MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
April 7, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 9:34 a.m., on Monday, April 7, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark E. Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Michael (Mike) A. Schneider, Clark County Senatorial District No. 11
Joseph (Joe) M. Neal Jr., Clark County Senatorial District No. 4
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Ann Bednarski, Committee Secretary
OTHERS PRESENT:
Matthew L. Sharp, Lobbyist, Nevada Trial Lawyers Association
Daryl Riersgard, Criminal Information Services Manager, Central Repository for Nevada Records of Criminal History, Department of Public Safety
Suzie Carrillo, Fingerprint/Records Technician, Central Repository for Nevada Records of Criminal History, Department of Public Safety
Kami Dempsey, Lobbyist, City of Las Vegas, and Nevada League of Cities and Municipalities
David Horton, Lobbyist, Committee to Restore the Constitution, Nevada Committee for Full Statehood, and Nevada Freedom Coalition
O. Q. Chris Johnson, Lobbyist, Nevada Committee for Full Statehood
David K. Schumann, Lobbyist, Independent American Party, and Nevada Committee for Full Statehood
Merritt K. Yochum, Lobbyist, Independent American Party of Nevada
Janine Hansen, Lobbyist, Nevada Eagle Forum, and Nevada Committee for Full Statehood
Marta Adams, Senior Deputy Attorney General, Office of the Attorney General
Pamela B. Wilcox, Administrator and State Lands Registrar, Division of State Lands, Department of Conservation and Natural Resources
Chairman Amodei began with the hearing on Senate Bill (S.B.) 272. He said Senator Schneider sponsored the bill.
SENATE BILL 272: Provides for posting of bond or other appropriate security by plaintiff in action for medical malpractice or dental malpractice under certain circumstances. (BDR 3-1056)
Matthew L. Sharp, Lobbyist, Nevada Trial Lawyers Association, came forward to voice opposition to S.B. 272. Mr. Sharp said the purpose of this bill was to require a plaintiff to post a bond as a condition to proceed with litigation. He said the requirement clearly raised obvious due process issues. He said the committee had spent considerable time considering legislation for medical malpractice issues. He added current law addressed the question of frivolous lawsuits and there were safeguards to ensure meritorious cases were filed.
No one else came forward to testify on S.B. 272; therefore, Chairman Amodei opened the hearing on S.B. 303.
SENATE BILL 303: Makes various changes concerning dissemination of records of criminal history by Central Repository for Nevada Records of Criminal History. (BDR 14-967)
Daryl Riersgard, Criminal Information Services Manager, Central Repository for Nevada Records of Criminal History, Department of Public Safety, voiced support for S.B. 303. He said there were some “housekeeping changes” to chapter 179A of the Nevada Revised Statutes (NRS), which he described as the primary statute governing the repository. Mr. Riersgard said he had been working with Senator Nolan on areas of the statute that needed to be clarified.
Mr. Riersgard said there was no fiscal impact associated with this bill nor would it affect any of the workload at the repository. He said the language was cleaned up with S.B. 303. He repeated his support for the bill.
Senator Care said he recalled a bill from last session that addressed background checks for volunteer services and asked for verification that if a background check had been conducted, the information would become part of the repository’s database.
Mr. Riersgard responded he had not been in his current position for very long and therefore was not able to answer Senator Care. He said there were members of his staff who were familiar with the volunteer issue regarding background checks. He said he was aware the volunteer issue was a core concern from the federal level on down.
Senator Care said he believed the issue last session centered around the loss of volunteers if a background check was required. He clarified the loss in the number of volunteers was not to be construed as wrongdoing, but rather, many felt it was an intrusion on their privacy.
Suzie Carrillo, Fingerprint/Records Technician, Central Repository for Nevada Records of Criminal History, Department of Public Safety, said the legislation enacted during the last session addressed the establishment of a volunteer fund designed to pay the fee for a background check. She said it was not related at all to S.B. 303.
Senator Nolan said S.B. 303 was “common sense legislation.” He said it provided some equity in the types of information private schools and nonprofit agencies could obtain, explaining it allowed private schools to have access to the same information public schools received in regard to the protection of children.
Senator Care asked Senator Nolan if there was anything in S.B. 303 that required a background check of a potential volunteer. Senator Nolan said there was not such a requirement in the bill.
Chairman Amodei closed the hearing on S.B. 303 and resumed discussion on S.B. 272.
Senator Michael (Mike) A. Schneider, Clark County Senatorial District No. 11, said S.B. 272 was associated with another bill he sponsored to allow physicians to prescribe medications. Senator Schneider said it was Oscar Goodman, mayor of Las Vegas, who was planning to open a medical facility in Las Vegas, and who suggested the bonding of plaintiffs in medical malpractice suits. He described Mayor Goodman as one of the more famous trial lawyers in the United States. Senator Schneider introduced Kami Dempsey who had talked with Mayor Goodman regarding this legislation.
Kami Dempsey, Lobbyist, City of Las Vegas, and Nevada League of Cities and Municipalities, said Mayor Goodman had asked her to voice support for S.B. 272 on his behalf. She said the mayor believed this would address many of the concerns regarding medical malpractice.
Senator Care said he wanted the record to reflect Oscar Goodman was a brilliant criminal defense attorney.
Chairman Amodei opened the hearing on S.B. 294.
SENATE BILL 294: Makes various changes to enforce sovereign rights of State of Nevada. (BDR 15-713)
David Horton, Lobbyist, Committee to Restore the Constitution, Nevada Committee for Full Statehood, and Nevada Freedom Coalition, said he was the legal representative for these organizations. Mr. Horton said it would be interesting to follow the history of this litigation and how things had progressed. Mr. Horton submitted testimony tracing the history of public land issues in Nevada (Exhibit C. Original is on file at the Research Library.). He said in 1977, the Legislative Counsel Bureau gave an opinion that it was not constitutional for Nevada to assert ownership over public domain because of the supremacy clause and the disclaimer clause.
Since that time, Mr. Horton said, different interpretations had surfaced (Exhibit C) including the supremacy clause did not interdict Nevada asserting this claim and the disclaimer clause was void.
Mr. Horton said the U.S. Constitution had not changed, but the decisions made regarding Nevada were made on the wrong provision of the Constitution.
Mr. Horton said Nevada was not a territory; Nevada was a state. Mr. Horton said there was a need to figure out which land was controlled by Nevada, and which land was under the jurisdiction of the federal government. He said Nevada did not assent to the storage of high-level radioactive material in the State, but rather, made it illegal (Exhibit C). He maintained Nevada had the right to enforce its own laws. Mr. Horton stressed the federal government had control of land when dealing with a territory, but, he said, Nevada was a state. He said, “S.B. 294 merely provides a process of law to enforce Nevada’s sovereignty in those areas.” Exhibit C contains examples of how this could be accomplished and cites other states that exerted their sovereignty. Mr. Horton said there was a huge economic impact to be considered in continuing the commitment to enforce Nevada’s rights as a state.
Mr. Horton next discussed the Action Plan for Public Lands and Education Initiative (APPLE) (Exhibit C). He stated this initiative was making its way through the Legislature. He said it was an example of the economic impact the federal government had on Nevada and how adopting this plan would benefit the quality of education in Nevada.
Mr. Horton said Nevada applied as much of its income to education as other states, but fell behind because federal holdings in this State were not contributing taxes to the State or adding to the economy of the State. In a study of states that administer public lands, a profit was realized. He said when the federal agencies or the Bureau of Land Management (BLM) administered public lands, a loss occurred.
Mr. Horton noted the APPLE Initiative began in Utah, but efforts there stopped short of applying a remedy.
Mr. Horton urged Nevada to take its position as a sovereign entity and implored State legislative action to stop usurpation by the federal government.
Senator Joseph (Joe) M. Neal Jr., Clark County Senatorial District No. 4, said he introduced S.B. 294 and wanted the record to note:
I wholeheartedly approve of the argument he [Mr. Horton] has put forth to this committee. One of the things I would like for the committee to understand: to do nothing, you reap nothing; to take action, you force action.
Senator Neal said the measure was here and described it as a novelty, but added he believed if action were taken, some benefit would be reaped from S.B. 294. He said if the Legislature moved on this bill, a precedent would be set for other Western states and also for the State of Nevada in terms of “achieving the sovereign rights over the public lands of this particular State.”
Senator McGinness said S.B. 294 provided for county commissioners adopting ordinances should the attorney general fail to carry out the provisions of the bill. He asked if county commissioners had been contacted to solicit their input on this measure. Senator Neal said he had not done so.
Mr. Horton answered this legislation placed county commissioners in the same position they were in with most other statutes. He explained if a particular circumstance could be covered by a county ordinance and a violation occurred, the county who enforced the State statute could collect a fine that was paid to the county. Mr. Horton described this as “general policy” that applied throughout the Nevada Revised Statutes with regard to the authority of the county commissioners. He explained there was financial benefit to counties who enacted such ordinances and said most of the counties operated this way.
Chairman Amodei said there seemed to be some discrepancies in the language because whereas one section of S.B. 294 referenced police powers, others gave the power to county commissioners. He asked if every county could enact ordinances different from other counties. Mr. Horton responded it depended on the circumstances. Chairman Amodei suggested he assume the circumstances were different.
Chairman Amodei asked why the county commissioners had been tagged for ordinances instead of deferring to the State Legislature to enact laws that would apply statewide. Mr. Horton said circumstances could vary from county to county and selected areas of application could change. Chairman Amodei asked if Mr. Horton thought the State Legislature could not appreciate those facts. Mr. Horton said the State Legislature was unable to predict all of the different situations that could come up. Senator Amodei then asked if county commissioners were better at predicting. Mr. Horton said county commissioners had “intimate acquaintance with the local conditions.”
Senator Wiener said there were dollar figures included in Exhibit C regarding the loss of revenue to the State; one of them, she said, was $100 million lost for education with $305 million potentially generated. She asked if these figures represented all the lands being reclaimed by Nevada from federal control or just portions. Mr. Horton said the calculations of the figures were explained in the “APPLE Initiative” summary in Exhibit C.
Mr. Horton discussed the 5 percent revenue realized from the sale of federal property. He said the property tax revenue lost was directly related to the use of these lands for a productive purpose. Mr. Horton said, particularly in rural Nevada, making war on the ranching industry was generating revenue out of the lands. He added, some of the federal land should be under private ownership, federal control of Nevada’s land had “wrecked” ranching and mining, and natural resources of Nevada had been ruined by controls the federal government had on Nevada’s land.
Senator Neal noted he respected Mr. Horton’s legal mind as Mr. Horton had represented and helped him in a legal matter.
O. Q. Chris Johnson, Lobbyist, Nevada Commission for Full Statehood, said he was the chairman of this organization. He responded to Senator Wiener’s question regarding income from unsold lands presently under federal management. Mr. Johnson said one example was ranchers who paid grazing fees in the form of Animal Unit Months (AUM) to the federal government. With federal grazing lands controlled by the BLM, he said Nevada loses out on collecting lease payments.
Mr. Johnson read his prepared testimony (Exhibit D) in support of S.B. 294 and supplied letters from federal agencies regarding his allegations against the Bureau of Land Management, the United State Forest Service, and other federal agencies. An editorial article was also included in which U.S. Supreme Court Justice Clarence Thomas offered an opinion on states’ rights. Mr. Johnson summarized, “The BLM thinks they are exempt from state law.” He encouraged the committee to pass S.B. 294 and enable the measure to move on to the Assembly.
David K. Schumann, Lobbyist, Independent American Party of Nevada, and Nevada Committee for Full Statehood, voiced support for S.B. 294. He submitted written testimony (Exhibit E. Original is on file at the Research Library.). His handout also included legal proceedings and validations of his position on this bill. Mr. Schumann said not only was Nevada losing millions of dollars in revenue, but Nevadans were also losing their rights by actions of “out of control” federal agencies.
Chairman Amodei verified Mr. Johnson testified that legislation could restore the rights of due process to citizens and save them huge sums of money. He referred to section 5, subsections 2 and 9 of S.B. 294, stating the bill mentioned a civil action to restore a person’s rights and said such action would have to be at an individual’s own expense. Mr. Schumann said Chairman Amodei was correct, but explained the expense would not be millions of dollars. He said, “The very first time one of these BLM or U.S. Forest Service employees got zapped with this fine, that would be the end of it. They could not order their guys to do this anymore.” He referred to the case of Wayne Hage, Hage v. United States [51 Fed.CI. 570 (2002)], who finally found a judge to support his position, but the cost of fighting the federal government was millions of dollars. He said, with the enactment of S.B. 294 there would be support, and the cost would be substantially reduced for any citizen who wanted to pursue civil action. This bill restored the right of due process to all citizens, Mr. Schumann said, and “In 2003, the citizens of Nevada do not enjoy all the rights of citizens of the United States.”
Mr. Schumann said the passage of S.B. 294 would grant sheriffs the power to stop federal agents from acting illegally. Chairman Amodei asked, “They’d be empowered if we gave the counties the abilities to enact ordinances, right?” Mr. Schumann replied, “No. All the sheriffs in this State currently have police powers.” He referred to Pollard v. Hagan [44 U.S. 212 (1845)], which stated in several places, “The U.S. Government has no municipal authority, absolutely no police powers within this state.” Mr. Schumann said the sheriff in Clark County knew he had the law behind him, but added, very few sheriffs do. He said with passage of S.B. 294, the rights and duties of the sheriffs would be clarified and they would be more confident about stopping federal agents from illegal actions.
Merritt K. Yochum, Lobbyist, Independent American Party of Nevada, spoke in support of S.B. 294.
Senator McGinness referred to Mr. Schumann’s testimony regarding a substantial loss of revenue from property taxes and asked if any of the supporters of this legislation envisioned the sale of the property now controlled by the federal government.
Mr. Schumann said some of the land had adjudicated allotments on it and the grazing rights were not for sale; however, the mineral rights and other rights were for sale. He said there was land worth a billion dollars in Clark County, and after the sale, the real estate taxes would generate revenue. He added the grazing land could also be taxed and said that was determined by the taxable AUMs.
Senator McGinness asked if the State would be responsible for administering the management of the grazing board. Mr. Johnson responded the responsibility would be with the county. Senator McGinness then asked about land located between counties and Mr. Johnson said in those cases, the counties would have to confer and come to a formal agreement. He explained:
When the State of Nevada takes full responsibility for the unsold land within the boundaries of the State of Nevada, I don’t foresee any disruption or any particular change in the operation of the activities of the people who use the lands. The administration would simply change. The United States would be out; the State would be in.
In addition, Mr. Johnson said the State currently had a public lands office that could operate on a far smaller scale than BLM expansions within the State. He said the protection of the grazing land already was a responsibility of the State.
Janine Hansen, Lobbyist, Nevada Eagle Forum, and Nevada Committee for Full Statehood, remarked she would deliver copies of the APPLE Initiative to the committee and apologized for not having one today. Ms. Hansen said the initiative was started in the Assembly, moved forward, and exemplified how much money the State of Nevada was losing.
Ms. Hansen focused on section 1 of S.B. 294 and the sovereign right of Nevada to exercise police power and how it was being unlawfully usurped in violation of the Ninth and Tenth Amendments of The Constitution of the United States of America. She referenced several documents (Exhibit F), which included bills and resolutions and histories of litigations involving the rights of states.
Ms. Hansen made comparisons between the differences and similarities of The Constitution of the United States of America and The Constitution of the State of Nevada. Ms. Hansen pointed out several sections of S.B. 294 gave Nevada rights already guaranteed in the Constitution, but which are ignored by federal agencies.
Ms. Hansen said the State of Nevada had abnegated its police powers with regard to issues of enforcement and the federal agencies. She said when police powers were abused, no protection was offered for due process. Ms. Hansen said it was the duty and responsibility of the Legislature to protect the constitutional rights of the citizens of Nevada, to see we have due process.
Ms. Hansen said her handout (Exhibit F) included a map of Nevada grazing allotments, which were adjudicated and part of the Wayne Hage case. Mr. Hage took his case regarding denial of access and water rights to the U.S. Supreme Court and the finding was in his favor. She said there would be no need to raise taxes if the State of Nevada would take claim on its lands and reap the revenue rightfully belonging to Nevada.
Ms. Hansen shared an incident that occurred at her home when officers from the Bureau of Alcohol, Tobacco and Firearms presented themselves to speak to her son who was enrolled in a gunsmith school in Susanville, California. She said he had legally purchased two guns to work on at this school. Ms. Hansen relayed another incident about her brother being visited at his office by Internal Revenue Service officers who confiscated 20 boxes of information with an illegal warrant.
Ms. Hansen said, “We come to you begging that you will please take those into consideration and protect our rights. … It’s a very vital piece of legislation. You can protect us.”
Marta Adams, Senior Deputy Attorney General, Office of the Attorney General, submitted written testimony (Exhibit G) and stated the attorney general said S.B. 294 was incapable of withstanding a constitutional challenge under the property and supremacy clauses of The Constitution of the United States of America.
Ms. Adams said she had experience with litigation addressing NRS 459.910 in an action currently pending involving the federal government’s challenge to the State engineer’s denial of water rights to construct and operate the Yucca Mountain site, United States v. Nevada [123 F.Supp.2d 1209 (2000)]. She said U.S. District Judge Roger Hunt had remanded the matter to the State engineer to readdress the public interest prong of the engineer’s analysis. She said the engineer relied on the statute, a part of the analysis issued by the Legislative Counsel Bureau regarding S.B. 294, but the statute, she said, may not withstand the constitutional challenge on the Supremacy Clause of the Constitution of the United States of America.
Pamela B. Wilcox, Administrator and State Lands Registrar, Division of State Lands, State Department of Conservation and Natural Resources, said she was the administrator of State lands and opposed S.B. 294 for three reasons. First, she said, it was unconstitutional, secondly, it was unwise, and thirdly, it was unfair.
Ms. Wilcox said her department works on a daily basis with the federal land management agencies to develop policies that benefit the State of Nevada. She said the State currently had significant jurisdictions on federal lands. She said the cooperative relationship between State and federal agencies would be damaged by passage of S.B. 294.
Ms. Wilcox said S.B. 294 was unfair to federal employees. She said it was asking to make the civil servant liable both for criminal prosecution and civil litigation by simply doing his or her job. Ms. Wilcox said, “We recommend that you not pass this legislation.”
Chairman Amodei closed the hearing on S.B. 294 and encouraged committee members with further questions to contact those who testified. Senator Amodei said the record would remain open for supplemental materials for 48 hours.
Chairman Amodei adjourned the meeting at 11:00 a.m.
RESPECTFULLY SUBMITTED:
Ann Bednarski,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: