MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
April 30, 2003
The Committee on Judiciarywas called to order at 7:46 a.m., on Wednesday, April 30, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, 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
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
COMMITTEE MEMBERS ABSENT:
Ms. Barbara Buckley (excused)
GUEST LEGISLATORS PRESENT:
Assemblyman Lynn Hettrick, District No. 39 (Douglas County and portions of Carson City and Washoe County
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Carrie Lee, Committee Secretary
OTHERS PRESENT:
Gayle Farley, Citizen
Kristin Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney’s Office; and representing the Nevada District Attorneys Association
Jim Nadeau, representing the Washoe County Sheriff’s Office, and the Nevada Sheriffs and Chiefs Association
Don Henderson, Acting Director, Nevada Department of Agriculture
Robert Beach, State Director, Wildlife Services, United States Department of Agriculture (USDA), and Administrator, USDA Division of Resource Protection
Robert Roshak, Sergeant, Las Vegas Metropolitan Police Department, and representing the Nevada Sheriffs’ and Chiefs’ Association
Edward Dannan, Justice of the Peace, Reno Justice Court, and representing the Nevada Judges Association
Chairman Anderson:
Good morning. The Assembly Committee on Judiciary will please come to order. [The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette. Roll called.] We have a quorum. Who’s presenting S.B. 40?
Senate Bill 40 (1st Reprint): Prohibits discharge of firearm from structure or vehicle under certain circumstances. (BDR 15-887)
Gayle Farley, Citizen:
[Introduced herself.] I’ve come before you with deep respect, for you are the ones that make decisions that face us everyday. I am here to support this bill as it amends Nevada Revised Statutes (NRS) 202.287. You are the only people that can help people like my family and me.
On October 22, 1999, my only daughter, Kelly Von Urquidy, was murdered. She was shot in the back with a 50-caliber handgun at point blank range by a man named Brandon Allen. Brandon Allen had been arrested numerous times but had never served any jail time. At one time he held a loaded gun to his ex‑wife’s back and shot the gun into the floor of the house to scare her. Nevada Revised Statutes 202.287 states that if you shoot a gun to the outside from inside a structure, it’s a misdemeanor; however NRS 202.285 states that if you shoot a gun from outside into a structure it is a felony. This doesn’t make sense to me. I feel that if the punishment for this crime would have been a felony instead of being just a misdemeanor, perhaps my daughter’s death could have been avoided. If Brandon Allen had spent time in jail, maybe he wouldn’t have gone as far as he did.
We live in a different world than we did when many of our laws were written. If the punishments were stronger, many deaths could be avoided. A misdemeanor is merely a slap on the wrist, and in this case it made no difference to Brandon Allen; he simply went on and continued with his behavior. I thank you for your time and respectfully ask that you pass S.B. 40 in the interest of all of our families and us.
Chairman Anderson:
I presume this statute was put together relative to the fact that when people clean their firearms, there is an occasional discharge because they’re not careful enough to realize that you don’t clean a firearm with a live round inside. When we raised the penalty to be a felony, the primary purpose of that action was to take care of drive-by shootings. We did not contemplate both pieces of legislation simultaneously. Any questions from members of the Committee?
Kristin Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney’s Office; and representing the Nevada District Attorneys Association:
[Introduced herself.] We support this piece of legislation.
Jim Nadeau, representing the Washoe County Sheriff’s Office, and the Nevada Sheriffs and Chiefs Association:
[Introduced himself.] We support this legislation. We were involved in the incident that Ms. Farley referred to and we feel that this is good legislation.
Chairman Anderson:
How would you go about enforcing this? I understand the drive-by shooting question.
Jim Nadeau:
We had a considerable amount of testimony last session to change the definition of “assault with a deadly weapon.” In this situation a person takes a firearm, points it at the victim, and then decides that they’re not going to shoot the victim but shoots the gun into the floor. If someone is shooting out of a residence at law enforcement, there is a myriad of other offenses that would come into play.
Chairman Anderson:
Ms. Erickson, you wouldn’t consider this a threat with a firearm if somebody fired into the floor?
Kristin Erickson:
Certainly we would. However this is increasingly happening in domestic violence situations. Weapons are pulled and brandished and not aimed at a person, but shot into the floor and used to coerce or threaten another, and that’s the situation we’re looking at.
Assemblyman Carpenter:
What about the part that has been stricken. Is there another section of law that takes care of that?
Chairman Anderson:
“While in a motor vehicle, whether under the influence of liquor, a controlled substance or otherwise.”
Assemblyman Carpenter:
Right.
Kristin Erickson:
I believe that situation is taken care of with the new language which indicates a person who “maliciously or wantonly discharges or causes to be discharged a firearm within or from the structure or vehicle,” so that encompasses the drive‑by shootings.
Assemblyman Carpenter:
What about where you’re taking out “under the influence of liquor”?
Kristin Erickson:
There is another statute that makes it a misdemeanor to be under the influence of alcohol and to have a firearm in your possession.
Assemblyman Carpenter:
On page 2, line 3, where you can’t figure out what county you are in, what kind of a situation would that be?
Jim Nadeau:
When you’re driving along in the Fernley/Wadsworth area and you’re unsure where the county line sits at the time of the incident’s occurrence, you’re dealing with a “shadow” county line as far as specifically where the incident happened. Maybe the victim can’t recall exactly where on the road the incident occurred, and you have to be able to prosecute in whatever jurisdiction you think it happened. That language is also in other portions of statute where there may be a blurring of lines for a vehicle in motion, for instance when trains are moving.
Chairman Anderson:
I can see where there would be some problems in northern Washoe County where it’s pretty hard to tell the difference which county you’re in.
Assemblyman Carpenter:
I understand that. Maybe we’ll be able to use it.
Assemblyman Geddes:
Would the UNR (University of Nevada, Reno) and high school shooting teams that have indoor facilities for their shooting fall under this provision? That would be covered in subsection 3(c) that they are lawful using those weapons.
Kristin Erickson:
Yes, that is correct. That would exempt them from prosecution.
Assemblyman Geddes:
Private indoor ranges would be covered as well?
Kristin Erickson:
That’s correct.
Assemblyman Geddes:
Then in subsection 3(a) that says all provisions do not apply to subsection 2 of NRS 503.010, so the blind/tent that I use when black powder hunting for a big game animal, I’m covered in shooting out of my blind/tent, correct?
Kristin Erickson:
Yes, that’s correct.
Don Henderson, Acting Director, Nevada Department of Agriculture:
[Introduced himself.] With me I have Robert Beach who is the administrator of the Nevada Animal Damage Control Program, which is administered under the United States Department of Agriculture. I’d like to go on record that we support the intent and concept of S.B. 40. It’s good legislation. However, we see some complications with the bill with some of the programs that we currently run.
Nevada is blessed with wide-open spaces. We have many species of wildlife: game, non-game, and predatory. Sometimes there are problems with humans and predatory animals. We run a cooperative program with the United States Department of Agriculture (USDA) where we work together as a team to try to address animal wildlife issues where they cause a conflict for humans and economic damage. It’s been a successful program.
One of the potential problems with this bill pertains to one of our practices on some of our predatory animals such as coyotes. One of the most effective and efficient ways to address a coyote problem is by shooting them from an aircraft. This program is geared today, contrary to what it might have been 30 to 40 years ago, to try to address individual animal/human issues. We’re going for specific animals. We’re not going for a broad-based reduction of a predator population. Based upon that, we see some conflicts. We brought this point up on the Senate side, and I think they attempted to address our issue under Section 1, subsection 3(c). The concern that we have is with this language. I think it’s a good start and would cover most situations, but what happens if, in the course of a lawful activity being conducted by some of these employees in this business, they shoot an animal by accident that’s considered an endangered species? That would not be a lawful activity and there are federal laws to address that situation, but perhaps the addition of subsection 3(c) may not address all instances that we periodically run into in Nevada.
Based upon that we have submitted an amendment (Exhibit C) that’s more specific to address our particular issues with this bill. The language would be to modify subsection 3(b) with “other government personnel in performance of their official duties.”
That was our concern and our suggestion on how we might address it in this legislation. I’d be happy to answer any questions.
Chairman Anderson:
“Or other government personnel” includes secretaries “while engaged in the performance of his/her official duties.” I’ll have to ask the drafter: if we were to accept his suggestion, would that mean that the person would have to be doing something that required them to have a firearm as a result of their official duty? They couldn’t just happen to be a government employee who decided to take one along with them and decided to shoot out the window?
Risa Lang, Committee Counsel:
It does say, “while engaged in the performance of his/her official duties,” however I think they already alluded to the fact that subsection 3(c) was intended to cover that same conduct so that subsection 3(b) applied specifically to peace officers, and subsection 3(c) applied to any other person who lawfully discharges a firearm “in the course of a lawful business, event, or activity.” I understand their concern, but I think as long as they are doing it in the course of their business they would be covered under subsection 3(c). If not, I could look at how we can address this.
Chairman Anderson:
It seemed to me that they were already covered. I don’t see where your suggestion changes the situation, but if we need to take care of game birds and you feel that this only pertains to mammals, we could look at that.
Don Henderson:
I probably didn’t describe the scenario to you as sufficiently as I should have. Let me try to explain. It’s not limited to any particular animal species. We now have reports of wolves in northeastern Nevada, and we conduct coyote control reductions in that area. What would happen under this law if one of our employees, in trying to control specific coyote problems, shot a young wolf that’s protected under the Endangered Species Act? Our position is that there are federal laws that we would have to deal with in that instance, but could somebody, in a double jeopardy-type opinion, reach down to the state statutes and say you were in violation?
Chairman Anderson:
Are you concerned that you’re firing from an airplane?
Don Henderson:
No, it can be from a structure, vehicle, or an aircraft.
Chairman Anderson:
I don’t see where your suggested amendment gives you broader power in that regard. How does this amendment change the bill to do what you want to do?
Don Henderson:
We’re specifically referencing our activity. We’d like to have it disclosed. When we proposed an amendment on the Senate side we were very specific to our program. That was not included in the passed-amended version. By leaving out the proposed language we anticipate some future problems and would like to clarify them here. I don’t think it’s the intent of this bill to limit this lawful activity. It may even apply to the Nevada Division of Wildlife, but I can’t speak on their behalf. I’d add that we’re not lawyers. If there is a better way of stating this in taking care of that concern, we’re open to that.
Chairman Anderson:
You think “or other government personnel” are the words that you’re trying to include?
Don Henderson:
That’s correct.
Assemblyman Geddes:
Since the shooting is part of their official duties, are there any levels of standards or qualifications that they must meet? Do they have to be POST (Peace Officers’ Standards and Training) certified or meet certain criteria to show that they’re shooting in a responsible manner?
Robert Beach, State Director, Wildlife Services, United States Department of Agriculture (USDA), and Administrator, Division of Resource Protection, USDA:
We are not POST certified, but we do have annual firearms training. We’re overseen by the federal government and that was one of our concerns. Because we are a conflict animal program, we frequently address raccoons in backyards and skunks under houses. Many of the animals that we work with are animals that are in structures, right outside of structures, or in backyards, situations where the firing is for the purposes of making it an easy take. We do use blinds, structures, and vehicles, places where it would not be permissible for game work.
Assemblyman Horne:
I don’t see the problem with the language in the scenario that Mr. Henderson gave. It’s my belief that in subsection 3(c), “a person who discharges a firearm in a lawful manner…,” if you inadvertently hit a protected species, the discharging of the firearm was in a lawful manner. The end result was the mistake and I don’t think it’s encompassed in the scope of this bill. I don’t see the need for this amendment.
Chairman Anderson:
Ms. Lang, would you please clarify for us that this is probably already covered in the bill?
Risa Lang, Committee Counsel:
Mr. Horne is correct. As long as the firearm is discharged in a lawful manner, I don’t think the fact that it ends up injuring an animal would be unlawful. If the Committee felt it was necessary, we could clarify subsection 3(c), but I think it’s already covered.
Chairman Anderson:
Any other questions for members of the Committee? Anybody else wishing to testify in support of or opposition to S.B. 40? I close the hearing on S.B. 40.
Let me open the hearing on S.B. 199.
Senate Bill 199 (2nd Reprint): Makes various changes to provisions pertaining to firearms. (BDR 15-331)
Robert Roshak, Sergeant, Las Vegas Metropolitan Police Department, and representing the Nevada Sheriffs’ and Chiefs’ Association:
[Introduced himself.] The purpose of this bill is to correct some issues with our firearm law. We submitted an amendment (Exhibit D) dealing with a change in Section 4, subsection 1(b). After discussion with various individuals it appears that that amendment needs to be amended. If you look at Exhibit D where we indicate the problem, the intent of this bill was to move illegal possession of a machine gun and silencer from gross misdemeanor classification to a felony. This is what we need to do to allow people to sell, give, lend, or possess, as long as it’s being done legally.
Chairman Anderson:
Have you reviewed this amendment with the bill’s sponsor?
Sgt. Robert Roshak:
I have not talked to Lt. Olsen.
Chairman Anderson:
No, the suggested amendment on machine guns.
Assemblyman Lynn Hettrick, District No. 39 (Douglas County and portions of Carson City and Washoe County):
Mr. Chairman, may I interject? [Introduced himself.] I did speak to the sponsor of the bill, Senator Mike McGinness. Senator McGinness indicated that he had put this bill in for the Las Vegas Metropolitan Police Department (METRO), and whatever METRO was happy with, he was satisfied with; he knew they were going to bring an amendment to change the machine gun language. I also spoke with Stan Olsen about this and he told me that they also intended to bring language correcting the machine gun status.
The reason to make this change is that, in Las Vegas and other places in Nevada, there are legally and federally licensed people who own machine guns. Many of those people are in indoor shooting ranges that rent those guns to tourists who pay a small fortune to shoot a machine gun legally. The Las Vegas Metropolitan Police Department is not attempting in any way to stop that from occurring. To have a machine gun nationally you must have a federal license, and you must have had a background check to own that type of a weapon. If we use the language that’s currently in Section 4, subsection 1(b) that says “import…keep, offer or expose for sale, give, lend, possess,” you would immediately put every one of these shooting ranges out of business. That’s not the intent of METRO and that’s what Lt. Olsen spoke to me about. In reviewing this with Sgt. Roshak, I made the suggestion that if the intent is to change the penalty from a gross misdemeanor to a felony then that is what we ought to say. I believe that satisfies the intent of the amendment and it gives the police departments the power they need to address this should somebody illegally possess or do anything else that’s listed in subsection 1(b) now.
Chairman Anderson:
Does this broaden the group of individuals allowed to obtain a firearm that hasn’t been able to in the past?
Sgt. Robert Roshak:
No, it does not. They would still need to have the federal licensing and background checks.
Assemblyman Geddes:
Regarding lines 43 through 45 on page 2, I inherited an old six-shooter pistol that does not have a serial number on it. Is there any procedure to register that gun to make sure my possession is not illegal in any way?
Sgt. Robert Roshak:
I don’t foresee any problem if the weapon did not have a serial number on it. There would have been nothing that would have been obliterated. If you were going to register it in Clark County, they may require a serial number be placed on the weapon in an inconspicuous place.
Assemblyman Geddes:
Regarding the very last sentence in the bill, “’Firearm’ includes any firearm that is loaded or unloaded and operable or inoperable.” Why do we need to regulate inoperable firearms?
Chairman Anderson:
You remove the bolt or firing pin from the weapon, making it inoperable. It is not difficult to do. I’m not a weapons expert, but those are two safety precautions that I utilize with some weapons that I have in storage. Would that be a fair statement?
Sgt. Robert Roshak:
I’m not an expert in firearms, but I concur.
Assemblyman Horne:
I have a question on page 2, line 1, where it states, “an unlawful user of, or addicted to, any controlled substance.” That changes the standard on the ownership of a firearm. Currently, unless you’re a convicted felon or have been adjudicated mentally ill or insane, you can’t own a firearm. The standard isn’t if you have used marijuana, for instance, but this would change that. I don’t remember seeing the question on any application to register a firearm asking if a person had ever used any illicit drugs before.
Sgt. Robert Roshak:
I believe in this particular area they are looking at if you go to sell to someone you know uses that substance. As far as that requirement and a form being filled out, I can’t answer that question.
Assemblyman Horne:
Whether prudent or not, if I sell my firearm to my next-door neighbor who has admitted to occasionally smoking marijuana, now I’m guilty. I shouldn’t be the police or the one setting the standard on ownership of this firearm, and if a regular dealer doesn’t have to ask those questions or know, why would the ordinary citizen have to meet that standard?
Chairman Anderson:
It is a presumption of guilt before trial.
Sgt. Robert Roshak:
I agree, and I really can’t address that. What Assemblyman Horne said makes sense.
Assemblyman Carpenter:
I guess this is current law, but “any” felony includes DUIs (driving under the influence). On page 2, line 5, “is illegally or unlawfully in the United States,” that takes in a broad area because there are a lot of people here and you don’t know whether they are legal or illegal residents. You’re going after a person for a firearm violation but ammunition also.
Sgt. Robert Roshak:
The language that you’re referring to was mirrored from federal firearms legislation.
Chairman Anderson:
Let me draw your attention back to page 1, line 5, “if he has actual knowledge that the other person…” We’d have to say has actual knowledge that is illegally or unlawfully in the United States. You’d have to have some event that would prove that.
Assemblyman Brown:
It is not such a broad net; it is “actual knowledge.” We’re not imposing a duty upon the individual to make any determination whether they are legally or unlawfully in the United States. It is a high burden and, while I understand Mr. Horne’s objection, we’re saying prudence dictates that. If a person wants to purchase a firearm from somebody else, that’s fine, but knowing this individual’s condition, prudence suggests that I ought to not place a deadly firearm in their hands.
Assemblyman Geddes:
What felonies would give you a pardon that does not restrict the right to bear arms? We have another bill before this Committee that would make it a felony. It’s a poaching law that would make it a Category C felony if you hit a deer with your car and didn’t report it to the Division of Wildlife. If you hit a deer and don’t report it because you don’t know you have to report it, and you’re turned in and found guilty, a person would not be able to hunt again. I’m wondering where that pardon restricting the right to bear arms falls. Is that just for violent crimes, or if you committed a crime with a weapon, or would that standard show up?
Chairman Anderson:
I believe that we processed suggested legislation by Ms. Giunchigliani relative to the restoration of a person’s civil rights, which would include carrying a firearm, no? No, I’m wrong. You can petition the Pardon’s Board for restoration of the right to carry a firearm.
Assemblyman Hettrick:
I have spoken to Senator McGinness, the sponsor of the bill, and with Lt. Olsen, because he testified on A.B. 423, in regard to these provisions (Exhibit E) that I would like to amend into S.B. 199.
In A.B. 423, we had a provision that a sheriff could issue a permit to the manufacturer of switchblade knives and hold a public hearing on the application, and it was pointed out that a sheriff couldn’t hold a public hearing and there should be one, so we are proposing to require the board of county commissioners to hold a public hearing on the application to manufacture switchblade knives. In addition, if the board approves the application, it would require the county to issue a business license where appropriate. It would be a clear understanding if a board granted the right for a company to manufacture a switchblade knife in the state of Nevada. You would have done it at the county commissioner level and you would have to have a public hearing.
The proposed amendment clarifies that if a switchblade is manufactured in this state it may only be sold to: a person authorized by Nevada law to possess such a knife, for example, law enforcement or a member of the military; or to a distributor if the knife is sold in Nevada to a person who is authorized, which is law enforcement or the military. The manufacturer in question does not, at the present time, make a switchblade knife, however he is a very high-quality manufacturer who makes knives for the military and for law enforcement. He may have a request at some time in the future to do so. While we’re here dealing with this issue, I would like to make it possible for him to do that. If this Committee does not like that and you prefer not to do that, I don’t mind if you take the switchblade part out.
The proposed amendment also revises the definition of switchblade. What brought this entire issue to a head was the opinion by the Douglas County District Attorney that because the knife in question, which I’ve shown to Lt. Olsen and several Committee members, had a spring-type action that locked the blade open, there was some question as to whether or not it might ultimately be called a switchblade. We want to clarify the definition to say that a knife held open by a spring or a spring-type action is not a switchblade knife. If that’s very clear in the law then the manufacturer is comfortable.
Mr. Chairman, your staff has already worked on an amendment. I would be happy with your amendment or this amendment that Brenda Erdoes, Legislative Counsel, provided to me saying this is what could be done to clarify this situation to make it clear what can and cannot be done.
Assemblyman Horne:
Wouldn’t it be better if your revised definition of switchblade mentioned that the knife is held open by a spring? It would be better to spin that around to say that only knives that open with a spring action are switchblades or stilettos, because the knives that you’re talking about aren’t opened that way; they still have to be opened manually and are just held open with the spring. Your definition might encompass certain switchblades or stilettos that also hold their blade open in a locked position with a spring.
Assemblyman Hettrick:
There is a definition of a switchblade knife in the law.
Chairman Anderson:
Page 5, line 3: “’Switchblade knife’ means a spring-blade knife, snap-blade knife or any other knife having the appearance of a pocketknife, any blade of which is 2 or more inches long.”
Assemblyman Hettrick:
I don’t know if that covers your concern or not. It says, “released automatically by a flick of a button, pressure on the handle or other mechanical device, or is released by any type of mechanism.” The proposed amendment says the knife is simply held open by a spring or spring action. The switchblade definition covers the knife that automatically opens even though it is ultimately held open by the spring. I believe they lock in place once they open.
Chairman Anderson:
The bill drafter, in trying to come up with this additional language, has taken that into consideration. The language from Ms. Erdoes conceptually covers what the draft of the amendment says in reality. We’ll see during the work session if that’s acceptable to the Committee. This becomes a vehicle to take care of the issues that were raised in an earlier piece of legislation. We should be able to proceed with this bill.
Are there any further questions for Mr. Hettrick? Anybody else wishing to testify on S.B. 199? It’s my suggestion that we accept Mr. Hettrick’s proposed changes relative to the machine gun and removing lines 1 and 2 from page 2 and re-lettering that section [referring to (Exhibit F)].
[The Chair accepted into the record a letter from the National Rifle Association (NRA) (Exhibit G).] The NRA is concerned with one section of the bill. [Reading from Exhibit G:]
Although this bill appears to mainly strengthen penalties for certain offenses through duplication of federal law, it exempts, from the class of prohibited persons, at 3(b) ‘a person who has been granted relief from the disabilities imposed by federal laws pursuant to 18 USC (United States Code), Section 925(c).’
Apparently 18 USC is no longer applicable for this purpose. They are suggesting that the following language be used:
…a person whose civil rights have been restored, whether by operation of law, by pardon, or expungement, provided, however, that such firearm restoration should not restrict the person from possessing firearms…do not apply to any person who is licensed, authorized or permitted to possess or use a machine gun or silencer pursuant to the Federal Firearms Act.
That is essentially the same information that you have in the amendment language discussed earlier.
Sgt. Robert Roshak:
Are you speaking in regards to once a person’s civil rights are restored they can automatically own a firearm?
Chairman Anderson:
No, the machine gun question, the second part of the NRA’s concern.
Sgt. Robert Roshak:
I wouldn’t be able to comment on this without review from our firearms department.
Assemblyman Claborn:
I don’t understand the portion of the NRA’s letter regarding civil rights. If their other civil rights were restored, I do not want a felon to be able to possess a firearm. I am 100 percent against it.
Chairman Anderson:
The other possibility that the NRA wished addressed was to include the opinion of former Attorney General Frankie Sue Del Papa, “’For the purposes of this statute, NRS 202.350 would be narrowly construed to include only those concealed weapons which are actually on the person or in a container carried by the person.’”
Sgt. Robert Roshak:
My understanding of the concealed weapon is that it has to be on the person or in their possession.
Chairman Anderson:
Let’s put S.B. 199 into the work session, along with all of the suggested amendments we received today. I close the hearing on S.B. 199, and open the hearing on S.B. 107.
Senate Bill 107 (1st Reprint): Changes limitation on period of time in which county or city may authorize imposition of certain administrative assessments for provision of court facilities. (BDR 14-415)
Edward Dannan, Justice of the Peace, Reno Justice Court, and representing the Nevada Judges Association:
[Introduced himself.] Senate Bill 107 would increase the sunset provisions of NRS 176.0611 from 25 years to 50 years. This bill was requested by the justices of the peace in Pahrump because, under current law, there are approximately 20 years remaining before this law will sunset. Lenders are reluctant to provide the funds to build these facilities with only 20 years to go. Typically it’s a 30- or 40-year term for the bonds that would be issued. This would allow additional time, which would ease the lender’s concerns and allow the justice and court facilities to be built. I’d be happy to take any questions.
Chairman Anderson:
Questions for Judge Dannan? Any further testimony? Let me close the hearing on S.B. 107. Let’s open the hearing on S.B. 203.
Senate Bill 203: Enacts provisions concerning separation and adjudication of certain small claims actions. (BDR 6-612)
Judge Edward Dannan:
I speak in favor of S.B. 203. This bill would allow a justice court in the small claims arena to sever claims if a counterclaim were filed when a small claims litigant filed his complaint. What we see now is a punitive measure by defendants when a small claims action is filed, a defendant will file a counterclaim in an amount that exceeds the jurisdiction of the small claims division of the court. That forces the case to be brought in the regular civil division of the court that requires formal pleadings and other things that do not apply in a small claims setting. This bill is a way to allow small claimants to have their day in court, but does not preclude the filing of a counterclaim. It allows the justice of the peace to sever the claims and allow the small claimant to have his day in court, and if the counterclaimant wishes to proceed with his claim in the civil division of the court, then the judge can hear that claim separately.
Assemblyman Horne:
Is there any danger from the defendant, in his counterclaim that is going to be heard in another court, to be stopped from raising issues that may be related from the original complaint?
Judge Edward Dannan:
What would happen is it would not be res judicata (re-judged) and some other issues that apply in the civil setting would not occur on these cases. The justice of the peace would treat the defendant’s counterclaim as if it were a brand new case. If the counterclaimant wished to subpoena the original plaintiff in the small claims’ case or proceed against that plaintiff in the civil division of the court, they would be allowed to that.
Assemblyman Horne:
There’s no danger of issue of preclusion?
Judge Edward Dannan:
In the normal case, you have to bring all of your permissive and mandatory counterclaims in one action, but through this legislation it specifically permitsthe separation of the claims into two separate proceedings.
Assemblyman Brown:
Will the counterclaim remain in front of the same judge?
Judge Edward Dannan:
That issue hasn’t been considered, but my sense would be that it would stay with the same judge because that judge would be aware of the issues brought in the small claims case and be better able to deal with the issues raised in the counterclaim, although there may be a bias on the part of the judge if he were to rule in the small claimant’s favor. It might be better for the judge to recuse himself if that were the case.
Assemblyman Brown:
From a policy standpoint that’s an interesting thing to debate. I would lean toward keeping it in front of the judge. They are related cases. Under other circumstances they would be heard together and they’d have to live with the findings that were made.
Judge Edward Dannan:
I think the preference would be, from the judges that I’ve talked with, that it stays with the same judge that heard the first case.
Assemblyman Brown:
The Committee might want to entertain including that idea in the bill.
Assemblyman Horne:
In Clark County’s small claims court, different judges hear those matters that aren’t justices of the peace or district court judges with the scenario about filing a counterclaim in an amount outside the jurisdiction, they wouldn’t be able to hear that counterclaim at all. The small claimant wouldn’t be sent to justice or district court to hear that small claim, so I don’t know how that could be heard before the same judge.
Judge Edward Dannan:
I’m not sure how to answer your question. This bill was proposed by the Las Vegas Justice Court to deal with the problem of having a counterclaimant move the case out of the small claims division of the court. I’m not aware of what the Las Vegas Justice Court does with their small claims cases, although I’ve heard from court masters and referees, and I think you’re right. I don’t know if the master or referee would be able to hear the regular civil division claim as a procedural matter. As a legal matter it could be done because the provisions in Chapter 4 allow for those persons to act on behalf of the judges with the final approval being given by the judge to the decision made by the master or referee.
Chairman Anderson:
It would seem to be the common sense approach in a district where there were multiple courts.
Assemblyman Brown:
You have a couple of jurisdictional limits. One is $5,000, which is for small claims and is less formal. An amount over $5,000 and up to $7,500 takes it into the regular civil. I think this bill addresses a counterclaim in excess of $5,000 but under $7,500. In that instance, it could be in front of the same judge. However if the amount exceeds $7,500 and it needs to go to district court then we’re playing a whole different ball game. Is that correct?
Judge Edward Dannan:
Right. If you look at page 2, line 13, with the reference to Rule 13 of the Justices’ Courts’ Rules of Civil Procedure, at present, if a small claims or regular civil division case is filed at below the $5,000 limit, or $7,500 or below, and a counterclaim is filed in excess of $10,000, the justice of the peace has a choice. He can sever the claims and deal with the claims over which the judge has jurisdiction and send the over $10,000 case to the district court, or under Rule 1, the entire case can be sent to the district court to be heard. This is a variation of Rule 13, and just allows the separation of the claims when you’ve got two claims within the jurisdiction of the court but in different divisions.
Chairman Anderson:
Are there other questions for Judge Dannan? Are there further testifiers on S.B. 203? I close the hearing on S.B. 203.
ASSEMBLYMAN CARPENTER MOVED TO DO PASS S.B. 107.
ASSEMBLYMAN SHERER SECONDED THE MOTION.
THE MOTION CARRIED. (Ms. Buckley was not present for the vote.)
[The Chair assigned the bill to Mr. Sherer to defend on the Floor.] Senate Bill 203 will be in the next work session document, along with Senate Bill 199 and Senate Bill 40.
We are adjourned [at 9:11 a.m.].
RESPECTFULLY SUBMITTED:
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Carrie Lee
Committee Secretary
APPROVED BY:
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Assemblyman Bernie Anderson, Chairman
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