MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
March 3, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:06 a.m., March 3, 1993, in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Robert M. Sader, Chairman
Mr. Gene T. Porter, Vice Chairman
Mr. Bernie Anderson
Mr. John C. Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. Ken L. Haller
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Ms. Stephanie Smith
Mr. Louis A. Toomin
COMMITTEE MEMBERS ABSENT:
Mr. Michael Schneider
GUEST LEGISLATORS PRESENT:
Mr. Joseph Dini, Jr., Assembly Speaker
Mr. Wendell P. Williams, Assembly District 6
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Mr. Ben Graham, Legislative Representative, Nevada District Attorney's Association
Sheriff Paul E. McGrath, Nevada Sheriff's and Chief's Association
Captain Randy Oaks, Legislative Liaison, Las Vegas Metropolitan Police Department
Chief Deputy Lee W. Bergevin, Operations Bureau, Washoe County Sheriff's Office
Lieutenant Jim Nadeau, Assistant Commander Incline Substation, Washoe County Sheriff's Office
Ms. Laura W. FitzSimmons, Nevada Association of Criminal Justices
Ms. Helen A. Foley, Defense Trial Lawyers Association
Ms. Ande Engleman, Nevada Press Association
Following roll call, the meeting was called to order on A.B. 196.
ASSEMBLY BILL 196. Eliminates restriction on number of times charitable or educational organization may operate gambling game.
Assembly Speaker Joseph Dini, Jr., Assembly District No. 38, testified in favor of A.B. 196. He informed the committee the proposed bill would not present conflict with his casino operation due to the business' non-restrictive gaming license status.
Mr. Dini stated service organizations, senior citizens centers and church organizations throughout the state conducted charitable bingo games. He introduced A.B. 196 to eliminate situations where the charitable organizations would be cited for conducting these games. According to Mr. Dini, bingo was a respectable social and recreational past time. He noted it was not the intent of the law to penalize persons in the state for playing bingo.
Mr. Sader noted he had been contacted by Mr. William A. Bible, Chairman, Nevada Gaming Control Board who had expressed his concerns regarding the proposed language in A.B. 196 as originally written.
Chairman Sader created a subcommittee, with Mr. Scherer as Chairman, to work in conjunction with Mr. Anderson, Mr. Carpenter, Speaker Dini and Mr. Bible to effect acceptable language for A.B. 196.
There being no further testimony, the hearing on A.B. 196 was closed by Chairman Sader.
******
Chairman Sader brought before the committee a bill draft request, introduced by Mr. Bonaventura. The bill would address terrorism and criminalize those forms of conduct which constituted random violence, bombings and other forms of public harm to innocent people by means commonly utilized by terrorists.
ASSEMBLYMAN ANDERSON MOVED FOR COMMITTEE INTRODUCTION OF REQUEST.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
ASSEMBLY BILL NO. 204. Prohibits certain actions by court and makes voidable provisions of settlement agreement that conceal information regarding tortious conduct of governmental entity.
Mr. Wendell Williams, State Assemblyman, District 6, was the primary sponsor of A.B. 204. Mr. Williams noted the bill addressed only governmental entities and was designed to protect the public from injury or death which might occur as the result of felonious conduct by governmental entities because information was limited to the public. Mr. Williams added the bill would contain safeguards for governmental agencies in instances where it would not be in the best interest of the public to reveal specified information.
Mr. Williams referenced A.B. 204, Section 3, page 1, lines 23 to line 10 on page 2, which provided safeguards for the public. He pointed out the language on page 2, lines 11 and 12 of A.B. 204 which did not modify the Nevada Rules of Civil Procedure or any right which referred to a specific statute.
Mr. Williams assured the committee safeguards had been built into A.B. 204 which addressed governmental agencies as well. He referenced instances where deaths or injuries had occurred as the direct result of negligence on the part of governmental entities within the state. In these instances information had been concealed by governmental agencies which might preclude repeated dangers because information was not made public. Mr. Williams noted information should be made available to the public when it pertained to public health and safety.
Mr. Sader queried the language contained in A.B. 204, Section 3, lines 11 through 16, and referenced the last clause which stated "including any agreement in settlement of the action." As Mr. Sader understood, the language appeared to modify the order or judgement, which was the subject of the sentence. According to Mr. Sader, settlements were not subject to orders or judgements, except in rare circumstances and might not be subject to lawsuits. He strongly felt the language in A.B. 204 required amending.
Mr. Sader questioned the intent of A.B. 204 and referenced lines 16 through 19 which would require the courts to notify representatives of the news media. He asked, if lawsuits were already public information and accessible to the news media, why would it be necessary for the courts to notify the news media. He queried what would determine representatives of the local news media. Mr. Williams responded by adding there were viable alternatives which would make public information more accessible to the media.
Mr. Gibbons asked how A.B. 204 would impact disciplinary actions taken as conditions of settlements. Would disciplinary actions be required to be disclosed as well? In reply, Mr. Williams stated the personnel offices would manage these concerns. He elaborated, if governmental agencies attempted to conceal information, and disciplinary actions were part of the processes before the orders, only the information which would specifically prevent injuries or deaths would be required to be revealed to the public.
Ms. Smith asked if the heads of state agencies or the state itself would be responsible for severe accidents such as chemical spills. Mr. Williams responded by stating it would be those persons who supervised the individuals directly responsible for the accidents. He added these matters were handled prior to litigation.
Ms. Ande Engleman, Nevada Press Association, testified in favor of passage of A.B. 204. She referenced the Nevada Press Association poll which outlined the general public's views on opening governmental information to the public. According to Ms. Engleman, 95.8 percent of those polled wanted accountability of all expenditures made by governmental agencies.
According to Ms. Engleman, confusion existed with A.B. 204 as the bill drafters used the former product liability bill language as the basis for A.B. 204 without adjusting the language to meet the requirements. She suggested amending the bill.
Ms. Engleman displayed copies of newspaper excerpts taken from the Las Vegas Review Journal, Exhibit C, which referenced articles written by the staff who investigated and reported various settlements. According to Ms. Engleman, settlement monies paid out by various police departments had not been made public although the police departments had stated otherwise. She contended the settlement monies had been hidden in various sundry accounts such as car repair and medical supplies, etc.
The Las Vegas Review Journal, Exhibit C, had written articles which pertained to the hearing where the Metropolitan Police Department had testified the settlement monies information had been made public. According to Ms. Engleman, various newspapers had been denied the information regarding a police brutality case settlement by the Las Vegas Metropolitan Police Department. During the time of the hearing, representatives of the police department expressed concerns over exposing witnesses who presented confidential information. A.B. 204 would protect these individuals. Ms. Engleman referenced several state agencies which appeared to have poor working relationships with the news media. She stressed the need for passage of A.B. 204 to protect the public from what she felt was incursion by local government.
Ms. Engleman suggested amending A.B. 204, Section 3, page 2, by deleting lines 7 and 8, 31 and 32.
Mr. Sader voiced his concern in reference to the language which pertained to the media in A.B. 204. While designating individual representatives might be an efficient way to handle situations, Mr. Sader stated it did not limit the question as to what parties had to be notified and how extensive that notification would have to be. Why would the courts have to initiate notification?
Mr. Collins asked for further clarification of the Las Vegas Metropolitan Police Department's settlement accounts. Ms. Engleman responded by stating there was a designated committee which oversaw settlement expenditures for the police department. Under specified amounts, the department could negotiate settlements without bringing the matters before the committee and making them public. Ms. Engleman continued, by hiding settlement expenditures in various accounts, the necessity to present the settlement amounts before the committee was eliminated.
Mr. Gibbons referenced A.B. 204, Section 3, line 17 which referenced notification to the local news media. He asked, on a statewide issue, how vast would the local media coverage be. Ms. Engleman replied the wire service, her office and the Capital Bureau would be notified in matters pertaining to the Governor's office or the Legislative Bureau.
Mr. Gibbons referenced A.B. 204, page 2, Section 5, which would allow actions to be filed in adjacent District Courts. Ms. Engleman noted the language contained in A.B. 204 was not the original language requested. Mr. Gibbons added, as he understood the bill to read, the language had the effect of allowing forum shopping. Ms. Engleman noted it was not the intent of the language in A.B. 204.
Mr. Scherer queried Ms. Engleman if problems existed between the news media and state agencies in reference to concealing settlements. In reply, Ms. Engleman stated the problems with releasing settlement information were evident with local governments. She noted the release of state agency information required clearances from the Board of Examiners and had been open to the news media and to the public. Mr. Scherer assumed the Board of Examiners held open meetings governed by the Open Meeting Law. Ms. Engleman confirmed Mr. Scherer's assumption and added the press received complete agendas and backup information from the Board of Examiners.
Captain Randy Oaks represented the Las Vegas Metropolitan Police Department and testified in opposition to A.B. 204. He contended the issues brought before the committee had been dealt with previously in the Senate Judiciary Committee and the guidelines were contained in S.B. 178 which applied to the law enforcement agencies in the state of Nevada. According to Captain Oaks, it appeared A.B. 204 would not affect federal court actions nor would it become a state mandate upon federal courts.
Captain Oaks raised another legal issue contained in A.B. 204, page 2, Section 3, Subsection 4, which did not modify the Nevada Rules of Civil Procedure. It was the opinions of both the Las Vegas Metropolitan Legal Counsel and Senator James, A.B. 204 appeared to change the rules, although the bill would not alter the rules.
As Captain Oaks understood, statutory requirements mandated the Las Vegas Metropolitan Police Department agendize expenditures exceeding $10,000. He informed the committee, since 1989, the policy of the Las Vegas Metropolitan Police Department's Fiscal Affairs Committee was to agendize items in excess of $5,000, both in purchases and settlements. Captain Oaks noted, in the majority of the cases sealed, it had been done so at the requests of the plaintiffs who received the settlement monies and did not want the amounts or circumstances under which they received the monies made public.
Captain Oaks was adamant the Las Vegas Metropolitan Police Department provided settlement information to the public although he added not all information of allegations or settlements were provided, to the objection of the press. He cautioned the dangers of disclosing critical information such as confidential witnesses and internal personnel documents.
Captain Oaks presented a compilation of judgments and settlements, by category, from the Metro Fiscal Affairs Division, Exhibit D. According to Captain Oaks, during the 7 year period since the records had been maintained, the settlement amounts totaled $1.2 million. Mr. Sader asked if it was policy or under ordinance to agendize settlements of $5,000 or more. Captain Oaks responded by stating it was a matter of policy to agendize amounts of $5,000, and under ordinance law to agendize amounts of $10,000 or more.
Mr. Gibbons asked if a breakdown of the types of conduct which gave rise to the settlements was available as well as a compilation of the non-agendized amounts under $5,000. Captain Oaks replied the department did have a breakdown of the 20 different categories although the non-agendized amounts were not available.
Mr. Sader suggested a more viable alternative to address the issues of public access feasibility would be to require disclosure of local government actions during the posting of public hearings. In this way, the press and concerned individuals would have the opportunity to view the agendas as opposed to the court systems notifying concerned parties.
Mr. Sader asked if Captain Oaks would present to the committee the local statutory authority which addressed the policies and ordinances pertaining to public disclosures of settlements. Captain Oaks stated he would comply with the request.
Sheriff Paul E. McGrath, Carson City Sheriff's Office, stated Carson City published all settlement amounts levied against the sheriff's department. Mr. Sader requested Sheriff McGrath present the committee with the Carson City ordinances which addressed publicizing settlement cases. As Mr. Sader understood, the primary target in A.B. 204 appeared to entail the law enforcement agencies but noted the issues affected all governmental entities, with the exception of the state which did not have the same public hearing processes to approve settlements.
Mr. Regan was adamant in his concerns regarding A.B. 204. He noted once governmental information was released to the news media, the interpretation and editorialization of the facts might be publicized incorrectly.
Mr. Carpenter agreed with Mr. Sader's suggestion to post public hearings. His district required public notification be cleared by the commissioners and agendized. He voiced his concern toward the right of access to public information as well as the right to privacy and the determinant factor should be handled on the local level.
Captain Oaks responded to Mr. Collins' question by stating internal investigations conducted within the realm of the Las Vegas Metropolitan Police Department would remain confidential. This would entail any wrongful acts conducted by law enforcement officers or disciplinary actions taken against the officers by the department. According to Captain Oaks, the amounts of the settlements, the plaintiffs who received the settlements, and the basis for the settlements was public information.
Captain Oaks informed the committee both the city of Las Vegas and Clark County fund the Las Vegas Metropolitan Police Department. A separate fund for litigations based on line item budgets did not exist. Therefore, according to Captain Oaks, the department utilized revenues from several budgetary accounts to meet the settlement expenditure requirements throughout the year. He added the Las Vegas Metropolitan Police Department Fiscal Affairs Committee consisted of two city councilmen, two county commissioners and one independent person. The Fiscal Affairs Committee meetings were agendized public meetings. Captain Oaks concluded agendized items over $5,000 were posted on the agenda.
Ms. Helen A. Foley, representing the Defense Trial Lawyers, testified in opposition to A.B. 204. According to Ms. Foley, A.B. 204 was similar to the Sunshine and Litigation Bill which came before the 1991 Legislative Session. The notable difference between the two bills was A.B. 204 dealt with taxpayers' dollars and state governments. She felt higher standards should be met. It was the Defense Trial Lawyers contention the issues would be handled more effectively at the local level, rather than through the court systems.
Ms. Foley presented the Defense Trial Lawyers second concern with A.B. 204 which implied because settlements would be reached, fault would automatically point toward the governmental entities. Ms. Foley noted the majority of local governments did not have problems with A.B. 204 due to the requirements of the open meeting law and the publicizing of settlement actions.
Mr. Sader queried Ms. Engleman and asked should A.B. 204 become a disclosure requirement on the local governmental level, and public hearings were mandated to be open meetings, would these applications appease the news media. Ms. Engleman agreed, provided the concerns were met.
Mr. Sader suggested the committee review the open records laws. Mr. Porter stated ACR 90, access to public records, had recently been completed. He would take the liberty to review the recommendations of that committee and notate whether or not specified information would require public access.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 204.
Chairman Sader stated no action was to be taken on A.B. 204 until further work had been done on the language.
ASSEMBLY BILL 209 Revises provisions relating to use of deadly force to effect arrest.
A.B. 209 was sponsored by Assemblyman Wendell Williams. He stated the purpose for presenting A.B. 209 was to parallel the language in state law with the language contained in the 1985 Supreme Court Ruling of the case, Garner v. The State of Tennessee which was argued October 30, 1984 and decided March 1985.
According to Mr. Williams, in the case Garner v. The State of Tennessee, the unarmed son of the plaintiff had fled from a pursuing police officer after exiting a vacant structure and was shot. The father of the youth had brought wrongful death action under the federal civil rights statute against the police officer who fired the shot, as well as the police department and others. The U.S. District Court of Tennessee, after remand, rendered judgement in favor of the defendants and the case had been appealed to the Supreme Court.
Mr. Williams testified that in the Garner v. The State of Tennessee case, the District Court had rendered judgment in favor of the defendants. However, during the appellate hearing in the Supreme Court, four basic rulings had been made and the decision had been reversed. First, apprehension by use of deadly force was considered a seizure which was subject to the fourth amendment, a reasonable requirement of the constitution. Second, deadly force could not be used unless it was necessary to prevent escape and the officers had probable cause to believe the situation posed a significant threat of death or serious physical injury to the officer or others. Third, under the authority of the Tennessee statute, where the police officer fired the fatal shot, it was found unconstitutional insofar as the statute authorized the use of deadly force against an unarmed fleeing suspect. According to Mr. Williams the fact the unarmed suspect broke into a dwelling at night did not automatically mean he was dangerous. The judgment of the Court of Appeals affirmed the case and remanded.
Mr. Williams maintained the use of deadly weapons to prevent the escape of felony suspects was constitutionally unreasonable. He noted the Memphis Police Department policy was more restrictive than the state statute. He contended because the officer fired the shot and killed the fleeing youth, the District Court had ruled the state statute supported the authorization to fire the shot which killed the suspect.
Mr. Williams stated A.B. 209 would bring Nevada law parallel with the U.S. Supreme Court ruling of 1985. He noted the committee would determine the constitutionality of the use of deadly force to prevent the escape of unarmed persons. A.B. 209 also addressed such force could not be used unless it was necessary to prevent an escape and the officer had probable cause to believe the suspect posed a significant threat of death or serious physical injury to the officers.
In this particular case, Mr. Williams continued, A.B. 209 would clarify the highly technical felony/misdemeanor distinctions. The bill would distinguish between felonies and misdemeanors in circumstances where immediate decisions would need to be made.
Ms. Laura FitzSimmons, testified on behalf of the Nevada Trial Lawyers Association and the Nevada Attorney's for Criminal Justice. She proposed to amend the language in A.B. 209, Exhibit E. The proposed language was agreed to with the exception of one word contained in the second line following "deadly force,". The "or" would be amended to read "and" which, according to Ms. FitzSimmons would cause a double requirement before deadly force could be used by law enforcement officers. The predicate requirement would not be in effect in the event the officer acted in defense of human life.
Mr. Sader asked if Ms. FitzSimmons agreed the amendment would codify the exemplified case Garner v. Tennessee. Ms. FitzSimmons stated she did not agree A.B. 209 would do this. Her understanding of the Garner v. Tennessee case was that it was a review of a survey of comparative state statutes which upheld the Tennessee statute as constitutional. According to Ms. FitzSimmons, the case did not imply the Supreme Court did not require the enactment of the Tennessee statute nationwide, it was just being passed. She added the amendment was appropriate for the state of Tennessee, but the law did not have to apply to the state of Nevada. Ms. FitzSimmons stated the proposed new language to A.B. 209 satisfied her, the organizations she represented, and the concerns that gave rise to the Tennessee case as well as the concerns of the citizens of Clark County. Mr. Williams concurred with Ms. FitzSimmons' preceding testimony.
Mr. Scherer asked for clarification of the second amendment to the original amendment pertaining to A.B. 209, Exhibit E. Ms. FitzSimmons proposed amending the second line of the new language "threat of physical or deadly force, or." The joint request would be to displace the word "or" and insert the word "and." In the event persons committed violent felonies, further requirements would be needed before police officers could use deadly force.
Mr. Scherer noted the amendment contained in Exhibit E deleted the language "there is probable cause to believe that", and currently read "if the person has committed." As Mr. Scherer understood, the intent of the bill basically applied a probable cause standard. He questioned what the standards would be for the officers to decide, and not the juries, whether someone had committed a particular crime beyond a reasonable doubt. Ms. FitzSimmons responded that discussion had ensued with the representee to insert the phrase "reasonable doubt." The law enforcement agencies had no objections to inserting the phrase "reasonable doubt." Ms. FitzSimmons did not think the phrase was necessary as the form in which the statute would be used pertained to homicide which justified it for purposes of criminal and civil prosecutions.
Mr. Ben Graham, Legislative Representative, testified he was in agreement with the proposed language to A.B. 209. Chief Deputy Lee Bergevin and Lieutenant Nadeau of the Washoe County Sheriff's Office both agreed to the proposed amendments to A.B. 209. Chief Bergevin addressed Mr. Anderson's concerns and stated the bill would allow the law enforcement agencies the means and right to utilize deadly force on fleeing individuals. On the other hand, in instances where officers were present and individuals were told to stop and did not, responding officers had no reason to use deadly force against the fleeing suspects who could be apprehended in other ways. Under the presented conditions, the law enforcement agencies felt the language was reasonable and workable.
Mr. Scherer summarized his understanding of the three critical factors where deadly force would be justified: l) If a person was committing a felony involving physical or deadly force and was likely to endanger life or inflict serious physical injury if not arrested; 2) in defense of human life; or 3) in defense of any person in immediate danger of serious physical injury. Chief Bergevin verified the three critical elements were correct. Mr. Scherer asked if the phrase in defense of human life would include one's own life. Chief Bergevin replied it would and added circumstances would have to be prevalent to justify the action.
Chairman Sader closed further testimony on A.B. 209.
ASSEMBLYMAN REGAN MOVED TO AMEND AND DO PASS.
ASSEMBLYMAN BONAVENTURA SECONDED THE MOTION.
Chairman Sader clarified the amendment to A.B. 209 would be as proposed in Exhibit C with the added provision the word "or" on line 2 would be deleted and the word "and" would be inserted after the phrase "deadly force."
Mr. Gibbons requested Mr. Scherer's concerns be entered into the record to clarify the standard of proof was for the person having committed the felony.
THE MOTION PASSED UNANIMOUSLY.
Mr. Williams was assigned A.B. 209 on the Assembly floor.
********
Chairman Sader presented BDR 3-1051 which would provide only one cause of action for medical malpractice when it arose from one single action or omission of a series of actions. According to Mr. Sader, this bill was an offshoot of the Reuben decision made by the Supreme Court the previous year.
Chairman Sader presented BDR 3-936 which would revise provisions governing liability for failure to disclose certain facts of the sale of real property. This was a realtor's request in Chapter 40.
ASSEMBLYMAN REGAN MOVED FOR COMMITTEE INTRODUCTION OF 2 BILLS.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTIONS PASSED UNANIMOUSLY.
There being no further business to come before the committee, the meeting adjourned at 10:02 a.m.
RESPECTFULLY SUBMITTED
Jessie A. Caple
Committee Secretary
??
Assembly Committee on Judiciary
March 3, 1993
Page: 1