MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
May 8, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:30 a.m., on Thursday, May 8, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark E. Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Assemblywoman Barbara E. Buckley, Assembly District No. 8
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Jo Greenslate, Committee Secretary
OTHERS PRESENT:
Glen Whorton, Assistant Director, Operations, Northern Nevada, Department of Corrections
Kara Kelley, Lobbyist, President and Chief Executive Officer, Las Vegas Chamber of Commerce
Ernest E. Adler, Lobbyist
Nancy E. Hart, Deputy Attorney General, Office of the Attorney General
Stan Olsen, Lieutenant, Lobbyist, Las Vegas Metropolitan Police, and Nevada Sheriff’s and Chief’s Association/South
Chairman Amodei:
We will start the work session with Assembly Bill (A.B.) 60.
ASSEMBLY BILL 60: Provides that decision of juvenile court to deny certification of child for criminal proceedings as adult may be appealed. (BDR 5-280)
Chairman Amodei:
Mr. Anthony, would you give us a brief recap of A.B. 60.
Nicolas Anthony, Committee Policy Analyst:
Assembly Bill 60 specifies the decision of juvenile court to deny certification of a child as an adult in a criminal decision, is a final judgment from which an appeal may be taken. There was no opposition to this bill. It was heard in committee on April 16. There was an amendment offered by Dr. Siegel. It is the same amendment he offered previously on another bill.
Mr. Anthony:
The amendment was to assure a juvenile facing certification fully understands and comprehends the proceedings. It is included in the Work Session Document (Exhibit C. Original is on file in the Research Library.) in the legal-sized attachment, and in the bound Work Session Document under tab A. The only other committee concerns raised during the hearing were regarding what other states currently use, and if Nevada would be in the minority as far as following the proposed procedures.
Senator Care:
In looking at Dr. Siegel’s amendment, I support the bill, and I would support the amendment if it were really necessary. I do not know if the trial court would address this issue in the first instance. In reading the bill, it basically says if the juvenile court can do it, the prosecutors ought to be able to do it too. The issue of certification and whether the defendant would understand and comprehend the proceedings, I do not know. My question is if that determination would have already been made at the trial court level when it comes to the certification issue in the first instance. I do not know the answer. I suppose, since we are running out of days, we could move to amend, adopt the amendment, and straighten it out later.
Senator Wiener:
As I recall, during the hearing I asked which crimes are certified. There are different levels of crimes at which certification is mandatory. I do not recall testimony clarifying whether developmental or mental capabilities are taken into account. Do you recall whether that was answered during testimony? I believe it was the nature of the act that created the certification environment.
Mr. Wilkinson:
The specific acts this amendment addresses are sexual assault involving the use or threatened use of force or violence against the victim or an offense or attempted offense involving the use or threatened use of a firearm, if the child was 14 years of age or older at the time of commission of the offense. Currently, the law provides for mandatory certification unless the court specifically finds, by clear and convincing evidence, the child’s actions were substantially the result of substance abuse, emotional, or behavioral problems and such substance abuse or problems may be appropriately treated through the jurisdiction of juvenile court. This would provide an additional exception to mandatory certification for those specific offenses.
Chairman Amodei:
Even without the amendment, I would assume if there were an issue regarding competency, it would still be germane to the process of certification.
Mr. Wilkinson:
I believe the issue of competency, although I do not believe there are specific provisions in the juvenile chapter, would be something addressed just as it would for an adult.
Chairman Amodei:
I do not have an objection to the amendment. It probably codifies what is already happening.
Senator Titus:
I would support the amendment, based on what Mr. Wilkinson said. You would think this would be understood, but it is not stated specifically or explicitly. I believe we ought to add this amendment.
SENATOR CARE MOVED TO AMEND AND DO PASS A.B. 60 WITH THE AMENDMENT FOUND UNDER TAB A OF THE WORK SESSION DOCUMENT.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR WASHINGTON WAS ABSENT FOR THE VOTE.)
*****
Chairman Amodei:
I will open discussion on A.B. 40.
ASSEMBLY BILL 40 (1st Reprint): Extends period of limitations for commencing civil action after action has been dismissed under certain circumstances. (BDR 2-769)
Chairman Amodei:
Senator Care, do you have some amendments?
Senator Care:
I would offer the following proposed amendments, which are not contained in the Work Session Document (Exhibit C). I have been corresponding with Assemblyman Oceguera, but I do not know where he stands on the proposed amendments. The amendments are as follows, in conceptual form, “If a party, who has had an action dismissed for lack of subject matter jurisdiction in federal court, wishes to recommence in State court, it would only be by leave of the State court judge.” I believe the court would like to know why it was not filed in State court in the first instance.
The second proposed amendment is:
No new claims for relief could be contained in the State court action that was not contained in the federal action in the last amended complaint. Any findings in fact and conclusions of law in the federal action would be law in the case in a recommenced action in State court.
Perhaps this amendment could be considered. Again, I am not quite prepared to make a motion because I have not spoken to Assemblyman Oceguera, specifically, about these proposed amendments.
Chairman Amodei:
I appreciate that, and actually, I would not take a motion today based on these amendments being available for review today. Mr. Wilkinson, if you could make these proposals available to individuals who have expressed an interest in the issue to give them a few days to review them, we will revisit A.B. 40 in our next work session.
Mr. Anthony, with respect to A.B. 14, there is a reference on page 1 of the legal-sized portion of the Work Session Document (Exhibit C) to Mr. Pescetta’s proposed amendment regarding burden throughout the penalty phase. Has anything been submitted to you in writing, or was it just from testimony?
ASSEMBLY BILL 14 (1st Reprint): Makes various changes to penalty hearing when death penalty is sought and revises mitigating circumstances for murder of first degree. (BDR 14-198)
Mr. Anthony:
The amendment was actually in a memorandum sent to the committee after the hearing. The memorandum went through some case law, and I put that in. It is a counter proposal (Exhibit D). If the committee chooses not to adopt A.B. 14 in its current form, Mr. Pescetta would like language added stating the State bears the burden. That is why it is typed that way, Mr. Chairman.
Chairman Amodei:
If you would get with Mr. Pescetta and Mr. Wilkinson to see what the amendment would look like, conceptually, we will review it at the next work session.
Senator Titus:
I recall one of the things mentioned by Mr. Peterson was that you could not tell the jury the victim’s family cannot ask for the death penalty. I support the bill whether or not the person has the last opportunity to plea for his life, but what about the bill with the additional jury instruction, “You have to realize the victims cannot ask for the death penalty.” Could we look at that possibility?
Chairman Amodei:
Yes, that is fine. It is my intention to go through all the bills today, even though I may not take a motion on some of them. If any member of the committee has a thought they would like explored for potential amendments for the next work session, please feel free to speak up.
We will next address A.B. 73.
ASSEMBLY BILL 73 (1st Reprint): Revises provisions concerning certain crimes committed against older persons. (BDR 15-357)
Mr. Anthony:
Assembly Bill 73 lowers the age from 65 to 60 years for enhanced penalties for elder abuse or crimes against elders. During the hearing there was an amendment proposed by Mr. Kemberling of the Office of the Attorney General. It is attached as tab B to the Work Session Document (Exhibit C). The amendment attempts to address providing an intermediate level of penalty. In addition, at the hearing Ms. Coyne from the city of Las Vegas submitted an amendment, which is attached as tab C (Exhibit C). Her amendment seeks to make the penalty a felony. The committee has a policy choice of whether to go with Mr. Kemberling’s lesser penalty or a felony, as Ms. Coyne suggested.
Senator Care:
I spoke with Mr. Kemberling this morning. I am looking at the proposed amendment. If the first offense is a gross misdemeanor, does the municipal court still have jurisdiction? I am comfortable with the proposed amendment. Does the amendment include what was deleted on the Assembly side? That was the cost of investigation and prosecution. I guess not. I was going to suggest putting that back in, but if it was left with the remainder of the proposed amendment, I am agreeable to it. It would be a gross misdemeanor for the first offense, and for a subsequent offense, the penalty would be a felony.
Chairman Amodei:
The amendment at tab B (Exhibit C) would restore the bill to its original configuration, which would include those costs.
Senator Care:
If the Chairman would entertain a motion, it would be to amend and do pass to restore the cost of investigation and prosecution and to adopt the language we received this morning; first offense gross misdemeanor and then it bumps up for the second and subsequent offenses to a felony.
Chairman Amodei:
What about the city of Las Vegas proposed amendment at tab C (Exhibit C)?
Senator Care:
They have withdrawn that, I believe.
SENATOR CARE MOVED TO AMEND AND DO PASS A.B. 73 WITH THE AMENDMENT FOUND AT TAB B OF THE WORK SESSION DOCUMENT.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR WASHINGTON WAS ABSENT FOR THE VOTE.)
*****
Chairman Amodei:
We will now address A.B. 78 (Exhibit C).
ASSEMBLY BILL 78 (1st Reprint): Revises penalty for certain sexual offenses committed against children and prohibits suspension of sentence or granting of probation to person convicted of lewdness with child. (BDR 15-1031)
Senator McGinness:
This is the one in which I was concerned about the fiscal note. Is this the one that has a fiscal note in 2023 or something?
SENATOR NOLAN MOVED TO DO PASS A.B. 78.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR WASHINGTON WAS ABSENT FOR THE VOTE.)
*****
Chairman Amodei:
We will address A.B. 89(Exhibit C).
ASSEMBLY BILL 89: Removes exemption for landlords who own and personally manage four or fewer residential dwellings from provisions relating to landlords and tenants. (BDR 10-952)
Senator Care:
There are no proposed amendments to A.B. 89, and I believe it is overdue. I believe everyone agrees in the year 2003 there is no longer a reason to have this exemption.
Chairman Amodei:
The notes here indicate you had concerns about disclosures on the landlord. Have those been satisfied?
Senator Care:
Yes, Mr. Chairman. I believe that is the subject of another Legislative Session.
SENATOR WIENER MOVED TO DO PASS A.B. 89.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR WASHINGTON WAS ABSENT FOR THE VOTE.)
*****
Chairman Amodei:
Mr. Anthony, would you please summarize A.B. 92?
ASSEMBLY BILL 92 (1st Reprint): Makes various changes to requirements governing filing and form of certain documents. (BDR 8-271)
Mr. Anthony:
Assembly Bill 92 relates to the uniform commercial code and secured transactions. At the hearing, Mr. Anderson from the secretary of State’s office offered an amendment to standardize the fees for utility filings. It is attached as tab D to the Work Session Document (Exhibit C). Also at the hearing, Mr. Daykin offered an oral amendment to simply change the word “such” to “the” on page 2, line 34 of A.B. 92. Those are the two amendments for the committee’s consideration.
SENATOR TITUS MOVED TO AMEND AND DO PASS A.B. 92 WITH THE AMENDMENT AT TAB D OF THE WORK SESSION DOCUMENT AND TO CHANGE THE WORD “SUCH” TO “THE” ON PAGE 2, LINE 34 OF THE BILL.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR WASHINGTON WAS ABSENT FOR THE VOTE.)
*****
Chairman Amodei:
We will address A.B. 103(Exhibit C).
ASSEMBLY BILL 103 (1st Reprint): Requires Director of Department to submit list to each county clerk providing certain information concerning offenders who were released from prison or discharged from parole during previous month. (BDR 14-532)
Glen Whorton, Assistant Director, Operations, Northern Nevada, Department of Corrections:
Assembly Bill 103 is a proposal put forward by the Department of Corrections to correct an archaic piece of statute that, in the corporate memory of the department, has never been used. It was established when communications and technology were not as broad as they are today. As the law is currently configured, it requires us to return a certified copy of a judgment of conviction to the county clerk, which in actuality, has never been done. We have checked with staff members who were in the department as far back as 1968. For many years, the Department of Corrections did not get certified judgments of conviction from our largest constituent, Clark County. We got minute orders, so there is no way to return these. It is counterintuitive for people to seek information regarding discharge from prison from county clerks. We get those calls every day our business is open. We now have a Web site indicating individuals who had been in the Department of Corrections in the past and those currently in the department.
In our experience, we have only had one complaint regarding this issue, which is actually a revenge lobby based upon a classification action I consummated on the individual of whom you spoke, Mr. Chairman, while he was incarcerated. He probably spoke to you about my being disingenuous regarding a lawsuit. In fact, this proposal was put forward years before that individual ever complained. As this issue is currently configured, it will actually provide more information to county clerks than they would get if there were a strict following of this statute, because it leaves out people who discharge parole. The way the language is presented, this corresponds to our practice of providing county clerks a monthly list of those people discharged from prison and discharged from parole. Of course, paroles are a major portion of what we do.
SENATOR NOLAN MOVED TO DO PASS A.B. 103.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
A proposed amendment to A.B. 118 has been submitted.
ASSEMBLY BILL 118: Revises provisions regarding when sentence of death may be imposed. (BDR 14-856)
Mr. Anthony:
This morning, Mr. Graham handed me a proposed amendment. It would combine A.B. 118 and A.B. 14. We can go ahead and distribute it to the committee (Exhibit D). The amendment provides for a mitigating circumstance for determination of age. It would take the juvenile question from A.B. 118 and combine it with A.B. 14.
Chairman Amodei:
If you would make the proposed amendment available to the committee and members of the public who are interested, we will take up A.B. 118 (Exhibit C) at the next work session.
We will address A.B. 156 (Exhibit C).
ASSEMBLY BILL 156 (1st Reprint): Abolishes plea of guilty but mentally ill and reinstates exculpation by reason of insanity. (BDR 14-131)
Mr. Anthony:
Assembly Bill 156 abolishes the plea of guilty but mentally ill. During the hearing Mr. Graham offered an oral amendment to delete some language, but I understand he has since retracted his oral amendment since it was the language previous to “guilty but mentally ill.” Additionally, Senator Washington proposed amending Senate Bill (S.B.) 403 into A.B. 156. Per the Chairman’s request, Dr. Brandenburg of the Division of Mental Health and Developmental Services testified as to the need for standardizing assessments for evaluating competency to stand trial, which was the content of S.B. 403. Dr. Brandenburg said he believed this would be a good vehicle to move the amendment.
SENATE BILL 403: Requires certification of persons who provide reports or evaluations to courts regarding competency of defendants. (BDR 14‑1245)
SENATOR WASHINGTON MOVED TO AMEND AND DO PASS A.B. 156 AMENDING S.B. 403, IN ITS ENTIRETY, INTO A.B. 156.
SENATOR MCGINNESS SECONDED THE MOTION.
Senator Titus:
Mr. Chairman, would you remind me of what happened to S.B. 403, originally?
Senator Washington:
We thought it was a fee bill. It basically certifies those persons who evaluate the competency of defendants. Dr. Brandenburg told me it is a process currently done routinely. This would codify the process and put it into statute. Dr. Brandenburg said his division would charge a fee to do the evaluations, and it is necessary to continue operations. I told Dr. Brandenburg I would try to find a vehicle to amend S.B. 403 into A.B. 156.
Senator Titus:
Did it just miss the deadline or was it exempt?
Senator Washington:
Actually, it was my fault. I spoke against S.B. 403 because I thought it was a fee bill.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
We will now address A.B. 160(Exhibit C, tab E).
ASSEMBLY BILL 160 (1st Reprint): Makes various changes to provide protection to certain persons. (BDR 3-160)
Mr. Anthony:
Assembly Bill 160 requires the court to order an assignment of income to a party who obtains an extended order for protection that includes an order to pay child support. During the hearing there was no opposition. Assemblywoman Buckley offered an amendment to provide an alternative method of service for a party following at least two unsuccessful previous attempts to serve the party. The amendment has been reviewed by interested parties and incorporates comments from Ms. Blomstrom, Ms. Kelley, and Ms. Dugan. I believe the amendment is drafted to assuage their concerns, raised at the hearing, as to how A.B. 160 relates to employers.
Chairman Amodei:
Mr. Wilkinson, I am looking through the amendment, and I do not have a problem with the ability, when service is frustrated, to serve an individual in a business context. Does the amendment contain anything clarifying when serving a business there is no liability for the employer, in a civil sense, for failure to properly deliver service? I do not want to make the business liable if the service document was put on the wrong desk or something of that nature.
Mr. Wilkinson:
Mr. Chairman, there is no specific language in the proposed amendment currently stating there is immunity from liability for the employer under those circumstances. We could certainly add that.
Chairman Amodei:
Does the committee have any objection to adding that provision?
Kara Kelley, Lobbyist, President and Chief Executive Officer, Las Vegas Chamber of Commerce:
I had that discussion with Assemblywoman Buckley, and not being an attorney, I want to share with you what she relayed to me. She said if you are served, for example, at home, and your mother answers the door, as long as someone in the household is over 18, you are considered served, even if it was not personally handed to you. She believes that is equally applicable in a business context and did not believe the employer would fall under liability. Apparently, in terms of torts, there are certain standards you would have to meet. Assemblywoman Buckley did not believe it meant any of those standards of liability. That being said, she did say she did not have a problem with making a Senate Floor statement declaring legislative intent, but the purpose of A.B. 160 was not to further burden the employer and create liability.
Chairman Amodei:
I appreciate that, but would feel better if the language was in there. Is there any objection by the committee to adding such language to this amendment? At this point, if somebody wishes to amend and do pass with the amendment at tab E and the additional language discussed about employer liability, the chair would accept such motion.
SENATOR TITUS MOVED TO AMEND AND DO PASS A.B. 160 WITH THE AMENDMENT AT TAB E OF THE WORK SESSION DOCUMENT AND ADDITIONAL LANGUAGE DISCUSSED ABOUT EMPLOYER LIABILITY.
SENATOR WIENER SECONDED THE MOTION.
Senator McGinness:
That makes me feel a little bit better, but even in the amendment, tab E on page 2, it says they have to leave a copy of the documents with the manager of the office of human resources or another similar person, and that person shall accept service, identify another appropriate person, and contact the adverse party. I still think it puts way too much burden on the business. I will oppose the motion.
Senator Titus:
Could I hear from legal or Mr. Anthony in response?
Senator Care:
Under rule 4 of the Rules of Civil Procedure, when you serve somebody at his or her place of residence, and I believe the rule says a person of suitable age, the rule does not mandate the person who actually receives the summons and complaint deliver it to the defendant. I do not believe there is any corresponding legal duty.
Mr. Wilkinson:
I do not believe there is any specific provision that puts a burden on a person who accepts service.
Chairman Amodei:
Senator Titus, as the maker of the motion, do you have any objection to withdrawing the motion to allow the committee to consider these issues further?
Senator Titus:
I hate to see the bill held up. Do we need more information or is anybody going to change his or her mind?
Chairman Amodei:
Speaking only for myself, I guess the concern is not with the concept of having a business available as a service point. The issue arises by putting affirmative duties that are not put on those who are served individually in a residential context, on the business. Are we creating duties that apply in a business context that do not apply in a personal context?
Senator Titus:
I appreciate that, but a business context is very different from a personal context. It is not nearly as structured, you cannot hold it as accountable. I would, perhaps, have more concern if we did not have Ms. Kelley speaking for the chamber of commerce, saying business has looked at this and seems to think it would work.
Ernest E. Adler, Lobbyist:
I was not going to testify on this bill, but I have a client who has a primary human resources office in Nevada, with employees in Colorado, Arizona, and California. If you do not have some sort of obligation for the human resources office to transmit the documents to the employee, the employee may never receive them. The employee may be working at one of the out-of-state offices when the service occurs. Unless there is some means of transmitting the documents, the employee will not even know he or she was served. From an employee standpoint, that could be devastating.
Nancy E. Hart, Deputy Attorney General, Office of the Attorney General:
I believe, in response to Senator McGinness’ concerns, section 2 in the proposed amendment, on page 2 of tab E, is intended to offer several choices to the employer rather than levels of burden. My understanding is paragraph (c) was added quite recently, at the employers’ suggestion, as an alternative way to convey the information to the adverse party without having to go find him or her. They could simply contact the adverse party and have him or her make arrangements to come in and accept service personally. This was added as a way to alleviate any burden in certain instances. In other words, section 2, as has been mentioned, is articulating different ways in which the actual papers could be delivered to the adverse party.
Senator Nolan:
Senator Adler brought up a good point that I believe we have not given due consideration. I am uncomfortable at present with the motion. The primary employers in this State are large casinos. When papers are served, they go through a human resources department, where they will end up on a desk. The only way to get documents to the correct person would be to require it, and if we require it, there is usually some kind of penalty for not delivering the documents. I believe the bill has merit, but I agree with the Chairman there should be some type of amendment to provide additional protection to business. I would vote against the motion but am in favor of looking at it again.
Senator Titus:
Since we have the sponsor of the amendment here, perhaps we could hear from Assemblywoman Buckley.
Assemblywoman Barbara E. Buckley, Assembly District No. 8:
As we said in our testimony, the numbers in the State of these orders not being served is overwhelming; 4000 out of 12,000 were not served in Clark County alone. We need another tool. Many other states have adopted this with no problems. I was so encouraged when the chamber of commerce, the manufacturers association, all of the employers involved said, “This affects our employees who are not getting their child support,” and stepped up to the plate and worked on this amendment with me. Usually, employers’ first thoughts are, “Ooh, I do not want any laws that might give me more to do.” They did not see it that way and offered language to make it better, whereby they could call the employee in, serve it themselves, and not be involved. That, I thought, said a lot for the employers in our State.
I missed most of your discussion, so I am not sure where your concern was directed. Someone suggested there should be a sentence in the amendment to make it clear employers are not liable if it takes them 2 days to serve, and the person got beaten up in the meantime. If you want to add that, fine. I do not believe it is necessary though, because right now we have 4000 orders not being served.
Domestic violence victims are not serving the sheriff for not serving them. Quite frankly, they just want to be left alone, and sometimes an order does not mean much, as we see by the killings. What it does is make those who are not violent to finally pay child support. That is why they evade this order, because they do not want to pay, and this finally makes them pay. Certainly, later they can bring up, “I didn’t get it in my hand,” but at that point, who cares, because you finally have them in court, something they have been evading all this time.
Senator Care:
What if we, just to get the bill moving, add something like, “An employer who can demonstrate a good-faith effort to comply with what is proposed in the amendment, precludes a cause of action against the employer.”
Assemblywoman Buckley:
If that raises your comfort level, it is fine with me.
Chairman Amodei:
Speaking for myself, I do not believe there is intent to not move the bill. It is not a question of holding up the bill; it is just to get an appropriate comfort level. I am mindful of your comments about the people in support of A.B. 160. Clearly, I do not believe the future of the bill is in question. It would have been my hope we could have slipped this until next week to give those concerns a chance to be discussed in the same manner you have indicated. However, the maker of the motion wants to leave the motion on the floor, and it is pending. We will vote on the motion. Regardless of what happens with the motion, it would be the intention of the chair, if the bill does not move today, to revisit it in a work session on Tuesday. Maybe nothing will change, but I believe there have been concerns in terms of the mechanics of the business portion of it, people need to become comfortable with that part. It has nothing to do with the overall policy, which I believe is fully supported.
Senator Washington:
I think A.B. 160 is a good bill, and I believe the concerns regarding employers are justifiable. With respect to the maker of the motion, if the intent of the chair is to bring the bill back up, I will support the chair, as long as we have the opportunity to bring it back and address the concerns facing the employer for cause of action, at a later time. If the vote were to kill the bill, I would oppose that.
Senator Titus:
I appreciate that, so let me amend my motion to amend and do pass to include the language that Senator Care suggested to make it clear this is not a cause of action and businesses cannot be held liable. I believe that should address those concerns.
SENATOR TITUS MOVED TO FURTHER AMEND A.B. 160 TO INCLUDE LANGUAGE AFFIRMING THIS IS NOT A CAUSE OF ACTION AGAINST EMPLOYERS WHO MAKE A GOOD-FAITH EFFORT TO COMPLY WITH THIS LEGISLATION.
SENATOR WIENER SECONDED THE AMENDED MOTION.
THE MOTION CARRIED. (SENATOR MCGINNESS VOTED NO.)
*****
Chairman Amodei:
We will address A.B. 163(Exhibit C).
ASSEMBLY BILL 163 (2nd Reprint): Makes various changes to provisions concerning financial practices. (BDR 7-383)
Mr. Anthony:
Assembly Bill 163 prohibits a person from willfully offering items into evidence known to be forged or fraudulently offered. It also increases from 1 to 2 years the statute of limitations for suing a person who offers or sells a security in violation of Nevada’s security laws. A proposed oral amendment was offered by Senator Amodei to make section 5 of the bill only apply to publicly traded companies. No other comments or concerns were noted.
Chairman Amodei:
Just to refresh the committee’s recollection, section 5 provisions and testimony on the bill were aimed at those who engage in the securities market and to provide protection for individuals in the securities market through the programs in the Secretary of the State’s Office. There were concerns about those gaming entities closely held and family operations who did not want to, since they do not engage in offering securities for sale to the public, have to engage in the services of another accounting firm to comply with a safety valve measure not applying to their securities, since they hold them all. Are there any thoughts from the committee on this amendment?
There is another issue that has arisen with respect to S.B. 298, which was the resident agents bill we passed out of this committee and this House, which appears to be in choppy waters in the Assembly.
SENATE BILL 298: Makes various changes to provisions pertaining to business. (BDR 7-987)
Chairman Amodei:
At this point in time, with respect to A.B. 163, if anybody is so inclined, I would entertain a motion along the lines, to amend and do pass A.B. 163 with the section 5 amendment and to amend S.B. 298, in its entirety, into A.B. 163.
SENATOR WASHINGTON MOVED TO AMEND AND DO PASS A.B. 163 WITH THE SECTION 5 AMENDMENT AND TO AMEND S.B. 298, IN ITS ENTIRETY, INTO A.B. 163.
SENATOR MCGINNESS SECONDED THE MOTION.
Senator Titus:
I originally voted against S.B. 298, so on the Senate Floor I will oppose the amendment because I voted against the bill, but support the bill once it passes.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
We will address A.B. 166 (Exhibit C, tabs F and G).
ASSEMBLY BILL 166 (1st Reprint): Makes various changes concerning transfer of right to receive payment pursuant to structured settlements. (BDR 3‑231)
Senator Titus:
My proposed amendment is under tab G of the Work Session Document (Exhibit C). This is the sunshine amendment, and we have worked hard on this amendment to take into account everybody’s concerns. The original concerns included language to the effect a public hazard that caused, or might, or could cause harm. We eliminated “might” or “could” cause harm and left it as something that actually causes harm. We have narrowed the definition of public hazard to “serious” public hazard. We also narrowed the definition of harm as physical injury, and now you see “substantial risk of death, or serious permanent disfigurement.” We have eliminated prolonged pain, which is part of the existing definition of physical injury.
Finally, the concern expressed by Mr. Bacon was this would release information about the terms of the settlement. We do not care about that. We do not want to know how much somebody got paid, that is not important. What is important is the hazard itself. This now narrows the language to details about the hazard, not details about the settlement. It also keeps in place protection for any trade secrets that would not have to be revealed, which is something else with which businesses are concerned. All it is doing is saying part of a settlement cannot be a provision that information about a serious public hazard itself be kept a secret.
Chairman Amodei:
It is the intention of the chair, since the Work Session Document was just handed out this morning, to allow review of the proposed amendment by the committee and others interested in this area. We will revisit this in Tuesday’s work session.
Assembly Bill 250 is the Assembly speaker’s version of the majority leader’s bill. My purpose in calling it up today, since there was a lot of testimony and written material provided, is to receive any discussion, concerns, or requests for additional information from committee members before revisiting it in a subsequent work session.
ASSEMBLY BILL 250 (2nd Reprint): Makes various changes regarding certain acts relating to terrorism, weapons of mass destruction, biological agents, chemical agents, radioactive agents and other lethal agents, toxins and delivery systems and requires resort hotels to adopt emergency response plans. (BDR 15-49)
Senator Washington:
Just to follow up, I have not been tracking Senator Raggio’s bill (S.B. 38), but I understand it may be in murky waters in the Assembly, as well. Does staff know where S.B. 38 is, currently?
SENATE BILL 38 (1st Reprint): Makes various changes regarding certain acts relating to terrorism, weapons of mass destruction, biological agents, chemical agents, radioactive agents, toxins and delivery systems. (BDR 15-89)
Chairman Amodei:
I know there were proposed amendments concerning definitional things. Does anybody have any objections to taking a look at the Lusk, Grace, and Siegel amendments found under tabs H, I, and J, respectively (Exhibit C), concerning building arson definition, the definition of weapons of mass destruction, and combining them into one, so we can look at it during the next work session?
Senator Care:
I have no objection. I was going to offer a suggestion myself about weapons of mass destruction. The concern here, by some people, is when you start talking about a weapon, and that is a firearm, although I believe firearm is a subset of weapon or device. I suggest something to the effect, a weapon of mass destruction means any device intended, or intended by its user, to create a great risk of death or substantial bodily harm for more than one person. That could be anything, even a legitimate weapon. It depends how it is used or how it is intended to be used.
Chairman Amodei:
Include Senator Care’s comments in anything we look at in terms of proposed amendments for the next work session.
Senator Care:
I have a couple of other points to ponder. In section 7, I believe there was discussion about causing substantial destruction, contamination, or impairment of any building. I know what we all mean by that, I think, but I believe there was discussion about making what we mean by that more clear. A building could be just a shed. That was somewhat broad, I thought. There is also in the first section of A.B. 250, reference to resort hotels. We discussed having response plans, not just for resort hotels, but for example, shopping malls or any place where large numbers of people could be expected to congregate on personal property. I have not talked to the speaker of the Assembly about this, but I do not know if we want to confine this to resort hotels or include other locations.
Chairman Amodei:
With respect to those issues, if you want to talk with Assemblyman Perkins and get with Mr. Wilkinson concerning anything necessitated by those discussions, that will be fine for the next time we see the bill in work session.
Senator Wiener:
On the language, “distressing or frightening,” will that also be prepared in amendment form for discussion at the next work session?
Chairman Amodei:
Yes.
Are there any other requests from the committee for further work sessions on A.B. 250?
Senator Titus:
Senator Care talks about the other places. Staff, see if you can come up with a definition of other places, like fashion malls, as well as resort hotels.
Chairman Amodei:
There has also been discussion about appropriate plans for centers of government in A.B. 250. I believe Senator Rawson had talked about whether or not there is a need to create an interim committee to study this issue.
Senator Washington:
In the Senate Committee on Legislative Affairs and Operations, we looked it up in the Constitution of the State of Nevada, and there are provisions that allow for the seat of government to be relocated, at the request of the Governor, in times of State emergencies. Since power to convene the seat of government in a different location is already permitted to the Executive Branch, we did not take any action on it.
Chairman Amodei:
With respect to planning, Mr. Anthony, check with Senator Rawson to see if he is moving forward, or if he is interested in moving forward, with what he is working on in the context of this legislation, and report back to committee members before the next work session.
With respect to A.B. 274, A.B. 397, and A.B. 419 (Exhibit C), all heard in my absence, I have requested the disc so I can review the testimony. It is my intention to move all three bills to the next work session. If there are any discussion items now, for purposes of preparing for the next work session on those matters, please feel free to mention them.
ASSEMBLY BILL 274 (1st Reprint): Increases length of notice before person who is 60 years of age or older or who has disability may be evicted from certain periodic tenancies under certain circumstances. (BDR 3-1128)
ASSEMBLY BILL 397 (1st Reprint): Makes various changes concerning proceedings in actions concerning eminent domain. (BDR 3-1082)
ASSEMBLY BILL 419 (1st Reprint): Provides that landlord of dwelling units intended and operated exclusively for persons 55 years of age and older may not employ person to perform work on premises unless person has work card issued by sheriff. (BDR 10-833)
Senator Care:
Regarding A.B. 274, which is Assemblyman Goldwater’s bill, I e-mailed Assemblyman Goldwater last night, and I have not yet received a response. What I was going to suggest would go something like this: If you are a tenant in a periodic tenancy and you get a timely notice of termination of that tenancy and you believe, because of a physical disability or impairment or a circumstance relating to your age, you need an extra 30 days, and you are not in arrearage with your rent, you may petition the court for an additional 30 days, and the court may grant the petition. If the court denies the petition, nonetheless, the petitioner gets 5 days to move out. This is my proposed amendment, and since I have not yet heard from Assemblyman Goldwater, I cannot speak for him.
Chairman Amodei:
Do you want it included in the work session document for next Tuesday?
Senator Care:
Yes, I would, and I will talk to Assemblyman Goldwater in the meantime.
Chairman Amodei:
Mr. Wilkinson, please get with Senator Care and make sure we have something to look at next Tuesday.
Senator Care:
On A.B. 397 (Exhibit C, tab M), I have spoken to Assemblyman Horne. This is the eminent domain bill. The proposed amendment would be, if a party rejects an offer of settlement under the rule of the State in an eminent domain case, but does so in good-faith reliance upon an appraisal, it would be deemed to be a good-faith rejection of the offer in the event, following trial, and whether the verdict was for less than what was offered, if there is an attempt to impose the costs and fees associated with the rule and the statute. I would also include in the amendment, in the case of an eminent domain, it would not be 10 days to accept, it would be 30 days to give the property owner ample time to obtain an appraisal.
Senator Wiener:
I would like to build onto Senator Care’s amendment, and add that appraisers have recognized credentials, so we could have an established standard for appraisers to ensure good faith.
Senator Washington:
Regarding A.B. 397, it has been indicated to me there is a tremendous fiscal impact on the county and local municipalities concerning this issue. We never did ferret out the impact to the full extent. If any municipalities would like to elaborate on the fiscal impact of A.B. 397 to taxpayers, they are free to do so in our next work session.
Chairman Amodei:
Mr. Anthony, would you make the rounds of the local government and State representatives to provide input for this issue for the next work session?
We will discuss A.B. 341 (Exhibit C).
ASSEMBLY BILL 341: Effectuates specific and limited waiver of immunity of State under Eleventh Amendment to the United States Constitution with regard to certain federal laws regulating employment practices. (BDR 3‑356)
SENATOR TITUS MOVED TO DO PASS A.B. 341.
SENATOR CARE SECONDED THE MOTION.
Chairman Amodei:
I would indicate, with the fiscal note on the bill, I believe the committee’s policy statement will be clear. We will see how it fares when we report it out.
Senator McGinness:
With the fiscal note, are we going to re-refer it to the Senate Committee on Finance?
Chairman Amodei:
They have a way of getting what they want, so I would just as soon let them continue to do what they do best.
Senator Titus:
I believe that is appropriate, because there is really no fiscal note. There was just a concern this may cost more money.
THE MOTION CARRIED. (SENATOR MCGINNESS VOTED NO.)
*****
Chairman Amodei:
We will next address A.B. 365.
ASSEMBLY BILL 365 (1st Reprint): Makes various changes to provisions regarding guardianship. (BDR 13-953)
Mr. Anthony:
Assembly Bill 365 relates to the guardianship provisions. During testimony, Commissioner Henry submitted technical amendments to sections 62, 72, and 107. Those are attached at tab K (Exhibit C). Also during testimony, Mr. Nielsen, an attorney with the Senior Law Project, offered an amendment to section 107, which he believed would address unfettered discretion of payment of attorneys’ fees. Commissioner Henry believes the language she offered in the amendment to section 107, which states, “subject to the court’s discretion,” should satisfy Mr. Nielsen’s concerns. However, apparently Mr. Nielsen believes his amendment, at tab L of the Work Session Document (Exhibit C), should be the amendment to section 107. This is a policy decision the committee has to make. There was no other opposition to A.B. 365.
Chairman Amodei:
Are there any objections to either of the amendments?
Mr. Wilkinson:
The amendments conflict with one another.
Senator Washington:
If the amendments conflict with one another, I suggest we accept Mr. Nielsen’s amendment at tab L.
Mr. Wilkinson:
When I said the amendments conflict, it is just with the final piece, so we could include two-thirds of the amendment under tab K and the final part of tab L.
SENATOR WASHINGTON MOVED TO AMEND AND DO PASS A.B. 365 WITH THE AMENDMENT AT TAB K UP TO SECTION 107 AND THE PORTION OF THE AMENDMENT AT TAB L REGARDING SECTION 107.
SENATOR MCGINNESS SECONDED THE MOTION.
Senator Care:
Under the proposed amendment from the commissioner as to section 107, what would we not be including in this motion that conflicts with tab L, which we would be adopting?
Chairman Amodei:
I believe Mr. Nielsen’s amendment is more specific in providing guidance in what is looked at. I believe the commissioner wanted more along the lines, as indicated in section 62, subsection 2 of the amendment under tab K, “Subject to the court’s discretion and approval.” Those words are limited in no way, shape, or form. It is whether or not you are comfortable with granting unfettered discretion or a large amount of discretion subject to the specific factors provided by Mr. Nielsen.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
We will address A.B. 448 (Exhibit C).
ASSEMBLY BILL 448: Clarifies provisions governing arrest, involving violation of order for protection against domestic violence. (BDR 3-448)
Mr. Anthony:
Assembly Bill 448 relates to warrantless arrests. During the hearing there were no amendments; however, Sergeant Roshak and Mr. Nadeau testified they believed this measure specified practices already in place by law enforcement. Therefore, committee concerns were whether the bill was necessary to specify what is already being done.
Chairman Amodei:
In keeping with what we did earlier on A.B. 160, and trying to err on the side of those who need protection in this context, what is the pleasure of the committee?
Senator Titus:
I appreciate that statement. It is fairly common for us to codify things that are practiced. I would support doing that in this instance as well.
SENATOR TITUS MOVED TO DO PASS A.B. 448.
SENATOR WIENER SECONDED THE MOTION.
Senator Washington:
I appreciate my colleague’s motion and understand her concerns, but after listening to testimony from Mr. Nadeau regarding their practice, if law enforcement is already practicing what is called for in A.B. 448, it is probably not necessary to give them the authority to continue to do what they are doing.
Senator Care:
I am going to support A.B. 448. I am somewhat uncertain about the necessity of it, but I will support it. I am going to suggest an amendment, however. The amendment would be, nothing could be construed in the bill to permit a practice that runs counter to existing statute and case law. I do not want an officer saying, “We could get a warrant easily in this case, but we have decided we are just not going to do it.” A defense attorney could come up and say the arrest was illegal. I am going to support the bill, but would like to look at it for a possible amendment.
Chairman Amodei:
Is that request in the context of running a Senate Floor amendment? The reason I am asking is because the minority leader has made a motion and it has been seconded.
Senator Care:
That is fine.
Chairman Amodei:
I am just trying to be parliamentarily correct.
Senator Titus:
Mr. Chairman, I do not believe that is necessary. I appreciate the legal concern for all the legal details and legal arguments. However, we did not hear any testimony to the effect this would be a problem. I believe we can move the bill.
Chairman Amodei:
Senator Care, your comments are noted for our record and you are free to proceed in any manner you deem fit on the Senate Floor.
Senator McGinness:
In keeping with the theme today, it seems I am in opposition to some things, but we had testimony from Sergeant Roshak and Mr. Nadeau they did not believe A.B. 448 was necessary. I believe somebody on the committee asked the proponents of the bill what brought it forward. There was no testimony. They just kept saying they thought it would be good to pass the bill. I could not see the necessity. I will not bring an amendment to the Senate Floor, I will just vote against A.B. 448.
Senator Titus:
Maybe we can hear again from the proponents why this is necessary.
Nancy E. Hart, Deputy Attorney General, Office of the Attorney General:
I would like to reiterate there is a distinct reason for this bill, which is to provide clarity in the law, primarily for training. There was testimony during the hearing about the efforts of the Office of the Attorney General in collaboration with Peace Officers Standards in Training Commission, and we have conducted training throughout the State and continue to conduct training for law enforcement officers. Specifically, A.B. 448 is from feedback we have received through consultation with law enforcement officers requesting clarification around this, and it will be used for ongoing training efforts. It is definitely not just something to do, but something with the specific purpose of providing for clarity, primarily for training and for ongoing law enforcement.
I would draw your attention to the fact this is also mirroring an existing provision, also in chapter 33 of Nevada Revised Statutes (NRS), concerning workplace harassment orders. This language is already in NRS in another section, which is one of the reasons we are seeking clarification, so there will not be differing provisions around misdemeanor arrests in the same chapter. I also want to remind you that following the hearing a letter was sent from Lieutenant Simpson of the Las Vegas Metropolitan Police Department expressing their support of A.B. 448, and I believe all of you have received an e‑mail from him, since he was unable to be here.
Stan Olsen, Lieutenant, Lobbyist, Las Vegas Metropolitan Police, and Nevada Sheriff’s and Chief’s Association/South:
If I may clarify, the e-mail you received from Lieutenant Simpson was authorized by me. It was representing his position, not the position of the Las Vegas Metropolitan Police Department.
Chairman Amodei:
We have a motion on the floor to do pass A.B. 448. Is there any further of discussion?
THE MOTION CARRIED. (SENATORS MCGINNESS AND WASHINGTON VOTED NO.)
*****
Chairman Amodei:
Mr. Anthony, would you give us a summary of A.B. 536?
ASSEMBLY BILL 536 (1st Reprint): Makes various changes to filing requirements for business entities. (BDR 7-454)
Mr. Anthony:
Assembly Bill 536 relates to filing requirements for business entities. It was brought forth by the Office of the Secretary of State. At the hearing there was no opposition; however, Mr. Anderson proposed in the amendment to, in his words, “Accurately reflect the intent of the Assembly Committee on Judiciary.” The amendment is attached as tab N (Exhibit C), and would allow the prescribed forms to control all matters in filing and for ease of filing with the Office of the Secretary of State.
Senator Washington:
I would like to reiterate my claim, in this case, to A.B. 536. Due to the fact we want to make sure we take care of our educational system and those students participating in our fine institutions and show them we are doing the responsible thing on their behalf. Based on the demonstrations at the biennial softball game of the Legislature, I would ask that we amend A.B. 536 to include S.B. 298. If Mr. Anderson has no objections, I would ask that he pass the message to Secretary of State Dean Heller that we are good policy makers.
Chairman Amodei:
Does the motion include the amendment at tab N (Exhibit C), as well?
Senator Washington:
Yes, it does.
SENATOR WASHINGTON MOVED TO AMEND AND DO PASS A.B. 536 WITH THE AMENDMENT FOUND AT TAB N OF THE WORK SESSION DOCUMENT AND AMENDING S.B. 298, IN ITS ENTIRETY, INTO A.B. 536.
SENATOR MCGINNESS SECONDED THE MOTION.
Senator Titus:
Did we not just amend S.B. 298 into another bill that is going back to the Assembly?
Chairman Amodei:
Your perception would be entirely accurate.
Senator Titus:
Do you think this is appropriate? Do you think we could send a message down the hall another way besides this? My next question, is there not room in here for a sunshine amendment, as well?
Chairman Amodei:
Do you want us to hold another bill?
Senator Titus:
I will state my same objection. I will vote against it on the Senate Floor because I did not support S.B. 298 to begin with. It did not have anything to do with money for schools. I support money for schools. I just had concerns about protections for limited liability, limited partnerships that might lead us down the road to more corporate dishonesty.
Chairman Amodei:
I want to thank you for the record for being so open about it, because you have been. Your reservations are noted for the record and for purposes of what you deem fit on the Senate Floor.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
The final item on the Work Session Document (Exhibit C) on which we had a hearing quite a while ago was the proposal to amend Rule 40 of the Senate Standing Rules to include in the jurisdiction of this committee the subject of administrative procedure, which is found under chapter 233 of NRS. As you will recall, the purpose is this committee has jurisdiction over juvenile procedure, criminal procedure, and civil procedure. While it is appropriate for the regulatory provisions found in that chapter to stay with the Senate Committee on Government Affairs, the intent was to provide jurisdiction in a procedural sense for all contested matters in the State with the Senate Committee on Judiciary.
The Chairman is looking for the appropriate motion to bring this issue to the Senate Floor to amend Senate Rule 40 to provide for administrative procedure jurisdiction to be within the jurisdiction of the Senate Committee on Judiciary.
SENATOR CARE MOVED TO AMEND STANDING RULE 40 IN ACCORDANCE WITH COMMITTEE DISCUSSION.
SENATOR WASHINGTON SECONDED THE MOTION.
Senator Washington:
I remember the hearings, and I strongly agree. I believe the Senate Committee on Judiciary should oversee administrative procedure, since we deal with many matters dealing with felonies and crimes within our statutes. I believe sometimes the administrative procedures get lost in overall judicial prudence, and sometimes they are used as a leverage to sway unpopular opinions and decisions. I believe we definitely need to keep tabs on what is going on with administrative procedure.
Chairman Amodei:
Mr. Wilkinson and Mr. Anthony, we will be relying upon you to guide us as to the appropriate forum and procedure to bring forward a rules amendment. We are assuming it is on the floor, but we want to err on the side of doing this completely in the open.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
The meeting is adjourned at 10:21 a.m.
RESPECTFULLY SUBMITTED:
Jo Greenslate,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: