MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
February 13, 2003
The Committee on Judiciarywas called to order at 8:00 a.m., on Thursday, February 13, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, 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. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Nancy Elder, Committee Secretary
OTHERS PRESENT:
John Arrascada, Nevada Trial Lawyers Association (NTLA), Las Vegas, Nevada
Daniel Ebihara, Staff Attorney, Clark County Legal Services, Las Vegas Nevada
Brenda J. Erdoes, Legislative Counsel, Legislative Counsel Bureau, State of Nevada, Carson City, Nevada
Jeff Parker, Solicitor General, Attorney General’s Office, State of Nevada, Carson City, Nevada
Ernie Adler, Attorney, Washoe County, Reno, Nevada
Michael Pagni, Attorney, McDonald-Carano-Wilson, Reno, Nevada
Scott Craigie, Nevada State Medical Association, Carson City, Nevada
Chairman Anderson opened the meeting by announcing that one of the members of the Committee had approached him about introducing BDR 3-901, which changed provisions governing withholding of income that was ordered to enforce child support payments. Mr. Anderson explained that the introduction of BDR 3-901 would merely change its status from a personal piece of legislation to a Committee introduction. It would not count against the total amount of bill draft requests (BDRs) the Committee was entitled to introduce in and of its own volition. It was a matter of courtesy.
ASSEMBLYMAN GUSTAVSON MOVED FOR COMMITTEE INTRODUCTION OF BDR 3-901.
ASSEMBLYMAN HORNE SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY
Chairman Anderson read the summaries of eight other BDRs.
Mr. Gustavson asked if BDR 43-545 was the “0.08” BDR that had already been introduced. Chairman Anderson clarified that it was similar to A.B. 7, which was Assemblyman Manendo’s bill. Chairman Anderson reminded the Committee that the BDRs, which were just read, did not count towards the limit the Committee was allowed to introduce, since they were requested from various agencies of the state.
ASSEMBLYMAN CONKLIN MOVED FOR COMMITTEE INTRODUCTION OF BDR 14-279, BDR 15-285, BDR 16-501, BDR 16-550, BDR 43-545, BDR 16-445, BDR 43-606, AND BDR 14-532.
THE MOTION WAS SECONDED BY ASSEMBLYMAN SHERER.
Chairman Anderson called on Mr. Carpenter, and Mr. Carpenter said that he wanted to vote against BDR 43-545 from the Nevada Department of Transportation.
THE MOTION WAS WITHDRAWN.
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CHAIRMAN ANDERSON RECONSIDERED THE CONKLIN-SHERER MOTION FOR COMMITTEE INTRODUCTION OF BDR 14-279, BDR 15-285, BDR 16-501, BDR 16-550, BDR 16-445, BDR 43-606, AND BDR 14-532.
THE MOTION CARRIED.
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ASSEMBLYMAN CONKLIN MOVED FOR COMMITTEE INTRODUCTION OF BDR 43-545.
SECONDED BY ASSEMBLYMAN SHERER.
THE MOTION CARRIED. (Mr. Carpenter voted no.)
Assembly Bill 38: Ratifies technical corrections made to NRS and Statutes of Nevada. (BDR S-1027)
Chairman Anderson opened the hearing on A.B. 38. He called on Risa B. Lang, Committee Counsel, for a presentation to explain the bill.
Ms. Lang said the ratification bill, A.B. 38, was a bill that was introduced at the request of the Legislative Counsel Bureau (LCB) each session. After each legislative session, the Legal Division of the LCB codified all of the bills that had been passed during session. They published the newly codified laws in the Nevada Revised Statutes (NRS). During the process, the LCB would become aware of any technical corrections that would be necessary to make the statutes functional during the interim. The corrections would generally fall into one of two categories: non-substantive conflicts that had not been made during the legislative session; and corrections to inadvertent errors, such as incorrect or missed internal references. Ms. Lang explained the non-substantive conflicts would generally be a result of the Legislature requesting the legislative counsels to stop resolving the conflicts toward the end of session when time would become critical for the Legislature. The LCB would agree to stop creating conflicts amendments so that the legislative process would not be slowed down for this purpose, but rather would resolve such conflicts during codification. Because the LCB did not have specific statutory authority to have made the technical corrections during the codification process, the ratification bill, A.B. 38 was drafted so the Legislature would be able to approve all of the technical corrections that were made during the codification of the laws. Ms. Lang stated this BDR was a compilation of all the technical corrections.
Chairman Anderson asked for questions and noted that A.B. 38 consisted of 425 pages of legislation. He closed the hearing on A.B. 38 and opened the hearing on A.B. 39.
Assembly Bill 39: Directs Legislative Counsel to resolve non-substantive conflicts between legislative acts and to give effect to multiple amendments to sections of Nevada Revised Statutes. (BDR 17-1023)
Chairman Anderson called on Brenda Erdoes, Legislative Counsel, Legislative Counsel Bureau, State of Nevada.
Ms. Erdoes stated that A.B. 39 would amend two Sections of Chapter 220 of the NRS. It was a fairly obscure chapter that had rarely been amended. It dealt mostly with bill drafting and the codification of NRS. The two changes that were proposed were to NRS Section 220.120, and to NRS Section 220.170. She said A.B. 39 had come about as something the director of the LCB had asked the Legislative Counsel to do. This was a result of the numerous difficulties of ending the last session of the Legislature. She informed the Committee that the LCB director had asked the counsel to go back and look at all the processes that had been used to do their jobs, to assure that their time had been spent in the most constructive manner possible. She said after they had done this, they realized they could improve in the way they had handled conflicts during the session. She said they were proposing two new amendments.
Ms. Erdoes addressed the first amendment, Section 1, or NRS 220.120, which said, “the legislative counsel shall resolve all non-substantive conflicts between multiple laws enacted in any legislative session, as if made by a single enactment.” She noted that in the past, they had stacked every amendment that had been made to the same section of the NRS. She said it had been a difficult technical job, which had included a second-by-second timetable. They had been doing it the same way since the 1950s because they had been told it was required by the Constitution of the State of Nevada. The legal counsel had done some research and learned the traditional method of dealing with amendments was not actually required by the Constitution of the State of Nevada. She said that since technical advances had been made, and bills could be tracked through the aid of computers, it was no longer necessary for sections of the NRS to be tracked one at a time. They could all be tracked at the same time. She added that they could only take advantage of these time-saving measures if A.B. 39 were passed.
Ms. Erdoes explained the second amendment, Section 2, or NRS 220.170, which regarded the official codified version of the NRS and read that someone could rebut any differences in the NRS from the Statutes of Nevada by showing the Statutes of Nevada section. This amendment stated that one could not use evidence of rebuttal if the change or difference was simply a technical change made by the legislative counsel pursuant to subsection 8, which was being added.
Ms. Erdoes noted that three other states had the same constitutional provisions as Nevada, and had implemented the same changes for a number of years, and that many other states had used this method without constitutional provisions.
Chairman Anderson pointed out that it was always difficult to move from comfort zones and tradition to modern reality. He asked the rhetorical question, “Why are you doing this?” He answered, “Because that is the way it has always been done.” He claimed he was still concerned about the substantive questions. He wondered how the conflict resolutions would be handled. He asked if it would be in a major piece of legislation, or if the conflicts would be sent back to the committees that had initially dealt with them.
Ms. Erdoes replied the intent of the plan was to catch the conflict with a bill before it was sent to the Floor. She said there would be no way to alleviate the conflict system. There would still be an attorney who would sit, day after day, comparing bills to make sure that two bills would not do the same thing, or would not conflict with one another.
Chairman Anderson informed everyone in the room that while many legislators had never seen conflict notices, the chairmen, the front desk personnel, and the leadership had seen countless conflict notices, and they had not been allowed to proceed on the Floor until the conflicts had been resolved. He said that thanks to advancements in computer technology, the proposed system would eliminate a great many problems and would allow everything to run smoother. There were no questions from the Committee, so the Chair closed the hearing on A.B. 39.
ASSEMBLYWOMAN OHRENSCHALL MOVED TO DO PASS A.B. 38.
ASSEMBLYMAN BROWN SECONDED THE MOTION
THE MOTION CARRIED.
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ASSEMBLYMAN BROWN MOVED TO DO PASS A.B. 39.
ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION
THE MOTION CARRIED.
Chairman Anderson asked Mr. Horne to present the Floor statement on A.B. 38,and Mr. Geddes to present the Floor statement on A.B. 39.
Chairman Anderson opened the hearing on A.B. 40 and asked Mr. Oceguera to introduce the bill.
Assemblyman Oceguera announced he represented Assembly District No. 16 in Clark County. He said he was grateful for the opportunity to introduce A.B. 40 to the Committee. Mr. Oceguera claimed that previously an unnoticed injustice had been occurring in the Nevada civil court system. He explained that it was common that when a civil court case had been filed in a timely manner, it had later been dismissed on grounds unrelated to its merits. He explained that such a case had often been barred from being refiled due to a prior expiration of the applicable statute of limitations. Mr. Oceguera explained that A.B. 40 had been conceptionalized and designed to correct that unfair and recurrent result. He said the bill would provide an additional six-month period in which an attorney could refile a case that had been dismissed on any ground unrelated to its merits, regardless of the prior expiration of the applicable statute of limitation. Mr. Oceguera pointed out that the bill would provide a deserving litigant with two valuable resources, time and confidence-time in which to determine whether or not to refile an action, and confidence in knowing that claims that had been filed in a timely manner could not be challenged on the basis of the expiration of limitations at the time of refiling. Mr. Oceguera said a litigant who had originally filed his claim in compliance with Nevada’s various statutes of limitation, only to find his case dismissed on some basis unrelated to its merits, was worthy of the consideration afforded in A.B. 40. Nevada’s various statutes of limitations could be found in the NRS 11.010 through NRS 11.390. Mr. Oceguera further explained that in cases where dismissal had occurred within less than six months of when the limitations would have expired, the bill would provide an additional six months in which to refile. That would help the litigant to not be rushed to recommence his actions, for the purpose of protecting his claim against a challenge that could arise based on the expired statute of limitations. He added that it was not the purpose of A.B. 40 to allow for multiple refiling of the same cause of action under its gratuitous provisions. The bill specifically provided that an action might only be recommended a single time pursuant to the terms outlined in A.B. 40, and this bill would serve deserving litigants in the court system well. Mr. Oceguera said he had recently learned this one-page bill would have some controversy. He added that he had spent a significant amount of time the previous day talking with Mr. Lee, Mr. Andreas, and the Solicitor General about problems they had found with the bill. He said together they had agreed on an amendment to the bill that would work well. Mr. Oceguera expressed that he could understand the arguments to both sides of this bill. He could see the defense bar side, where they said a good lawyer would have filed in both places, but he could also see the other side that had to deal with the complicated rules of law regarding filing. He claimed it was not about being a bad lawyer; it was about judicial economy, and not having to file in both courts, and about someone getting their chance in court.
Chairman Anderson asked if there was a statute of limitations on the second filing.
Mr. Oceguera answered that there was not, and he requested to have his experts join him. Chairman Anderson authorized two experts to join Mr. Oceguera in answering questions: John Arrascada, Nevada Trial Lawyers Association (NTLA), and Daniel Ebihara, Staff Attorney, Clark County Legal Services, Las Vegas, Nevada.
The Chair asked Mr. Arrascada if this legislation affected civil cases and not criminal cases.
Mr. Arrascada replied that was correct.
Chairman Anderson asked for clarification of how A.B. 40 would allow for a statute of limitations to be altered, and how much time a person might be allowed to refile.
Mr. Arrascada said there would be a six-month period in which to refile. He also said that the bill applied to situations where there had been federal claims and state claims. He explained that at the current time the standard practice in the legal community was to file dual proceedings, one in state court and one in federal court. He added that from a judicial economy standpoint, it had not made sense to have dual actions running at the same time. There was also a federal statute that had tolled the statute for 30 days, so the matter could be refiled in state court.
Chairman Anderson called on Daniel Ebihara, Staff Attorney, Clark County Legal Services, Las Vegas, Nevada.
Daniel Ebihara testified from the Las Vegas location. He had previously mailed a letter of support for A.B. 40 to Mr. Oceguera. This letter was distributed to the members of the Committee at the time of his testimony (Exhibit C). He also provided a copy of his written testimony (Exhibit D). He said he was in support of A.B. 40. He said this bill provided protection for individuals who had asserted their rights, but for technical reasons their cases had been dismissed. He informed the Committee that a majority of states already had this protection, including every state that surrounded Nevada. Arizona, New Mexico, California, Colorado, and Utah were among the 26 states that had already passed similar savings provisions. This legislation would be applicable to every federal claim that asserted violations of federal and state law.
Mr. Ebihara reported one case in particular, where he had represented a young woman with a learning disability who was coerced into purchasing a vehicle that she could not afford. The dealership had been aware of her learning disability, but instead of accommodating her impairment, they had manipulated her into signing a contract. This case presented violations of the federal Americans with Disabilities Act (ADA), as well as fraud and deceptive trade practices, and other state law claims. The complaint had been filed in federal court originally, but because there had been a chance that the federal claims would not have prevailed, there had been no means for a federal case to have been transferred to state court.
Mr. Ebihara explained that a similar complaint would have to be filed in state court to prevent the entire action from being dismissed, in case the federal jurisdiction had been lost. If the federal causes of action were dismissed, the federal court could then dismiss the entire action, including the state court actions. There were dozens of reasons the federal court had to dismiss actions that had nothing to do with the merits of the case. If the statute of limitations had expired, the current laws had not allowed a case to be refiled in state court. He said that as a result, many meritorious claims that had been filed on time had never been heard due to technical problems. Mr. Ebihara said that result was contrary to the intent and purpose of the judicial system, and A.B. 40 would help claims to be heard on their merits. He also said that the courts would be less congested. He added that a defendant in a case who had a technical defense to a court action might choose to use protracted litigation tactics to delay a hearing until after the applicable statute of limitations had run out in order to foreclose the possibility of refiling an action. Such dilatory measures could be avoided if the defendant knew that the trial on the merits could still be obtained. Courts would be more likely to dismiss cases if they knew that a more appropriate venue was available. Mr. Ebihara said that to have filed under the current laws and court created remedies had been inadequate to protect the individual’s rights in these instances. The federal statute permitting the 30-day extension after a claimant had voluntarily dismissed the state claim would not prevent a duplicate filing in state court. Neither would equitable tolling with its numerous judicially created hurdles have provided the necessary security to have prevented a cautious attorney from filing a corresponding state court action. Mr. Ebihara concluded by saying that for the reasons of relieving court congestion and promoting trials based on merits, a majority of states had adopted saving provisions, tolling the statute of limitations during the pendancy of a timely filed suit.
Assemblywoman Buckley wanted it disclosed that she worked with Mr. Ebihara at Clark County Legal Services. She said it was a nonprofit organization that provided free legal help to low-income people who could not afford attorneys. She said the bill would not affect her personally, and that there was no conflict of interest.
Chairman Anderson said there had been some concerns raised by various groups and people on A.B. 40, and it was their turn to be heard. He called on Jeff Parker, Solicitor General, office of the Attorney General, State of Nevada.
Mr. Parker introduced himself and notified the Committee that he had only been in the position of Solicitor General for a week and a half, so he had brought with him Stan Miller, the Tort Claims Manager for the Attorney General. He explained that the Solicitor General handled all lawsuits against the state. He said there were a variety of claims against the state, with most of the litigation being criminal or inmate litigation, civil rights actions, and also cases such as the Yucca Mountain litigation.
Mr. Parker said that originally the office of the Attorney General had planned to testify in opposition to A.B. 40. He said they had had a conference with Assemblyman Oceguera the previous day and also had worked with the LCB counsel and some private attorneys. Together they had worked out some language for A.B. 40 that had resolved their concerns. He said a document had been distributed to the members of the Committee (Exhibit E) that was a proposed amendment. He pointed out that the material that was in brackets was the material that was proposed to be deleted. The material that was in italics was what was proposed to be added. The material that was to be deleted was the part that affected a defense counsel’s right to dismiss a case early in the proceedings. He said it further complicated matters of Nevada Rules of Civil Procedure, Rule 41, which specifically had deemed certain categories of dismissals that would otherwise have been procedural as on the merits. He said that he and others had problems with the language that had originally been used, because they had understood that the purpose of the bill was supposed to:
· Improve the judicial economy by avoiding filing in state court and in a federal court, where jurisdiction was an uncertain issue.
· Not bar a plaintiff from refiling in state courts after the conclusion of a federal case.
He explained that the intent of the amendment had been to reduce the coverage of the original language in A.B. 40 strictly to cases that were dismissed in the federal court, based on lack of subject matter jurisdiction. They proposed new language and provided that an action could be recommenced in the proper court which referred to the subject matter jurisdiction within six months. In addition, Section 3 had new material, which had provided an essence of statute of repose. He added that should also have addressed the situation that Assemblyman Brown had alluded to earlier in the meeting. Under that material, there would be a five-year deadline from the original filing to recommence an action. He concluded that in no event would a case proceed 11.5 years after it had originally been filed.
Chairman Anderson had to leave the meeting and announced Ms. Buckley would take the Chair. Chairwoman Buckley thanked Mr. Parker for his testimony and asked for questions.
Assemblyman Carpenter asked if it would be unnecessary to file in both courts. He wondered if a person had filed suit in federal court first, and the suit had been dismissed due to lack of subject matter jurisdiction, that person could still file suit in state court.
Mr. Parker replied that there might be some cases that would require a dual filing, but the intention was that the dual filing would not be necessary.
Mr. Carpenter asked if it was an option to file in state court, and if it there was a rule that would prevent someone from filing in state court if his or her federal court claim had been thrown out.
Mr. Parker responded that there was one other condition to the filing, and it depended on the timeliness of the original filing. He gave an example of how this would work:
Say a case had been filed in federal court, with a two-year statute of limitations, and the case was timely filed, but the federal court did not dismiss it for some period of time beyond that two-year statute of limitations. Under the present law, with the exception of the federal statute that we mentioned, what it is intended to address is the plaintiff’s refiling would not be timely in state court. The two years would have passed. So what the amendment is intended to do, and what the original bill draft proposal, is to allow for that filing.
He said that a portion of the situation had currently been covered under a federal rule, 28 USC Section 1367. He said the rule allowed for a 30-day tolling period in contrast to the 6-month period allowed in the original draft and proposed amendment.
Mr. Brown asked about a reference to comparable statutes in surrounding states. He wanted to know if they were similarly limited to the subject matter jurisdiction disposal.
Mr. Parker said he had only reviewed two such statutes given the time limitations he had had. One was from Georgia and the other from Kansas. He said those statutes had covered slightly different factual scenarios. He said that Georgia had covered voluntary dismissals. He said the subject matter jurisdiction of the proposed amendment was novel. He said they had just come up with it the previous day.
Mr. Brown told Chairwoman Buckley that there was some confusion, and he wanted to know if the language of the amendment had been agreed upon.
Chairwoman Buckley said that the language had indeed been agreed upon. She commented that it was probably only interesting to the lawyers on the Committee to have looked at what the other states had done. She thanked Mr. Parker for all of his work and his testimony. She called on former Nevada state Senator Ernie Adler, Attorney, representing Washoe County, Nevada.
Mr. Adler apologized that he had been unable to meet with Mr. Oceguera the previous day. He said he had already done some litigation on the same issue, so he had been chosen by Washoe County to represent their concerns. He said A.B. 40 was a complicated statute even though it appeared to be simple. He said it was full of difficult legal concepts. He pointed out that under 28 USC 1367(d), a litigant who had filed a federal court action with ADA claims, federal court jurisdiction claims, and what were called pendent state court claims, which were claims a person could bring into state court, could have been dismissed by the federal court. He added that they would have been allowed a 30-day period to refile in the state claims under federal law in state court. He explained there was a 30-day tolling period permitted. He said one of the complications would be the United States Supreme Court case Raygor v. Regents of the University of Minnesota from the year 2002. In that case the Supreme Court had said that statute did not toll the filing against the state of Nevada or any of the counties of Nevada. He said it would cause Congress to waive the immunity of the state of Nevada, when the state had not consented to having their immunity waved. He said this was an important statute to consider as it involved a waiver of the sovereign immunity to the state of Nevada.
Mr. Adler gave an example of a case he once had, filed against Washoe County in 1988. He said the county had won this case in federal district court. There had been three defense attorneys, and it went to the Ninth Circuit Court of Appeals. The Ninth Circuit Court of Appeals upheld the judgment, and that had taken five years. Then the party who had lost the case refiled it in state court within the 30-day time period. He said it was still being litigated at the current time in state court. He said if Nevada were to extend the statute of limitations to six months, they would find that would be too long. He said he had sympathy for both sides, as he did plaintiffs’ work and defense work. He said there should be some sympathy for a defendant. He said the defendant in the case he had referenced had had to put his life on hold for five years while his case went through the Ninth Circuit Court, and after all that time, he would still have to revisit the same case in state court for another five years. He said it was important to be careful about tolling. He said the time period of 30 days as it had been set up by the federal court was proper. He said the attorneys that had done the complex federal court litigation knew they would have to refile their state work claims within 30 days after the federal court had rendered a final decision. He said he had not seen many attorneys miss the deadline. He said Washoe County was not completely opposed to this bill, but that it needed to track the federal legislation. He said it should be limited to 30 days just as it was in 28 USC 1367, and it should talk about tolling. He also recommended that Rule 4 of the Rules of Civil Procedure, section (i), should be clearer. He said in Nevada there was a requirement that a complaint had to be served within 120 days after it had been filed, or else it would be dismissed.
Chairwoman Buckley asked Mr. Adler for clarification of whether the amendment resolved that concern, and Mr. Adler replied that the amendment did not. He said A.B. 40 needed to not apply to the state of Nevada or its political subdivisions; otherwise, Nevada was making a clear statement that they were waiving sovereign immunity.
Chairwoman Buckley thanked Mr. Adler and called on Mr. Oceguera to ask questions.
Mr. Oceguera asked if a defendant would not already know that he had been served. He said he should already have known he was involved in the litigation, and it should not have been a surprise. He also asked if the five-year limitation in the amendment would take care of prolonged problems. He pointed out that A.B. 40 was not intended to address complex litigation problems; it was designed to take care of the pro se problems for people who couldn’t afford the lawsuits. He said he agreed that complex litigation attorneys would be aware of the 30-day filing period.
Mr. Adler opined that the average citizen would likely be surprised to get served in a state court case after a federal court case had ended. He said he had never heard of a non-attorney who had not been surprised. He said in federal court cases such as civil rights claims, the state court did have jurisdiction over those claims. Those claims did not have to go to federal court. He also said that the five years proposed in the amendment would be more restrictive than the federal law. In federal law, a case could take up to seven years to get through.
Temporary Chairwoman Buckley said she hated to see special rules allowed for the states and the counties. She said they should have to follow the same rules as everybody else. She said if there had been special rules that protected states and counties, the private citizen would not have had an equal opportunity in the courts. If a state had seized somebody’s property through eminent domain, that person could file a civil rights case in federal court, and it could get kicked out because there was a new Supreme Court decision that had ruled states and counties were protected. She said special treatment was wrong and there should not be any special breaks.
Mr. Adler said the state is a sovereign and it does have governmental immunity.
Chairwoman Buckley replied that people have the right to demand that the state has to abide by the same rules, and should not be allowed to take advantage of someone based on a procedural tactic.
Mr. Adler said that would be a policy matter for the Legislature. Ms. Buckley agreed and thanked Mr. Adler. She called on Michael Pagni, Attorney, McDonald-Carano-Wilson, Reno, NV.
Mr. Pagni said his law firm opposed A.B. 40 for a number of reasons. He brought a document on judicial procedure for each member of the Committee to review (Exhibit F). He said there were problems with both the originally introduced language and the amendment. He said the original language seemed simple, but it was extremely broad and he thought it could have some serious unintended consequences. He claimed that there were numerous reasons a case could be dismissed, such as:
He said there were also a number of reasons that could be related to the dilatory conduct of an attorney, and that it would be wrong to award an attorney for that dilatory conduct by giving him another chance. He said that would be contrary to the intent and purpose of the judicial system, and contrary to judicial economy. He said to have the rules in place that were already in place gave incentive to prosecute cases timely and to move them through the court system as they should be moved through the court system. He said regarding the amendment that the comments he would make would also apply to the original language. The amendment would be good in the terms that it narrowed the application to subject matter jurisdiction, but it was problematic. He said that legislation was not necessary. He pointed out that 28 USC 1367 tolled the statute of limitations for any action that was filed in federal court. He said that applied while it was pending in federal court plus 30 days. He explained that meant it was not a 30-day period, but an additional 30 days tacked onto the time a case had been pending in court. He said it applied to actions that the federal court could exercise supplemental jurisdiction over, and it applied to those claims that did not belong in federal court in the first place. He added that if a good faith error had been made and eventually recognized, the error could be voluntarily dismissed. He said this meant there was already a remedy under the current law, which meant there was no need to make another one.
Mr. Pagni continued that there was a document in Nevada called Equitable Tolling. He made a reference to Copeland v. Desert Inn Hotel, 99 Nevada 823. He said this doctrine gave state court judges the discretion to look at the equities of a case and decide whether or not they wanted to toll the statute of limitations. He said a judge could decide to do this even if a statute had expired. He opined that the beauty of this was that it had given the courts the discretion to examine the particular facts and circumstances of a case, as opposed to establishing a blanket rule, which was what A.B. 40 would do.
Mr. Pagni encouraged the Committee to remember that the statutes of limitations were fundamental to the judicial system. He said they were important rules that should not be tampered with lightly. They had ensured that the claims that had been brought to courts were based on fresh evidence.
Chairwoman Buckley thanked Mr. Pagni, and since there were no questions from the Committee, she called on the final testifier, Scott Craigie, Nevada State Medical Association, Carson City, Nevada.
Mr. Craigie introduced himself and excused his colleague, Larry Matheis, Executive Director of the Nevada State Medical Association, who was supposed to have joined him at the witness table. He said the Nevada State Medical Association was opposed to A.B. 40, as they believed it was inappropriate for attorneys, who were professionals and who disciplined themselves, to have an “out” based on not having had properly filed a legal case. He said the Nevada State Medical Association thought A.B. 40 created a casual and forgiving atmosphere that would not help litigants, but could be harmful to litigants. He explained it could allow attorneys to dabble in some new areas of law without risk, and it would allow the court to give attorneys a second pass. He said they were not suggesting there would be widespread abuse with this. Mr. Craigie said he was the former chairman of the Public Utilities Commission, where they had to have very defined rules. He said in the areas where there had been small openings for discretion or opportunities of interpretation, there had always people who had taken advantage of those opportunities. He said there would need to be a level of accountability and professional responsibility that the legal décor of this state would have to live up to. He said the Nevada State Medical Association believed that A.B. 40 would also create an atmosphere of voyeurism. He suggested that a small group of individuals might try to take on litigations that they were not qualified for, or had not had any experience with.
Chairwoman Buckley asked if there were any questions for Mr. Craigie. Then she informed Mr. Craigie that she had found his testimony to be inappropriate lawyer bashing. She said she would not appreciate hearing that again in the Assembly Committee on Judiciary.
Mr. Craigie said if his testimony had been taken that way, he wanted to apologize.
Chairwoman Buckley said that Mr. Oceguera’s intent had not been for lawyers to not be held accountable. She said courts typically dismissed cases based on subject matter jurisdiction, and the law had always changed. She said that intent had to be considered. She added that she had found his testimony to be completely inappropriate.
Mr. Craigie replied that when he opened up, he indicated that he had thought the intent of the legislation was appropriate.
Acting Chairwoman Buckley said he did not need to respond. She asked if there was anyone else who wanted to provide testimony on the bill. There was not, so she closed the hearing on the bill and adjourned the meeting at 9:26 am.
Acting Chairwoman Buckley reopened the meeting at 9:27 am when she learned there was one more piece of business that had needed to be addressed at that time. She said there was one more BDR that required a Committee introduction:
ASSEMBLYMAN HORNE MOVED FOR COMMITTEE INTRODUCTION OF BDR 15-436.
ASSEMBLYMAN GEDDES SECONDED THE MOTION.
THE MOTION CARRIED. (Mr. Mortenson was absent for the vote.)
Chairwoman Buckley adjourned the meeting at 9:28 am.
Nancy Elder
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: