MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session June 20, 1995 The Committee on Judiciary was called to order at 8:17 a.m., on Tuesday, June 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 Ms. Dianne Steel Ms. Jeannine Stroth GUEST LEGISLATORS PRESENT: Senator Maurice Washington Senator Jon C. Porter STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Daniel F. Polsenberg, Attorney at Law Greg Harwell, California State Automobile Association I.R. Ashelman, II, Attorney at Law Major Daniel Hammack, Nevada Highway Patrol Lt. Phil Galeoto, Reno Police Department Joe Guild, Attorney at Law Adam Wygnanski, Reno Police Department Christina Chandler, Eighth Judicial District Court Fred Hillerby, NSCPA Ray Moberg, NSCPA Ben Graham, Nevada District Attorneys Association Honorable Cliff Young, Supreme Court Justice Nancy Saitta, Deputy Attorney General John Fowler, Lobbyist SENATE BILL 549 - Revises provisions governing plea bargains and appeals in certain criminal actions. Senator Jon Porter, Senate District 1, primary sponsor of S.B. 549, stated he has spoken with Ben Graham of the Clark County District Attorney's office in an attempt to reduce the amount of frivolous appeals. He added S.B. 549 provides relief to the court and to the honest individual seeking help. Honorable Justice Cliff Young, Supreme Court Justice, endorsed S.B. 549 stating he has been working on this issue for the past several years. Justice Young commented there is much plea bargaining taking place in the criminal justice system to which the defendant is often relieved to have six charges reduced to two. This plea bargaining process needs some revamping in order to assist in that process as well as the aftermath of court appeals. Ben Graham, Nevada District Attorneys Association, added there is a separate section of the bill which will reduce frivolous appeals to the Supreme Court on guilty pleas while still preserving the right to appeal on any sound constitutional basis. Additionally, after a direct appeal is taken everything can be brought up again on post conviction relief. He concluded they urge a do pass on this measure, adding the defense bar has reviewed S.B. 549 and likewise sees it as benefitting the system. SENATE BILL 347 - Provides additional means of limiting liability of certain business organizations. Fred Hillerby, Nevada Society of Certified Public Accountants, (NSCPA) introduced Ray Moberg, immediate past president, NSCPA, and John Fowler, legal counsel. Ray Moberg, CPA, testified in support of S.B. 347 which allows CPAs in the state of Nevada to organize as limited liability partnerships or limited liability companies. This bill is requested because these forms of organizations protect the firms partners from personal liability for unsatisfied debts and claims against the partnership arising out of negligence or misconduct of others while performing professional services. Each partner would remain personally liable for their own negligence or misconduct or for the acts of others which that partner supervises. Mr. Moberg stated the ability of plaintiffs to recover from the firm or insurers will not be impacted by S.B. 347 and added the companies described in the bill have their own benefits in terms of administration and formation. John Fowler, Attorney at Law, announced he was available to respond to any questions the committee may have regarding S.B. 347. Mrs. Monaghan asked if there was any difference between the limited liability and the registered limited liability. Mr. Fowler stated no there was not. Fred Hillerby stated Sections 1-17 of the bill amends the Uniform Partnership Act to allow for limited liability partnerships adding this was not strictly for CPAs. Mr. Hillerby declared limited liability partnerships receive better tax treatment under the federal tax codes. Section 2 of the bill are filing requirements. Section 3 deals with the annual filing. Section 4 gives the period and time of which the partnership is effective. Section 5 deals with errors in filing. Section 6 is the resident agent requirement. Section 7 deals with resident agent resignation and replacement. Section 8 defines the legal name of the partnership. Section 9 talks about partnerships formed in this state operating in other jurisdictions and provisions pertaining to the Secretary of State. Sections 13-16 include the limited liability sections to the existing statutes regarding partnerships. Mr. Hillerby asserted Sections 17 forward deal specifically with CPAs and detailed those sections further. Section 19 is a drafting reconstruction of the statute. Section 23 deals with the grand fathering in of CPAs pursuant to legislation enacted in 1960. SENATE BILL 371 - Expands circumstances under which person fleeing from or otherwise attempting to elude peace officer in motor vehicle is guilty of felony. Senator Maurice Washington, Washoe District 2, stated S.B. 371 has been entitled the "felony flee bill." S.B. 371 provides if a person eludes an officer in pursuit, and exceeds 30 mph, or poses the threat of causing bodily injury or property damage, or tries to flee out of state, the charge is a felony with a penalty of one to six years. Adam Wygnanski, Reno Police Department, testified in support of the bill and presented prepared testimony attached hereto as (Exhibit C). Mr. Wygnanski has been in law enforcement for 11 years, having been involved in numerous vehicle pursuits. In a recent survey in California, Idaho, and Nevada, approximately 90% of suspects fleeing from the police are doing so in an effort to avoid a minor infraction or misdemeanor crime. Mr. Wygnanski expressed his concern that persons who flee police pursuits do so in a careless and reckless manner thereby subjecting innocent persons to serious harm and danger. Mr. Wygnanski provided statistical data regarding collisions and fatalities involved in vehicle pursuits from the state of California. Similar legislation to S.B. 371 has been implemented in other states and it is working as a deterrent for persons who flee as they would rather pull over and get the misdemeanor violation rather than be subject to the felony charge. Mr. Anderson asked how the determination is made to pursue a vehicle when the language in the bill states "fails or refuses to bring his vehicle to a stop." Mr. Wygnanski stated one of the four criteria outlined in subsection c) of the bill would need to be present to initiate a pursuit. Upon further inquiry by Mr. Anderson, Mr. Wygnanski confirmed the officer must use the siren and the red lights while in pursuit. Upon Mr. Carpenter's inquiry, Mr. Wygnanski asked if he was going 30 mph and ran through a red light and did not observe the officer's siren behind him, would he be subject to a felony? Senator Washington stated it would be under the officer's discretion as they are trained in vehicle pursuits to which guidelines are set. Further, with regard to the bordering states, Mr. Carpenter noted a problem with subsection a) and d) of that provision. Senator Washington replied the bill was modeled after Idaho legislation and they feel if someone is going over 30 mph, trying to leave the state, or endangering the life or property of others while eluding a peace officer, then it should be a felony. Mr. Wygnanski added S.B. 371 will not change the pursuit policies of police officers but will simply create a deterrence. Further discussion was held regarding pursuit policies currently maintained by law enforcement. Mr. Perkins commented many jurisdictions are implementing "no pursuit" policies because of the liability incurred by subsequent crashes. Juries have found that crashes were at least partially the result of the officer chasing the person and actually forcing them to escalate their speed. He concluded it is more prudent to identify the driver and catch up with them later. Also, officers are 4-5 times more likely to get injured or killed in a pursuit accident than they are to be wounded or shot in the line of duty. Chairman Humke noted a fiscal impact on the bill from Director of Prisons, Robert Bayer which states information is needed from law enforcement on what fiscal impact, if any there would be involved in S.B. 371 and he would like to see some information along the lines of number of convictions, etc., before a vote on the bill could be had. Senator Washington responded the fiscal note is based on the number of felony convictions. Major Dan Hammack, Nevada Highway Patrol, expressed his support for S.B. 371 in that pursuits are an inherent problem. However, the language in subsections a) and d) is too open and accelerates to a felony statute prematurely. There needs to be some distinct driving behavior before the acceleration into a felony occurs. Major Hammack stated just going over the state line is too broad, considering our tourist population and the number of states bordering Nevada. Lieutenant Stan Olsen, Las Vegas Metropolitan Police Department, echoed the concerns brought forth by Major Hammack. Mr. Olsen stated with regard to their pursuit policy, if someone eludes, they initiate a pursuit then a supervisor must immediately evaluate the situation to determine if the pursuit should continue. They also have the advantage of the use of 24-hour helicopter access which can oversee pursuits as well. Lieutenant Phil Galeoto, Reno Police Department, stated he was the former pursuit training instructor, and Adam Wygnanski testifying here today is now the current pursuit training instructor. Mr. Galeoto stated they support S.B. 371 and see it as a very necessary bill. Mr. Galeoto described the pursuit policies of the Reno Police Department clarifying if someone crosses the state line in a pursuit it is a nonextraditable offense. Mr. Galeoto echoed Mr. Olsen's description of an individual in the city "baiting" police officers in pursuits. These situations cause a lot of damage and injury as a result. Chairman Humke asked if Major Hammack was suggesting subsections a) and d) be deleted. Major Hammack stated yes because subsection c) would cover it and he sees a problem with the state line pursuits. Mr. Olsen suggested rather than delete subsections a) and d), tie in a) to urban environments and then tie in d) to section c). Upon Mr. Sandoval's inquiry, Major Hammack explained the pursuit policy of NHP when over state lines does not mean they stop as soon as they get over the state line, and depending on the severity of the event, they will contact the neighboring state. Mr. Galeoto stated RPD does not pursue over state lines because of liability issues. Mr. Olsen stated Metro's policy is the same as RPD. Further discussion ensued regarding the use of "highway" on line 14 of the bill wherein Mr. Galeoto stated this term was utilized throughout the statutes and encompassed roadways in urban and rural areas. SENATE BILL 463 - Provides operator of jail with notice of action regarding conditions of confinement of prisoner and opportunity to be heard. Chairman Humke noted no one present to testify on the bill and asked staff to locate the sponsors of the bill. SENATE BILL 393 - Revises provisions governing contents of order granting limited right to custody of child or for visitation of child. Nancy Saitta, Deputy Attorney General and Childrens' Advocate, testified S.B. 393 insures custody orders are consistent and are drafted to protect children the subject of the order. She stated the bill will eliminate any vague or ambiguous term in a divorce or custody decree so there is no question regarding the exchange of children while effectuating visitation rights. Further, it will eliminate confusion when law enforcement is called upon to resolve a custodial dispute but mostly, it will protect children who are pawns in custody disputes. Ms. Saitta emphasized S.B. 393 was not designed to limit or restrict the rights of visitation but rather allows for the rights to be clearly set forth in decrees when a dispute arises. Mr. Carpenter expressed concern if the order is written too strictly it will cause a bigger problem. Ms. Saitta responded the bill does not address the adult dispute but rather the protection of the child for failure to release the child to the rightful parent. Ms. Saitta concluded the bill would avoid more problems in child custody situations than it would create. Mr. Carpenter stated it should be up to the judge to write the orders as he deems proper and further inquired about language in the bill, "not by use of the term reasonable." Ms. Saitta stated the use of the term "reasonable" is probably safe in any other situation besides family law. Further, she concurred the judge has the right to order custody under S.B. 393 as he deems fit. Mr. Perkins stated he has seen many situations in his job as a police officer wherein he has acted as a referee in child custody dispute situations. In his opinion, most problems occur when the language in the court order is specific rather than utilizing the term "reasonable." Ms. Saitta replied "reasonable" could still be used for some parents but crisis dispute or abduction situations would mandate the use of more specific language. Mr. Humke commented he liked the bill. Ms. Steel commented she thought the specific language would be better. SENATE BILL 390 - Revises provisions regarding arbitration of civil cases. Christine Chandler, Administrator, Eighth Judicial District Court, stated Alternate Dispute Resolution (ADR) programs were established in June, 1992. Thereafter, the Supreme Court requested a study on that program to evaluate the success thereto. That study concluded the program was very successful. The courts view ADR as providing a public service to the community in awards for under $25,000.00. Ms. Chandler urged support of the bill with an amendment to change the cap to $35,000 instead of $50,000 because they will experience no fiscal impact with a cap at $35,000 but would see a fiscal impact with the $50,000 cap. They would like to maintain the success of the ADR and would prefer to see a graduated increase in the next fiscal year. Ms. Chandler informed the Eighth Judicial District Court judges met in May and they support the $35,000 cap. Mr. Goldwater asked why a section of the law was being repealed from S.B. 390. Ms. Chandler clarified she is not the proponent of the bill but rather it grew out of the committee from the Supreme Court. Mr. Goldwater responded he would find out the answer himself. I.R. "Renny" Ashelman, representing the Committee for Alternative Dispute Resolution, and Southern Nevada Home Builders which utilize ADR programs extensively, stated originally the bill was designed to restore the Uniform Arbitration Act which was accidentally repealed. Mr. Ashelman explained the UAA in furtherance along with the purpose of the repealer noting it is not controversial. Mr. Ashelman stated Senator James approached him about an increase in the caps from $25,000 to $50,000 and he agreed to the same. It is his belief most persons favor the increase to $50,000.00. Further, he has been in touch with a couple of the Eighth Judicial District Court judges to find out the fiscal note for the $35,000 versus the $50,000 cap amount but is not prepared to address that issue. Mr. Ashelman stated the ADR program causes settlement 65% of the time before an appeal and about 50% of the appeals trial de novo are settled before there is any kind of action in the court. Mr. Ashelman informed 53% of all civil cases become a part of the program and it has proven to be a huge success. He provided a handout containing additional statistical data, attached hereto as (Exhibit D). Mr. Ashelman declared the complaints he has heard is the arbitrators are not paid enough and need more training but it is the Supreme Court that sets the rates and training mechanisms. Upon Ms. Buckley's inquiry, Mr. Ashelman stated Section 5 of the bill was designed to assist in procedural areas for binding arbitration. Joe Guild, Attorney at Law, testified in support of S.B. 390 as a member of the State Bar of Nevada, and as a court-appointed arbitrator having completed many arbitrations since the original legislation in 1992. Mr. Guild stated he saw a problem with increasing the caps from $25,000 to $50,000 because it would likely increase the complexity of the case. Mr. Guild informed the limit on arbitrator's fees is $75 per hour with a cap of $500 plus costs. He stated in every case he has worked, his time has exceeded the cap considerably. Mr. Guild saw this as a problem because it may come to the arbitrators refusing to hear cases. He suggested a letter from the committee to the Supreme Court requesting they consider changing the rules adding either a higher cap or a higher hourly fee may address that problem. Mr. Ashelman concurred. Greg Harwell, California State Automobile Association, introduced Dan Polsenberg, Attorney at Law, Las Vegas. Mr. Harwell asserted S.B. 390 repeals the section of the statutes dealing with binding arbitration to which they have no concerns. However, the increase in limits does concern them. He then turned further testimony of these concerns over to Dan Polsenberg, Attorney at Law. Mr. Polsenberg stated there was a marked difference between a $25,000 case and a $50,000 case. When the ADR program was established the $25,000 cap resulted in over half of the cases being handled through ADR. If that is increased to $50,000 the case becomes more complicated, the parties are more interested in the result rather than just having their viewpoint heard, the arbitrators need more training and they will have to be compensated better otherwise they will not agree to arbitrate cases. Mr. Polsenberg suggested 1) study the issue for the next two years to see what it will take to raise the cap to $50,000; or 2) delegate to the Supreme Court the authority on their part to raise it to $50,000 if they make the necessary changes. Mr. Polsenberg concluded although it is an admirable solution it is not feasible and many cases will go to trial de novo. In addition, he noted Section 5 being problematic so expressed his reservation to that section of the bill. Valerie Cooney, President, Nevada Trial Lawyers Association, testified they support S.B. 390 and acknowledged the ADR program as very successful. In addition, the UAA needs to be removed from Chapter 38 of the Nevada Revised Statutes. They believe increasing the jurisdictional limits to the ADR program will help resolve additional cases. Chairman Humke re-opened the hearing on S.B. 463. Lieutenant Stan Olsen, Las Vegas Metropolitan Police Department, informed when S.B. 463 was heard in the Senate the one problem addressed there was a judge will issue an order on the jail directing the jail to give a prisoner a certain type of food, medication or other issues. However, the jail does not have an opportunity to respond to that issuance. S.B. 463 would provide for notification and opportunity to appear in court to present their view prior to the issuance of the order. Captain James Nadeau, Washoe County Sheriff's Office, stated they support S.B. 463. Captain Nadeau stated the judge oftentimes makes a mandate on the jail to follow a request of the inmate per court order. They would simply like the ability to be present before the mandate comes down so they can express their input. Lt. Olsen stated also the district attorney is not notified of the issuance of these mandates either so often they are not aware of what is going on. ASSEMBLY BILL 568 - Revises provisions governing prevention of cruelty to animals. Tom Bentz, Nevada Animal Wild Use and Welfare Alliance, thanked the committee for their efforts in A.B. 568. He has spoken with members of the alliance and other interested parties and they have decided at this late date with all the controversy surrounding the bill, they feel it would be better to withdraw the bill and work with the interested parties regarding the problems in the bill and come up with a better version at a later date. The co-chairmen both thanked Mr. Bentz. There being no further business before the committee, the meeting adjourned at 10:12 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: _______________________________________ Assemblyman Bernie Anderson, Chairman _______________________________________ Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary June 20, 1995 Page