MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
May 22, 2003
The Committee on Judiciarywas called to order at 9:22 a.m., on Thursday, May 22, 2003. 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.
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
Ms. Genie Ohrenschall
Mr. Rod Sherer
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Sabina Bye, Committee Secretary
OTHERS PRESENT:
Scott Canepa, Nevada Trial Lawyers Association
James Wadhams, representing Southern Nevada Home Builders and Coalition for Fairness in Construction
Steve Hill, Chairman, Coalition for Fairness in Construction
Chairman Anderson:
[The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette. A quorum is present.]
The first thing I would like to take up is a letter drafted on behalf of the Committee. This letter relates to the fact that we are still unhappy with [Department of Corrections] relative to their actions. I was not here for the presentation of S.B. 264. This is the letter that we will be sending out. I want you to take a moment to read it so you will feel comfortable with it; this is your copy. I won’t sign it until the Committee has had an opportunity to read it. I will send the original around for your signatures; when it comes to you, please sign it and pass it on, and we will get that taken care of and send it off.
I would like to take a look at an amendment drafted on our behalf for S.B. 241, which is the construction defect bill. Ms. Lang has prepared a couple of yellow documents to take us through an encapsulated timeline picture so we can see how this goes. Ms. Lang, would you like to explain what is going to happen?
Senate Bill 241 (1st reprint): Makes various changes concerning constructional defects. (BDR 3-156)
Risa Lang, Committee Counsel:
I prepared a flow chart and timeline, because this amendment sets up a method for providing notice of defects to the contractor and the right to repair by the contractors and subcontractors, so you could visually see how things flow in this document. Basically, it requires the homeowner to provide notice to a contractor before the homeowner can commence an action for a construction defect. It provides a requirement on the homeowner to allow an inspection of the defect and an opportunity for the contractors, subcontractors, suppliers, and design professionals to repair that defect before it goes to court.
If there is no response or if the repair is inadequate, you can still go to court. There are different numbers of days for completing repairs and making responses based on who you are. On the flow chart, the first group that is listed on the timeline is the individual homeowner, as well as the homeowners association. On the second page, you have what we call an “extrapolated notice,” which means that you have “named” homeowners. The notice is also intended to apply to “unnamed” homeowners who may have a common defect to the “named” homeowners in that notice.
Chairman Anderson:
I wanted the Committee to have an opportunity to review the amendment. Mr. Canepa and Mr. Wadhams, I presume, have had an opportunity to view this? It is as close as we have come to an agreement.
Scott Canepa, Nevada Trial Lawyers Association:
[Introduced himself.] After testing the patience of the Committee and the Chairman for many weeks, we have finally come to a deal I think we can live with. Both sides have agreed that we will defend this deal against any unfriendly amendments throughout the process for the remainder of the session.
James Wadhams, representing Southern Nevada Home Builders and the Coalition for Fairness in Construction:
[Introduced himself.] We have spent a lot of time with this and quite frankly have pushed your staff well beyond reasonable limits. I think they have done an extraordinary job in trying to do this under very adverse circumstances. I want to make that statement as a matter of public record; Risa Lang and Kimberly Morgan were extraordinary.
I think the page that was presented to the Committee last Friday, if my memory is correct, had about a dozen principles. Let me say to the Committee, we think this amendment reflects those principles and that is the basis of our acceptance of this amendment. I want to caution the Committee that what you pass will be ultimately tested as to its success on the streets and in the courts. We have made significant progress and have essentially accomplished the goals that were presented to the Committee. We again appreciate the patience of the Chair and members of the Committee and apologize for any inconvenience. It was a difficult issue to negotiate.
Chairman Anderson:
I might mention to the Committee that the staff worked over the weekend, came up with the amended language in our format for Monday, and gave it to the parties, which they threw out, returned to a fresh piece of paper, and started over on Tuesday. Our staff received this last night at 6:00 p.m. to be put in drafting format. Staff completed its work last night at 8:00 p.m. The document you see before you is the result of Ms. Lang being up all night trying to get this out for us so we would have an opportunity to introduce the bill this morning [in Committee] for the Floor today or tomorrow. I really thought we were going to have it on Tuesday for introduction yesterday, but that was not to be. Ms. Lang, is there anything else in the document that you think is essential to bring to our attention? I particularly think the flow chart is helpful for us to understand the essential salient points of the amendments.
Risa Lang:
I tried to include as much as I could on the flow chart to provide an overall view of what is in there. There are a few other provisions dealing with insurers, their participation, settlement, conferences, or submitting claims to their contractors. Other than that, it is primarily dealing with the notice, response, inspections, and repairs.
Vice Chairman Oceguera:
I was wondering when I read through this a version or two ago whether the state court judge or a hearing master could order an out-of-state insurance company to comply?
Risa Lang:
I am not familiar with this area, but my guess would be that if they were doing business in this state they would have some jurisdiction to regulate them here as well.
James Wadhams:
I happen to know a little about that area of our state law. There are two kinds of insurers active in this, those that are directly licensed which, if you read the licensing law Nevada Revised Statutes 680A, is a consent to the jurisdiction both of the state agencies and the courts. The other manner in which this is done is through what this Committee has heard called “surplus lines.” Those are companies like Lloyds of London that don’t get directly licensed but are approved to do business here. That also is a consent to jurisdiction similar to a long-arm statute.
Assemblyman Mortenson:
I also would like to compliment the staff, especially on the flow charts. They really make short work of the law, and a graph is worth a thousand words.
Steve Hill, Chairman, Coalition for Fairness in Construction:
[Introduced himself.] I just wanted to say that Mr. Wadhams and Mr. Vassiliadis have done a great job in representing us. I wanted to thank this Committee and staff; you have spent a tremendous amount of time on this. It is very important not just for our industry, but for each member. On their behalf, I want to thank you.
Chairman Anderson:
The bill drafter may have to polish this amendment before we take it to the Floor. We have a stack of amendments on the Floor. While it is the prerogative of the Chair to include or not include the Committee, I try to include the Committee where it is practical so you will at least have an idea of what I am thinking and also to get your input. I am going to be assigning quite a few of you to conference committees to do the work of the Committee. Remember, you are representing the Committee and the Committee’s point of view, not your own personal point of view. We try to make sure you understand what we originally did with the pieces of legislation so when you go to the conference committee you will understand what is supposed to happen.
For those of you who have never served on a conference committee, it requires two signatures from each side. There are three Assembly members and three Senate members; two Assembly members and two Senate members must agree to the conference report. You have the ability to amend the bill further if that is what your conference committee wishes to do. You need to bring with you to the conference somebody from our Research or Legal Division staff to make sure that whatever is agreed to is clearly understood. Please recognize that only you, a member, a chairman, not an aide, can give it to someone in the Legal or Research Division to carry for signatures. As we get close to the end, you will have to walk around and get all the signatures. Trying to find everybody can be a problem but you cannot entrust it to somebody else. That has been a problem in the past; some people forgot that particular rule and caused confusion with people wandering around asking for signatures. It should be you or somebody from either the Legal or Research Division. Please be careful of that particular issue.
Assembly Bill 60 (1st Reprint): Revises provisions pertaining to certification of child for criminal proceedings as adult. (BDR 5-280)
Chairman Anderson:
Assembly Bill 60, Amendment 656: the Nevada District Attorney’s Association indicated to me that they didn’t feel this created a dramatic difference. It provided an exception to mandatory certification of a child as an adult offender if the child is developmentally or mentally incompetent to understand the proceedings and to aid his attorney. It was my intention to Concur in this amendment, but if somebody finds this is not a good idea or wants to discuss it, please do.
Assemblyman Conklin:
As I read this, what they are trying to do is capture people who have escaped from juvenile facilities, is that right? That is what Section 1 proposes under NRS 62.018. If they escape from juvenile prison, they can be retried or charged with an adult crime even if they are a juvenile, is that correct?
Chairman Anderson:
On the original bill, you mean?
Assemblyman Conklin:
No, that is what they are amending, as I understand it.
Chairman Anderson:
No, they are amending in on page 2, the new language that reads “…the child is developmentally or mentally incompetent to understand his situation and the proceedings of the court or to aid his attorney in those proceedings…”
Assemblyman Conklin:
So, what I was saying was already in the statute. Okay.
Chairman Anderson:
Mr. Conklin, the bill itself dealt with certification of a juvenile as an adult.
Assembly Bill 73 (2nd Reprint): Revises provisions concerning certain crimes committed against older persons. (BDR 15-357)
Chairman Anderson:
Let’s take a look at Assemblywoman Kathy McClain’s bill, A.B. 73, which revises the penalty for abuse of an older person causing the older person to suffer unjustifiable physical pain or mental suffering. The amendment provided that a first offense is a gross misdemeanor; the penalty for a subsequent offense is a Category B felony punishable by a minimum term of 2 years and a maximum term of 6 years. It further specifies, in addition to any other penalties imposed against a person for abuse, neglect, exploitation, or isolation of an older person, that the court shall order the person to pay restitution may order the person to pay court costs and the cost of enforcing prosecution or any combination thereof. It has a definition of “substantial mental harm” for the purpose of the section of the law regarding abuse of an older person. This changes us back in part from a “shall” to a “may” category.
Assemblywoman Buckley:
On the first page of the amendment, it changes the first offense to a gross misdemeanor. Does that affect existing law, reducing from a felony to a gross misdemeanor for elder abuse? Why are we doing that? I know in the past we did that for isolation because it was a little different than the physical abuse. Then this year, Mr. Chair, you identified whether we wanted to start charging people for the District Attorney’s office and other facilities; we did reject that.
Allison Combs, Committee Policy Analyst:
Just to clarify it again, it is a policy decision as far as where you all want to go, of course, but it also does say “accept as otherwise provided” in subsection 6 of this section. Subsection 6 of current law on page 3 of the amendment states, “If the violation results in substantial bodily harm or mental harm or death, then it is a Category B with a 2 to 20 penalty,” so these go to the circumstances when there is not substantial bodily harm, mental harm, or death.
Assemblywoman Buckley:
Is the existing law a Category B felony when it is abuse? Are we changing that and weakening it? That is not good.
Assemblyman Brown:
I am looking at the deletion of “causing the older person to suffer unjustifiable physical pain or mental suffering,” which is on the first page, the first amendment. Without that, I wonder if the term “abuse” becomes rather fuzzy. Any person who abuses an older person…do we have a definition of “abuses” then? I am wondering if it makes it tough to apply; I am not sure we have standards, it seems like that might be wide open.
Chairman Anderson:
“Abuse” is defined as…?
Allison Combs:
“Abuse” is defined for the purpose of these statutes involving abuse, neglect, or exploitation of an older person to mean “willful and unjustified infliction of pain, injury or mental anguish on an older person or deprivation of food, shelter, clothing or services, which are necessary to maintain the physical or mental health of an older person.” That is under NRS 200.5092.
Assemblyman Conklin:
Nevada Revised Statutes 200.5099, which is the current existing statute, categorizes abuse as a Category B felony under all circumstances and it appears what they are trying to do is make it consistent throughout the rest of the bill. In Section 3, they have the first offense a gross misdemeanor and the second offense a felony, and in Section 2 the same thing. But those are when you conspire to commit with someone else or when the abuse is not physical or something else in nature and I don’t think that applies in this particular case.
Assemblyman Carpenter:
I am wondering about the definition of “substantial mental harm.” I don’t know whether we have a definition in the statutes now, but it seems to me it is not exact enough and I am having a problem with this definition. It says, “evidence an observable…” and I really don’t know what that means. I would like to see it tightened up a little bit.
Chairman Anderson:
The original version of Assembly Bill 73 contained new language authorizing the court to order a person to pay the cost of investigation, prosecution, abuse, neglect or isolation of an older person and it added a definition of “substantial mental harm.” The definition mirrors the definition of “substantial mental harm” currently under NRS 200.508 for child abuse and neglect.
Ms. Buckley has suggested that we Not Concur on Amendment 657 and I will make the recommendation to the Speaker for the appointment of Mr. Conklin, Mr. Brown, and Ms. Ohrenschall as a [potential conference committee]. Mr. Conklin, if you would handle that for us; Mr. Brown, if you would bring your legal mind with you; and Ms. Ohrenschall, your advocacy for senior issues and your legal mind will be needed.
Assembly Bill 78 (3rd Reprint): Makes changes to various provisions pertaining to certain offenders who commit sexual offenses and crimes against children. (BDR 15-1031)
Chairman Anderson:
If we could take a look at A.B. 78, there are two amendments. With the first, I was going to recommend a Concur. Amendment 719 makes changes that revise the definition of “other sexual offenses of a child” to delete the inclusion of “open or gross lewdness” pursuant to NRS 201.210. This definition is used under new provisions of the bill specifying that a person previously convicted of a sexual assault, lewdness with a child, or other sexual offense against a child is guilty of a Category A felony. If you recall, this is an enhancement bill so it would not apply in that particular case.
Senate Bill 218 (1st Reprint): Revises certain provisions relating to program that provides public with access to certain information in statewide registry concerning certain sex offenders and offenders convicted of crime against child. (BDR 14-159)
I recommended Not Concur with Amendment 773. This is in point of fact S.B. 218, a bill that we did not hear. It provides several different things about making changes to the Central Repository for Nevada Records of Criminal History, Department of Public Safety and who is going to give testimony, so I am going to Not Concur and make that recommendation to the Speaker. I appoint myself, Dr. Mabey, and Ms. Ohrenschall [to the conference committee].
Assembly Bill 107 (2nd Reprint): Provides additional penalty for committing certain crimes in violation of temporary or extended order for protection. (BDR 15-285)
Chairman Anderson:
Let’s take a look at A.B. 107, which revises new penalties on the bill and would provide that a felony committed in violation of a temporary extended protection order be punished by a term of imprisonment equal to and in addition to the term prescribed by the statute for the crime committed. The revision specifies that the crime committed is a Category A or B felony. The person must be punished by imprisonment for a minimum term of not less than one year or a maximum of five years.
I was going to Concur with this one unless somebody felt that was not a good idea. This is Amendment 725 to Assembly Bill 107.
Assembly Bill 132 (2nd Reprint): Provides that in certain judicial districts proceedings concerning abuse or neglect of children are presumptively open to public and that in certain judicial districts such proceedings are presumptively closed to public. (BDR 38-689)
Let’s turn to Assembly Bill 132, Amendment 663, which revises the measures throughout to specify that the proceedings concerning child abuse and neglect covered by the bill as a whole be presumptively closed to the public. The current reprint specifies the opposite. We are going to Not Concur. Ms. Buckley will be the Chair; Mrs. Angle and Mr. Horne will also be on [the conference committee].
Assembly Bill 155 (3rd Reprint): Makes various changes regarding background checks for purposes of employment and licensing. (BDR 14-430)
Chairman Anderson:
We are now on A.B. 155, Amendment 695, which allows the Central Repository of the Nevada Records of Criminal History, Department of Public Safety, to conduct investigations and disseminate information concerning application. [Disagreed on Amendment 695.]
Senate Bill 303 (1st Reprint): Makes various changes concerning dissemination of records of criminal history by Central Repository for Nevada Records of Criminal History. (BDR 14-967)
Chairman Anderson:
Senate Bill 303 is also a bill that we did not hear. Since we did not have a hearing on the bill, I will appoint Mr. Carpenter and Mr. Conklin [to the conference committee].
Assembly Bill 156 (2nd Reprint): Abolishes plea of guilty but mentally ill and reinstates exculpation by reason of insanity. (BDR 14-131)
Chairman Anderson:
Assembly Bill 156, Amendment 659, requires the person that provides the reports or evaluations to the court concerning the competency of a defendant to stand trial or receive pronouncement of judgment be certified by the Division of Mental Health and Developmental Service, Department of Human Resources. The amendment also requires the Division to adopt regulations concerning the above. This did not seem to have any major problems. I was going to Concur.
Assemblywoman Buckley:
Just to refresh my recollection, NRS 178.400 says, “A person may not provide a report concerning the competency or receive pronouncement of judgment.” What does that mean? Is this just the straight front-end competency?
Chairman Anderson:
I don’t know the answer to that.
Allison Combs:
Nevada Revised Statutes 178 deals with the general provisions on the rights of the defendant and goes into inquiry into the competency of a defendant and procedures following the inquiry as far as whether or not they can stand trial.
Assemblywoman Buckley:
In all of these cases, are these folks going to Lakes Crossing Center anyway because they are not competent to stand trial?
Chairman Anderson:
That would be the probable outcome.
Assemblywoman Buckley:
If, in the current state of the judiciary, physicians are able to examine someone, do we want to create a whole new state bureaucracy saying you have to be certified by the Division of Mental Health and Developmental Services when you are already a licensed psychiatrist? If they are going to Lakes Crossing Center anyway, maybe it doesn’t make any difference because the state just wants to make sure those who get there meet their requirements.
Chairman Anderson:
I would be happy to hold off on making a determination until we can check back again with Dr. Carlos Brandenburg and other folks at Lakes Crossing Center.
Assemblyman Brown:
I hope I am not duplicating Ms. Buckley’s question; I came in about halfway through. On page 3, about halfway down, it refers to the Division of Mental Health and Developmental Services. Are they essentially the state agency that certifies or licenses psychologists or psychiatrists? Was that the substance of your question? It looks like we may be duplicating the effort.
Risa Lang:
Just for clarification, I don’t think they always get committed to Lakes Crossing Center. Sometimes they can do it on an outpatient basis in certain cases. Like you were saying, they are not licensed by the Division of Mental Health and Developmental Services, they would be licensed by their individual boards.
Assemblywoman Buckley:
Maybe we could get those questions answered and clarified as to why they want to do this.
Assembly Bill 166 (2nd Reprint): Makes various changes concerning transfer of right to receive payment pursuant to structured settlements. (BDR 3-231)
Chairman Anderson:
Mr. Brown, Assembly Bill 166, Amendment 743, is yours. This amendment makes changes to clarify the need for approval by the district court to transfer the rights to receive payment pursuant to a structured settlement.
Assemblyman Brown:
I have just looked these over and I know that Matt Sharp and Alfredo Alonso had raised a couple of technical points. I think this reflects that and does not seem to be substantive. I looked through this quickly and it seems okay to me.
Chairman Anderson:
It leaves the authorization to commence the action in a district court located where the original claim that gave rise to structured settlement could have been filed. This amendment retains the language authorizing the commitment of the action in a district court located where the original court was filed and clarifies the language regarding required disclosure concerning adverse tax consequences.
Assemblyman Brown:
There was some discussion about where the application should be filed. In the original version, it was where the original case was filed or could have been filed. I think most people wanted to see it filed where the case had been adjudicated, and that is my preference. I think essentially it needs to be in front of the same judge.
Chairman Anderson:
Am I to take that to mean that you like these?
Assemblyman Brown:
Actually, I think they are just technical in nature and yes, I think they are good.
Chairman Anderson:
We will assume those are okay.
Assembly Bill 365 (2nd Reprint): Makes various changes to provisions regarding guardianship. (BDR 13-953)
Chairman Anderson:
The next is Assembly Bill 365, Amendment 671.
Assemblywoman Buckley:
This was the guardianship bill that I sponsored and I am in agreement with these changes. They went into this with more specificity regarding the things that would be looked at in determining reasonable compensation and I think these were issues brought up by the Senior Citizens Law Project in Washoe County. I think they are good changes.
Chairman Anderson:
We will accept and recommend those changes.
This takes me to first conference committees. For A.B. 155, it will be Mr. Conklin and Mr. Carpenter.
Senate Bill 206 (2nd Reprint): Makes various changes to provisions relating to mechanics’ and materialmen’s liens. (BDR 9-755)
Assemblyman Anderson:
With S.B. 206, they are asking us to Recede or Not Recede from the amendment that we placed on their bill. The reason we are not going to recede is because there is another line that we needed to deal with regarding lessors or notifiers that the lessee must be accompanied with Section 26, subsection 5, for the recorder of surety bonds. They wanted to have a little more play with the bill and I was going to ask Mr. Sherer and Mr. Horne to accompany me on that and we would Not Recede.
I think that is it. I know that Ms. Lang is working through the night again for the medical malpractice piece, and I understand that part of our agreement is here within the Committee. Some of you may have had a change of mind and taken a new view of the bill. If you voted in favor of the bill, I expect you to again vote in favor of the bill, unless you talk to me. A couple of people have already done so; some gave me a bye on it so they are already free agents. I would like to remind you that most of the things that come out of here have come out of here united. If you change your mind, and you surely are entitled to change your mind, please give me the courtesy of telling me why, just in case there is something that comes forward. I have noted a small wrinkle in one of the bills that we had passed out and I am going to try to fix it before it comes out of the bill drafter’s office so we can quiet a couple of folks down. I don’t think we are going to be doing dramatic harm to it, but it is one of those business-corporate things that only those people who deal in business and corporate law understand.
We are adjourned [at 10:14 a.m.]
RESPECTFULLY SUBMITTED:
JoAnn Kula
Transcribing Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: