MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
April 16, 2003
The Committee on Judiciarywas called to order at 8:15 a.m., on Wednesday, April 16, 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.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
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
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Ms. Genie Ohrenschall (excused)
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Carrie Lee, Committee Secretary
OTHERS PRESENT:
Judge Nancy Saitta, Eighth Judicial District Court, Clark County
Ron Longtin, Clerk of the Court and District Court Administrator, Second Judicial District Court, Washoe County
Elizabeth Neighbors, Ph.D., Director, Lakes Crossing Center, Division of Mental Health and Developmental Services, Nevada Department of Human Resources
Ed Irvin, Deputy Attorney General, Office of the Attorney General, State of Nevada
Justice Mark Gibbons, Nevada Supreme Court
[Roll was called.] A quorum is present. [The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.]
Senate Bill 87: Revises provisions pertaining to transaction of judicial business. (BDR 1-620)
Judge Nancy Saitta, Eighth Judicial District Court, Clark County:
It is my pleasure to be before you once again. It is my understanding that Senate Bill 87 is merely a clean up matter that would allow TPOs (temporary protective orders) to be issued on Sundays. It is a bill that the judicial districts need. More importantly, anyone who might need the protection of a TPO needs to be able to have it made legal on a Sunday, as well as any other day. It is a simple, straightforward bill. It allows us to do business on that day.
Chairman Anderson:
What has been the problem with telephonic issuing of such communication orders in the past?
Judge Nancy Saitta:
This is an area that the Second Judicial District and the Eighth Judicial District handle just a little bit differently. It is my understanding that the Eighth Judicial District has been using telephonic TPOs for a long time. The Second Judicial District was reticent to do so without this language being set forth. I think we should clearly identify, by statute, the fact that these very important documents are as valid whether they are communicated by telephone, fax, or any other fashion, and should be enforceable.
Chairman Anderson:
Sunday is generally not a court day, does this set it as a court day? What is the historic background behind this?
Judge Nancy Saitta:
It is officially not considered a court day. By setting it forth in statute, judicial business can be transacted on that day as if it were any other regularly scheduled judicial business day.
Assemblyman Carpenter:
How does someone get hold of you on Sunday?
Judge Nancy Saitta:
Everyone can reach us at any time through our phone numbers, court administrators, assistant court administrators, and virtually every police officer on the street.
Chairman Anderson:
Anyone in the south wishing to testify on S.B. 87? Anybody else waiting to testify? I will close the hearing on S.B. 87, and open the hearing on S.B. 89.
Senate Bill 89: Revises provisions governing determination of competency of defendant to stand trial. (BDR 14-603)
Judge Nancy Saitta:
I am appearing here on Senate Bill 89. This bill changes a determination of competency with the defendants when they come before the lower court. Oftentimes, they start in the justice court, then move up to the district court, and a determination as to whether or not they are competent to stand trial needs to be made; it is not made by the judges at that point. In fact, they are sent out for a competency evaluation. This bill would allow that to happen at the lower court and would eliminate one step in the process. The bill does have some ambiguities, which I believe Mr. Longtin from the Second Judicial District is going to be speaking to. We think this bill needs to be cleaned up a little bit, so we do not have the lower court, the Justice of the Peace judges, making the final determination of competency once the reports are back from our mental health specialists.
Ron Longtin, Clerk of the Court and District Court Administrator, Second Judicial District Court, Washoe County:
[Introduced himself.] I am representing the Second Judicial District today. The judges of the Second Judicial District, while favoring the streamlined procedures of case processing presented by the bill, remain concerned about its ambiguity. After discussions with Dr. Neighbors and Mr. Irvin, there is concern that ambiguity exists within the bill, leaving the jurisdictional avenue of the competency evaluation at the justice court level. This was believed not to be the original intent of the bill.
There is the belief that Nevada Revised Statutes (NRS) 178.415, as written, allows the justice court to conduct the full process of the competency evaluation. It is the position of the Second Judicial District that, with amendment language, we can get there. If this bill were to be put into a work session or subcommittee, the exact language could be corrected so that the jurisdictional decision-making on the competency evaluation could be changed back to where it is transferred to the district court. Therefore, the Second Judicial District recommends the bill be sent to a work session or subcommittee where it can be properly amended to allow for a streamlined procedure of the case from the justice court, but retain the determination of competency at the district court level.
Chairman Anderson:
When the bill was first heard on the other side, why was the issue not raised? Also, why have you not worked out the problems with the bill already?
Ron Longtin:
I was not present during those initial sessions, so I don’t remember the background in this regard. Upon review of the language, Chief Judge [James] Hardesty spoke with Mr. Irvin and Dr. Neighbors. There was an indication that just the word “court” as used didn’t significantly change that jurisdictional issue I previously presented. I can’t answer why that wasn’t previously caught.
Judge Nancy Saitta:
I spoke with Judge Hardesty last evening about this bill. When it was first before the Senate Committee on Judiciary, there was some misunderstanding. We have created some language that we could certainly provide to the Assembly Committee on Judiciary. Our concern is that by doing so, we may lose this bill. We understand that the ambiguity is of significant concern and we could easily work on this. In fact, we could probably have it to this Committee by day’s end if we were able to proceed without losing the bill.
Assemblyman Brown:
I take it the objective is that the justice court can initiate the competency process, and then it elevates and binds over into the district court where the final determination should be.
Judge Nancy Saitta:
That is precisely correct.
Chairman Anderson:
The hope is that whatever comes out is not going to interfere with our changes, or suggested changes, regarding the M’Naghten Rule and some of the other competency questions that we are dealing with.
Judge Nancy Saitta:
In fact, it would not. I believe we would be making it clear and consistent with any other provisions, particularly NRS Chapter 178, where we talk about certain determinations. With respect to the M’Naghten Rule, I believe it would have no effect.
Elizabeth Neighbors, Ph.D., Director, Lakes Crossing Center, Division of Mental Health and Developmental Services, Nevada Department of Human Resources:
We are pleased to be here this morning and speak with you about this bill. [Introduced herself.] We are here because we are concerned. We interface a great deal with the courts on this issue, and we treat most of the people who are going to be referred under this statute. I don’t want to belabor the issue. We have spoken with each other and we essentially concur on what needs to be done in answer to a couple of questions.
We did not comment on this initially, and I would like to apologize for that. Quite simply, it got by us. We were at the hearing for S.B. 90, not realizing that this was on the agenda and going to be heard early in the session. We had already begun to draft some testimony, but were not prepared, or authorized, to testify at that time. We have had this dialogue with the courts in the interim before this hearing.
In reference to the effect it would have on other competency bills that are before you, we have a concern that if it goes forward with its current language, it would be problematic for S.B. 179 and A.B. 156 because of the changes that would occur. We also have specific concerns about the justice court being the venue for involuntary medication procedures, which this could accomplish if it goes forward as written. It is a very complicated and controversial issue and has, for the most part, been dealt with in the district courts. That is where we feel it should be addressed for the very serious offenses.
The way the bill is written, I believe it would also allow for transport of misdemeanor offenders from the city courts to our facility. We had a concern about it encouraging an increase in misdemeanor referrals. Our present system has been treating those individuals in a different manner and should we continue to have an increase in misdemeanor referrals, we may displace the more serious felony offenders from our facility and cause waiting lists in the jails.
That covers my concerns, and I believe they could be dealt with by our proposed change in language. That was our only issue with the bill.
Chairman Anderson:
Do you have some written documents that you are willing to put on the record or did you want them to go elsewhere?
Dr. Elizabeth Neighbors:
I will let Mr. Irvin respond to that.
Ed Irvin, Deputy Attorney General, Office of the Attorney General, State of Nevada:
[Introduced himself.] I am assigned to represent the Division of Mental Health and Developmental Services for the state of Nevada. We submitted some written testimony (Exhibit C). We do not have specific language. I discussed the language with Judge Hardesty on Monday. We are very close, and I believe the language can be submitted at a later date, but we do not have it today.
Chairman Anderson:
We have Mr. Irvin’s written testimony (Exhibit C) relative to what he has already told us. Any questions for Mr. Irvin or Dr. Neighbors? Judge Saitta, apparently you and Judge Hardesty have talked, conceptually, about some possible language that you are going to suggest to the Committee as a possible solution to the problems of S.B. 89?
Judge Nancy Saitta:
Yes. I have used Judge Hardesty’s language verbatim. It is now in the hands of the bill drafter, who will make it sound much nicer than we are able to do.
Chairman Anderson:
Would you like to share that on the record so that we can get that in?
Judge Nancy Saitta:
The bill will be amended so that certain language, as follows, will be made a part of the bill. We simply want to allow the Justice of the Peace, with respect to felony matters and gross misdemeanors, to be allowed to make the evaluation. The language would be, “If at any time before a preliminary hearing doubt arises as to the competency of the defendant, the Justice of the Peace shall suspend proceedings and order the competency evaluation pursuant to NRS 178.415. The district court will thereafter determine the competency of the defendant pursuant to the chapter.”
Chairman Anderson:
The bill drafter will make sure that the citations are correctly annotated and the other ideas carried out. The purpose of this amendment is to make sure the hearing can be held at a lower court, but the actual determination of competency is a matter at the district court level.
Judge Nancy Saitta:
Actually, what we want to allow is an opportunity for the defendant to be referred earlier. As it stands now, the defendant has to come up to the district court from the justice court to even be sent for the evaluation; that is the part that we are streamlining. He can be sent out from the justice court level, but the ultimate determination will be made at the district court level.
Chairman Anderson:
Questions for Judge Saitta? In this discussion, have you had an opportunity to communicate with my counterpart in the Senate, so that he won’t be of the opinion that we have taken one of his bills and done something to it that he had not anticipated?
Judge Nancy Saitta:
You are correct. I have not had the opportunity to speak with him. However, as soon as I leave this hearing, I will be sure that your counterpart in the Senate understands what we are doing and why we are doing so.
Chairman Anderson:
Anybody else wishing to testify on S.B. 89? Let’s close the hearing on S.B. 89.
I don’t see any major problem with S.B. 87, and it appears that we could probably take an Amend and Do Pass motion on S.B. 89 and a Do Pass motion on S.B. 87 and be able to move forward. Let’s do them one at a time.
VICE CHAIRman Oceguera moved TO Do Pass S.B. 87.
Assemblyman Carpenter seconded THE MOTION.
The motion carried. (Ms. Buckley and Ms. Ohrenschall were not present for the vote.)
********
Assemblyman Carpenter moved AMEND AND Do Pass S.B. 89, WITH THE AMENDMENTS BEING THE CONCEPTUAL AMENDMENT AS PRESENTED BY JUDGE SAITTA.
Assemblyman gustavson seconded THE MOTION.
THE MOTION CARRIED. (Ms. Buckley and Ms. Ohrenschall were not present for the vote.)
I will assign S.B. 87 to Mr. Carpenter and S.B. 89 to Mr. Brown to defend on the Floor.
[The Chair began the work session and distributed the Work Session Document (Exhibit D).]
Senate Bill 88: Allows district judge to transfer certain civil actions to justice’s court under certain circumstances. (BDR 1-610)
Justice Mark Gibbons, Nevada Supreme Court:
[Introduced himself.] I did testify in support of Senate Bill 88. I think Mr. Oceguera was acting as Chairman the day we had that hearing, so I came up in case there were any questions.
Allison Combs, Committee Policy Analyst:
Senate Bill 88 was heard on March 6, and it would allow a district judge to transfer civil actions to justice court if the judge determines that the sum claim does not exceed $7,500. Testimony indicated that the measure was requested to allow plaintiffs—and it was particularly noted that it was about an attorney who filed in district court—the opportunity to have their case transferred to justice court and preserve the cause of action when it is determined that the amount does not exceed $7,500. There were some concerns raised by a representative of the Las Vegas Justice Court. They testified in support of the measure and raised a few concerns with regard to the potential impact to that court. There are a couple of proposed amendments that I would be glad to go through and explain.
The first proposed amendment on S.B. 88 was discussed by Assemblyman Carpenter, Judge Saitta, and Mr. Tommasino, who was the representative of the justice court, and it references subsection 2. There is a definition of “action” and it lists a number of civil actions that fall under justice court and mirrors the existing law. The proposal was to delete that definition, as it was not necessary to duplicate that reference in statute.
The second proposed amendment came from Mr. Tommasino, which was to require the party refiling in justice court to pay a filing fee. Currently, the bill specifies that the party refiling would not be required to pay a new filing fee. The suggestion was to require a filing fee of $42, which is the fee charged currently under statute, when a case is transferred up to the district court.
The third proposed amendment from Mr. Tommasino—at the bottom of the first page of the work session document (Exhibit D)—suggested clarifying that the parties retain their right to a jury trial in justice court if that request comes in a timely manner.
The fourth proposed amendment from Mr. Tommasino suggests to clarify the limit that could be recovered by the plaintiff. He suggested that the district court judge order that the plaintiff’s recovery be limited to $7,500 or less. He provided an example: If a person files for $15,000 in court, it should be clarified that the limit in justice court is $7,500.
Finally, Mr. Tommasino suggested an amendment to clarify that S.B. 88 incorporate language similar to language governing cases that are transferred up to district court, and he suggested some language stating that, from the time of filing the pleadings or transcript with the clerk of the justice court, the justice court has the same jurisdiction over the action as if it had been commenced in justice court.
Chairman Anderson:
Ms. Combs, in light of our action on Assembly Bill 100, which changed the parameters in 2005 to $10,000, do we have to put a tolling in here, because after that time the applicable statutes are going to be at $10,000, not $7,500?
Allison Combs:
I would suggest that perhaps the issues still remain as far as the need to be able to transfer a case back down even when that jurisdictional amount is changed to $10,000 in 2005. These may be sections where it would be an issue as far as how to draft it for when these amounts would also change to the $10,000 level.
Chairman Anderson:
Ms. Lang, are we going to have some problems here with A.B. 100 that we already passed?
Risa Lang, Committee Counsel:
I think this is something that would probably come up in conflict depending on which one passes first. We would probably end up with a parallel section that would just change the jurisdictional limit to $10,000 in 2005.
Assemblyman Horne:
I have a concern on requiring an additional filing fee. I don’t know if I am comfortable with that. Was that an issue in A.B. 100?
Chairman Anderson:
There are no filing fees involved in A.B. 100. I think the additional filing fee happens currently when something goes from a Justice of the Peace up to a district court level. They ask for a new filing fee because of the extension. I presume what the Justices of the Peace are asking for is that same courtesy when they have to pick up the bill, since it is a matter of court costs and trying to cover their expenses.
Assemblyman Horne:
I understand.
Chairman Anderson:
This is a burden to the person who has already paid once and now is going to have to pay again.
Assemblyman Horne:
Right. Also one of the things we are talking about are pro se plaintiffs. If they made a mistake in going to district court, they have already paid their filing fee. I don’t know about charging another administrative cost when he is sent to the proper court. I have a concern with hitting this person with another fee. He is trying to muddle his way through, and it may be the reason he doesn’t have an attorney. He can’t afford it and yet we put another fee on him for this mistake.
Assemblyman Brown:
Would this be an action taken by the court presumably because there was some error by the plaintiff in filing? I wonder if there is any distinction with the reverse action. Is the justice court the entity that is moving, or causing to be moved, the action from justice court up to the district court? Is that by motion of one of the litigants?
Justice Mark Gibbons:
Usually what happens is that somebody will file in justice court, claiming up to $7,500, and a compulsory counter claim is filed under Rule 13 of the Justice Court Rules of Civil Procedure pleading a claim in excess of $7,500. When that happens, the justice court will lose jurisdiction and the district court will assume jurisdiction over both the initial complaint in justice court and the counter claim because of the amount involved. Then the case is transferred up to district court, which generally has a higher filing fee than justice court. There is a fee of $42 assessed to transfer the case up to district court, which would be paid by the party filing the counter claim at that time. That is normally how it goes from justice court to district court.
Assemblyman Mortenson:
It seems terribly cumbersome if a case originates in district court and then suddenly the amount drops lower, that you should refer it back down. Wouldn’t it be possible to change the law so that it stays in district court, and you make a judgment instead of having a whole new trial in justice court just because the amount dropped? It seems to add to the caseloads.
Justice Mark Gibbons:
The Legislature sets the amounts of cases that are heard in justice court and in district courts. If there were no monetary limits, then I think what you said would be correct. You could just try the case in justice court. But, by law, if the case is $7,500 or less, it must be tried in justice court. The problem of why we suggested the legislation in the first place was that the justice court objections were not raised in the Senate before it passed unanimously. The reason we did that was to preserve the statute of limitations because, if a case goes into district court and the court determines its value is $7,500 or less, right now the district court must dismiss; it can’t transfer to justice court. It is like a car accident; if more than two years have elapsed and the person re-files, then this is barred by the statute of limitations. We are trying to protect people from making a mistake inadvertently, such as pro se litigants, as Assemblyman Horne mentioned, that may not know the nuances of preserving their right to their day in court.
Assemblyman Mortenson:
I understand all that. It seems to me it would be good for the Legislature to change that rule so that if a case starts out in district court, it can continue. You would not have the time limitations problem and you would not have two cases instead of one.
Chairman Anderson:
The Legislature has drawn that distinction and we could have done it the other way, but, historically, we have chosen not to. That is the reason why we passed out of this Committee the change in the future to a $10,000 limit. That is the reason why we stepped it in over time so the district courts and the justice courts would be able to deal with the change in their case loads in anticipation of when that was going to happen. That was what happened in Mr. Brown’s piece of legislation, which we already passed some time ago.
Assemblyman Mortenson:
Now we just have the problem with the $10,000 limit.
Chairman Anderson:
I am sure that will be a problem in the future, but there will be those people who put things in order to try to get it into the district court at $7,500, and then after they get it there, all of a sudden it drops below that. It doesn’t turn out to be the real number. When the real number is discovered, they realize they are in the wrong place. They are playing games with the courts, so they are trying to play games back.
Assemblyman Mortenson:
I just thought it would be simpler to do it the other way. I am only a freshman in this Committee.
Chairman Anderson:
We can change it. I am sure that the judges would all love that, at least some people would. I need to be refreshed as to what the advantage is of removing Section 2, as suggested by Mr. Carpenter and Judge Saitta.
Judge Nancy Saitta:
I don’t recall either, except I think it was a duplicative word. It may have repeated what was already present. We deleted it from all of subsection 2 of Section 1, and we talked about it in preliminary stages of that section. If it is deleted, I don’t think it has any effect other than to clean up the language.
Chairman Anderson:
So it broadens any action then? Does Mr. Tommasino’s determination to reaffirm the right to jury trial at the justice level create a problem for justice courts? That troubles me a little bit.
Justice Mark Gibbons:
Under Justice Court Rules of Civil Procedure 38 and 39, there is a right to trial by jury, so we thought this language was not necessary on certain types of cases. When it goes back to justice court, they would have a right to demand a jury under the rules if they deal within the time limits prescribed by those rules.
Assemblywoman Buckley:
I wasn’t sure how necessary any of these proposed amendments were from justice court, and the same with the jury trial. The jurisdictional amounts they can’t raise that on there own, so I’m not sure why we need that. On the filing fee, somebody already paid once; you can’t make them pay twice. I just want to be clear as to what your position is on all of these amendments. I don’t know that they are necessary.
Justice Mark Gibbons:
We didn’t feel any of them were necessary. When the bill went before the Senate Committee on Judiciary, we had not heard from justice court. We thought there was no objection to this. We were surprised when we got over here in the hearing before the Assembly Committee on Judiciary; we had representatives from the Las Vegas Justice Court testifying. I agree with Assemblywoman Buckley that they are not necessary. If the Committee feels it is appropriate, it could pass the bill as drafted. Again, I don’t think the amendments are that critical one way or the other; I think they are superfluous.
Assemblywoman Buckley:
I guess we don’t have a unified court system yet?
Assemblyman Brown:
We are talking a handful of cases, I could probably count them on one hand. The fee is not a backbreaker for anybody. I feel badly about charging some of these folks an additional $42, so I am for the bill as it stands without amendments.
Chairman Anderson:
I agree. It appears that there may be some problems here. But, in proposed amendment number 5, do we need, “From the time of filing the pleadings or transcript of the clerk of justice court has the same jurisdiction over the action as if it had commenced?” Is that merely clarification or is that already understood? Do you have it already covered in your administrative procedure manual?
Judge Nancy Saitta:
It is our opinion that it is superfluous language.
Chairman Anderson:
That would be a Do Pass motion.
Assemblywoman Buckley moved to Do Pass S.B. 88.
VICE CHAIRman Oceguera seconded the motion.
The motion carried. (Ms. Ohrenschall was not present for the vote.)
Let me assign the bill to Mr. Gustavson to defend on the Floor. Anything else to come before us?
We are adjourned [at 9:17 a.m.].
Carrie Lee
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: