MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session June 6, 1995 The Committee on Judiciary was called to order at 8:10 a.m., on Tuesday, June 6, 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 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Dan Polsenberg Judge Robey Willis, Nevada Judges Association Judge Jay Dilworth, Reno Municipal Court, Nevada Judges Association Don Mello, Director, Administrative Office of the Court Pat Cashill, Nevada Trial Lawyers Association Paula Treat, Nevada Judges Association Chairman Humke opened the hearing on Assembly Joint Resolution 37. ASSEMBLY JOINT RESOLUTION 37 - Proposes to amend Nevada constitution to authorize supreme court to supervise lower courts and court clerks. Justice Cliff Young, Nevada Supreme Court, commented on the controversial nature of the bill. He explained the reason to add language was to clarify the authority of the supreme court. A legislative audit found the justices of the peace and municipal courts assess approximately 12 million dollars in fees with 6 « million dollars collected of which about 1« million dollars goes to the state. It was recommended in the audit the Administrative Office of the Court (AOC) collect the monies to assure they were collected and subsequently not diverted to cities and counties. (He noted for the record he was not appearing on behalf of the court; he thinks the Court takes a different position). He does not think the Court has the authority and therefore it can not, in turn, give it to the AOC to collect the money. He stressed the importance of someone (he did not care who) being in charge of the money collection. He is suggesting the Supreme Court. He described the separations among the state's courts and the resulting inconsistent procedures. Regarding the county [court] clerks, at least as far as appeals are concerned, Justice Young described a problem the court has had with getting records up on appeal and gave an example of a case where the offender made a timely appeal but it was not received in the court until after the offender had served his sentence. He admitted this bill may not go through at this session but again stressed the need to "bring some order to this chaos" and perhaps it can be considered at the next session. Ms. Buckley asked if there was a less controversial way to insure the collection of these funds and if there had been any other suggestions, such as, having each district designate one individual to be responsible for the collection. Justice Young answered he did not see any solution unless somebody has the authority, whether the Court or a legislative committee. He added only 60% of fines are collected and only 70% of administrative fees. He reiterated he does not think the Court has the authority to collect this money from the counties/cities and commented they would probably have little success. Chairman Humke commented he hoped they could entertain the subject as it is a serious one; it is money which is not going to the places designated by the legislature. He stated he would like to work with Justice Young on it. Ms. Paula Treat, Nevada Judges Association, reluctantly testified in opposition of A.J.R. 37. She agreed something needs to be done to address the issue of administrative assessment fees. She stated it is a tough subject but A.J.R. 37 is not the way. Judge Willis, Legislative Chairman, Nevada Judges Association, stated he is an elected local official, not a state official as are the Supreme Court Justices, answerable to the local voters and not statewide and therefore should not be answering to any other officials. He equated it to having the Assembly reporting to the Senate. He added their associations provide support and other resources to the judges in the state and help from the Supreme Court is not necessary. This bill would give them little say in their own affairs. He continued the states where a unified court works are ones with appointed, not elected, judges. Judge Jay Dilworth, Reno Municipal Court, and incoming president, Nevada Judges Association, discussed his primary concern is for the municipal courts. Nineteen cities in Nevada are incorporated in order to have better control of their own city and the municipal courts were created by them. He commented taking the court away would be saying to the voters of the area, "we don't care what you wanted." Judge Dilworth commented on the issues introduced by Justice Young. The municipal courts receive no money from the state and Nevada Highway Patrol does not cite into the Reno Municipal Court. Reno law enforcement cites into the court and Reno also funds the staff to process the cases. The city "looks to at least break even in terms of revenue." The lowering of administrative fees going to the state has been impacted by local jurisdictions decriminalizing parking tickets; Reno has had a 65% drop in administrative assessments. In addition, some legislation has reduced fines in specific areas. He suggested another way to collect fines is to implement better tracking of non-payers, such as, using collection agencies and improving computer systems. He added if there are inconsistent procedures in the state for handling appeals the client's attorney should use the appellate process to force the issue to come quicker. He commented he did not think the Supreme Court is the best to be in charge; the voters should be. Mr. Carpenter commented it was a valid point about who pays for the services in the municipal court and if the money is taken from the locals and given to the state the locals will be shortchanged. He is glad to see the locals getting the money because they need it and thought perhaps there should be a change in the law to see how apportionment should be; where the money is coming from and who is paying the bills. Judge Dilworth wished to point out if the change was made [in the bill] he assumed the municipal court would become part of the state system; getting the revenue and the expenses. He noted more staff would be needed. Judge Willis concurred and thought Mr. Carpenter "hit it right on the head." The local governments could not support their courts if the money was taken away. Ms. Steel commented she heard $10 million dollars was not collected which has nothing to do with reduced assessments. She thought the testimony was not addressing the subject. The only suggestions to improve the system seemed to have been presented by the Supreme Court. Judge Willis explained many people who are fined are transient and there is not much of a hammer to collect unless they return to the state. He noted many jurisdictions (outside of Nevada) are using collection agencies. He reiterated the money should remain at the local level regardless of who collects the money. Judge Dilworth responded he appreciated Ms. Steel's comment as it is frustrating to have accounts receivable they are unable to collect. He discussed some of the problems encountered and why collection is difficult and, if persons are unable to pay, finding alternative means for the person ticketed to make compensation. He agreed there is a need to improve the percentage [of payment]. He suggested impacting the ability of the person to register their vehicle or renew a driver's license. He does not think the bill is well enough thought out. Ms. Steel suggested an interim study or future conversation. Ms. Treat stated she would like a true dialog among the players during the interim. Mr. Sandoval asked if it was possible to require payment at the time of ticketing. He had heard of it being done in other states. Ms. Treat, representing the peace officers, stated it could be looked at in the interim; however, she guessed there would be major problems: logistics, fines, and possibly due process. Judge Willis interjected there are ways to pay fines at the jails. Judge Dilworth added asking law enforcement to do it could make it more difficult. He stated making it easier to pay, such as, by phone or ATM, will increase the revenue. Judge Dilworth continued with general information of problems encountered to obtain payment. Mr. Sandoval asked if amnesty periods (to forgive fines) were given regularly to obtain payment. Judge Dilworth responded they could not do it regularly because it would reduce the effect; as part of a comprehensive program of collection it would be a tool. Ms. Treat stated she would like to discuss this with other judges in the state to see what they can suggest. Mr. Carpenter commented on the problem not being a simple matter. Generally comments ensued about the matter of persons unable to pay. Mr. Tom Grady, Nevada League of Cities, testified they have problems with the bill. He referenced current Senate Bill 441 which asks to tie tickets to vehicle registration; a vehicle could not be registered if there were outstanding tickets. It is a collection mechanism through the Department of Motor Vehicles and Public Safety. The cities can not afford the loss of revenue and keep the expense. Chairman Humke stated, in discussion with Co-Chairman Anderson, he did not know if the bill would be voted on, but would like some commitments. He thought the Committee is looking for an interim study and would do so in consultation with the Ways & Means Committee as the issues are also fiscal. He asked if the players would like to formally commit to participating and assisting the Legislature and "not to play hide the ball" in an interim study. Ms. Treat, speaking for the Nevada Judges Association, stated they would be delighted to work with the interim study. The only request would be when certain studies are asked for they would have equal footing since the justice and municipal courts are the inferior courts "on the food chain." Chairman Humke stated this is the "ground floor" for drafting any vehicle and all parties can assist. Mr. Grady stated he felt comfortable to commit his organization and likewise, the Nevada Association of Counties (NACO) (he noted Mr. Robert Hadfield, Executive Director, NACO, was not present) to welcome the opportunity to work with and serve on any interim committee for the Legislature. Chairman Humke stated he and Co-Chairman Anderson could seek to convene a meeting to work on language. Chairman Humke closed the hearing on A.J.R. 37. Chairman Humke opened the hearing on Senate Bill 394. SENATE BILL 394 - Revises requirements concerning courses of instruction for certain judges. Donald J. Mello, Director, Administrative Office of the Courts, and Secretary to the Judicial Counsel, explained the bill is from the Counsel and intended to address a problem faced by district and family court judges when they first take office. The current requirement is they take certain courses within a specific time. He stated it is a problem for family court judges who come into office finding a caseload which must be addressed. Mr. Carpenter wished to clarify if the bill is requiring every judge, except in Clark and Washoe Counties, must take the course within 24 months. Mr. Mello responded all the family court judges would be required to take the family law course within 12 months; the rural court judges would be required to take the course within 24 months. The rural court judges' first priority would be to take the course at the National Judicial College within 12 months. Mr. Carpenter asked if it is that way now. Mr. Mello answered no, now the family court judges are required to take either course at the first offering which can take them away from the bench up to six weeks at a time. The change would allow them to schedule the courses in the first 12 and 24 months. The bill also solves a potential fiscal impact of needing to provide two courses within 12 months to a number of new judges who may come to the bench at the same time. Mr. Carpenter stated he would discuss the bill with Dennis Neilander, Research Analyst, to clarify what the bill says. Chairman Humke closed the hearing on S.B. 394 and opened the hearing on Assembly Bill 633. ASSEMBLY BILL 633 - Revises provision relating to offers of judgement. Justice Cliff Young, Nevada Supreme Court, stated there is a conflict between NRS Chapter 17 and Nevada Rule of Civil Procedure 68. To resolve it the Court requested a committee, with Dan Polsenberg as chairman, work on the problem. Dan Polsenberg, Attorney, presented a copy of the "Report of the Study Committee" (Exhibit C) to the Committee. He explained offers of judgement were an effective settlement tool and can reduce time and costs of cases. The Study Committee report gives proposals allowing joint offers. He reviewed the proposals. He referenced his amendments to A.B. 633 (Exhibit D) and explained the particulars are so minuscule care must be taken with every word. He added the bill drafters had done a good job of breaking down the proposal into the parts but it created some inconsistencies. He reviewed his proposed amendments and reasons for the changes. The intent is to expand the cases in which offers of judgement can be used, make it more fair to the plaintiffs when comparing the offer, and make sure costs were taken into account in an appropriate way. He stated the Study Committee would prefer the acceptance of their report wording in lieu of the bill draft. He offered his assistance to help mesh the two [bill and proposed amendments.] Mr. Goldwater commented sometimes people want their day in court regardless of the offer so thought the bill is punitive to those people and wondered if it should be. Mr. Polsenberg agreed litigation can have a cathartic effect; however, he stated the courts can not act as a "place for group therapy", so there is a slight punitive element. It is encouraging settlements. Cases will have to be looked at to see if it is a good settlement. He pointed out the only time a person would be hit with attorney fees is if they are just being obstinate and the rejection of the offer is grossly unreasonable or in bad faith. Ms. Buckley asked what was envisioned in the "unity of interest" language. Mr. Polsenberg explained it came from California cases dealing with two parties not having similar interests but having nearly identical interests; suing for the same element of damages or different elements of the same damage or having like liability. Ms. Buckley asked why the system is not working under the current practice where separate offers of judgement are made. Mr. Polsenberg gave the example of an injured man and his wife where each would have their own claim. A joint offer can not be made and if an offer is made and only one accepts, the case is still needing to be defended. Ms. Buckley asked to clarify if he wanted not to have the cost of defending the suit continue after a payment is made. Mr. Polsenberg concurred. Mr. Pat Cashill, Nevada Trial Lawyers, testified he was concerned about the impact on the right of litigants to "truly" have their day in court. The current concept is to allow a party/parties to make an offer to resolve the claim of the single party. He continued even if multiple plaintiffs had unified interests each may have different damages and there is no way to apportion a single offer to multiple people. The bill does not reduce litigation; it heightens the anxiety of going to trial and is likely to foster post trial motion practice over whether a single party did better or worse. He offered his assistance to write the present form of the bill so objectives are met. Chairman Humke asked if he had seen the amendments proposed by Mr. Polsenberg. Mr. Cashill said he had not but had seen a report of the study committee. Chairman Humke reviewed options for handling the bill and Mr. Cashill's offer to informally negotiate with Mr. Polsenberg. ASSEMBLYMAN ANDERSON MOVED TO AMEND ASSEMBLY BILL 633. Chairman Humke accepted the motion with input to be received from Mr. Cashill, Mr. Polsenberg, and Mr. Dennis Neilander, Research Analyst, to structure the appropriate amendment. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. THE MOTION CARRIED. Chairman Humke closed the hearing on A.B. 633 and asked for further business. Mr. Anderson asknowledged there were bill draft requests received to be introduced. ASSEMBLYMAN ANDERSON MOVED TO INTRODUCE BDR 41-793. BDR 41-793 - Makes certain provisions of classified service applicable to certain agents of state gaming control board for certain purposes. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. THE MOTION CARRIED. ************************************************************ ASSEMBLYMAN ANDERSON MOVED TO INTRODUCE BDR 14-2003. BDR 14-2003 - Revises provisions governing period in which arrested person must be taken before magistrate and charged. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN STEEL VOTED NO. There being no further business to come before the committee, Chairman Humke adjourned the meeting at 9:31 a.m. RESPECTFULLY SUBMITTED: Jacque Sneddon, Committee Secretary APPROVED BY: ______________________________________ Assemblyman Bernie Anderson, Chairman ______________________________________ Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary June 6, 1995 Page