MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session February 22, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:30 a.m., on Wednesday, February 22, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O. C. Lee STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Judy Jacoboni, President, Mothers Against Drunk Driving, Lyon County Chapter Laurel Stadler, Legislative Liaison, Mothers Against Drunk Driving, Lyon County Chapter Susan J. McCurdy, Executive Secretary, Board of Parole Commissioners Anne Cathcart, Senior Deputy, Nevada State Attorney General Daniel Wong, Judge, Reno Justice Court Carolyne Edwards, Legislative Representative, Clark County School District Sherry Loncar, Legislative Chair, Nevada Parent Teacher's Association Stan R. Olsen, Lieutenant, Legislative Liaison, Las Vegas Metropolitan Police Department The meeting began with a request for a bill draft by Judy Jacoboni, President, Mothers Against Drunk Driving, Lyon County Chapter and Laurel Stadler, Legislative Liaison, Mothers Against Drunk Driving, Lyon County Chapter. A copy of their written testimony and request is attached as Exhibit C. Ms. Jacoboni addressed the committee requesting a bill which would provide for civil liability against persons who sell or furnish liquor to minors in cases where such a minor becomes drunk and subsequently injures or kills an innocent person. She noted that 41 other states have such statutes. She referred to a compilation of Supreme Court decisions (Exhibit D) and a copy of the New Jersey statute (Exhibit E) which she hoped would be a guide for the Nevada Legislature. Ms. Stadler added her support for Ms. Jacoboni's remarks and added there are recent statistics to show 30 percent of a crash victim's medical costs are paid by the state. She emphasized the intent that innocent victims should be the one who benefits from this legislation, not the offender. Additionally, she noted, the tavern owner or host has already committed a crime in serving alcohol to a minor. Senator Adler added his support of a hearing on such a bill, but he wondered if the bill would apply to a situation in which a fake identification was presented, and the server or bar owner would not know the individual's real age. Ms. Jacoboni replied the New Jersey statute applies to situations where the server knew or should have known, which would allow for some interpretation. Senator Titus asked whether the bill would apply to convenience stores which sell packaged liquor. Ms. Jacoboni noted it would apply to any seller. Senator Washington asked if a parent, in their own home, allowed a minor to drink, would they be liable? The response of Ms. Jacoboni was affirmative, except for the situations that are currently exempted under the law for religious purposes. She offered to double check on other possible scenarios involving parents and children. Senator James thanked the witnesses for their request, acknowledged the importance of the issue and indicated that, if appropriate, he would bring the question to the committee for a vote at a later date. Bill Draft Request (BDR) 2-431: Provides specifically for personal service of summons in a civil action upon party who is outside the state of Nevada. Next, the chairman spoke of legislation passed in the previous session which "simplified and broadened the state's exercise of personal jurisdiction in civil cases outside the borders" and the subsequent reaction and action by the supreme court which impeded the state's ability, in fact, to effect that service of process. There is before the committee a "curative bill" BDR 2-431. The chairman called for a motion to request the bill. SENATOR ADLER MOVED TO REQUEST BILL DRAFT REQUEST 2-431. SENATOR WASHINGTON SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** SENATE BILL (S.B.) 156: Extends limit on time for rehearing upon denial of parole. The chair next opened the hearing on S.B. 156 and asked for testimony from proponents of the bill. Susan J. McCurdy, Executive Secretary, Board of Parole Commissioners took the floor and referred to a letter she delivered to Senator James' office previously (Exhibit F). She read the letter for the record. Senator Adler asked Ms. McCurdy why the board wanted the bill. She responded that "individuals of violent offenses and long history of disciplinary problem inmates" come before the board and are not real likely candidates for parole anyway. This bill will simply extend the time between parole reviews, she explained. Senator James asked to confirm whether the board wants the bill to be retroactive, despite what the bill before the committee reads. Senator James stated his understanding that a bill or laws that would affect a right of an individual could not be passed retroactively, and asked whether this would not apply to the present bill. Ms. McCurdy referred the question to Anne Cathcart, Senior Deputy, Nevada State Attorney General. Ms. Cathcart responded that the reason for the request for retroactivity is due to a case (California Department of Corrections v. Morales) pending before the U.S. Supreme Court which addresses the issue. In California the time required between parole board reviews was changed from 1 year to 3, Ms. Cathcart explained, but this did not change the parole eligibility date for the inmate. The issue is currently being challenged in the Morales case, but in her review of Nevada law and constitution, in her opinion, it appears it is not an unconstitutional ex post facto law. Thus, the parole board specifically asks for the retroactivity in order to avoid creating two different classes of inmates: those subject to previous law; and those covered under the new law. Senator James inquired about the likelihood the whole law being made void through a court challenge. Ms. Cathcart agreed there is that risk, but the parole board is willing to take it. Obviously, she added, if the Legislature wishes to study the issue further, she will be happy to provide the information they need. Since the Morales case has not yet been decided, Senator James suggested, it might be wise to try to determine when a decision might be rendered. Ms. Cathcart opined the case would probably not be heard before the end of the legislative session. Senator James stated he agrees with the intent of the bill, but hopes it not be overturned by a court decision. Ms. Cathcart stated she must defer to the wishes of the client, the parole board, and ask for retroactivity. Senator McGinness asked if any figures are available regarding the number of inmates that will be affected by the bill. Ms. McCurdy replied the figure is not currently available, but she is willing to provide it. Senator Adler noted the remedy for a successful suit would be the board must give the inmate reconsideration of a hearing. Ms. Cathcart replied it is her best guess that would be the remedy. In response to Senator McGinness' question, Ms. Cathcart said it is her understanding there is an average of six inmates a month who would most likely be given a 5-year waiting period between review hearings. Senator James called for further testimony on the bill and there was none. He then called for a motion to amend and pass the bill, as long as Senator McGinness does not wish to wait for the requested figures. SENATOR LEE MOVED TO AMEND AND DO PASS S.B. 156. SENATOR TITUS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** SENATE BILL 158: Clarifies provisions relating to payment of certain fees, allowances and expenses to witness who is subpenaed to appear in civil action. The chairman opened the hearing on S.B. 158 and called Judge Wong to testify. Daniel Wong, Judge, Reno Justice Court, addressed the committee. He gave the committee a copy of his prepared testimony (Exhibit G) and then read it for the record. Senator James called for questions, there were none. The chairman offered for the record a letter in opposition to the bill (Exhibit H), stating the author's concern is that it would... ...subject litigants to increased litigation costs if such litigants are required to tender the witness at a time earlier than the time the witness actually appears before the court to testify. One obviously would expect the proposed witness to cash the check long prior to the day he or she is to appear to testify at the trial or hearing. Thus, if the civil action is settled or the trial or hearing date is continued, it is going to be virtually impossible for the litigants to recover the witness fees.... The chairman summarized the concerns of litigants that fees will have to be duplicated many times in cases that hearings are continued or matters are settled. Judge Wong noted his understanding of these concerns and asked the committee and the bill drafters to "draft something that clearly stated the fees were to be paid at the time of the hearing, the actual conducting of the hearing, but if it is not paid then those persons are not obligated to testify." He continued the reason for the request is due to a disagreement among the judges themselves as to Nevada Revised Statutes (NRS) 50.165, and NRS 50.225(6), and when the fees are due and payable and whether the witnesses must appear without first being paid the fees. Senator James noted it is his interpretation there is a requirement to reimburse for their travel expenses, or that they should be pre-paid. The judge answered it depended upon how a person interprets subsection 6 of the statute, and that is exactly the problem. He told of instances where the fees were not paid in advance, the witness appears for the hearing, the litigant asks the judge, pursuant to subsection 2 of the statute to make the witness testify anyway, and promises to pay the witness after the fact. Then, sometimes, these fees are not paid. This situation points out the courts' need to have the wording clarified, Judge Wong stated, and that is why he is here today. Senator James noted it might be possible to clarify the wording without causing the occurrence of multiple payments as anticipated by the Dickerson letter. The chairman suggested he have the parties (Judge Wong and Mr. Dickerson) get together to work out language that would satisfy all concerned. Senator Porter asked to address section B, line 10, regarding reimbursement of mileage. This rate is not uniform within the statute and asked if there is any reason for this. He suggested this section also be addressed if the statute is to be amended. The hearing on S.B. 158 was then closed. A work session was commenced at this point in the hearing. SENATE BILL 120: Limits civil liability of county school districts, local law enforcement agencies and certain other persons with regard to volunteer crossing guards for schools. Carolyne Edwards, Legislative Representative, Clark County School District, Sherry Loncar, Legislative Chair, Nevada Parent Teacher's Association, and Stan R. Olsen, Lieutenant, Legislative Liaison, Las Vegas Metropolitan Police Department took the floor to answer questions for the committee. Senator James reminded the audience of the substance of the bill and noted there are some difficulties with it: 1) the school district does not want to be responsible for setting up crossing guard programs, due to the feeling the district should not be responsible for traffic safety; 2) the police department does not want to be liable for volunteer crossing guards; 3) the PTA does not want to accept liability either; and 4) but parents want to be able to volunteer to make sure the children get across the streets safely going to and coming home from school. The chairman asked the groups, along with Allison Combs, Senior Research Analyst, Legislative Counsel Bureau, to work together, without assuming liability they are uncomfortable with, to "come up with a way to accomplish" the goals. He conceded the bill, as currently drafted, raised concerns for each group. He reiterated the goal is to protect the school district, the police department, and the parents, as long as they participate in a training program, from liability if any accidents occur. Ms. Edwards reminded the committee that during hearings held in Las Vegas, the Nevada Trial Lawyers had asked to participate. The chairman agreed and asked Victoria Riley or her designee of the Nevada Trial Lawyers Association to participate with the group. Senator Adler noted his unwillingness to support a "bill that left no one responsible should a child be injured through negligence of reckless behavior by a crossing guard." He said he feels it would be irresponsible to leave the bill this way, and the school district or the police department should accept the liability, especially with the $50,000 statutory cap. He emphasized his concern with leaving the parent responsible for injuries to their child when all they had done is send the child to school. Senator James thanked the senator for his concerns and then told of an instance where a child was seriously injured because there was no crossing guard. This particular case, he noted, is the impetus for the bill. The alternative, Senator James added, is to simply let the children "run for their lives" across the streets. Also, the bill does not allow "good Samaritan" protection for willful or wanton negligence, he stated. Ms. Loncar stated the Nevada PTA is extremely concerned with the safety of the children. She offered to bring up a Carson City School District representative to give the committee an overview of a successful program they have. The chairman thanked her, but stated it is not his desire to have a full hearing on the bill at this time. Ms. Olsen took the floor to remind the committee with the proper program and training, liability will fall on the negligent driver who fails to observe and obey the crossing guard. Senator Adler asked if the liability would be so minimal, as speculated by Mr. Olsen, why an exemption is necessary. Mr. Olsen responded it is the concern of the department that "people who want to sue will always go after the deep pocket, and they know that organizations...will have more money than an individual." Senator Porter took an opportunity to commend the chairman, and he encouraged the recommendation for further review of the bill, noting his feeling that, in actuality, all the parties want the same thing, safe crossing for children. Senator Adler added the problem being addressed by the bill is somewhat unique to Clark County. There are other districts throughout the state that have various volunteer programs without the need to escape liability, he continued, and this is something else that bothers him. He recommended the group needs to talk to some of the districts that are using volunteers successfully as well as recognize there are many other types of volunteer programs (e.g., fire fighters, ambulance drivers, reserve police officers) that do not require this blanket of protection. SENATE BILL 42: Makes various change related to possession of firearms by minors. SENATE BILL 140: Requires juvenile charged with felony involving use of firearm be prosecuted as adult. The chairman noted these bills deal with juveniles and firearms. S.B. 42 resulted from the interim criminal justice committee, and attempts to do two things. First, it deals with the use and possession of a firearm by a minor, he said. An amendment has been proposed which states, "a minor that is at least 14 years of age, but under 18 years of age, shall not handle or have in his possession or under his control and firearm of any kind: (a) unless he is engaged in hunting or target practice or for any other purpose except while accompanied by or under the immediate charge of an adult person." The goal of the bill is to address the fact there is no reason for minors to be driving around a city, or anywhere else, participating in drive-by shootings, the chairman noted. Secondly, there is part of the bill which is "duplicative" of S.B. 140 which allows for "automatic certification if a juvenile of a certain age uses a firearm in the commission of a felony," the senator added. He reminded the committee they heard much testimony expressing concern about the automatic certification, which, Judge McGee points out in his letter (Exhibit I), removes discretion from the juvenile judge. Senator James asked the committee to do two things at this juncture: "[table] S.B. 140, amend S.B. 42 to provide for presumptive certification, or a required certification hearing,... for anyone 14 years of age or older who is a juvenile, and commits an act...," Senator Lee asking for some clarification of the section dealing with hunting and target practice, wondered if he and his son were hunting together on the same mountain, but in different areas, would the son be guilty of violations under that section. The committee assured him there is no violation in that situation. The chairman noted that for the intent of the bill, target practice means some kind of sporting use of guns. Senator James asked if everyone understood the proposed amendment, and added they are still "giving due deference to the Assembly," in their efforts to originate the juvenile reform package. This bill would go to the Assembly for their revision or acceptance, he added. He then called for a motion. SENATOR ADLER MOVED TO AMEND AND DO PASS S.B. 42. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** Senator Adler added the current bill closely tracked a Florida statute. Senator James asked Senator Adler to argue the bill on the Senate floor, once the amendment is completed. Next, the chair called for a motion to indefinitely postpone S.B. 140. SENATOR LEE MOVED TO INDEFINITELY POSTPONE S.B. 140. SENATOR ADLER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** Senator James noted that S.B. 140 is now subsumed by S.B. 42. SENATE BILL 167: Revises provisions governing admissibility of certain evidence relating to children. The committee moved to address S.B. 167 and the chairman noted there will an amendment which is agreed upon by both the defense bar and the District Attorney's Association. The amendment is to be presented by Ben Graham, Chief Deputy, Clark County District Attorney and Legislative Representative, Nevada District Attorney's Association, however, he is testifying before another committee, it was noted, so the hearing would be postponed. There being no further business before the committee, the meeting adjourned at 10:05 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary February 22, 1995 Page