MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
April 28, 2003
The Committee on Judiciarywas called to order at 9:13 a.m., on Monday, April 28, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Sabina Bye, Committee Secretary
OTHERS PRESENT:
Todd L. Torvinen, Nevada Trial Lawyers Association
Don Ashworth, Probate Commissioner, Eighth Judicial District Court, Clark County
Rocky Finseth, representing the Nevada Land Title Association
Lucille Lusk, Cochairman, Nevada Concerned Citizens
Ben Graham, Nevada District Attorneys Association
Chairman Anderson:
[Roll called] A quorum is present.
[The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.]
We have one bill on our agenda for the day and then we are going to move to a Work Session Document. We are going to be in the old chamber today at 11:00, so it is my intention to get us out of here by 10:45.
Let’s take a look at Senate Bill 207.
Senate Bill 207 (1st Reprint): Makes various changes concerning conveyances of property and wills and estates. (BDR 10-940)
Todd Torvinen, Nevada Trial Lawyers Association:
I see Mr. Ashworth is present in Las Vegas. He is the Probate Commissioner there. He and I worked together and testified before the Senate Judiciary Committee with regard to this bill. I would just like to bring your attention to Section 19 of the bill. Mr. Ashworth and I had a disagreement over this.
Chairman Anderson:
Is Mr. Ashworth the chief sponsor of the bill?
Todd Torvinen:
Yes, he is.
Chairman Anderson:
Let me take Mr. Ashworth first, if you would. Mr. Ashworth, let me start with you, sir.
Don Ashworth, Probate Commissioner, Eighth Judicial District Court, Clark County:
[Introduced himself.] Before we get started, I would like to take this opportunity to express my appreciation to the members of this Committee for the time and effort that you put forth on behalf of the state of Nevada.
This is basically a cleanup bill. There is not much in it other than two sections that make some changes in the law. First, under Section 1, this bill is drafted after a bill from Arizona. It allows you to deed to real property; this only relates to real property. You can do a deed, and in that deed you can do a disposition in the deed itself. You might ask “Why do we need this?” The reason is most people try to accomplish this by the use of joint tenancy. The problem we have with joint tenancy property is, when an individual dies it passes to the other joint tenant but we have no stepped-up basis when it is transferred into joint tenancy. If you want to transfer it to a third party or sell it, you have to have the acquiescence of the other joint tenant. Currently, the fee-simple in that property remains with the individual who owns the property. Upon that individual’s death, this property goes to a named individual. It does not encumber the property; it does not change the nature of the property in any way.
All Section 1 does is provide a means for an individual to transfer his home or real property. In the probate court, where joint tenancy property is used, people don’t realize what they have done when they transfer it into a joint tenancy. They try to sell it and then try to go back and get the acquiescence of the other individual, creating problems. I felt this bill would ease the minds of the people regarding the transfer upon death of real property.
In Section 2, the self-proving declaration is put back in. Prior to enactment of the law in 1999, you could not use the self-proving affidavit under penalty of perjury. This allows you to do so. We have put this into another section.
Section 3 is a move from another section, NRS 134.080, verbatim. It was difficult to find under its caption. That is exactly what is done with Section 5—the deletion of the section and putting it into Section 4.
Regarding Section 6—in the statute now, we use the term “witness.” There is no “witness.” The correct nomenclature is “persons,” not “witness,” because we are talking about people who did not witness the will. These are independent third parties and it should read “person.”
In Section 7 and Section 9, we made a change to administrators under NRS 139.010 by putting it under the personal representative sections. We have several sections that actually mirror one another in the probate code.
[Don Ashworth continued.] The change in Section 8 is a deletion of the wording, “admitting the decedent’s will to probate and…” It should never have been in there. This is a form we use that is actually in the statute. This is “Letters of Special Administration” under Chapter 141 of the Nevada Revised Statutes. We do not admit wills to probate under Section 140, “Special Administrators.” They are only there for a special purpose and the admission of the will is not one of them.
In Section 9, we had this in another section. This has to do with a conflict of interest. If it is found that the personal representative does have a conflict of interest later in regard to the estate, under the statute they can be removed because of that conflict of interest. Counsel will no longer be able to argue that a personal representative couldn’t be removed because of conflict of interest because it wasn’t in the statute.
Under Section 10, NRS 143.065, the language is to conform to the statute of limitations sections in NRS 11.310. It is not a four-month statute of limitations, it is a one-year statute of limitations. If the decedent has a cause of action that is a viable cause action upon his death, that cause of action is extended for one year and is exactly what is provided under “Limitation of Actions”, NRS Chapter 11. We just brought that into conformity with NRS Chapter 11.
The change in Section 11 of the bill deals with a section that was poorly written. It states “double the value of the property, and damages in addition thereto equal to…” The feeling was that this was treble damages. That is what the Legislature wanted and we changed this. “Any judgment recovered must be for treble damages, equal to three times the value of the property.” This is a situation where an individual has either concealed the property or wrongfully taken the property from the estate.
Section 12, subsection 2, is a change from “10 days” to “15 days”, conforming to the remainder of the statutes.
In Section 13, there is a substantial change. NRS 146.070 is what we call the “set aside” statute in the state of Nevada. It is a one-procedure transaction where you only have to give notice in a 10-day period if the net estate is under $50,000. If you have a piece of real property that is worth $200,000 and you have a mortgage against it for $175,000, you are able to transfer that property under this section. All I have done is increase that amount from $50,000 to $75,000, which gives us a little more play as far as the “set-aside” statute is concerned. This is being used more and more by the attorneys in the probate area.
[Don Ashworth continued.] Section 14, NRS Chapter 147, is a verbatim change from another section; we just pulled it out. It was actually under NRS 150.220, Compensation and Accounting. We moved it into the section Debts and Claims. One of the problems we had was you couldn’t find the statute. In other words, you would go to the heading, the heading didn’t make sense or agree with what you were looking for.
Nevada Revised Statutes Chapter 148 deals with sales. Changes that the last Legislature made should have also been made to the personal property. We made changes to the real property but not to the personal property section. It was inadvertently left out, and we are bringing it back so the individuals can have an opportunity to waive the appraisal. If everybody waives the appraisal, they can waive the publication.
Section 16 allows a broker to sell personal property and receive a commission of 10 percent, which is in line with what we have in real property. If it is improved real property, the limit is 7 percent; if it is unimproved, it is 10 percent. This is a portion of the statute that Pam Gulliher, the Probate Commissioner in Reno, asked to be put into my draft.
In Section 19, the only change is the words “before his appointment.” When a personal representative is appointed under a will, the will specifically states what the compensation is going to be to that individual. The problem we have had in the past is some of the attorneys have taken the position they don’t have to actually make the declaration on whether or not they are going to take “under the will” or take “by statute” until the very end of the probate proceeding. That would be grossly unfair to the individuals, allowing them to serve thinking they were going to serve as directed “under the will” and then they get to the end and say, “Well, no, we are going to take ‘under the statute.’” This makes it so the personal representative has to choose, at the time of his appointment, whether he is going to take “under the statute” or take “under the will” as directed.
Section 21 deals with ademption. That is where an individual makes a gift to a third party and he wants that gift to be taken into consideration—or not to be taken into consideration—when the estate is divided. This gives us the opportunity of being able to make that declaration.
The remainder of the bill deals with a section change and that is the section that we changed from NRS 150.220 over to NRS Chapter 147. I certainly would be glad to answer any questions from the Committee at this time.
Chairman Anderson:
Are you proposing any amendments, Mr. Ashworth?
Don Ashworth:
No. There were a couple of changes made in the bill on the Senate side, and I agree with those changes. I agree with the bill as it presently stands.
Assemblyman Carpenter:
On the value of the property where you have increased it from $50,000 to $75,000, in this day and age that $75,000 is still a low figure, isn’t it?
Don Ashworth:
It is, but you have to realize this goes to this individual even if the will provides that it goes some other way. In other words, if an individual made a distribution of the will to a third party, it would be set aside to the spouse or to any minor children. You have to understand what we have done with this section in the last seven years. When I first became Probate Commissioner 12 years ago, the amount was $25,000. We have raised it to $50,000, and I felt the next change would be meaningful at $75,000.
Assemblyman Carpenter:
What would happen if you increased the value of the property to $100,000?
Don Ashworth:
The only situation you would have then is if you had a distribution made out to a third party under a will, other than relatives along the line of succession. The $100,000 would first go out to those relatives prior to the time of any distribution under the will.
Assemblyman Horne:
I have a question regarding conveyance in Section 1. What if you convey this property, but after you make this conveyance it is supposed to take place upon your death. In the interim you get married and this spouse contributes to this property. Wouldn’t that be community property and in a sense this person would be conveying that spouse’s interest in this property?
Don Ashworth:
You have to understand that you can only convey what you own, and in the event you only had a community property interest all you could convey would be your one-half of your community property interest. You cannot convey the interest of the third party if there is none.
Assemblyman Horne:
Yes, I understand, but if today I am single and I convey this property to you, but that conveyance is not going to take place until my death, you are going to get this fee-simple property upon my death. But say this death happens two years from now and in that time I have gotten married. The purchaser has only been conveyed my interest in the property and it is somewhat less now than what was conveyed to him prior.
Don Ashworth:
This is not a conveyance that is being made for purchase; this conveyance is being made by a gift. We do not have a purchaser in this situation. We just have a situation where you, as an individual, are saying, “Look, I like John Jones and I am going to give him this interest.” Once again, you can only convey the interest that you have a right to. This is not a sale. Under most circumstances, the individual wouldn’t even know that they have been named until the time of your death, just like in a will.
Chairman Anderson:
Let us have Ms. Lang help us out.
Risa Lang, Committee Counsel:
On page 2, subsection 3, it says that if the owner of the property, the subject of the deed, held the interest as community property, that the property would only then transfer if that person was either the last sole survivor, or under (a) if the other community property owner had also conveyed the property.
Assemblyman Horne:
I had that in my notes, but I could not see how it related to that first section. I will need to study it.
In subsection 2, paragraph (b), it talks about a successor in interest to the grantee. “If a successor in interest is designated, the deed must include a provision stating the condition precedent for the interest of the success or vest.” The rules against perpetuity jumped out at me; is that not at risk here?
Don Ashworth:
The rules against perpetuity would not be applicable here.
Assemblyman Mabey:
In Section 16, it talks about the commission. Ten percent seems a lot to me. Mr. Ashworth, and again maybe I am not that knowledgeable, but, if you sell a piece of property, 10 percent seems a lot. If you sell a stock, 10 percent of the value of the stock is a lot. Maybe you can comment on that.
Don Ashworth:
This is already in the statute regarding sale of real property. If you have the vacant real property, the portion that we have put in there has been in there for years at 10 percent. There is a 7 percent commission allowed on improved property, but this is a maximum not a minimum amount. In other words, you can do it for 3 percent. A lot of people do that on the sale of real property. They don’t give a full commission depending on the ability to be able to sell. All we are saying is the maximum they could get would be 10 percent. The personal representative has the opportunity of negotiating that fee within those parameters.
Assemblywoman Buckley:
Just to follow up on the question of Assemblyman Mabey, do you disallow commissions that exceed the norm? For example, if 3 percent is the norm for real estate, would you disallow a 10 percent commission that exceeds all community norms?
Don Ashworth:
Well, basically we as a court would not do that. Sitting as a Probate Commissioner, I would not do that. What would happen is, the individual heirs of the estate would come forward and argue that point. Then there would be a hearing and the hearing would determine that. On its face, we would not take that action. I have not had this happen many times, where they come in and say, “Because this is difficult property we want a fee of 11 or 12 percent.” We tell them right up front, “No, you are not getting that because the statute does not allow that.”
Assemblywoman Buckley:
Do you see instances where estates are being charged more than in standard transactions where there is not an estate?
Don Ashworth:
Excuse me; I don’t understand the question.
Assemblywoman Buckley:
Are you seeing commissions charged that exceed community norms on a routine basis, either in real estate or otherwise?
Don Ashworth:
No, because I have never seen any. Here in the Las Vegas area, the norm is 7 percent.
Assemblywoman Buckley:
That is what you are seeing in estates?
Don Ashworth:
That is correct. Seven percent is the norm on real property that is improved.
Assemblywoman Buckley:
Going back to Assemblyman Horne’s question about the conveying of interest that becomes effective upon death, what I am trying to imagine is in a practical matter. Let’s say what Assemblyman Horne described happened. Someone has titled the deed this way and then he gets married. Understandably, he can’t give away what he does not have—the spouse would have a community interest in it. But how does that actually work because now there is a deed with the other person’s name on it? Does the spouse have to file something to show that they have an interest in it?
Don Ashworth:
Under Nevada community property law, getting married does not convert the property to community if in fact it is not community property. Separate property is property you had prior to the time of your marriage.
Assemblywoman Buckley:
I am trying to follow up on the example given by Assemblyman Horne. Let’s say they contributed to it.
Don Ashworth:
It would be no different than joint tenancy property. Let’s suppose you have property in joint tenancy and they came in and contributed—it would be exactly the same thing. You cannot convey any more interest than you own in that property. If they had a community property interest and owned half of it, under your circumstance, there would have to be an apportionment because they have only been making payments on that property for 2 years; this individual might have been making payments on the property for 10 years. It is a situation where this does not change the nature of that situation.
How does it differ from a situation where the deed is in his name alone? He has done nothing with it to anybody else. He deeds it out upon his death to a third party, and he is married. The problem is you can only deed out and you can only give what you own. If his wife has a community property interest, then she voices the community property interest and you have a situation where it would go to court and there would be a determination made.
This does not in any way cloud that issue, in my estimation. That issue is there on everything we do, even today it is there. This does not exacerbate that situation as far as the statute is concerned. In other words, if you have a community property interest in a piece of real property, that is what you have. The other spouse could convey their community property interest to whomever they want to.
Assemblywoman Ohrenschall:
I have to go back to the beginning. Let’s say that I make such a conveyance naming you the grantee, because at that moment you saved my life and I am very grateful to you. A week later, I haven’t bothered to record it or anything; I simply have done all the work. A week later, I get a really good offer on the same property from somebody and I sell it to that person. That person, being aware that Nevada has at least a race-notice statute as far as the recorder is concerned, records his deed. Who wins, the bonafide purchaser or you, if it comes to a fight between the two of you over the title?
Don Ashworth:
No doubt about it, the bonafide purchaser. You can make a transfer to anybody you want to after you have recorded this deed. You can sell it; you can give it away again to somebody else—whatever you want to do with that property during your lifetime that you could do prior to the transfer you can do after this.
Assemblywoman Ohrenschall:
I can actually sell it? If I record it, I can still actually sell it?
Don Ashworth:
Certainly, definitely—that is what the statute states.
Assemblyman Mortenson:
In Section 19 where it says, “The personal representative must be allowed all necessary expenses in the administration and settlement of the estate, and fees for services as provided by law...” Are the fees for services as provided by law a percentage of the value of the estate?
Don Ashworth:
Yes, it is. It is $600 on the first $15,000, and 3 percent on the next $85,000 up to $100,000. On $100,000, the fee is $3,150. It is 2 percent of everything above $100,000. That is in the statute today.
Assemblyman Carpenter:
What happens if you had a piece of property and you entered into one of these deeds with someone and then you got married and you wanted to transfer it to the wife but you just forgot to do it? Would they have preference over someone you wanted to have it but just neglected to do it?
Don Ashworth:
I hate to say this, but yes, that is the law. It is exactly the same situation in a will. Let’s suppose you went down to your attorney’s office and gave him all the information on how you wanted your estate to be distributed. He was in the process of drafting that will and you died. That will is not effective. That is the way the law is. There has to be something done physically for it to be valid.
Chairman Anderson:
I am intrigued by one of the questions that Ms. Buckley and Mr. Horne asked you. I am trying to sort out in my own mind how this would operate. Relative to normal and customary fees that are charged, it is not incumbent upon your office to make sure that someone is getting the best bargain, only that the law is not exceeded; is that correct? In other words, if the customary fee were 4 or 5 percent of the transaction sale, you would not point that out to somebody who might not be aware of that as long as it was under the 10 percent. Would that be a fair statement?
Don Ashworth:
That would be a fair statement. That responsibility does not lie with the court. That responsibility lies upon the personal representative of the estate to negotiate on behalf of the estate and to call that to the attention of the individual he is dealing with. That is their responsibility. If anybody came forward and called that to the attention of the court, the court would step back to look at it. Then you would have a hearing on that matter and the court would make that determination. If people are only getting 5 percent, the court would say, “Fine, that is what you are going to get, 5 percent.”
Assemblywoman Ohrenschall:
I arrived a little late, so I may have missed some of this. I guess my question is, why do we need this statute? Would you mind going over that again? The bill that you are testifying in favor of, exactly why do we need this particular document? The ability to make this gift upon death—is it just making work for lawyers or does it actually add something to the legal system?
Don Ashworth:
It adds a great deal to the law, in my estimation. This is a better way to approach property than joint tenancy. In joint tenancy property you only get a stepped-up basis on half of the property when the first joint tenant dies. Under this situation, you get a stepped-up basis on the full property. Under joint tenancy you create a joint tenancy with a third party. You have to have their concurrence in the sale of that property, the deeding to a third party, or whatever. In this situation, you do not have that. You can change it anytime you want. You can sell it anytime you want. You do not have to go to the other named individual that is going to take upon your death. You still hold the fee-simple in that property up until the time of your death and you can do with it what you want to. You can borrow money on it, you can encumber it, whatever you want to do.
Chairman Anderson:
Is there anyone else in Clark County waiting to testify on the bill? [Mr. Ashworth indicated no.]
Todd Torvinen:
The Nevada Trial Lawyers Association’s position is to pass this with amendment. I would point you to Section 19 of the bill for one small change. Mr. Ashworth suggested changes that if a will provides for perhaps a fixed compensation of $2,000 of an executor or a personal representative, this change requires that the personal representative waive that and seek the state statute compensation prior to being appointed. The only problem with that is many times, and I have seen this in my practice a lot, you have executors—particularly if they are from out of town—who are appointed. A decedent’s records can be a mess and the executor doesn’t know what he is getting into until he rolls up his sleeves and looks at it. It may be much more work than ever anticipated. I have seen executors spend hours gathering records that are a mess.
I have talked to the Probate Commissioner here in Reno, Pam Gulliher, and other estate planning lawyers, and I think we would all agree that it is ridiculous for an executor to come in at the end of the case and say, “No, I don’t want the will to provide compensation at this point.” What we suggest is a common-sense amendment that would state, instead of the language “before his appointment,” would say “60 days after his appointment.” If they don’t believe that the compensation provided in that will would be sufficient, then they could waive out of that and apply the state statute. That is the proposed amendment—“60 days after appointment.”
Don Ashworth:
The only question I would ask, and Mr. Torvinen and I have discussed this on several occasions, is you have to understand if you get into an estate and the work required by the personal representative is extraordinary, they get fees for extraordinary expenses over and above that which is provided by the statute. All they need to do is come forth and set forth what their extraordinary fees are and those fees will be granted to them. We do that all the time. Sale of real property is an extraordinary fee.
The only problem I see in pushing this back 60 days is then you have another situation where they have to come forward and do something and that is one of the big problems we have in the statute now. They don’t seem to come forth and do what they are supposed to do to begin with, such as filing the inventory within 60 days. That is usually not done in the state; we have no way of following up. I think the better appointment is if they are going to take it, they take it at the time of their appointment. If they are not going to take it, then they state they are not going to take under the will at the time of their appointment.
Chairman Anderson:
So, you and Mr. Torvinen remain at the same junction as you did on the Senate side? Mr. Torvinen, do you have your amendment in writing?
Todd Torvinen:
No, I don’t. I will e-mail that, if that is okay?
Chairman Anderson:
Please make sure our researcher gets that.
Rocky Finseth,representing the Nevada Land Title Association:
We have submitted a proposed amendment (Exhibit C) to Section 1, on page 1.
Chairman Anderson:
Have you had an opportunity to share this with Mr. Ashworth?
Rocky Finseth:
We have not, and I apologize. We thought he was going to be up here in Carson City.
Chairman Anderson:
Mr. Ashworth, we will try to fax one of these down there to you.
Chairman Anderson:
Mr. Ashworth, this deals with page 1, Section 1, lines 3 through 7.
Don Ashworth:
What are the changes, Mr. Chairman?
Rocky Finseth:
As Mr. Ashworth said, the bill itself is sponsored after legislation in Arizona. After the hearing on the Senate side, the Nevada Land Title Association went to the Arizona statute and looked at the section they had concerns about. Again, this is Section 1, lines 3 through 7. The amendment seeks to clarify and tighten up the existing language. We simply took the language that is contained in the Arizona statute and substituted it for lines 3 through 7 in Section 1 and added a sentence that said, “Said deed must be recorded during the grantor’s lifetime.” The concerns of the Association involve deeds that may be recorded prior to the grantor’s death. We are trying to clarify that the deed must be recorded prior to the grantor’s death and must state that it is not effective until the death of the grantor.
Don Ashworth:
I might just mention that if there are some changes in lines 3 through 7 in regard to my bill from the Arizona bill; those changes were made by the Legislative Counsel Bureau (LCB) and not by me. The bill I had proposed was the actual draft of the Arizona bill. I do have the fax; it arrived just now. Please give me an opportunity to look at it.
Chairman Anderson:
Ms. Lang, do you see the proposed statement that the Nevada Land Title Association is concerned about?
Risa Lang:
We did have a copy of the Arizona statute when this was drafted and I think that the intent of coming up with this language was just to have it conform a little more to the manner in which other statutes are written in the state. If there was something that was inadvertently not included, I would certainly be happy to address that. I think I would have to go through and compare it to see if it is addressed in other parts of this particular section.
Don Ashworth:
In our bill on line 6, we use the terminology “liens,” which in my estimation is better than putting in “conveyances, assignments, contracts, mortgages, deeds of trust, liens, security pledges, and other encumbrances.” I think that opens the door to so many other things. Just having the terminology “liens” in there would be much more meaningful than having all of those others. I certainly have no problem with the last sentence that says, “Deed must be recorded during the grantor’s lifetime.” I do have a problem with flushing out all these other things that we have in there. Does that mean that they have to actually be recorded against the property if you have a contract with a third party? All of these things I think are just creating more problems. I think that is one of the reasons that LCB went ahead and put in the word “liens” rather than all these other various things that we have here. Liens are something that are recorded in the Recorder’s Office. You can go there and see them, and you don’t have to guess as to what is going on with encumbrances on that property.
Rocky Finseth:
If you just want to stick with the language of “liens,” that is fine.
Chairman Anderson:
If we need to amend the bill to put in “such deeds must be recorded during the grantor’s lifetime” we will take that into consideration if we move forward with the bill. Does anybody else wish to testify for or against S.B. 207? The Chair will close the hearing on S.B. 207. I know a couple of you indicated you had a desire to hold this over for examination and some additional questions that you may have. We will move it to the Friday work session. Thank you, Mr. Ashworth. I appreciate your understanding of the legislative process.
Ms. Combs, we have work session document (Exhibit D) and we hope to move some of our bills today. I would indicate to the members of the Committee if there is a bill that you have a particular desire to see in a work session document, it is most helpful if I know that so I can schedule it for a work session.
Senate Bill 397: Revises various provisions governing sex offenders and offenders convicted of crime against child. (BDR 14-441)
Allison Combs, Committee Policy Analyst:
The first bill in the document is a little bit out of order numerically but Senate Bill 397 is a measure that revises various provisions governing sex offenders and offenders convicted of a crime against a child. Testimony indicated that it was a measure that brings Nevada into compliance with federal law and is, according to the testimony, necessary for Nevada to maintain eligibility for federal Byrne grant money. There were no proposed amendments to the measure and the Office of the Attorney General testified in favor of the bill.
Chairman Anderson:
Mr. Oceguera was chairing when this bill was heard and I should have moved it, or allowed him to move it, at the time. Mr. Oceguera, do you have any comments?
Vice Chairman Oceguera:
As I recall, this just brought us into line with federal regulation and there was no opposition. I don’t recall anyone having any serious concerns with the bill.
Chairman Anderson:
Members of the Committee, the Chair will entertain a motion.
Assemblywoman Ohrenschall moved to Do Pass S.B. 397.
Assemblyman Brown seconded the motion.
The motion carried. (Mr. Conklin was not present for the vote.)
Ms. Ohrenschall, we will give you this bill to present on the Floor. Let’s turn our attention to S.B. 17.
Senate Bill 17 (1st Reprint): Provides penalty for person who leaves child 7 years of age or younger unsupervised in motor vehicle under certain circumstances. (BDR 15-586)
Allison Combs, Committee Policy Analyst:
Senate Bill 17 provides a penalty for a person who leaves a child 7 years of age or younger unsupervised in a motor vehicle under certain circumstances. It was a measure heard in March, and the testimony indicated that the measure was not requested to punish parents but to educate the public on the dangers of leaving children unsupervised in cars. The Chairman provided an opportunity for the sponsor of the bill, Senator Wiener, to work with various groups to propose an amendment to address the concerns regarding situations in which a person could be inappropriately prosecuted either for leaving a child in the car or moving the child from the vehicle.
There is an amendment proposed that is on page 2, at the top of the page of your work session document (Exhibit D). The documentation provided by the individuals involved is also attached. Summarized, there would be the change to Section 1, subsection 1, of the bill which would provide that the parent, legal guardian, or other person responsible for the child, 7 years of age or younger, shall not leave the child in a motor vehicle unless the child is being supervised in the vehicle by a person who is at least 14 years of age, if they knew or should have known that the conditions presented a danger to the health and safety of the child. The remainder of that language would be deleted from the statute. That would be the proposal that was submitted. As you can see on the attached document on the blue pages, the amendment was submitted from Senator Wiener, Ms. Lusk, and others, and signed by Mr. Graham on behalf of the Nevada District Attorneys Association.
Chairman Anderson:
May I ask why the deletion of “The engine of the motor vehicle is running or the keys to the motor vehicle are anywhere in the passenger compartment of the motor vehicle?” Is that where the problem is?
Allison Combs:
I think Mr. Graham has arrived and may want to respond to some of those questions with regard to intent.
Chairman Anderson:
Mr. Graham, we are looking at S.B. 17. On page 2, the amended language—I am a little curious as to why we are dropping (b).
Ben Graham, Nevada District Attorneys Association:
[Introduced himself] I worked on this with Senator Wiener and this was to allay the fear if someone had accidentally locked the car keys in. I think that is what Senator Wiener was looking for in that provision, so that you aren’t inadvertently going to catch someone there. Assemblyman Oceguera had talked about responding to those sorts of things as well.
Chairman Anderson:
For example: I am standing outside my car; I am beating on the door to talk my kid into letting me in. I call Oceguera. Oceguera comes down and brings Lt. Olsen with him. Now I get arrested?
Ben Graham:
No, you don’t get arrested. You might have if we left that in. You aren’t going to get arrested, but there are some concerns that you might have.
Assemblywoman Buckley:
My question is on the other part of it—the addition of the words “…if they knew or should have known that.” “Knew or should have known” is used all the time in negligence. In civil liability it is commonplace to use the “reasonable person” standard again. We don’t do it that much in criminal law and the reason is if we are going to prosecute someone, the standards are different. Someone has to intentionally commit a crime. The new part is fine, but the “should have known”—I don’t know how much of it is this language or my concern as to if we can already get at these parents who do it in the egregious cases. Is this really just going to raise the awareness?
Ben Graham:
The “known or should have known” is used as you say fairly sparingly, but it is not rare in the criminal statutes. It deals sometimes in a notice, such as with the tobacco sales type thing, and even in the willful blindness in forfeitures, where a trust was set up [hypothetically] for the Sisters of Mercy stationed at the Olympic Garden! It is something that is not used very often. It might be a situation where everybody around would have known. How could one say that he didn’t know under these situations if other reasonable people would have known? Again, it is an awareness situation. I don’t think you are going to see any real significant prosecutions under this either from the city or the county. It is more of awareness, as you indicated.
Assemblywoman Buckley:
Let’s say someone leaves a 5-year-old in the car at a 7-Eleven. It is 80 degrees and he leaves the windows open. He goes in to pay for the gas. Probably he shouldn’t, but he figures it is not 110 degrees. He doesn’t want to have the kids come in or is sick of negotiating with them, so he runs in. Does that condition present a danger? A kid shouldn’t ever really be in a car alone. That probably presents a danger in and of itself. Is that enough? It is one thing when the child gets hurt. Everybody knows it then, but what about all those situations where the child doesn’t get hurt? It is less than 5 minutes. It shouldn’t be done, but it is.
Ben Graham:
Incidents with young people are running through our minds, and I think we testified a little about this. I saw a lady just the day before the hearing. Her kids were fighting tooth and toenail and she actually parked in front of the door and ran in and out. That is why we did some of the work that we did. I don’t think you are going to see this unless there really is a significant “where’s mom, where’s dad“ type thing, and it goes on for more than it takes to fill up your car with gas.
Assemblywoman Buckley:
I think you are exactly right; I think that is what law enforcement would do. But, I hate to write the statutes. It is our job to write them as tight as we can. Is there any way we can say that in a statute without relying on common sense enforcement?
Ben Graham:
Why don’t we add “clear” in front of “danger” for something like that? We have to prove it beyond a reasonable doubt anyway, but if we could do that it would probably be a little bit higher standard than what we have talked about that might be a technical violation.
Chairman Anderson:
Now we are going to end up with a statute that reads “A parent, legal guardian or other person responsible for a child who is 7 years of age or younger shall not leave that child in a motor vehicle unless the child is being supervised in the motor vehicle by a person who is at least 14 years of age, if they knew or should have known that the conditions presented a clear danger to the health and safety of the child.”
Ben Graham:
I think that will take the hypothetical aspect out of it. We would have to have something more articulable than the fact it is 85 degrees and you left your kid in the car.
Chairman Anderson:
If they “knew or should have known” is a way out, not only do they “know” or “should have known” but they would have had to have known it was a “clear” danger, not just any danger, but a “clear” danger. Is that a higher line than just a danger?
Ben Graham:
I think so.
Chairman Anderson:
The fact that you have abandoned your child, even for 5 seconds, is a danger?
Ben Graham:
Is it a real danger? If something bad happens obviously it is a real danger. Then that is going to fall under another statute. Hanging around the corner waiting for mom and dad to run in is not going to cover it.
Chairman Anderson:
There are people who probably do this on a regular basis. They drop in at a particular gas station every day. The cop happens to come by every day for his cup of coffee while he is out driving his beat, and the two of them pass in and out the door. Now the police officer has a greater responsibility, does he not?
Ben Graham:
I think the responsibility would remain the same and probably in that situation an officer would have eyeballed the scene…
Chairman Anderson:
And would have reminded her that this is a clear danger?
Ben Graham:
Well, not necessarily. I’ll bet every time one of us goes through a light, and it is red when we are right there, and we see a police officer are we are going to say, “Is he going to come and get us?” Generally not, he has bigger fish to fry and I think in this situation unless there was a significant danger, a clear danger, the officer is not going to issue a citation.
Chairman Anderson:
The officer who is trying to do his duty would probably mention to this parent, “You know, it is not a good idea to leave your child in the car like that.” Now, he has raised that burden upon himself.
Ben Graham:
You have this situation to consider—leaving your child in a covered gas area in Summerlin would be different than leaving your child in an uncovered area where people like you and I really shouldn’t be. That is going to be a higher danger. It is going to be a case-by-case situation of the circumstances. It is not going to be a blanket this or that, especially if you change that to “clear” danger.
Chairman Anderson:
The Chair is not making a recommendation on this one.
Assemblyman Brown:
I had some of the same concerns as Ms. Buckley on the “should have known.” It seems like if something goes awry that brands the situation as a dangerous condition, even though it may not have been particularly foreseeable. I wonder if there is an appetite for deleting “they knew” or “should have known” so it reads, “…a person who is at least 14 years of age, if the conditions present a clear danger to the health and safety of the child.” “Clear” is an adjective describing the danger, but it creates a measure or degree of danger, which relates to the notion of “knew or should have known.” We would not utilize the “knew or should have known” language, but yet we still have an objective analysis of at what level of danger we are. I do prefer having the word “clear” in there.
Ben Graham:
Lt. Olsen was talking about “clear and present” because leaving a child in the daylight in an area would be different than leaving him in the same area at 11 at night, so that is a possibility—“clear and present” danger.
Assemblyman Brown:
I want to see the bill passed. I am happy to make a motion on this.
Chairman Anderson:
Ms. Lusk, I know you have an interest in this piece of legislation. I think you have raised some of these concerns, so I know that this may be language that you worked out yourself.
Lucille Lusk, Cochairman, Nevada Concerned Citizens:
[Introduced herself.] I think “clear and present” is an excellent idea. I wondered if the Committee might, if you are going to remove “if they knew or should have known,” you might consider “shall not intentionally” leave that child? That would further address the concern that Mr. Oceguera previously raised with regard to slamming the door and the keys are inside. You are correct. We do have a great interest in it. There have been some incidents that have taken place that are of concern. We also have the concerns expressed by Ms. Buckley.
Chairman Anderson:
Did you suggest the “intentional” language to Senator Wiener when you talked with her?
Lucille Lusk:
I don’t believe we discussed “intentionally.” We thought “knew or should have known” covered it.
Chairman Anderson:
Let’s talk to the bill drafter and see what we can do. Ms. Lang, do you have an opinion about the “7 years of age or younger shall not intentionally leave that child in a motor vehicle unless the child is being supervised by a person who is at least 14 years of age if the condition presents a ‘clear and present’ danger to the health and safety of the child”?
Risa Lang:
I think that is fine, Mr. Anderson, if you want to add “intentionally.”
Chairman Anderson:
Do we need the “present” also, or just “clear”?
Risa Lang:
That would be a policy decision for the Committee.
Chairman Anderson:
What are the implications for me to understand that?
Risa Lang:
“Present” would mean it is a danger that would occur regardless of a span of time.
Chairman Anderson:
Mr. Brown, are you comfortable with the “intentional” and the “clear and present” and the deletion of “knew or should have known”?
Assemblyman Brown:
I am comfortable with that.
Assemblyman Claborn:
I know we are trying to protect the children that get left in an automobile, but this is so broad. A person could stop and get his mail, get out of the car, go to the mailbox and leave the child in the back seat in his little carrier and somebody will turn him in and next thing he is in court. It is too broad. This thing has to be thought out; I don’t think I can support it right now. I like the concept of the bill and what it is trying to do, but I just don’t think we have arrived there.
Assemblywoman Ohrenschall:
I have some problems with the word “intentional.” I guess it goes back to first year tort law. Let’s say you and I are having an argument and I swing at you and you duck and I accidentally hit Mr. Oceguera. Did I intend to hit Mr. Oceguera? No. Did I intend to hit someone? Yes. Therefore it is an intentional tort and Mr. Oceguera can sue me for battery. But, the word “intentional” has so many ramifications in law, and also the additional thing of trying to get into the head of the parent. When circumstances like this happen, I think those are the circumstances where the parent’s head is least clear. I am not sure that the word “intentional” is not going to provide an additional burden on the courts in trying to figure out exactly how it applies in each circumstance. I am very uncomfortable with that.
Assemblyman Carpenter:
I think 14 years old is pretty old. I have a real concern about the bill itself.
Assemblyman Mortenson:
I also agree. I think it is broad. If we put “intentional” in there and someone goes to grab the mail out of his box, he obviously ”intentionally” meant to leave the kid there, even though it was only 15 seconds.
Assemblyman Sherer:
I agree with Mr. Claborn and Mr. Mortenson. I think it is a little too broad. I think we need to bring it in and narrow it. I see the same thing at the grocery store. All one is doing is pushing his cart back—is he leaving the kids abandoned there too? That happens quite often.
Assemblyman Brown:
I respectfully disagree with those opinions. Whether it is “knew or should have known,” which I am still comfortable with, I don’t think we have to stay with the “intentional” because I think the “clear” danger raises it to a level that would carry it outside of the description that Mr. Claborn and others have talked about. I do not think this would apply in a situation where a person stops at his mailbox to pull mail out and is out of his car for 25 seconds. If there is a clear danger, it is recognizable. The analysis doesn’t kick in until that point, so I would respectfully disagree. I think it is still a bill worthy of support and would support it even with the “knew or should have known” as long as we include the “clear” language. I am happy to make a motion, I don’t know if the Chair is at that point yet.
Assemblywoman Ohrenschall:
After looking and going over everything that has happened here—I know that black and white is hard on individuals—perhaps a flat prohibition to just stop it with “unless a child is being supervised by a person at least 14 years of age” might be easier for the world, the courts, and the parents to handle. Everybody knows exactly what is allowed, what is forbidden. Gradually that will become part of our culture, as putting babies into baby seats before one starts the car. It might be the safest way to go if we are going to go with this bill. I certainly understand what it is trying to do and I don’t think a child should be left alone in the car. I understand there are times when the parents can certainly be justified. But, I am not sure if you go into these shades of gray we are not putting too much on the legal system and law enforcement, having to make split-second decisions.
Chairman Anderson:
I still have problems with this bill. I can see my own two children, myself and my wife trying to get one of the kids into the car seat and struggling to get the other one into the car seat. I think of the number of times my wife would have to do it, when I wasn’t with her, and where she would have to put one in and have to go in the house and get the other one and bring her back out and put her in the seat. When you have children very close in age, it is a real problem for a family. I don’t think that is what this is really intended to get at, and I don’t believe the police are going to do that. But I am having a little difficulty in reading the law the way it is set up, so I am not real gung ho for the way we are going.
Assemblywoman Angle:
I have difficulties too and my difficulties come with the 14 years of age. I had very good babysitters that were 12 years old and I could not find in the law anyplace where there is a restriction on age. It is the maturity and how comfortable you feel about leaving your children with someone. I guess that is where my conflicts come. I have been that mother who had those kids and had to struggle with car seats, and I have some difficulty putting the onus on a parent. I know what my colleague is saying that the law doesn’t intend to get someone for something like this, but if something were to happen when you got out of the car to get your mail, and all of a sudden it became a clear danger; I would have some difficulties with this.
Vice Chairman Oceguera:
I just want to remind the Committee, although I brought up this question, I think the intent of this bill is good. Mr. Graham said the intent is primarily an effort to bring home awareness of what folks would normally do. The intent of the author of the bill I think is awareness. There are a couple of safeguards in the bill in one section where the judge has the discretion to send you to school. He doesn’t have to do anything to you. He can send you to an awareness-type organization. The primary intent of the bill is to make people aware. Also, in Section 4 it says that the prosecution under this section is not permissible if it rose to the level of any other neglect or those standards. I think we tightened up this bill a little bit and I would agree with Mr. Brown in that regard.
Assemblyman Mabey:
I have three children ages 13, 9, and 6. I think they are safer in the car unattended than sometimes taking them in with me. I just can’t support the bill.
Assemblyman Gustavson:
I have mixed feelings about the bill. I think the language that we are attempting to put into the bill might clarify it, but seeing as many questions from this Committee about the bill itself, I really can’t see this as a piece of legislation we should pass if members of this Committee have this many questions. I don’t think I can support it at this time.
Assemblywoman Ohrenschall:
I think the bill is a worthy bill. It should be saved and I wish to compliment Risa. I think given a day or so, Risa can probably work on this language a little bit. I think it is close to where we want it to be. It could be made to express what the Committee wants and perhaps we should give it one more try on Friday.
Chairman Anderson:
The Chair will not entertain a motion because I believe it would fail. I will take it back to the board and we will hold it and see what kind of language can be worked out by the various individuals. I’m not comfortable with it as it is.
We will move the remainder of these bills over to our Friday work session. We are adjourned [at 10:44 a.m.].
RESPECTFULLY SUBMITTED:
Sabina Bye
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: