MINUTES OF THE

      ASSEMBLY COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      April 22, 1993

 

 

The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader, at 8:10 a.m., on Thursday, April 22, 1993, in Room 332 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda.  Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

      Mr. Robert M. Sader, Chairman

      Mr. Bernie Anderson

      Mr. John Bonaventura

      Mr. John C. Carpenter

      Mr. Tom Collins, Jr.

      Mr. James A. Gibbons

      Mr. William D. Gregory

      Mr. Ken L. Haller

      Mr. William A. Petrak

      Mr. John B. Regan

      Mr. Scott Scherer

      Mr. Michael A. Schneider

      Ms. Stephanie Smith

      Mr. Louis A. Toomin

 

COMMITTEE MEMBERS ABSENT:

 

      Mr. Gene T. Porter, Vice Chairman (Excused)

 

STAFF MEMBERS PRESENT:

 

      Ms. Denice Miller, Research Analyst

 

OTHERS PRESENT:

      Mr. Bob Hadfield, Executive Director of Nevada Association of Counties; Ms. Nancy Carr, Lyon County Recorder; Mr. Jim Wright, Chief Deputy Recorder for Washoe County; Ms. Sue Beaudreau, Douglas County Recorder; Ms. Mary Santina, Retail Association of Nevada, Nevada Collectors Association; Ms. Marsha Berkbigler, Consulting Engineering Council for Nevada; Mr. Greg Radig, VTN of Las Vegas; Ron Byrd, SEA of Reno; Ms. Cheryl Lau, Secretary of State; Mr. Buddy Rogers, Owner of Aloha Bail Bonds; Mr. Richard Hunt, Peedy's Bail Bonds; Mr. Ben Graham, Nevada District Attorney's Association; Ms. Helen Foley and Ms. Lori Buerger, Sprint Cellular; Ms. Pam Riley and Mr. Warren Danforth, PacTel Corporation; Mr. Robert Barengo, Cellular One; Mr. Rick Hackman, Public Service Commission Consumer Division.

Assembly Bill 455 -     Establishes procedure for removal of lien filed by mistake.

 

Assemblyman Scott Scherer, the prime introducer of the bill, supplied the committee with background information.  The bill was the result of a complaint by a constituent who was unable to refinance his home because of a lien mistakenly placed against the residence.  The bill created a procedure whereby an affidavit stating the lien was improper and was mistakenly filed on the property could be filed with the county clerk, and a copy of the affidavit could be served by certified mail on the lien holder.  The bill also provided protection for the lienholder.  Mr. Scherer proposed an amendment for page 1, line 13 to remove "except for judgment lien."  He also suggested on page 3, Section 7, between lines 39 and 40 the addition of a subsection stating, if the court finds lien was not valid the court may award damages, costs, etc. to the owner.  It was also suggested a section be added to require the county clerk, whenever possible, to use other identifying data, i.e. date of birth or social security number.

 

Mr. Regan inquired where the form indicated in Section 3, subsection 2 would be prepared and who would pay for it.  Mr. Scherer indicated there would be no objection if county clerks and county recorders wanted to provide forms; however, the statute did give the homeowner a form to follow.

 

Mr. Bob Hadfield, Executive Director of Nevada Association of Counties, believed there were some serious flaws in the legislation which needed to be addressed and, therefore, opposed the bill. 

 

Mr. Sader referred to a letter from the Storey County Recorder (Exhibit C).

 

Ms. Nancy Carr, Lyon County Recorder, read the following fax from the Clark County Recorder into the record. 

 

"The intent of the bill is good.  Many citizens go through terrible experiences with the lien process and the way it is currently defined in NRS.  Anyone can record a lien whether they have cause or not.  The lien clouds real property title until it expires over time or until a judgment is obtained to enforce the lien.  In spite of its good intentions, however, this bill creates serious problems for recorders.  It would require us to provide three different forms for challenging and removing recorded liens.  We can guarantee it will be impossible to distribute forms to the public without the expectation that we will also help fill them out, which constitutes practicing law without a license.  A refusal to help will cause bad public relations as it will appear that we are not interested in helping the public.

 

"The recorder does not make rulings or pass judgments on the value or validity of documents that are recorded beyond ensuring that certain ministerial requirements are complied with.  Section 6 requires a recorder to determine whether the property owner has complied with Sections 3, 4, and 5 and whether the lien holder has filed an Affidavit of Challenge.  It then directs the recorder to remove the lien and send a notice to the lienholder.  This is in direct conflict with NRS 247.410, which holds the recorder liable for three times the damages for altering, changing or obliterating a public record.  Even if we could remove the lien from microfile, the record has already been distributed throughout the community and resides on paper, microfilm and computer databases.  Removing it from the recorders microfilm would not remove it from the files of everyone else who already has a copy of it. 

 

"Another big issue, where will the funds come for performing these new duties?  There will be costs for forms, postage, envelopes, new computer programs, modifications to existing programs, new staff to research the records and prepare the mail notices, additional staff time to record challenges and enter addresses into the system, etc.  It is estimated that this bill will affect 10,000 of the 298,000 documents recorded annually in Clark County.  During the first year the cost to implement and operate this program will be between $80,000-$120,000.

 

"Giving the responsibility to the recorder for sending notices of various types has become popular in California.  The trend may start with this bill to send notices to lien holders on challenged liens.  Next it may be notices to property owners of all liens, then it may be property owners on all transfers of property.

 

"While these services provide a protection for the public, they also cost money.  We may be in favor of providing such services if the funding was provided.  Contrary to the providing of funding, the bill proposes fees in Section 9 that are considerably less than the standard fees we have now for documents."

 

Ms. Carr stated the Clark County Recorder would be interested in working with a subcommittee to find another avenue to deal with the problem.  Ms. Carr then entered testimony from Exhibit D.

 

Mr. Jim Wright, Chief Deputy Recorder for Washoe County, also provided testimony in opposition to the bill.

 

Ms. Sue Beaudreau, Douglas County Recorder, came forward to oppose the bill.  She stated she was in agreement Ms. Carr and Mr. Wright.

 

Mr. Sader asked the testifiers for suggestions on amendments to the bill to address the problem of mistaken or incorrect lien filings.

 

Ms. Beaudreau indicated she would not be opposed to filing of a statement showing the lien was unlawful.

 

A question was posed by Mr. Haller as to whether a lien was filed when a mortgage was obtained.  Mr. Wright responded a Deed of Trust was recorded when the loan was obtained.  When the loan was paid in full, a reconveyance was recorded to show satisfaction of the mortgage.

 

Mr. Carpenter inquired if it was practical to require a means of identification, i.e. social security number, on the documents.  Mr. Wright believed this was a good idea, but did not know if it was feasible.

 

Mr. Petrak asked what the process was when an individual came into the recorders office and discovered a lien was filed mistakenly against his property.  Ms. Carr stated this problem had not occurred in Lyon County; however, the recorder could not determine whether the lien was filed in error.  The recorder showed the document to whomever wanted to see it.

 

Mr. Sader clarified the recorders were only required to record the documents.  They were precluded from altering the documents or making value judgments regarding validity.

 

Mr. Collins queried whether, as indicated in the Clark County Recorder's testimony, the recorders would be in favor of the bill if they were funded.  Ms. Carr responded she believed if funding was provided they would be willing to provide a procedure.

 

Ms. Smith stressed there was a definite problem needing resolution.

 

Ms. Mary Santina, Retail Association of Nevada, Nevada Collectors Association, came forward to testify on AB 455.  She commented she was not going to testify until the suggestion was made to exclude "except for judgment lien" in an amendment.  She believed remedy was already provided without going to the county clerk's office.  The judgment liens were filed through credit bureaus and there was a methodology for collection of liens and for reporting of liens.  She suggested she would be willing to work with a subcommittee to clarify the process.

 

Mr. Sader stated he understood Ms. Santina's position.  He addressed Mr. Scherer, asking for his suggestions.  Mr. Scherer believed there was a definite problem which needed to be addressed.

 

Mr. Sader declared a subcommittee was not necessary; however, the bill would be held until Mr. Scherer was able to resolve some of the problems.  Mr. Sader further suggested Mr. Scherer might approach the situation by raising the filing fee up to the normal rate; change the concept to the ability of the owner to file a statutory cancellation, which required no judgment by the recorder.  The ability to cancel would be triggered by a notice procedure to the lien holder, which had to be verified in the cancellation, and when lien holder did not comply with procedure verifying the lien, owner would be allowed to record said cancellation.  Delete areas where recorder would be required to supply any form.

 

Mr. Scherer agreed with Mr. Sader's suggestions and assured the chairman he would work on the bill. 

 

The hearing was closed on AB 455.

 

Assembly Bill 481 -     Provides mechanics' lien on land and improvements for services of engineer, land surveyor or geologist.

 

Ms. Marsha Berkbigler, Consulting Engineering Council for Nevada,  Mr. Greg Radig, VTN of Las Vegas, and Ron Byrd, SEA of Reno, testified in support of AB 481. 

 

Mr. Radig summed up his comments by saying the bill was asking for equal protection under the law.  The only recourse to collect fees for land surveyors, engineers and geologists was through the court system.  Mr. Byrd concurred and was open for questions.

 

Mr. Sader expressed this was the committee's first mechanics' lien bill directly on point.  Chapter 108 dealt with mechanics liens which was a generic term for ability to file a variety of liens against real and/or personal property.  Page 2, line 4 indicated those allowed to file a lien.  Land surveyors, engineers and geologists were asking to be included under those allowed to file.

 

Mr. Gibbons indicated language on line 11 of the first page dealt with fair market value of the labor performed. . . and wanted to know what the reasonable allowance would be for a geologist.  Mr. Radig explained there was approximately a 10 to 12 percent profit associated with the fee.

 

Mr. Sader called attention to the fact the language came from the existing statute.

 

Mr. Carpenter expressed concerns regarding adding a geologist to the bill.  Mr. Radig explained the functions of a geologist/engineer.

 

Chairman Sader stated subsections 3 and 4 of Section 1 purported to require and institute something called a preliminary notice of lien in the circumstance of land surveyors, engineers and geologists.  He asked the bill drafter why this language existed and was informed there was language to this effect in the BDR.  He pointed out the language did not need to be added to be able to utilize the mechanics' lien law.  Ms. Berkbigler agreed to removal of the language.

 

The hearing was closed on AB 481.

 

Assembly Bill 494 -     Authorizes establishment of securities exchange in Nevada.

 

Mr. Bonaventura addressed the committee giving reasons for request of the bill.  He hoped to attract additional small businesses to Nevada with passage of the bill.  He believed the current language of the bill was very restrictive, therefore, an amendment was suggested (Exhibit E).

 

Ms. Cheryl Lau, Secretary of State, gave testimony supporting AB 494.  She believed the concept was laudable; however, the amendment was necessary. 

 

Mr. Gibbons questioned Ms. Lau regarding fiscal requirements for the Secretary of State's office.  Ms. Lau responded the only obligation would be establishment of regulations necessary to registration and operation of the exchange.  She believed she would be able to manage with the existing staff.

 

Further discussion between Ms. Lau and committee members provided clarification of the bill.

 

Upon further questioning by Mr. Sader and Mr. Scherer, Ms. Lau suggested a revised amendment to develop enabling language was in order.

 

Chairman Sader announced he was going to hold AB 494 until Ms. Lau had the opportunity to present the revised amendment.  Following comments from committee members, Mr. Sader closed the hearing on the bill.

 

Assembly Bill 486 -     Eliminates exception to requirement that court exonerate obligor and release bail upon sentencing of defendant.

 

Mr. Buddy Rogers, Owner of Aloha Bail Bonds covering Northern Nevada, came forward to give testimony supporting AB 486 and presented Exhibit F and Exhibit G.  Mr. Rogers requested deletion of line 7 from the bill.  He further explained the bail process and emphasized bail bondsmen were liable for many millions of dollars in active files throughout the state.  The bail bond industry believed they should have no responsibility with the defendant carrying out his sentence. 

 

Mr. Richard Hunt, Peedy's Bail Bonds, voiced agreement with Mr. Rogers' testimony. 

 

Mr. Sader inquired whether normal bail bond contracts specified that at the time of sentencing the bondsman had no further obligation to the client for bail.  Mr. Hunt responded they did not.  He read the following excerpt from the bail bond contract:  "The purpose of this bond is to guarantee the appearance of the defendant at all proper legal hearings and cannot be construed as guarantee for failure to provide payments or back alimony payments or fines or wage claims." 

Mr. Rogers emphasized not all judges in the state of Nevada held the bond money, most automatically returned the bond to the bondsman.  For this reason, the statute was requested to foster uniformity throughout the system.  Mr. Rogers provided several examples for the committee to reinforce his position.  He also requested the word "sentencing" in line 5 be changed to "conviction." 

 

Mr. Collins questioned whether language was needed to define the issue of whether the money belonged to the defendant or the bail bondsman.  Mr. Rogers indicated a bail bond or a defendant were interchangeable in a courtroom.  One or the other must be provided to the court.

 

Mr. Ben Graham, Nevada District Attorney's Association and the Lower Court Judges Association, testified in opposition to AB 486 stating  in 1991 the bonds people requested two amendments to this provision on bonds and bond forfeitures.  One was to give additional time to return a defendant into custody before the bond was forfeited.  The second portion of the proposal was what was now AB 486.  Mr. Graham believed the bill was unnecessary.

 

Chairman Sader summarized the bill for Mr. Graham, stating if the court did not put a person in jail (at which point bond is exonerated) but instead put him on probation or convicted him and sentenced him in some fashion not requiring jail, should it be the obligation of bail bondsman to guarantee the appearance of the defendant or should the obligation stop at time of sentencing?  To which Mr. Graham argued if the bail bondsman was exonerated at time of sentencing, the defendant might as well be exonerated also. 

 

Mr. Carpenter questioned whether the bail money was used to pay the fine.  Mr. Graham answered the bail money was not used to pay the fine.  Mr. Sader described his understanding was the defendant's bail bond was not used to pay the fine, but when the defendant put up a cash bond and was fined and the cash covered the fine, in Clark County the fine was deducted from the cash bond.  Mr. Graham agreed with this summarization.  Mr. Carpenter and Mr. Graham further discussed the subject to clarify use of the bail versus fine money.

 

Mr. Rogers called attention to NRS 697.550 insurance regulations, and read the statute to the committee.

 

The hearing was closed on AB 486.

 

Assembly Bill 462 -     Requires suppliers of mobile telephone service to provide free access to emergency telephone numbers and provides penalties for theft of mobile telephone service.

 

Assemblyman Stephanie Smith, Assembly District 20, presented AB 462 to the committee and read written testimony attached as Exhibit H.  She proposed an amendment, Exhibit I, to further clarify the bill. 

 

Mr. Bonaventura discussed with Ms. Smith the harshness of the penalties in the proposed bill.

 

Ms. Helen Foley and Ms. Lori Buerger, Sprint Cellular, were next to address the committee.   Ms. Foley testified regarding cellular fraud.  Ms. Buerger read Exhibit J into the record and urged the committee to vote in favor of the bill.

 

Mr. Scherer called attention to Section 6, page 3, the penalty provision, and stated agreement with Mr. Bonaventura regarding the harshness.  Ms. Buerger attempted to explain the purpose by giving examples.  Discussion continued.

 

Mr. Bonaventura questioned how the law would be enforced.  Ms. Buerger responded she did not have this information.

 

Ms. Pam Riley and Mr. Warren Danforth, PacTel Corporation, testified in support of anti-fraud legislation. 

 

Mr. Regan asked the penalty for an innocent subscriber.  Ms. Riley stated the telephone companies were forgiving under the circumstances described by Mr. Regan.  Ms. Smith interjected with an explanation.

 

Mr. Robert Barengo, Cellular One, stated he would like more time to review the bill and amendment.  Mr. Sader declared no action would be taken on the bill at this time and agreed greater definition was necessary.  Mr. Barengo indicated he would work with Ms. Smith on the bill. 

 

Mr. Rick Hackman, Public Service Commission Consumer Division, requested Exhibit K (on file in the Research Library) be attached to the minutes and distributed an excerpt (Exhibit L) to the committee.

 

Chairman Sader closed the hearing on AB 462, holding bill for further refinements.

 

Chairman Sader indicated it was necessary to amend AB 481 by deletion of language on page 1, lines 14 through 25.

 

      ASSEMBLYMAN SCHERER MOVED TO AMEND AND DO PASS ON AB 481.

 

      ASSEMBLYMAN BONAVENTURA SECONDED THE MOTION.

 

Discussion on motion by Mr. Anderson who requested deletion of line 4, page 1, and Mr. Carpenter who requested deletion of geologist.  Mr. Sader disagreed with Mr. Carpenter.  Further discussion followed between Mr. Regan, Mr. Anderson, Mr. Sader and Mr. Carpenter.  Mr. Gibbons stated although he was a geologist, there was no conflict.

 

      THE MOTION CARRIED UNANIMOUSLY.

 

Chairman Sader solicited a bill draft request to allow into court testimony related to battered women syndrome.

 

      ASSEMBLYMAN SMITH MOVED TO OBTAIN A BILL DRAFT REQUEST TO ALLOW INTO COURT TESTIMONY RELATED TO BATTERED WOMAN SYNDROME.

 

      ASSEMBLYMAN ANDERSON SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY.

 

There being no further business to come before committee, the meeting was adjourned at 10:53 a.m.

 

      RESPECTFULLY SUBMITTED:

 

 

                             

      LINDA BLEVINS

      Committee Secretary

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Assembly Committee on Judiciary

April 22, 1993

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