MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
May 13, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:35 a.m., on Tuesday, May 13, 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 Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Barbara Moss, Committee Secretary
OTHERS PRESENT:
Stan Olsen, Lieutenant, Lobbyist, Las Vegas Metropolitan Police Department and Nevada Sheriff’s & Chief’s Association/South
James N. Heird
Leland Sullivan, Chief, Child Support Enforcement, Welfare Division, Department of Human Resources
Jon L. Sasser, Lobbyist, Washoe Legal Services
Chairman Amodei:
The hearing is open on Assembly Bill (A.B.) 443.
ASSEMBLY BILL 443: Provides additional penalty for selling or providing certain controlled substances in certain circumstances. (BDR 40-1281)
Stan Olsen, Lieutenant, Lobbyist, Las Vegas Metropolitan Police Department and Nevada Sheriff’s & Chief’s Association/South:
My intent was to have Detective Todd Raybuck discuss A.B. 443 and the effects of the drugs involved. Detective Raybuck is a narcotics officer with the Las Vegas Metropolitan Police Department, a community educator, and a drug reduction coordinator. He has a significant amount of knowledge. Unfortunately, because of job commitments, he was unable to attend the hearing. I will read highlights from his prepared written testimony (Exhibit C).
Accompanying me today is James N. Heird, who suffered the loss of his daughter from a drug overdose at a club.
James N. Heird:
I reside in Henderson. I will read my written prepared testimony (Exhibit D).
Senator Care:
Your testimony implies there are night establishments in Las Vegas that anticipate the problem as a matter of course and are prepared to handle it. It seems to me the establishment would have a duty to prevent the issue from happening and, when it does, remove people from the premises who might be engaged in that kind of activity. How prevalent is the problem? Are establishments knowledgeable about the activities occurring on their premises?
Lieutenant Olsen:
The establishments have a significant amount of knowledge. I have no information the establishments are involved in the sale or distribution of narcotics, but they are aware of drug use, which is the reason they hire staff to be available to take people to the hospital, transport them to their hotel rooms, or put them on gurneys and leave them in the kitchen. It is an ongoing problem.
Every morning the Las Vegas Metropolitan Police Department (METRO) has an executive staff briefing to discuss a series of ongoing crimes. For a time, every day of the week there were a number of overdoses at clubs. It is not unusual and a number of clubs have closed down, changed hands, and reopened. The METRO has raided these clubs with undercover officers. After moving everybody out of the club, you would be amazed at what is lying on the floor. Drugs are very prevalent.
The big issue is, employees and patrons are aware people are overdosing, but make no effort to do anything about it. In many cases, lives could be saved if the person is helped. If nothing is done, people die. When body temperatures reach 108 degrees, people end up with permanent difficulties. Therefore, the intent of A.B. 443 is to hold people accountable if they do not help a person who overdosed on drugs. Should A.B. 443 pass, the METRO will conduct an education program to make people understand that not helping a person who overdoses on drugs is a criminal event.
Mr. Heird:
There has been a small effort by clubs in Las Vegas. A club named Drai’s places lids on drinks because gamma hydroxybutyrate (GHB) is slipped into soft drinks and juices. Some clubs from the Partnership for a Drug-Free Nevada place posters in lavatories asking whether a person feels sick or has taken something, however, it is a very small effort.
Senator Care:
I will do nothing to disturb the bill. However, I would be interested in knowing whether there is anything in statute that would permit law enforcement to go after clubs if they have knowledge of drug activities, almost as though it is expected. There are forfeiture laws in the State, but I am unsure whether the premises would have to be involved in the underlying act.
Lieutenant Olsen:
We have gone after club licenses, however, in some cases, a hotel dining room will be sublet and made into an after-hours club. It will be leased from the hotel, sublet to somebody else, and may even go down to a third or fourth level on the sublets. Drai’s was also a dining room during daytime and dinner hours and later shifted to something else. I do not know whether they are still using the same facility.
Senator Care:
It seems the leaseholder or landlord may have knowledge of the problem and not be doing anything about it. I wonder whether or not an argument can be made that the premises become an instrumentality in the underlying act. Should that be the case, there may be an argument for forfeiture. In regard to “crack houses,” there have been cases in which a landlord lost the house through civil forfeiture. I would like to discuss this further at a later date.
Senator Nolan:
In my capacity as a paramedic, I responded to dozens of overdoses where people died. Witnesses hesitate to call because they fear arrest for contributing to the problem. I think some of these people will get what they deserve and what they expect. Sadly, many of them would not know the law exists unless the clubs post the information in prominent areas. In any event, there are still those who would not call 9-1-1 when it is necessary.
Chairman Amodei:
The hearing is closed on A.B. 443. What is the pleasure of the committee?
SENATOR NOLAN MOVED TO DO PASS A.B. 443.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
*****
Chairman Amodei:
The hearing is open on A.B. 475.
ASSEMBLY BILL 475 (1st Reprint): Makes various changes concerning providing health insurance for child pursuant to court order for support. (BDR 3‑1246)
Leland Sullivan, Chief, Child Support Enforcement, Welfare Division, Department of Human Resources:
I will read my written prepared testimony (Exhibit E).
Chairman Amodei:
The work session is closed on A.B. 475 and open on A.B. 14 and A.B. 118(Exhibit F. Original is on file in the Research Library.).
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)
ASSEMBLY BILL 118: Revises provisions regarding when sentence of death may be imposed. (BDR 14-856)
At the last work session I made specific requests of individuals to provide conceptual help in some areas. I asked the information to be available 5 days ago so it could be digested and responded to in a prepared manner. Apparently the process offended some people and spawned talk of other amendments. I will pull A.B. 14 and A.B. 118 from the work session until Thursday, at which time the committee will vote on the bills with or without amendments. We will see whether there will be four votes for a policy statement.
Senator Washington:
We requested an amendment to A.B. 14 in regard to jury instructions whereby the jury would be informed it may not ask for the death penalty. I do not see the amendment in the work session (Exhibit F).
Bradley Wilkinson, Committee Counsel:
That was Senator Titus’s proposal and she asked me not to draft any specific language.
Senator Washington:
On behalf of the victim’s family, I think it is important to include language instructing the jury it cannot specifically ask for the death penalty.
Chairman Amodei:
The work session is closed on A.B. 14 and A.B. 118 and open 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)
Senator Care:
Tab C of the Work Session Document (Exhibit F) contains my proposed amendments to A.B. 40. However, since it was proposed, the United States Supreme Court came up with another case on this issue, Jinks v. Richland County [123 S.Ct. 1667 (2003)]. Nowhere in the discussion does the court make any reference to the amendments I proposed.
On behalf of the victim’s family, I suggest changing 90 days to 30 days, which would be consistent with federal rule. In addition, section 1, subsection 3, paragraph (b), of the proposed amendment to A.B. 40 in the Work Session Document (Exhibit F), says “Any applicable findings of fact or conclusions of law entered by the court that dismissed the action shall be deemed binding in the action that is recommenced.” It means should a federal judge make certain determinations as to fact or law, that it become law of the case and the State court would be bound by it in the event the case is recommenced, which would probably happen in any event.
Chairman Amodei:
The hearing is closed on A.B. 40. What is the pleasure of the committee?
SENATOR CARE MOVED TO AMEND AND DO PASS A.B. 40.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
The hearing is open on A.B. 117.
ASSEMBLY BILL 117: Makes various changes to provisions governing withholding of income which is ordered to enforce payment of child support. (BDR 3-901)
Nicolas Anthony, Committee Policy Analyst:
Assembly Bill 117 clarifies the circumstances in which a court may find good cause for postponing a mandatory order of an immediate withholding of income for child support. During the hearing, Keith M. Lyons, Jr., from the National Trial Lawyers Association, supported the measure, and Janet Serial, representing herself as a concerned parent, opposed the bill. There were no other additional concerns or amendments offered during testimony on the bill.
Chairman Amodei:
The work session is closed on A.B. 117. What is the pleasure of the committee with regard to A.B. 117?
SENATOR CARE MOVED TO DO PASS A.B. 117.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
The work session is open on A.B. 166 (Exhibit F).
ASSEMBLY BILL 166 (1st Reprint): Makes various changes concerning transfer of right to receive payment pursuant to structured settlements. (BDR 3‑231)
Senator Titus:
I request A.B. 166 be moved to the next work session.
Chairman Amodei:
That is fine. The work session is closed on A.B. 166 and open on A.B. 250.
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)
Chairman Amodei:
Next Thursday it is my intention to amend the Senate majority leader’s name on to A.B. 250 and proceed forward with A.B. 250 as the terrorism vehicle. There are four proposed amendments at tab G in the Work Session Document (Exhibit F) by Senator Care, Lucille Lusk, Paul A. Grace, and Richard L. Siegel. Any additional amendments or tune-ups to A.B. 250 must be submitted to Mr. Wilkinson by noon tomorrow so he can identify the concepts for the committee.
Senator Washington:
Would it be possible for the staff to quickly explain the four amendments to A.B. 250?
Chairman Amodei:
I had the staff combine all the amendments into one global amendment at tab G of the Work Session Document (Exhibit F) and it deals with the definitional items brought forth in the hearing.
Senator Nolan:
Senator Care and I worked to bring some of the provisions of S.B. 41, requested by homeland security, into A.B. 250. I will speak with the Senate majority leader and the Assembly speaker to ascertain whether or not they would be agreeable to amending those provisions into A.B. 250.
SENATE BILL 41: Revises provisions governing release and use of limited personal information to certain supervisors of personnel involved in security of resort hotels. (BDR 14-110)
Chairman Amodei:
The work session is closed on A.B. 250 and open on A.B. 274.
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)
Senator Care:
Tab I in the Work Session Document (Exhibit F) contains my amendment in which a 60-year-old person with a periodic tenancy, who gives timely notice and the landlord wants to terminate the tenancy, may still petition the court. However, the court takes the circumstances into account and may grant the extension. If the court does not grant the extension, the senior whose petition was denied has 5 calendar days to move out. I also requested that only in the case where the senior is not in arrearages of the rent, he or she may petition the court. The amendment gives discretion to the court. It is not a “shall,” in other words, a person may fall into the circumstances because of age, physical disability, or infirmity, and needs the additional time.
Senator Titus:
Is petitioning the court automatic, or would the person have to go to court in any event?
Mr. Wilkinson:
After the person petitions, as long as the court was provided proof of the person’s age or disability, the court is required to grant the request.
Senator Titus:
In this case, if it says the court “may,” does that make it more complicated to make a case and put more of a burden on the person who already is in a bad situation?
Mr. Wilkinson:
Would Senator Care want to address that?
Senator Care:
There may be a case in which a person just wants to remain in the residence for an extra 30 days and his or her age or disability is not the reason. After discussing it with various members of the committee, I thought it was necessary to create an amendment to replace the original language that said if a person can demonstrate his or her age, he or she “shall” be given the extra 30 days. This amendment would put a burden, to some degree, on the petitioning tenant, but it also removes the circumstance in which the extension would be automatic simply by virtue of age or physical disability. It would not be done unless the landlord denies the request for additional time in the first place.
Jon L. Sasser, Lobbyist, Washoe Legal Services:
About 10 minutes ago I showed the amendment to the sponsor of A.B. 274. He indicated approval and e-mailed Chairman Amodei to that effect. In regard to Senator Care’s concern about the extension not being granted if the tenant is in arrears on the rent, nothing in the bill changes the fact if a tenant is in arrears, a 5-day notice can be dropped for nonpayment of rent. This provision is only available in a 30-day, no-cause situation. We hope that will take care of the concern.
Senator Care:
Would the chairman entertain a motion?
Chairman Amodei:
Yes.
Senator Care:
The motion would be to amend and do pass with the amendment at tab I of the Work Session Document (Exhibit F).
SENATOR CARE MOVED TO AMEND AND DO PASS A.B. 274.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION FAILED. (SENATORS AMODEI, MCGINNIS, NOLAN, AND WASHINGTON VOTED NO.)
*****
Chairman Amodei:
The work session is open on A.B. 288.
ASSEMBLY BILL 288 (1st Reprint): Provides for judicial approval of certain contracts involving minors. (BDR 11-1116)
Mr. Anthony:
Assembly Bill 288 relates to judicial approval for contracts for minors in artistic, creative, athletic, or intellectual property services. During the hearing on May 6, 2003, Jared Shafer, the former Clark County public administrator, felt the bill protected the industry rather than the minor. There was no other opposition to the bill. At the hearing, Assemblyman Oceguera, the sponsor of the bill, offered an oral amendment to remove section 15 of A.B. 288 in its entirety and also place the bill in chapter 609 of Nevada Revised Statutes (NRS), as opposed to chapter 129 of NRS. There were no additional comments or concerns.
Senator Care:
If the court revokes the petition, is the contract terminated? Must the parties terminate the contract? Must one of them breach the contract?
Mr. Wilkinson:
Section 15 of A.B. 288 says the court could revoke granting of the petition approving the contract, in which case the minor would have the normal existing contract remedies, which would include repudiating the contract when the minor reached the age of majority. The court could also declare the granting of the petition revoked unless the contract was modified.
Senator Nolan:
With respect to the minor who agrees to render artistic and creative services, or participate, would the provisions in section 3 of A.B. 288 preclude the adult in either situation from entering into the contract if the minor did not consent to do those things? Does the minor have standing in law to do that?
Mr. Wilkinson:
Is your question: “Could the parent of a minor require the child to perform against the child’s will, or enter into a contract without the minor actually agreeing?” I think it is part of what the bill is seeking to prevent. The minor would be required to be present should there be a hearing and the court could inquire into the matter. Therefore, I believe the answer would be no.
Senator Care:
Was there any testimony from the courts or any discussion as to whether or not A.B. 288 puts the court in the position of issuing an advisory opinion as to the validity of the contract itself?
Chairman Amodei:
What is the pleasure of the committee with respect to A.B. 288?
SENATOR NOLAN MOVED TO AMEND AND DO PASS A.B. 288.
SENATOR WIENER SECONDED THE MOTION.
Chairman Amodei:
Senator Nolan moved to amend and do pass A.B. 288 with the amendment being the deletion of section 15 and placing the bill in chapter 609 of NRS, as opposed to chapter 129 of NRS. The motion was seconded by Senator Wiener. Is there any discussion on the motion?
Senator Nolan:
Nevada is a prominent location and major designated area for filming and more movies involve children. Nevada does not afford children the same protection as California. This bill is an effort to bring parity and protection to performing children. I think it is a good effort.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
The work session is open on A.B. 320 (Exhibit F).
ASSEMBLY BILL 320 (1st Reprint): Makes various changes regarding malpractice. (BDR 57-868)
Assembly Bill 320 is an exempt bill still being worked by the parties involved; therefore, it will be calendared for the next work session, even though it is still before the deadline, to allow the process to continue.
The work session is closed on A.B. 320 and open on A.B. 337.
ASSEMBLY BILL 337 (1st Reprint): Makes various changes concerning rights of ex-felons. (BDR 14-63)
Mr. Anthony:
Assembly Bill 337 is the restoration of civil rights and the measure immediately restores the right to vote and hold office to certain persons. During the hearing, Laurel A. Stadler, on behalf of Mothers Against Drunk Driving-Lyon County Chapter, opposed the measure. Also, Assemblywoman Giunchigliani, sponsor of the bill, submitted an amendment at tab K of the Work Session Document (Exhibit F), which contains three parts. First, a person convicted of a category A felony would not automatically have his or her rights restored. Second, after having served their sentence they should also be allowed to seek office in the future. Third, the intent should be the felony would affect the ability to be licensed and should be related to the occupational license or practice. It would change the language in section 24 of A.B. 337.
Also, during the hearing, Senator Washington expressed concern ex-felons should only have the right to restore their rights once, and should they re‑offend, they would not be able to restore their rights.
Chairman Amodei:
Therefore, the amendment at tab K of the Work Session Document (Exhibit F) includes proposed amendments by the sponsor of the bill and Lucille Lusk.
Mr. Anthony:
That is correct. Senator Washington’s amendment is an oral amendment and not reflected in tab K of the Work Session Document (Exhibit F).
Chairman Amodei:
I suggest the committee consider A.B. 337 next Thursday in order to give the committee members a chance to go through the specific permutations of the bill and proposed amendments. In that event, all members will be familiar with the bill before taking action on it.
Senator Wiener:
I would like clarification on the right to restore rights only once. Does it mean automatic restoration only once, and category A felons only get one shot at asking for restoration?
Chairman Amodei:
That is a fair question.
Senator Washington:
That is correct.
Senator Care:
Before the next work session I would like the staff to look into the following question. In regard to the language suggested by Lucille Lusk, “fitness to act as.” If the felony is embezzlement, it could be argued whether the person is fit to be an accountant where the crime demonstrated lack of veracity. Don King is a convicted felon, which is no secret, yet he is licensed as a promoter in Nevada. The statute of the Nevada Athletic Commission puts the burden on Don King to demonstrate his fitness to act as a promoter in spite of his felony conviction. Is the burden to prove fitness to act on the licensing agency or the applicant?
Senator Washington:
I request the staff put the concept in writing for the next work session. Assemblywoman Giunchigliani stated a person convicted of a category A felony should not have his or her rights automatically restored. It is my understanding those persons would have to go through the normal process of having their rights restored. Is that correct?
Mr. Wilkinson:
I would have to go through the bill a little more to ascertain exactly how it would fit. Part of the issue with a category A felony is very few people fall into that category. Most crimes of people released from prison and seeking restoration of their civil rights would have been committed prior to 1995 when felonies were not categorized. Therefore, that issue would have to be addressed as well.
I think they would need to petition. Currently, it is the division and then the court. It appears the proposal would be to petition the sentencing court.
Senator Washington:
Does the bill go back retroactively to give prior felons an opportunity to restore their rights?
Mr. Wilkinson:
Currently the bill does not distinguish between or among categories of felonies, therefore, restoration of civil rights would be automatic.
Chairman Amodei:
Nonexempt bills will be called up for a motion at the work session next Thursday.
The work session is closed on A.B. 337 and open on A.B. 397.
ASSEMBLY BILL 397 (1st Reprint): Makes various changes concerning proceedings in actions concerning eminent domain. (BDR 3-1082)
Mr. Anthony:
Assembly Bill 397 relates to actions for eminent domain. During the hearing there were several opponents to the measure. Assemblyman Horne offered an oral amendment to change the word “person” to “party.” Also, Senator Care offered an amendment to allow a party to rely on the appraisal in good faith. In addition, Senator Care suggested expanding the time frame from 10 days to 30 days within which a person may accept an offer of judgment. Senator Wiener raised some concerns on the licensing or certification of appraisers and felt there should be further clarification.
Tab L of the Work Session Document (Exhibit F) is a mock-up prepared by legal counsel incorporating the amendments. It should also be noted, at the work session Senator Washington asked representatives of local government to provide numbers on the fiscal impact of the measure. Those numbers are attached at tab M of the Work Session Document (Exhibit F) from the cities of North Las Vegas, Las Vegas, and Reno. I also received one more fiscal impact statement from the city of Henderson this morning which is also available.
Senator Care:
The amendment stems from the testimony. On the just-compensation argument, there were two states, Alaska and Colorado, that prohibit offers of judgment when it deals with eminent domain. I discussed the amendment with the sponsor of A.B. 397 and I am talking with others. In light of the fiscal notes, and I have not yet seen the one from Henderson, which is the fastest growing city in America, I request the chairman postpone the bill until Thursday.
Chairman Amodei:
Senator Care has requested A.B. 397 be moved to the work session next Thursday to allow additional time to discuss potential amendments. Is there any objection from committee members? Seeing none, A.B. 397 will be moved to the work session next Thursday.
Senator Titus:
I have been looking at the fiscal impact figures submitted to the committee. As is so often the case with cost estimates, and State agencies are guilty of this, I do not think the figures mean much. Las Vegas says it could be up to $225,000, North Las Vegas says it is 13 cases at $725,000, and Reno says it is 13 cases at between $3 million and $5 million. Therefore, I do not think anybody can do a good job of estimating the fiscal impact. We should not be persuaded by the numbers and look at it from a policy standpoint as well.
Chairman Amodei:
Do you think it boils down to location, location, location?
Senator Titus:
I think it is creativity, creativity, creativity.
Chairman Amodei:
The work session is closed on A.B. 397 and open on A.B. 419.
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)
Mr. Anthony:
Assembly Bill 419 provides that a landlord of dwelling units intended and operated for persons 55 years of age or older may not employ a person without a work card issued by the sheriff. During the hearing there was no opposition. A written amendment was offered by Assemblywoman Pierce to address concerns raised by Ernest E. Adler and Sergeant Robert E. Roshak. There was discussion regarding certain felons who would be allowed to work at a building if they were in a work program. The amendment, attached at tab N of the Work Session Document (Exhibit F), has been circulated and approved by all persons involved. Also included is a memorandum dated May 2, 2003, from Sergeant Roshak, which explains certain felons may not be eligible to get a work card from the sheriff.
Chairman Amodei:
What is the pleasure of the committee on A.B. 419?
Senator Nolan:
I propose to amend and do pass A.B. 419 with the amendment provided by Assemblywoman Pierce. I do not know whether we need to include an additional amendment in response to Sergeant Roshak’s comment. If I am not mistaken, it is already provided for in the law and is just a matter of statement. Is that correct?
Mr. Anthony:
My understanding of Sergeant Roshak’s memorandum is the local sheriff does not issue work cards to the certain persons listed.
SENATOR NOLAN MOVED TO AMEND AND DO PASS A.B. 419.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator Washington:
Is there an update to the resident agents bill or is it still in a holding pattern?
Chairman Amodei:
If there has been no action on S.B. 298, then the Assembly Committee on Judiciary and the Senate Committee on Judiciary amended the bill into two measures on the Senate side.
SENATE BILL 298 (1st Reprint): Makes various changes to provisions pertaining to business. (BDR 7-987)
Chairman Amodei:
There being no further business to come before the committee, the hearing is adjourned at 9:35 a.m.
RESPECTFULLY SUBMITTED:
Barbara Moss,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: