MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session May 9, 1995 The Committee on Judiciary was called to order at 8:12 a.m., on Tuesday, May 9, 1995, Chairman Anderson 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 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 COMMITTEE MEMBERS EXCUSED: Mr. David E. Humke, Chairman GUEST LEGISLATORS PRESENT: Senator Maurice Washington STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Ben Graham, Clark County District Attorneys Office Robert Hilderbrand, Nevada Department of Transportation Ande Engleman, private citizen Sue Morrow, Nevada Press Association Nancy Tiffany, Parole and Probation Laurel Stadler, Mothers Against Drunk Driving Bill Bradley, Nevada Trial Lawyers Association Bob Crowell, Farmers Insurance Company SENATE BILL 139 (SECOND REPRINT) - Expands aggravated circumstances under which death penalty may be imposed for murder. Senator Maurice Washington, District 2, the primary sponsor of S.B. 139, stated the bill amends the current statutes to include peace officers. The intent was to include investigators for the district attorney, the Attorney General's office, and also parole and probation. He stated the bill was amended on the Senate Floor to also include hate crimes or crimes committed against racial origin, sexual and religious preferences. In short, the bill provides for the death sentence in aggravated circumstances. Upon Ms. Steel's inquiry of conflict amendments, Chairman Anderson explained there was a bill signed by the Governor and therefore a conflict amendment was required to bring S.B. 139 into compliance with the statutes. Nancy Tiffany, Unit Manager, Division of Parole and Probation, stated their division wishes to support S.B. 139. ASSEMBLY BILL 535 - Revises provisions governing penalty and penalty hearing for first degree murder. Ben Graham, Clark County District Attorney's Office, testified his office brought this legislation. Mr. Graham provided some background and history of A.B. 535 stating the bill fixes what was attempted to be fixed in the 1993 Legislature regarding the death penalty and aggravating circumstances. Initially, before 1993, in a criminal case there would be a guilt phase and then if it was a death penalty case there would be penalty phase. It was at the penalty phase that additional evidence was offered which might not be admissible in the guilt phase but is admissible in the penalty phase. However, prior to 1993, unless the death penalty was sought, there would not be a penalty phase hearing. So even though there was evidence the jury should know about in determining life with or life without, the jury would not be able to hear it because the guilt phase provided limited testimony. Therefore, language was drafted to allow for a separate penalty hearing for life with or life without. The intent was not to require the state to prove aggravating circumstances that would only relate to the death penalty. Mr. Graham summarized A.B. 535 would allow for a separate penalty phase that can be waived by counsel and the determination of aggravating circumstances is not necessary to fix the penalty of imprisonment for life with or without the possibility of parole. Upon Chairman Anderson's inquiry, Mr. Graham stated there were several court cases that interpreted the 1993 legislation which brought forth the concern for A.B. 535. ASSEMBLY BILL 516 - Limits access to police reports of accidents involving motor vehicles. Bill Bradley, Attorney at Law, on behalf of the Nevada Trial Lawyers Association (NTLA), stated they asked for A.B. 516 after learning from insurance adjusters at Farmers that there were two lawyers in Reno and two lawyers in Las Vegas who were sending representatives to various police agencies to review accident reports and pull the ones that had good liability. Then they would take down the names of victims from the accident report and send someone out to the address of the injured victim of the car accident to leave the lawyer's business card stating "you've been injured and you need a good lawyer, please call." This is unethical under the rules of the Nevada State Bar. NTLA decided limited access to police reports would address the bad-lawyering practice and prevent victims of accidents from unwanted solicitation from overly aggressive "ambulance chasers." Mr. Bradley relayed NTLA did not realize the introduction of A.B. 516 would bring such opposition from the press. The intent of the bill is not to deprive the press of their right to publish accident reports in the newspaper. Mr. Bradley concluded the sole purpose of A.B. 516 was to curb the unethical practices of unwanted direct solicitations to victims. Ms. Buckley noted victims may make a complaint against an attorney that unethically solicits them, but once these "few bad apples" were discovered, did the State Bar or anyone else do anything to report them? Mr. Bradley replied the State Bar cannot proceed without a complaint. However, it is his understanding there may be an investigation underway presently. Chairman Anderson asked Mr. Bradley if he has been approached by anyone with possible amendments to the bill. Mr. Bradley stated NTLA approached the Nevada Press Association (NPA) with a suggested amendment that would make the records available to the press. However, it is his understanding NPA did not want to make such an exception to the bill simply for the press as they feel the records should remain open to the public as well. Mr. Bradley deferred any further comments in this regard to the Nevada Press Association when they testify. Bob Crowell, Farmers Insurance Group, stated they support A.B. 516. Ande Engleman, testifying on behalf of herself as a private citizen and as a former director of the Nevada Press Association, stated she opposed A.B. 516. Her understanding of the bill is to prevent citizens from being harassed by attorneys, chiropractors, or others using records to benefit and make a profit in soliciting persons for personal gain. She stated there are a number of regulatory boards that could regulate these professions for the benefit and protection of the public without having to bring legislation to do so. Ms. Engleman stated perhaps the regulatory boards needed review to confirm they are protecting the public. Ms. Engleman emphasized there was no reason to deny the public access to information because of the abuse of a couple of professions which should be regulated by the boards to which they report. Sue Morrow, Nevada Press Association (NPA), stated they oppose A.B. 516. Ms. Morrow echoed Ms. Engleman's comments stating if there is a problem within the legal profession they have the mechanism to take care of it without the public being deprived of access to records. Ms. Morrow remarked she thought it was incredible that A.B. 516 was even considered simply because of four lawyers improperly soliciting business by use of public records. Ms. Morrow read from an editorial in the Nevada Appeal addressing the position of the NTLA in bringing forth A.B. 516. Ms. Morrow pointed out the public should not be deprived access to records and if there is a problem with a couple of lawyers in this regard, the State Bar of Nevada has the means to clear up these problems. Laurel Stadler, Mothers Against Drunk Driving (MADD), stated they oppose A.B. 516. She stated as a victims group they receive many calls from victims asking for assistance through the legal system. They begin this assistance by obtaining the accident report of the victim. Oftentimes, victims are out-of-state or too emotionally distraught to go down and get a copy of the police report so MADD will obtain the report for them. She stated it is beneficial to MADD that the press have access to the records also because MADD will read about a fatality or crash in the newspaper and that gives them a preview of the calls coming to their office. Robert Hilderbrand, Chief Safety Engineer, Nevada Department of Transportation (NDOT), stated his division is concerned with traffic accident data. Mr. Hilderbrand stated they are not necessarily opposed or in support of A.B. 516 but their concern is in precluding the acquisition of data. Mr. Hilderbrand noted although the intent of the bill may not have been to eliminate certain individuals who needed access to the records, the bill is written as such. He stated there are several state agencies that use accident reports for statistical purposes and safety analysis. Mr. Hilderbrand pointed out NDOT currently receives accident reports from various law enforcement on a voluntary basis; however, there is nothing in the law requiring NDOT be provided copies of these reports. Also, federal law requires NDOT to maintain a traffic accident database. If that is not maintained they would be subjected to loss of up to 10% of their funding. Mr. Hilderbrand provided prepared testimony in furtherance of NDOT's position regarding A.B. 516. Said prepared statement is attached hereto as (Exhibit C). Mr. Hilderbrand concluded perhaps language could be placed in the bill which would allow NDOT and other state agencies who have need of the information to continue to receive it. Sue Morrow, Nevada Press Association, brought forth a copy of a statement from the Nevada Appeal attached hereto as (Exhibit D) setting forth their concurrence with the Nevada Press Association's opposition to A.B. 516. Ms. Ohrenschall asked if A.B. 516 would prohibit attorneys from obtaining records in dealing with product liability cases. Bill Bradley replied the attorney would most often need information from the manufacturer of the vehicle rather than reports of other problems with the same vehicle type. Mr. Schneider asked if a proposed amendment to preclude certain professionals or individuals access to the records for personal gain. Mr. Bradley commented it would be easier to eliminate everyone but the agencies that need the records. Mr. Perkins provided a hypothetical situation of neighbors getting together to petition for a stop sign at a busy intersection and asked Mr. Bradley how these private citizens would obtain information on the amount of accidents occurring at that intersection if A.B. 516 were to pass. Mr. Bradley thought this could be accomplished by contacting your county commissioner or the city council and writing a letter of complaint. He added that getting accident reports by way of location is far more difficult than obtaining accident reports by way of names of parties. Mr. Perkins concluded A.B. 516 appears to make a 180 degree turn regarding the committee's approach to public records. Further discussion was held regarding the use of regulatory boards in dealing with the problem of improper solicitation by professionals. Mr. Carpenter stated he felt A.B. 516 was an overreaction to a "few bad apples." Ms. Buckley recognized the committee would most likely not pass A.B. 516 today. However, she asked Mr. Bradley if it might be helpful for the committee to write a letter to the Nevada State Bar addressing the concern of improper solicitation. Mr. Bradley deferred response to Ms. Buckley's inquiry to Bob Crowell, Farmers Insurance Company. Mr. Crowell informed he is the Vice President of the Nevada State Bar although he was speaking on behalf of himself today. He stated a letter from the judiciary committee may well solve some of the problems. Currently, the State Bar is looking into hiring investigators to look into this type of activity. Ms. Ohrenschall announced she was on a committee with residents who banned together to get street lights in an area they desired. This was accomplished by the individuals having access to public records. Ms. Ohrenschall concluded by stating it was possible to obtain an analysis based on just the street location. ASSEMBLYMAN PERKINS MOVED TO DO PASS A.B. 535. ASSEMBLYMAN SCHNEIDER SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN BATTEN WAS NOT PRESENT FOR THE VOTE. Chairman Anderson appointed himself for floor assignment of A.B. 535. * * * * * ASSEMBLYMAN MANENDO MOVED TO INDEFINITELY POSTPONE A.B. 516. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. Mr. Sandoval asked if the practice of the committee was to afford the proponent of the bill an opportunity to craft an amendment. Ms. Buckley stated she would be happy to give NTLA the opportunity to craft an amendment however she was not sure that was possible but she would support a letter of intent to the State Bar of Nevada. Chairman Anderson agreed with Mr. Sandoval and asked Mr. Bradley an amendment could be made to A.B. 516. Further, he would like to pursue an amendment; however, not if it is the policy of the committee to keep records open to everybody. Mr. Sandoval noted the possibility of an amendment was remote and therefore he would support the motion. However, the proponents should know they can still bring amendments back to the committee for consideration at a later date. Chairman Anderson brought the motion back to the floor for a vote. THE MOTION CARRIED. ASSEMBLYMAN BATTEN WAS NOT PRESENT FOR THE VOTE. There being no further business before the committee, the meeting adjourned at 9:10 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary May 9, 1995 Page