MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session April 20, 1995 The Committee on Judiciary was called to order at 7:10 a.m., on Thursday, April 20, 1995, Chairman Humke presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth GUEST LEGISLATORS PRESENT: Senator Mark A. James, District No. 8 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Lieutenant William H. Cavagnaro, Legislative Liaison, Las Vegas Metropolitan Police Department Ms. Karen Winckler, NACJ Mrs. Patty Robson, Parent of NPTA Ms. Patricia Justice, Legislative Representative, Clark County Ms. Carolyne Edwards, Legislative Representative, Clark County School Dist. Mr. Dennis Neilander, Research Analyst, distributed work session document, attached as (Exhibit C). ASSEMBLY BILL NO. 206 - Revises provisions governing existence of commissioner townships for civil marriages. Chairman Humke examined the issue of changing from registered voters to population of townships and reported after consultation with Washoe County authorities, it was unworkable. He recommended the bill be accepted as drafted. ASSEMBLYMAN ANDERSON MOVED TO DO PASS A.B. 206. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. Under discussion, Mr. Perkins inquired about omission of effective date on the bill. Chairman Humke advised it is contained elsewhere in the statute that all general laws become effective October 1. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. Mr. Sandoval will handle the floor introduction of the bill. SENATE BILL NO. 171 - Authorizes courts to award as costs to prevailing party costs of certain computerized services. On behalf of Senator Dean A. Rhoads of Northern Nevada Senatorial District, sponsor, Assemblyman John C. Carpenter, District No. 33, read a letter on behalf of the Elko County Bar Association calling attention to recent Supreme Court ruling which puts rural lawyers at a significant disadvantage as compared to the urban counterparts in Las Vegas and Reno. The case held computer research charges are not recoverable costs under NRS 18.005(16). Rural areas are at a disadvantage because they do not have comprehensible libraries and very often they have to use computer aided research. They are asking that when they have to use a computer that they be able to recover those costs. Mr. Carpenter believed it to be a reasonable request because all attorneys should be paid for their legitimate expenses. Mr. Carpenter supported Senator Rhoads' bill. People in the rural areas believe in taking care of the entire state of Nevada. The first reprint makes sense because attorneys throughout all of Nevada have to utilize computerized research. Chairman Humke confirmed the bill now applies to attorneys statewide. Ms. Buckley advised she has less problem with the first draft than the first reprint. She advised computerized research is very expensive. It costs $200 per hour to utilize the computer research. The attorneys who are not representing clients with a lot of money like herself go to the law library and research manually. It may take her five hours, but her clients cannot afford for her to charge $200 per hour. What it does is the lawyers who use computerized research the most tend to be the very large firms in Las Vegas where the sky is the limit. What would end up happening is one has to pay these charges on a monthly basis and the lawsuits and costs may not be awarded for five years, only the big firms would be able to utilize it because the small firms could not afford the expense. The rural considerations are different because of not having access to the books. The foregoing are the major concerns she expressed. Mr. Carpenter responded if the computerized research was accessible it may be more cost effective than manually researching. Mr. Carpenter recalled as a county commissioner he assisted the Elko Bar to access the computerized research in Elko County. Everyone has to decide if it is cost effective or not. If it is cost effective for clients, then it should be utilized. In some limited circumstances, Ms. Buckley agreed. However, she has seen larger firms get on a computer for 10 hours to do a brief. This type of competition would set up a standard which would benefit one and not the other. Mr. Carpenter commented it has to be left to the individual attorneys. Naturally, there may be some who will take advantage of it. Mr. Carpenter reiterated that overall, it is a good bill. Mr. Sandoval commented regarding efficiency, if it is more efficient then he did not understand why the other side should have to pay for it. Mr. Carpenter believed most attorneys are honest and want to do the best job for their client. He felt when they have access to this kind of service, attorneys need to utilize when it is cost effective. The client should be advised of its cost effectiveness. Mr. Sandoval was curious as to why the rural reference to the bill was deleted in the amendment. Mr. Carpenter was not aware of the reason, as he received no explanation from Senator Rhoads. Ms. Steel commented this is not only for the opposing party but for your client for the judge to award reasonable cost. The judge will be able to ascertain a firm who ran up the computerized cost and will not allow excessive fees. Mr. Carpenter read the last part of the Elko Bar letter which stated they do not believe that computer aided research should always be recoverable in every case as a cost, but they thought the trial court should have the discretion to consider awarding the expense of computer aided research as a recoverable cost in appropriate cases. Mr. Carpenter noted the judge has the discretion whether or not to award the fees. Mr. Goldwater stated the disparity between the large law firm and a small law firm exists today. He did not understand how this bill would enhance that disparity. Ms. Buckley advised the difference is computerized legal research costs a great deal of money. If it is utilized sparingly, as Mr. Carpenter described, it usually will not cost a great deal. In many instances, larger firms will use it as a substitute and not as a more efficient way to do research and charge the client both the hourly rate for the attorney plus the computerized legal research time. What may happen in one lawsuit they will be able to spend $5-$10 thousand dollars on computerized research in a very large case. Whereas the other side on the case, if they are representing an individual, they will not be able to give that money up front to that lawyer as an additional cost. They are already strained to do the filing fee and deposition costs. For the foregoing reasons, Ms. Buckley expressed her concern. Mr. Batten surmised if an inmate hired an attorney and filed a lawsuit against the state, who would pay for the research? Would the state pay the cost? Mr. Carpenter advised he did not know the answer to those questions. Chairman Humke advised members of the State Bar on the committee personally are not affected any differently than any other bar member and may or may not take part in the deliberations in voting. On the first version of the bill to take into account the fact that rural practitioners do not always have access to a comprehensive law library, Chairman Humke asked Mr. Carpenter for his input. Mr. Carpenter advised it is a valid argument because they do not have access. After reading both versions of the bill, Mr. Carpenter advised it should apply statewide. The law firms and individual lawyers need to take it into consideration in their practice and decide if it is cost effective. SENATE BILL NO. 120 - Limits civil liability of county school districts, local law enforcement agencies and certain other persons with regard to volunteer crossing guards for schools. Senator Mark A. James, District No. 8, sponsor, testified the bill was drafted due to traffic safety because a child was hit by a car near a school where there was not a crossing guard. There were problems with a volunteer crossing guard program because of the liability issue. He offered to submit legislation to address the liability question in order to have the volunteer crossing guards throughout the city and state. An interim ad hoc committee was formed with Assemblyman Arberry and himself together with local law enforcement agencies, Triple AAA Insurance, PTA, and others to develop the volunteer crossing guard program. Parents will be able to become part of a program to help the children cross the street. It allows the law enforcement agency which has responsibility for traffic safety in any event to develop a program that the parents can be trained and get the necessary tools to do this safely. Volunteers and the law enforcement agency have the same kind of immunity from liability that a government employee is provided. It is the exact same good Samaritan law as for volunteer firemen and other volunteers to government agencies. One technical amendment was drafted to include the school superintendent. Senator James had no objection to the amendment. Mr. Batten presented two questions: 1) crossing guard training, and 2) when it limits the civil liability, what is the limit for an award for someone's negligence? In reference to the crossing guard, Senator James advised the guard has immunity from liability unless it is in the very rare circumstance that falls within section 3. It is limited to $50,000. A person who would be a volunteer is immune from liability. If they were sued for some reason as part of an accident, then they would have an attorney representing the district attorney on behalf of the agency who would defend them. The PTA was concerned that they would be liable in some way and the reference to their organization was deleted from the bill. Ms. Steel referred to a possible $50,000 award in the event of a negligent act, it is not very much when the possibility of children dying is considered because there was no crossing guard. Ms. Steel asked if the crossing guards were going to have any kind of police powers. Senator James advised they would have the same powers of any other trained traffic safety person. They must be obeyed because they are like a traffic signal. As far as the power to issue traffic citations, they do not have. To disobey a traffic person on behalf of the agency is to commit a traffic offense. The alternative to the program is there will be no formal program developed. The statistic is there are 250 elementary school crossings in Las Vegas. Only 120 are currently staffed by paid crossing guards. There are over 100 crossings in need of someone to help little children to cross safely. It is a huge potential and as traffic grows and the side streets get more traffic as alternative routes, more children will be hit by cars. It has happened in his district where a small boy has a pin in his leg. It is fortunate that he is even alive. To pass this bill would authorize this program to go into effect. Mr. Anderson asked in reference to the PTA group's testimony at an earlier hearing, concern rests with what happens when volunteers no longer have the enthusiasm to serve? Whose responsibility does it come to keep the program alive since the school does not have the responsibility for finding these people. Obviously, the law enforcement agencies do not have a responsibility to find volunteers. Is there a danger the volunteer program may be lost due to loss of interest in the future? Senator James replied there is not that danger. Clearly the best solution is to have paid and trained crossing guards by Las Vegas Metropolitan Police Department. Senator James stated there never will be enough volunteers. Parents are concerned because not only there are not enough volunteers, but in some instances, a warrant is required for a crossing guard. A federal standard must be satisfied for the number of cars and the potential for needing to have a manned crossing. Unless the warrant is satisfied, approval is not obtained. Where this young boy was hit it previously was not a warranted crosswalk until he was hit by a car. This bill allows parents to set up a program. If interest in the program decreases, it would be unfortunate. However, a mandate cannot be created. Mr. Carpenter stated this is a problem in Elko because of the increase in traffic during the last few years. To his knowledge none of the crossing guards are paid, but are just volunteers. They are people who want to provide this service. They have to rise earlier than this committee. This is a good bill. It protects the volunteers from courses of action. The volunteers need this protection. Mr. Goldwater echoed Mr. Carpenter's remarks. Mr. Goldwater grew up in the neighborhood Senator James was talking about. He commended Senator James on being proactive on this. Gorman High School had the same problem with the crossing guard. It took a young girl stepping out from the curb and hit by a car and thrown about 40 yards to her death before a crosswalk and lights were installed. Ms. Ohrenschall observed that as long as there are children who may potentially be in danger, there will be public-minded parents concerned about those children who will volunteer. She remarked it is a very good bill. Mr. Manendo commended Senator James because on several occasions in areas in his district even before he was elected, he worked with different PTA's to try to get crossing guards as there was no funding available to have someone come out. The parents were just basically doing it on their own. In some instances not only crossing guards but blinking, flashing lights in the school zone crossing areas are needed. Assemblywoman Ohrenschall and he worked on one area that borders their districts and were successful in obtaining a crossing. Mr. Schneider commented the bill is good and needed. On Jones Boulevard a child was hit and killed a couple of years ago while crossing to the library. Jones, Flamingo, and Torrey Pines are major roads where children constantly cross to get to school and there are a lack of guards. This bill needs to be passed right away. He thanked Senator James for his efforts. Senator James neglected to mention the omission of special effective date. It has an October 1, 1995, effective date which does not coincide with the beginning of the school year. He asked the committee to amend the bill to change the date to July 1, 1995. Lieutenant William H. Cavagnaro, Legislative Liaison, Las Vegas Metropolitan Police Department, testified in support of S.B. 120. Most of the crossing guards in the state work in Clark County. They currently employ over 100 as part-time employees. Their assignments are based on a traffic study done by the city engineer or county traffic engineer. Many other intersections need crossing guards and this bill came forward to allow volunteers to man those positions. Training currently is provided for the lead crossing guard. Under this bill Las Vegas Metro would train all the crossing guards. It is about a four hour course. Volunteers are supplied with the signs and pamphlets on how to operate. They are told they are not allowed to do any type of law enforcement activity other than to simply cross the children. If someone is driving in an erratic manner, they should take their license plate down and contact the police later. They are thoroughly briefed on the fact that they are not police type employees. Ms. Carolyne Edwards, Legislative Representative, Clark County School District, testified in support of S.B. 120. She drew their attention to p. 2, l.3.d, for a technical change of inserting, "superintendent of schools or principal of the schools." Mrs. Patricia Robson, 2nd Vice President, Ruth Fyfe P.T.A., Las Vegas, NV, previously testified on April 13, 1995, in support of the bill and commented, she loves the bill. ASSEMBLYMAN SCHNEIDER MOVED TO AMEND AND DO PASS S.B. 120 WITH EFFECTIVE DATE OF JULY 1. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED. Mr. Goldwater will handle the bill on the floor. WORK SESSION: ASSEMBLY BILL NO. 312 - Expands provisions regarding requests by certain employers for information regarding history of prior sexual offenses of employees. Mrs. Monaghan commented the proponent's of the bill heart is in the right place. She did not see it effectively working. The efforts of the different groups are trying very hard to alleviate the problem. No net thrown out will catch the ones desired. It will stop volunteerism which is not desired. Mrs. Monaghan will not be in support of this bill. Mr. Schneider concurred with Mrs. Monaghan. He is on the Board of Opportunity Village in Las Vegas. It is difficult to obtain volunteers. The following motion was presented: ASSEMBLYMAN SCHNEIDER MOVED TO INDEFINITELY POSTPONE A.B. 312. ASSEMBLYMAN MONAGHAN SECONDED THE MOTION. THE MOTION CARRIED. (ASSEMBLYMAN GOLDWATER VOTED NO.) Mr. Carpenter suggested the committee's reason for indefinitely postponing A.B. 312 should be explained to Assemblyman Nolan. Mrs. Monaghan volunteered to confer with Mr. Nolan. ASSEMBLY BILL NO. 313 - Revises limitation on liability for injuries to persons who enter or use premises of another to cross over to public land or for recreational purposes. Mr. Neilander advised A.B. 313 subcommittee was held April 19 and reported its recommendation to delete ll. 13-14 on p. 2 and added the phase "including but not limited to" on p. 2, l. 17. ASSEMBLYMAN SANDOVAL MOVED TO AMEND AND DO PASS A.B. 313. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. Under discussion, Mr. Sandoval explained to Ms. Buckley the intent was not to remove expressed invitees and let common law take its course. THE MOTION CARRIED. ASSEMBLY BILL NO. 374 - Creates crime of placing graffiti on or otherwise defacing property and provides various penalties. Mr. Neilander briefly reviewed suggested amendments and concerns. Ms. Stroth referred to p. 2, l. 24. This particular section 3 of bill is creating a new section within Nevada Revised Statutes (NRS). Mr. Neilander advised if the committee chose to deal with this issue separately within the context of this bill, it could because this will not amend the existing law. It is up for discussion and would only effect this particular section of the law and the others previously discussed. Those will have to be taken up with A.B. 91 and A.B. 95 in a later work session. It was brought to Ms. Stroth's attention that the insurance companies do not increase the rates unless there has been a moving violation. It is the reasoning of the insurance company that they need to have the report of a suspended license because they will owe the party carrying the insurance a refund. Parents would not want to pay for the sixteen or seventeen year old's car insurance if their license has been revoked. Ms. Stroth suggested deleting that passage. Chairman Humke would like to see testimony on the record on that issue. A sixteen or seventeen year old frequently does not own an automobile. It is not as if the vehicle will sit idle. Ms. Stroth restated one would not carry coverage for a teenager, if not needed. Chairman Humke suggested conferring with the insurance industry. Mr. Anderson concurred in hearing from the insurance companies. He continued, as soon as one has more vehicles in the household than licensed drivers, the insurance company immediately moves the insurance rate forward. Mr. Anderson questioned why not put the responsibility on the individual to inform the insurance company of the fact they are no longer a licensed driver, the same as it is an individual's responsibility to inform the insurance company when a vehicle is sold. It is to the prudent person's economic advantage to inform their insurance company of changes. Ms. Steel read a letter from California AAA insurance company. Nevadans who obey the law and maintain a valid driver's license pay for the misdeeds in the form of higher insurance premiums. Arguing a parent's policy should not be penalized by acts of their children, forces all others across the state to pay. In addition a policyholder risks having no coverage for a loss of an unlicensed driver or having the policy rescinded if the application contains false information concerning the driver's license status. The insurance ability to verify this information gives them an opportunity to advise the policyholder of these type of consequences. Nowhere in this letter do they say there would be a cut in the premium. It sounded more like they would raise the rates for a non-moving violation. Ms. Steel did not think they should be able to do that. Ms. Buckley proposed reviewing the language in A.B. 425 to clarify. Mr. Neilander requested direction from the committee with regard to adding school districts within the bill. Whether or not if it is desired to do so. If so, should it be set up similar to what the city and counties are doing. There are inherent problems in that because the school districts function differently than city and counties do in terms of establishing a fund. Also, there is the option to give the district express authority to bring an action against the person who has painted graffiti and recover the money from them. Mr. Anderson noted it creates an unusual problem because the Nevada school system financing is different than most other states. Each school district stands independently with its own financial system. It does not intermingle funds with the county. If we set up a means by which the school district would have to reach into the court's or state general fund for this particular type of program, there would be no mechanism because of lack of due process. Chairman Humke remarked it is unworkable as to school districts and agreed with Mr. Anderson on different grounds. He was of the opinion school districts should not enter into this field and should not be involved. As to the funding mechanism, it may be unworkable as to school districts with the reward fund and the other mitigation fund. Ms. Steel suggested deleting the language referring to DMV of not reporting to the insurance companies on p. 2. Language should be developed to allow school districts to develop regulations to stop graffiti at the schools. Mrs. Monaghan could not support deleting DMV not reporting to insurance companies. School districts do not have due process. Chairman Humke advised there is a method for dealing with DMV/insurance company issue. Ms. Ohrenschall requested clarification if the insurance company will charge more or less for license suspension. Chairman Humke advised both the Co-Chairs are unsure. Mr. Carpenter advised the school district should not be involved. The 15 days is too short of a time period. Ms. Buckley concurred that school districts should be left out of this bill. Ms. Steel referred to an article in the Review Journal about the graffiti king's removal process. She did not feel there was a problem with the 15 days. Chairman Humke advised school districts' involvement can be left as a "may" and permit them to enter into their own regulations. Schools should be left to local control. Mr. Anderson proposed an amendment on p. 4, l. 43, to insert "within a timely fashion." Chairman Humke suggested, "within 15 days or as soon as practicable." Mr. Anderson agreed. Mr. Carpenter advised it was better to have a specific time otherwise it is left to a lot of different interpretations. Thirty days is good compromise for most areas of Nevada. Mr. Perkins preferred a more flexible language to let local government decide how they will handle it. Chairman Humke suggested a hearing for insurance company testimony only at a time when work session is held. Mr. Anderson concurred. Chairman Humke advised tomorrow's session is canceled. There being no further business before the committee, the meeting adjourned at 8:58 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman David E. Humke, Chairman Assemblyman Bernie Anderson, Chairman Assembly Committee on Judiciary April 20, 1995 Page Assembly Committee on Judiciary April 20, 1995 Page