MINUTES OF THE

ASSEMBLY COMMITTEE ON JUDICIARY

Sixty-seventh Session

April 15, 1993

The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader, at 8:08 a.m., on Thursday, April 15, 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 Excused

Mr. John Bonaventura

Mr. John C. Carpenter

Mr. Tom Collins, Jr.

Mr. James A. Gibbons

Mr. William D. Gregory

Mr. Ken Haller

Mr. William A. Petrak

Mr. John B. Regan

Mr. Scott Scherer

Mr. Mike Schneider

Ms. Stephanie Smith

Mr. Louis A. Toomin

GUEST LEGISLATORS PRESENT:

Senator William O'Donnell, Senate District 5, Las Vegas

OTHERS PRESENT:

Brian Hutchins, Chief Deputy Attorney General,

Department of Transportation

Michael Chapman, Sr. Deputy Attorney General,

Department of Transportation

Lt. Jim Nadeau, Washoe County Sheriff's Office

Sandy Heverly, Mothers Against Drunk Drivers

Tom Atkinson, Chief Game Warden, Dept. of Wildlife

Fred Messmann, Game Warden in Charge of Statewide

Boating Safety

Following roll call, Chairman Sader opened the hearing on Senate Bill 227.

SENATE BILL 227 -Establishes venue for tort actions against State of Nevada and requires state agency to be named as defendant.

Opening testimony, Brian Hutchins, Chief Deputy Attorney General, Department of Transportation, introduced his co-testifier, Michael Chapman, Sr. Deputy Attorney General from the Department of Transportation. Mr. Hutchins explained SB 227 sought to address two issues. First, the bill stated any actions against the state would have to be tried either where the action occurred or in Carson City. The second portion of the bill would require any action brought against the "State of Nevada" to also be brought against a specific state department or agency.

Mr. Hutchins then deferred to Michael Chapman to explain SB 227. Mr. Chapman told the committee there was an intent to accomplish cost savings by language in subsection 3 of section 1 wherein any tort action would be filed in the county where it occurred or in Carson City.

Laying a foundation and clarification, Chairman Sader explained in tort actions venue was where a case was filed (county within the jurisdiction of the state), and this would be governed either by where the cause of action arose or where the defendant resided. However, because the "state" encompassed all counties, a tort action could be filed in any county. SB 227 would serve to statutorily state the defendant resided in Carson City because the Department of Transportation was located in Carson City. Other than that, the case would have to be filed in the county where it occurred.

Mr. Chapman agreed with the Chairman's explanation and said the Attorney General's Office also saw the provision as being an advantage to the parties themselves. The example posed by Mr. Chapman involved an incident taking place in Jackpot, Nevada. Because the plaintiff's attorney's office was located in Las Vegas, Nevada, the case was filed in Las Vegas. It had proven very inconvenient for the parties who had to travel from Jackpot to Las Vegas, and, of course, the Las Vegas people were not as knowledgeable about events such as weather and the environment in Jackpot, as people from the area would have been.

Questioning the first thrust of the bill, Mr. Toomin asked Mr. Chapman to explain language regarding streams, lakes and rivers as seen on page 1, lines 5-9. Mr. Chapman said this was the present language and he was not certain of the background. Chairman Sader explained the whole concept of paragraph 1 was if a stream or lake extended through more than one county, filing could be made in any one of the counties touched by the stream or lake. The rationale, particularly pertaining to penalties and forfeitures imposed by statute, related to water law and affected upstream and downstream users.

Mr. Chapman then explained the second concept on page 2, i.e., the promotion of fairness. The issue arose from a problem encountered when the "State of Nevada" was sued. An example was described in which a cow was hit on Highway 395 between Carson City and Reno. The plaintiff sued the "State of Nevada" alleging the fences were not adequate. Thus, it became a Department of Transportation (DOT) matter. Nearly halfway through the case it was decided the plaintiff did not have a case with the DOT; and the defendant was changed to the Highway Patrol. Mr. Chapman said they had not understood they were defending the Highway Patrol and the Highway Patrol had not understood they were in a lawsuit; and yet it was an ambiguity which was difficult to explain to a judge. Therefore, the attempt was to require a specific agency to be named when suing the "State of Nevada." Also, a copy of the complaint and summons would have to be served upon the administrative head of the specific agency.

Mr. Hutchins explained they were attempting in section 1 of the bill to not only establish a more efficient system by requiring the case to be filed in the county in which the offense occurred, but also they saw this as saving time and money on behalf of the court systems in some of the larger counties.

The second portion of the bill would also save some expense on behalf of the Secretary of State and the Attorney General's Office, Mr. Hutchins opined. If a suit just named the "State of Nevada," the Secretary of State's Office had to attempt to make a determination of just which department the suit applied to. Oftentimes the case would be referred to the Attorney General's Office, which then had to determine which agency was involved. Since all this determination would have to occur after the suit was filed, adhering to timeliness for responses would be difficult.

Chairman Sader asked Mr. Chapman to explain why it would help to additionally serve the office of the administrative head of the agency if the Secretary of State would be served anyway. Mr. Chapman said it would not only save two or three days in the process, it would also increase the certainty the agency itself received the notice.

If the office of the administrative head was to be served, Chairman Sader wondered why the Secretary of State had to also be served. In reply, Mr. Chapman said the law presently required service to be made on the Secretary of State. The advantage in doing this was to make certain the state knew it was being served. This would also protect the plaintiff's rights for statute of limitations purposes. Although Chairman Sader was not entirely convinced of the need for two services, Mr. Hutchins indicated they were only seeking to continue something already in the law; and they were not seeking to create a drastic change. NRS Chapter 408 specifically required any actions brought against DOT to be served on the Chairman of the Board of Directors (the Governor) as well as the Director of the Department of Transportation.

In a case of a chemical spill seeping into a river and subsequently causing damage downstream, Mr. Petrak asked what recourse the county, state or mining operation had. Mr. Chapman said if the cause of action involved several different counties the action could legitimately be brought anywhere damage occurred. If several counties, the state and the mining operation were defendants in a particular case, SB 227 would allow the proper venue to be in any one of the counties along the route of the river.

With no further testimony forthcoming on SB 227, Chairman Sader opened the hearing on SB 117.

SENATE BILL 117 -Makes various changes relating to procedures for testing persons suspected of operating watercraft while under the influence of alcohol or controlled substance.

Tom Atkinson, Chief Game Warden for the Nevada Department of Wildlife, and Fred Messmann, the Game Warden in charge of the statewide boating safety program, came forward to testify in support of the bill. The intent was to add statutory provisions to the boating safety laws which mirrored those already in place in the motor vehicle code. Mr. Atkinson opined the importance of safety on the waterways had been clearly demonstrated; and a great deal of public interest and support had been shown for this type of legislation. From their view, Mr. Atkinson said, it was just as important to remove incapacitated operators on the waterways as to remove those same people from the highways.

Continuing, Mr. Atkinson indicated the bill mirrored the Motor Vehicle Code, NRS 484 and 483. Attention was drawn to page 2, subsection 6, an addition which provided the person the ability to refuse a blood test and go to an alternate test. It also allowed the individual to pay for the test if he wished the alternate test. Under the boating safety code, section 7 would allow the Department of Wildlife to require a blood or urine test if there were indications of the use of controlled substances. Section 8 provided the ordinary statutory exclusions; and section 9 was new language which had already been addressed in a similar bill passed by the Assembly in AB 57. Mr. Atkinson remarked this was probably the most significant part of the bill in that it allowed an officer to force a blood test if the operator could be shown to be in physical control of the vehicle and there had been an accident which caused death or substantial bodily harm on the waterways.

Mr. Haller remarked there appeared to be no particular sanctions in that there were no licensing requirements to operate a boat. The DUI sanctions for watercraft, Mr. Atkinson said, were currently misdemeanors in every instance, despite the number of occurrences, i.e. a $1,000 penalty and six months in jail. He spoke to the controversy surrounding the issue of requiring licenses to operate watercraft. One of the arguments was whether the administrative costs for implementing a program would balance out against the possible benefits. They had considered removing vessels and vessel registration, but this had proven unworkable. As for penalties, if a blood test revealed the person was incapacitated, he could be charged with manslaughter if there was a fatality on the waterway.

Mr. Atkinson said their statistics showed approximately 30 percent of the people being picked up on the water were repeat offenders who also had multiple violations on the road as well.

Also expressing support for SB 117, Lt. Jim Nadeau from the Washoe County Sheriff's Office, pointed out the Washoe County Sheriff's Office had jurisdiction on Pyramid Lake, Lake Tahoe and various other lakes within Washoe County. This legislation would help send a message to boaters for the need for caution and less drinking.

Mr. Gibbons asked Lt. Nadeau if this legislation would cover the operation of jet skis. In response, Lt. Nadeau said jet skis were covered under the motor craft laws.

Sandy Heverly, representing Mothers Against Drunk Driving (MADD), came forward to express their full support for SB 117.

Following a brief break, the hearing was opened on SB 279.

SENATE BILL 279 -Provides civil lien for restitution unpaid by criminal defendant.

The prime sponsor of the bill, Senator William O'Donnell, Senate District 5 in Las Vegas, came forward to testify. The intent of SB 279, he said, was to close a loophole in the requirement for restitution. Currently, a person convicted of a crime and ordered to pay restitution could cease paying that restitution upon termination of his sentence and release from parole. SB 279 would state if restitution had not been completed by an individual released from parole, the individual would be subject to a lien by the person to whom restitution was being made.

Currently, Senator O'Donnell noted, there was no jurisdictional authority to demand restitution be completed. In response to Mr. Collins' question, Senator O'Donnell said neither law enforcement or Parole and Probation had the jurisdiction or responsibility to enforce restitution. It was agreed a judge could make the completion of restitution a condition of parole, however, this was not a requirement. Currently NRS 209.4843 stated, "Payments of restitution must terminate: 1. When the offender is released from prison, except that the payments may be continued as a condition of parole; or . . . .". Senator O'Donnell believed the language was written this way because Parole and Probation did not want the responsibility of tracking the individual.

Chairman Sader opined the Parole Board ordinarily made the completion of restitution a condition of parole. In any event, he added, the victim could avail himself of civil remedies against the perpetrator for unpaid restitution. What was being sought in SB 279 was an enforcement mechanism granting the right to levy against wages, a car or house or other piece of property for an attachment.

Sandy Heverly, again representing Mothers Against Drunk Driving, stated her support of the bill.

SENATE BILL 227 -Establishes venue for tort actions against State of Nevada and requires state agency to be named as defendant.

ASSEMBLYMAN HALLER MOVED TO DO PASS SENATE BILL 227.

ASSEMBLYMAN PETRAK SECONDED THE MOTION.