relief as to their convictions or sentences. The state needed protection from frivolous litigation in cases of habeas corpus as in any other type of case.

Section 6, continued Attorney General Del Papa, would apply the law to post-conviction habeas cases begun on or after October 1, 1999. That would allow adequate time for the judicial system to become familiar with changes in the bill.

Chairman Anderson asked if S.B. 361 limited the number of writs a person could file. Attorney General Del Papa responded the bill was more in terms of a clarification of existing law.

Robert Wieland, senior deputy attorney general, Nevada Attorney General’s Office, supported passage of S.B. 361 and echoed the statements of Attorney General Del Papa.

Chairman Anderson asked how the bill would speed up the operations of the Attorney General’s Office. Mr. Wieland said the provision in section 4 which determined who was to respond would greatly facilitate that process. Also helpful was the clarification of habeas in a civil action. The previous week a deputy attorney general in the special prosecutions unit had dealt with a resolution from a claim where the petitioner asserted that her counsel was ineffective by his conduct in 1994 for failing to deal with a statute passed in 1996.

Chairman Anderson asked if S.B. 361 would tie the hands of a judge in terms of his practice. Attorney General Del Papa explained the legislation was a clarification. Since she had been Attorney General she had tried to bring habeas corpus reform by placing limits on time or the number of appeals. In the case of S.B. 361, there was an attempt at clarification and additional balance to the process.

Mr. Graham stated he supported the passage of S.B. 361.

Chairman Anderson closed the hearing on S.B. 361 and asked for a motion on the bill.

ASSEMBLYMAN MANENDO MOVED TO DO PASS S.B. 361.

ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.

THE MOTION PASSED UNANIMOUSLY.

Chairman Anderson asked for a motion to place S.B. 361 on the Consent Calendar.

ASSEMBLYWOMAN OHRENSCHALL MOVED TO PLACE S.B. 361 ON THE CONSENT CALENDAR.

ASSEMBLYMAN MANENDO SECONDED THE MOTION.

MOTION CARRIED UNANIMOUSLY.

There being no further business before the committee, Chairman Anderson adjourned the meeting at 11:12 a.m.

RESPECTFULLY SUBMITTED:

Lois McDonald,

Transcription Secretary

______________________________

Chris Casey,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

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