MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
March 24, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:06 a.m., March 24, 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
Mr. Michael A. Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
Speaker, Joseph E. Dini, Jr.
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Mr. Terry R. Crawforth, Deputy Director, State of Nevada, Department of Wildlife
Mr. Wayne R. Perock, Chief of Field Operations, State of Nevada, Department of Conservation and Natural Resources
Mr. Jim Weishaupt, Manager, Walker River Irrigation District
Mr. Gordon H. DePaoli, Counsel for the Walker River Irrigation District
Mr. Ben Graham, Legislative Representative, Nevada District Attorney's Association
Sheriff Paul McGrath, Carson City Sheriff's Department, Nevada Sheriffs/Chiefs Association
Lieutenant Jim Nadeau, Washoe County Sheriff's Office
Following roll call, Chairman Sader called the meeting to order.
ASSEMBLY BILL NO. 280 Revises provisions for effecting arrests during night.
The requesting agency for A.B. 280 was the Nevada Sheriffs and Chiefs Association, introduced by Sheriff Paul McGrath, Carson City Sheriff's Office.
Sheriff McGrath stated A.B. 280 would modify the statute to allow warrants or arrests to be served when only one warrant was outstanding. He stated the current statute required two warrants to effect arrests. According to Sheriff McGrath, the present law posed a detrimental impact on the courts, as well as the officers on the streets.
To clarify the intent of A.B. 280, Sheriff McGrath explained current law required two outstanding warrants to arrest individuals. The passage of A.B. 280 would allow law enforcement officials to arrest individuals on one outstanding warrant.
Lieutenant Nadeau testified in support of A.B. 280.
There being no further testimony to come before the committee, Vice Chairman Porter closed the hearing on A.B. 280 and opened the hearing on A.B. 327.
ASSEMBLY BILL NO. 327 Requires fee for chemical analysis of blood, urine, breath or other bodily substance be collected from certain defendants before or at same time that any fine is collected.
Sheriff Paul McGrath, Carson City Sheriffs Office, introduced A.B. 327 and represented the Nevada Sheriffs and Chiefs Association, the requesting agency for A.B. 327. He presented Exhibit C, titled "Driving under the influence of intoxicating liquor or controlled substance: Fee for chemical analysis."
According to Sheriff McGrath, the 1993 budget allocated $476,000 to support forensic services. The Governor's recommendation had been $326,000 to meet the services, which left a shortfall of approximately $150,000.
Sheriff McGrath stated the purpose for A.B. 327 was to locate funding sources to assist cities and counties to compensate for laboratory expenses. The Proposed Modification of N.R.S. 484.3798, Exhibit D, disclosed the total number of DUI arrests for 1991 in the state was 11,947 arrests. A.B. 327, if passed, would allow for $60 fees to compensate for laboratory services. Should the bill pass, the excess funds collected for lab fees would be allocated to the courts for operating expenses.
Mr. Carpenter questioned why the excess revenues collected from lab fees would be allocated to the courts rather than to the general funds of the counties. Sheriff McGrath replied the purpose for allocating excess monies to the courts would be to provide the courts the incentive to collect the laboratory service fees.
Sheriff McGrath noted it was not specified what the courts would use the unused revenues for.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 327.
ASSEMBLY BILL NO. 348 Provides for continuing treatment of juvenile offender certified as adult.
Mr. Ben Graham, Legislative Liaison, spoke on behalf of the Nevada District Attorney's Association which was in favor of passing A.B. 348. He submitted Exhibit E, case no. 14324, titled Robert E., A Minor, Petitioner, v. Justice Court of Reno Township, dated June 9, 1983. According to Mr. Graham, the case interpreted legislative intent regarding a 1977 statute which read "consequently absent a clear expression by the legislature to the contrary this will be the law."
According to Mr. Graham, A.B. 348 provded juveniles between the ages of 16 and 17 years of age who had committed felonies, would be certified as adults for the purpose of prosecution if they had previously been certified adults for purposes of criminal prosecution. Mr. Graham stated, often during the time the felonies were pending in the adult courts, the juveniles would commit additional felonies which would place the individuals back in the juvenile courts. Under the current status of the law, the state was mandated to conduct additional certification processes.
The District Attorney's Association asked the additional recertification requirement be eliminated. Mr. Graham contended, once certified, juveniles should remain certified unless there were exceptional circumstances which would transfer them back to the juvenile courts.
Mr. Sader pointed out A.B. 348 would reverse the Supreme Court ruling. Mr. Graham suggested the intent of A.B. 348 was to clarify the ambiguity in the 1977 legislative decision.
Mr. Scherer expressed his concern with A.B. 348, page 2, Subsection 2. He contended, if the district courts determined there were exceptional circumstances which justified remanding specific cases to the juvenile divisions, the juvenile departments could nevertheless decide whether they agreed with the district courts decisions. Mr. Scherer raised the issue of whether this dual determination would create problems with the two courts of equal jurisdiction.
Mr. Sader maintained district courts made the initial decisions in remanding cases down to lower courts. The juvenile courts had the right to make their own decisions and to decide otherwise, in which case, the certification would proceed to a higher court.
Chairman Sader closed the hearing on A.B. 348.
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Chairman Sader requested the committee vote on A.B. 280.
ASSEMBLYMAN PORTER MOVED DO PASS.
ASSEMBLYMAN SCHERER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Mr. Scherer was assigned to handle A.B. 280 on the Assembly floor.
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Chairman Sader requested committee vote on A.B. 327.
ASSEMBLYMAN COLLINS MOVED TO INDEFINITELY POSTPONE.
The motion to indefinitely postpone A.B. 327 failed for lack of a second.
ASSEMBLYMAN REGAN MOVED TO AMEND AND DO PASS.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
Mr. Sader stated A.B. 327 dealt with how the laboratory fees would be paid, not whether they were paid. The bill did provide for different collection mechanisms. He noted the one substantive area deleted the courts discretion to reduce the fees. He contended the courts should have the responsibility to collect the fees as the forensic services would be incurred by the counties. The offenders should be accountable for the incurred laboratory expenses.
Mr. Carpenter maintained, if the excess revenues were allocated to the county general funds, the monies would assist the courts and more funds would be available in the general fund.
Mr. Carpenter suggested amending the previous motion by further amending the bill to allocate any excess service fees to the county general fund, not to the courts.
ASSEMBLYMAN CARPENTER MOVED TO AMEND THE PREVIOUS MOTION TO A.B. 327, BY ADDING THE ABOVE MENTIONED AMENDMENT.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
Chairman Sader noted there was a motion to amend the main motion on A.B. 327.
Mr. Gibbons directed his question to the maker of the main motion, Mr. Regan, and asked if it would present a problem if the courts were to have accounting responsibility in determining the amounts paid toward the forensic services. He noted laboratory fees could be collected by the courts and accrued for administrative expenses. He requested clarification if the proposed amendment would delegate accounting responsibility to the courts.
As Mr. Sader understood, the county or city treasurers would retain the service fees collected and remit payment for the forensic services. Under the provisions of the main motion, the treasurers would remit revenues to the courts. Under the amended motion, the revenues would be remitted to the county general fund.
Mr. Carpenter contended should the treasurer's offices be accountable for the collection of lab service fees, the county commissioners would release payment of expenditures from the county treasuries. In this case, if the appropriate amount of service fees were not collected to cover the expenses of the lab services, the county would be required to make provisions to meet the expenditures from the general fund. He contended it would be easier if the excess service fees were handled expressly from the general fund.
Mr. Petrak pointed out, if the incentive for the courts to retain excess laboratory service fees were to be taken away, it might result in inferior operations. He felt the courts should retain the additional revenues.
Ms. Smith asked why the courts would need incentive to conduct their jobs.
Mr. Anderson felt the collection of laboratory fees would provide the courts the opportunity to build revenues which hadn't been anticipated.
Chairman Sader called for a roll call vote on A.B. 327 on the motion which would amend the main motion. He clarified a vote in favor of the amendment would require the remaining balance of laboratory service fees to go to the county general fund. A vote against the motion would require the remaining balance of lab service fees to go to the courts.
THE MOTION TO AMEND THE MAIN MOTION PASSED. (ASSEMBLYMEN PETRAK, PORTER, REGAN AND TOOMIN VOTED AGAINST)
Chairman Sader called for a vote to amend and do pass A.B. 327 as amended.
THE MOTION TO AMEND AND DO PASS AS AMENDED PASSED UNANIMOUSLY.
Mr. Carpenter was assigned to handle A.B. 327 on the Assembly floor.
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Chairman Sader requested the committee vote on A.B. 348.
ASSEMBLYMAN ANDERSON MOVED DO PASS.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMEN PORTER AND SADER VOTED AGAINST)
Mr. Anderson was assigned to handle A.B. 348 on the Assembly floor.
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ASSEMBLY BILL NO. 304 Makes various changes concerning recreation on public land and water.
Speaker Joseph E. Dini, Jr., was the prime sponsor of A.B. 304. He addressed the Walker River Irrigation District's (WRID) responsibilities in maintaining the Topaz Reservoir. He stated the WRID had jurisdiction over Topaz Reservoir which had multiple uses for agricultural and recreation.
Mr. Gordon DePaoli appeared on behalf of the WRID. He provided the Statement of the Walker River Irrigation District, Exhibit F, which would provide immunity from liability in tort with respect to recreation on certain lands and water areas.
Mr. DePaoli summarized part II of the WRID statement, Limited Immunity, and noted Nevada law provided the WRID some protection from tort liability. According to Mr. DePaoli, the Limited Immunity Provisions contained in Chapter 41, limited the amount of damages awarded to a claim to $50,000. The Nevada Supreme Court had ruled separate limitations applied to each separate and distinct action. Mr. DePaoli elaborated, if an accident should occur on the reservoir which involved several individuals, each individual would be awarded up to $50,000 in damages. He added, if accidents should occur which involved personal injuries or wrongful deaths, individuals could be awarded damages for personal injuries, as well as damages for wrongful deaths.
Mr. DePaoli addressed the conditional absolute immunity discussed in the WRID statement. The WRID would be protected under what he referred to as Nevada's Sightseer Statute, NRS 41.510, which provided immunity to landowners whose property was used for recreational purposes. The purpose of the statute was to encourage agricultural landowners to allow recreational use of their land. According to Mr. DePaoli, the courts had interpreted the statute to apply to public bodies such as the Walker River Irrigation District.
In summary, Mr. DePaoli stated the WRID was concerned with tort liability exposure as the result of recreational use on Topaz Reservoir, even with the damage limitations. The WRID was concerned with the costs involved in defending litigation. According to Mr. DePaoli, the WRID faced potential liability although it had no charges for the general public, direct or indirect, for the use of the reservoir. The WRID was concerned in protecting the agricultural users who funded the construction of the reservoir and incurred the costs to maintain and operate it from tort liability.
Mr. DePaoli maintained the passage of A.B. 304 would provide absolute immunity from litigation arising from the recreational use of land and water. It would assist the WRID in meeting the primary responsibilities of providing irrigation water to agricultural users, at the same time allowing recreational use on the reservoir.
Mr. DePaoli noted A.B. 304 would make it unlawful for persons who used the reservoir to engage in activities which were clearly dangerous. It would allow law enforcement entities to prohibit such activities.
Mr. Jim Weishaupt, Manager, Walker River Irrigation District, testified in favor of A.B. 304. He acknowledged the need for public recreation of the Topaz Reservoir. He contended the costs of litigation should not be borne by the agricultural water users. Assessments and taxes should not be used to fund the level of recreation expected at these facilities.
Mr. Porter asked how many times the WRID had been sued in tort. In reply, Mr. Weishaupt stated he was not aware of any specific suits. During the 1992 recreational season, due to extensive drought conditions, the WRID had been put on alert for hazardous boating conditions due to low water levels and reservoir overuse. Security personnel had been hired to supervise shoreline activities.
Mr. Porter asked why the WRID would be concerned over litigation in the event of accidents occurring on the Topaz Reservoir. In reply, Mr. DePaoli noted the failure for the WRID to post hazardous warnings would be the main allegation in litigation. Mr. Porter did not feel WRID had the responsibility to identify dangerous situations, although once identified, posted warnings should be maintained. He added, once WRID had identified hazardous conditions, it would be the responsibility of the WRID to maintain the responsibility. He reiterated there was no duty imposed on the WRID to look for hazardous conditions in the first place. Mr. Porter noted the sovereign immunity concept should apply to all irrigation districts.
Mr. Weishaupt interjected and pointed out the responsibility the WRID had for shoreline fire protection, water quality and the sanitation aspects of the Topaz Reservoir the recreational use attracted. He noted the WRID, described as a private landowner, received numerous complaints regarding these aspects of public safety and health.
Speaker Dini stated, as elected officials, they owed it to their constituents to share in the safety and health of the public.
A.B. 304 would ensure the WRID would not expose themselves to litigation.
Mr. Scherer asked how much Mr. DePaoli charged clients to take WRID cases through trial. Mr. DePaoli responded it cost approximately $25,000 to $30,000 in small cases. The average cost of cases done on summary judgment, without discovery cases, was between $2,500 and $5,000, depending on the issues. Mr. Scherer asked, in the event A.B. 304 passed, would the lawsuits filed against the WRID be disposed through a summary judgment without discovery. Mr. DePaoli hoped most lawsuits would be so disposed.
Ms. Smith asked if its safety practices would change if the WRID was granted immunity. Mr. DePaoli replied the primary purpose of the WRID was to provide irrigation water for agricultural use. The WRID did not make it a point to get involved with the day-to-day activities at Topaz Reservoir, although, due to the increased recreational use and the declining water levels, the WRID had no choice but to become involved. Mr. DePaoli did not feel the actions would change. He added the WRID had considered hiring an entity to operate the entire Topaz Reservoir and the California/Nevada problem would be resolved. The WRID was unsure as to whether the issues would be resolved. The WRID might be forced to close Topaz Reservoir to recreational use during extreme drought years when dangerous conditions became apparent.
Mr. Collins agreed, in order to limit or avoid litigation, the reservoir should be closed or limited to recreational use when serious recreational conditions prevailed. Mr. Weishaupt replied the closure of Topaz Reservoir to recreational use would be the last resort. At present, the WRID was working with Mono and Douglas counties and a private concessionaire to alleviate the problem. Mr. Weishaupt suggested using a portion of the ad valorem tax to support the legal costs incurred in disputes over recreational use. He concluded by stating the WRID intended to continue to operate Topaz Reservoir as an agricultural water storage facility and provide recreation.
Mr. Petrak referenced page 8 of the Statement of the Walker River Irrigation District which would make it unlawful for persons using the reservoir for recreation to engage in dangerous activities. He asked what would be considered dangerous? Mr. DePaoli referenced A.B. 304, Section 4, which would made it unlawful to fish, swim, dive or use a watercraft within 100 feet of the outlet of a reservoir, or of a related control tower, inlet screen, discharge tube, or pool downstream from the outlet. These were the activities Mr. DePaoli referred to as being dangerous. He did not suggest it would become unlawful to do anything dangerous.
Mr. Weishaupt explained the problems with the activities listed under A.B. 304, Section 4. He stated, because of overuse at Topaz Reservoir, there was a need for use management on the water surface, such as designated areas for the jet skiers and the water skiers. Speed restrictions and use designations were needed to allow fishermen the use of the area.
Mr. Dini noted a bill would have been introduced to lease Topaz Reservoir as a state park which would be a solution in operating the reservoir had the state not been experiencing financial difficulties.
Mr. Terry Crawforth, Deputy Director, Nevada Department of Wildlife (NDW), testified in opposition to a portion of A.B. 304, i.e., primarily Section 4. According to Mr. Crawforth, the NDW endorsed the first portion of A.B. 304. He noted A.B. 304, Section 1, Subsection 3 referencing legislative policy, was the heart of the matter and he concurred with the intent. He encourage private landowners and organizations such as the WRID to allow recreational uses on those lands.
According to Mr. Crawforth, the concern the NDW had with A.B. 304, Section 4, page 3 was the list of dangerous conditions. Past experience had been with posting the referenced areas and keeping them posted. He noted the NDW owned and operated a considerable number of reservoirs used solely for recreational purposes. The problems were with outlet structures and spillways which were only several hundred feet apart. He maintained the concerns with dangerous conditions could be addressed through posting identifying dangerous conditions.
According to Mr. Crawforth, one of the concerns experienced by private landowners offering recreational access to private lands was the fact they might be required to spend a substantial amount of money defending themselves in litigation. Mr. Crawforth encouraged the committee to look favorably on A.B. 304, Section 1 through 3 and consider major amendments or deleting Section 4.
Mr. Crawforth concurred with Mr. Haller's concern with accessibility for disabled and elderly individuals due to closures of selected areas on the reservoirs.
Mr. Regan asked if the 100 feet alluded to in A.B. 304, Section 4 were amended to read "within proximity to," would the NDW accept the amendment. Mr. Crawforth noted past experience with posted warnings were unsuccessful as well as identifying dangerous conditions. Providing one law to encompass these conditions was difficult. He preferred the bill address specific, readily identifiable, dangerous conditions rather than limit distances.
Mr. Collins suggested an amendment to A.B. 304, Section 4, by replacing the word "is" with the word "may". Mr. Crawforth added the Wildlife Commission had authority to post certain areas for the sake of the resources, but were not authorized to post warnings for public safety.
As Mr. Toomin understood, at the present, there was no fiscal impact. He asked if Section 4 of A.B. 304 was removed, various warnings were posted, and the reservoirs policed, would this create a fiscal impact on the state. Mr. Crawforth clarified Section 4 of A.B. 304, as it was currently worded, would create am impact on the NDW. If Section 4 was removed, he did not foresee additional fiscal impacts. Mr. Crawforth would rather identify hazardous situations as he understood the problems with placing navigational aids on reservoirs. If problems surfaced as the result of the bill, he contended it should not be the responsibility of the farmers using water from the reservoirs.
As Ms. Smith understood, the NDW had the ability to post signs for wildlife purposes, but not for public safety purposes. She asked if the legislature authorized the NDW to include public safety as a responsibility, would that remedy the issues. Mr. Crawforth replied it would assist the NDW, although there had been problems with the legislature allowing this in the past. He urged the legislature address this area and assist in the area of liability.
Mr. Regan addressed A.B. 304, Section 3, Subsection 2, lines 36 through 40 and proposed the language remain in the bill.
Mr. Wayne Perock, Chief of Field Operations, Nevada Division of State Parks (NDSP), supported Mr. Crawforth's testimony. He encouraged recreation on private lands. He noted the NDSP also had concerns regarding A.B. 304, Section 4 and the limitations around the structures for safety reasons. The NDSP operated several state parks on reservoirs constructed by the NDW. He assured the committee the outlet structures were regulated through state administrative codes. Mr. Perock stated the NDSP supported A.B. 304 with the exception of Section 4.
Mr. Sader expressed his concern for a broad application of A.B. 304, Section 4 to waters other than Topaz Reservoir which, he felt, would have an unfortunate result on recreation in Nevada. Mr. Weishaupt addressed this concern and stated the WRID posted dangerous areas of the reservoirs and it was a continuous effort to keep children from the area. The question before the committee was what entity was liable for the safety and health of the public at Topaz Reservoir. According to Mr. Weishaupt, the State of California had adopted within the Fish and Game codes, the following language: "The owner of a dam is not liable in damages to any person exercising the right to fish, use of watercraft, or swim, who suffers injury to the coming in contact with, or tampering with, any of the property of the owner of the dam."
The NDW, the NDSP and the WRID would work together to cultivate a solution to A.B. 304, Section 4 and return within 7 days.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 304.
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Chairman Sader presented a Bill Draft Request from the Attorney General's Office to correct filing procedures for the Chapter 34 habeas corpus petition which would clean up follow up on major legislation during the last session.
ASSEMBLYMAN ANDERSON MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT REQUEST.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
There being no further business to come before the committee, the meeting adjourned at 10:50 a.m.
RESPECTFULLY SUBMITTED BY:
Jessie A. Caple
Committee Secretary
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Assembly Committee on Judiciary
March 24, 1993
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