MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
February 22, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1:30 p.m., on Monday, February 22, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus
Senator Raymond C. Shaffer
Senator Ernest E. Adler
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Maddie Fischer, Primary Secretary
Marilyn Hofmann, Committee Secretary
OTHERS PRESENT:
Gene Williams, Assistant Nevada State Fire Marshal
George McNally, Nevada Trial Lawyers Association
Bill Bradley, Nevada Trial Lawyers Association
Bob Barengo, Nevada Consumer Finance Association
Guy D. Schaefer, Associates Commercial, Member, Nevada Consumer
Finance Association
Senator James announced there were three requests for committee introduction of bill drafts.
BILL DRAFT REQUEST 2-504: Establishes venue for tort actions against State of Nevada and requires state agency to be named as defendant.
SENATOR SHAFFER MOVED FOR COMMITTEE INTRODUCTION OF
BDR 2-504.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE
VOTE).
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BILL DRAFT REQUEST 14-434: Authorizes issuance of subpena by attorney general or district attorney in criminal investigation of racketeering.
SENATOR McGINNESS MOVED FOR COMMITTEE INTRODUCTION OF
BDR 14-434.
SENATOR SMITH SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE
VOTE).
* * * * *
BILL DRAFT REQUEST 10-743: Establishes provision concerning circumstances under which state may take unclaimed property held by intermediary in another state.
SENATOR SMITH MOVED FOR COMMITTEE INTRODUCTION OF
BDR 10-743.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION PASSED CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
* * * * *
Senator James opened the meeting for testimony on the bills scheduled for hearing.
SENATE BILL 155: Limits liability of certain persons responding to emergency involving hazardous materials.
Senator Lawrence E. Jacobsen, the sponsor of the bill, was the first to testify. He reviewed the history of similar legislation, which included limited liability for persons who responded to an emergency "on their own." Senator Jacobsen indicated he was "personally involved" in this and other legislation because of his being a 47-year member of the Douglas County Fire Department and his part in the establishment of an ambulance service in that county.
Senator Jacobsen stated he visited many fire departments around the state in 1992 and found the main area of concern by volunteer firemen to be hazardous materials spills. He said in one instance the Office of Safety & Health Administration (OSHA) cited a volunteer fire department "for not being properly trained." The senator indicated some volunteers told him they would no longer work in that capacity, if there was a possibility they could be held liable under those circumstances. Senator Jacobsen added the rural areas could not survive without the volunteer firemen.
Senator Jacobsen indicated most training of volunteer firemen was "in-house, done by another fire department or a doctor in the community. He said in a rural area, especially, "you have no idea what you are responding to when the alarm rings." The senator stated in the case of a spill, there may be no one there to advise of the danger of the material. He said there are over 130 different "hazardous materials" and it is hard to determine what has been spilled when a volunteer arrives at the scene of the accident.
Senator Jacobsen added, "If you are willing to respond, you should not be held liable...if someone wants to sue you because you didn't do things right...if you act with common sense." He said he believed it was reasonable "to have some immunity."
Senator Titus asked if the interim committee studying hazardous waste had discussed this concern and made a recommendation. Senator Jacobsen answered he served on the committee and understood there was legislation being proposed in the assembly with similar provisions.
Senator Adler stated he believed Nevada statutes provided for volunteer firemen to fall under the general governmental immunity statute, thereby protecting them from liability. He said he believed the only liability would be placed upon the county if gross negligence was proved. The senator said he felt the only time a volunteer fireman could be held liable would be for an "intentional act." Both Senator James and Senator Jacobsen stated they did not believe this to be true. Senator Adler responded:
When they put on the uniform...and respond to a fire as part of a governmental entity, which is what a volunteer fire department is, they are covered by governmental immunity, just like a police officer or regular fireman....
Senator Adler indicated an opinion from legislative counsel might suffice to take care of the problem. Senator James referred to Nevada Revised Statutes (NRS) 41.500(5), which states, "Any person employed by or serves as a volunteer for a public firefighting agency is not liable for medical rendering of assistance...." Senator Jacobsen referred to the case of the OSHA citation issued for improper training on the part of volunteer firemen, but Senator James indicated legislation of this sort "would not stop OSHA."
Senator James asked if the bill would give immunity to an individual as opposed to giving it to any other type of entity. Senator Jacobsen stated he believed the bill spelled it out clearly, with reference to an ambulance driver or volunteer, thereby indicating an "individual."
Senator McGinness asked if S.B. 155 was intended to cover volunteers only, since there was language stating, "...is employed by...." Senator Jacobsen stated he believed it was intended to cover volunteers and paid employees.
The next to testify was Gene Williams, Assistant Nevada State Fire Marshal, who stated he intended to speak in favor of the intent of the bill. Mr. Williams said there was "real consternation" in the rural areas with respect to responding to hazardous material spills. He indicated some organizations, particularly in Elko County, "...have been told by their legal representatives...that because of the employee-questions relating to volunteers...they are not covered." Mr. Williams said the matter had been addressed through the local emergency planning system, causing a delay in Elko County's participation in the State Emergency Response Commission. He said passage of the bill would help alleviate the concerns of those persons in that area.
Mr. Williams stated the position of his department was to back the intent of the bill, which is to take care of volunteer firemen, eliminate any concerns and protect them from lawsuits. He reiterated Senator Jacobsen's statement that in the initial response to an incident, the volunteers do not know if the material spilled is hazardous or not.
Senator Adler repeated his belief the volunteer firemen were covered with respect to liability at this time. He stated he has never heard of a volunteer fireman being sued for negligence in connection with a fire and added, "There is no legal difference between hazardous material and a fire response, that I can think of." He referred to the problem cited in Elko and said he did not believe volunteer firemen could be properly classified as "employees of Elko County," although they are agents of the county. Senator Adler said this classification would place them under the statute regarding governmental immunity. Mr. Williams agreed with Senator Adler but again referred to the concerns of the volunteer firemen. Mr. Williams did point out there are fire departments classified as "industrial fire departments" which are not agents of any state or political subdivision.
Senator Smith said he "started to worry" when he read S.B. 155, since there are so many people excepted from liability, with the exception of the "good samaritan." Mr. Williams referred to Nevada's "samaritan law," which lies within NRS 41.500, and said they have tried to cover those persons who may be open to claim, as they identify them. He added S.B. 155 is the "latest in the group."
Senator Titus stated she appreciated the concerns of the firemen but indicated she views the legislation "...as part of a broader mentality concerning hazardous waste in the state, which I am really opposed to." She said she felt they should be fighting for higher fees on disposal so more training would be possible, "...not fighting for immunity for people without training." Senator Titus continued:
The whole attitude in the state is...'let's make a deal...come on down...bring as much in as you can...charge as little as you can...then let anybody off with immunity who messes up when handling it.' I think this is the opposite approach from what we should be taking.
Senator Adler asked Mr. Williams a question regarding the policy of the fire marshal's office regarding non-trained people who respond to an emergency regarding a hazardous material spill. Mr. Williams stated the office discouraged such response but added, "There is no way we can eliminate the fact that folks are going to respond...not knowing what kind of an incident they have...." He said they encouraged training and did the best with the staff they had to attempt to establish certified training programs. Mr. Williams indicated one of the main problems was the fact there were approximately 2,500 volunteer firemen within the state with a 20 percent turnover rate. He said the "simple logistics" of trying to train all the volunteer firemen was difficult.
The next persons to testify were George McNally and Bill Bradley, representing the Nevada Trial Lawyers Association. Mr. McNally indicated he had discussed the problem of responding to hazardous waste spills with Senator Jacobsen on many occasions. He also said there was legislation introduced in previous sessions regarding capping punitive damages which excluded the area of toxic waste spills. Mr. McNally stated, "We considered it then to be a serious problem...[it continues] to be a serious problem." He said it was not the intention of the trial lawyers to discourage a volunteer from going to the scene of a tragedy and attempting to assist in any manner. Mr. McNally added most trial lawyers would not take a case if it involved a suit against a volunteer fire fighter. He pointed out "immunity goes away if gross negligence is involved." Mr. McNally said if gross negligence became an issue, "...rest assured the carrier that insures the county is going to...advise the county...you better hire a private attorney to protect for damages outside the policy."
Mr. McNally said the language in S.B. 155 deals with "immunity by someone...more often than not...in a volunteer capacity." He stated that would mean "rendering medical assistance." Mr. McNally added, "All of a sudden we make this giant hurdle to give immunity to somebody who goes out...without knowing what he is going to." He said giving immunity to someone who may not know what he is getting into, "...may be sending the wrong kind of message, as Senator Titus indicated."
Mr. Bradley said the two conflicting messages are encouraging people to act responsibly weighed with the balance of "a desperate need for volunteer services." He pointed out earlier statements regarding private companies, such as mining companies, who may have a hazardous spill followed by a response from their own certified team. Mr. Bradley said that team could "negligently hurt people" while taking care of the spill and the effects of passage of S.B. 155 "...could give that mining company immunity." He stated he did not believe that to be the intent of the bill. Mr. Bradley agreed with Senator Adler's earlier comment regarding "governmental immunity" for state, city or county employees "...acting in a discretionary function," and said those persons should be "100 percent covered." Senator Adler said the question was whether a volunteer fireman was an employee for the purposes of the statute. He indicated there was an opinion by the attorney general which states, "A volunteer worker may be a governmental employee."
Mr. Neilander said there were "cases all over the place...and attorney general's opinions that are conflicting." He stated the issue would be whether they were acting in the scope of their employment. Mr. Bradley added he did not believe there was a chance a volunteer fireman, "...acting under the color and authority of the county" could lose in a lawsuit. He said he had no problem with the bill if it only relates to the "volunteer fireman," but was afraid it could include a hazardous materials team from a private company. Mr. Bradley repeated the concern of Senator Titus "...that it depends on the message you want to send out...do you want to encourage untrained people to deal with a problem that could go bad on them...?"
Senator James stated he would like to find a common ground, since there is a law which says "...if you are a volunteer fire fighter you are not responsible...for anything but gross negligence," and a generic "good samaritan" statute. He pointed to line 8 on page 1 of the bill and suggesting changing "...the injured person" to "...any injured person." The chairman said the language in its present form "...looks like there has to be an injured person involved for it to apply." He said that change "would cover every situation which follows in the entire statute."
Senator Adler suggested making it clear that volunteer firemen were "county employees," and let all other statutory law "take care of the situation." Mr. McNally agreed that suggestion may take care of "most of the problem."
There was no further testimony and Senator James closed the hearing on S. B. 155.
ASSEMBLY BILL 48:Extends period for perfection of purchase money security interest.
The first to testify were Bob Barengo, representing Nevada Consumer Finance Association, and Guy Schaefer, Associates Commercial, member of Nevada Consumer Finance Association. Mr. Schaefer cited the case of a construction equipment distributor who "wanted his money," and Mr. Schaefer could not advance the funds because he had not received a perfected security interest in the equipment to be financed. He said there was a requirement a financing statement must be received within 10 days of delivery of collateral and that was not possible in the situation described. Mr. Schaefer said the situation required researching the records of the secretary of state to be sure no other creditors were involved. He said the legislation would extend the time for receipt of a financing statement from 10 to 20 days, so business could be transacted "in a more timely fashion."
Mr. Barengo explained the principle of a "purchase money security interest" which required the filing of a Uniform Commercial Code (UCC)-1. He said the secretary of state's office researches ownership of the equipment. Mr. Barengo pointed out the time for receipt of the UCC-1 statement is 20 days in 41 states. The chairman asked Mr. Schaefer to explain the consequences of failure to file a UCC-1 statement. Mr. Schaefer said if it was not filed within the prescribed time period, "...if there is a conflicting creditor, you lose your [priority] security interest in the piece of collateral which you financed."
There was no further testimony on A.B. 48, and Senator James closed the hearing on the bill and turned to the scheduled work session.
ASSEMBLY BILL 5: Requires consideration of offender's obligation to pay child support for purposes of presentence investigation and granting probation.
Mr. Neilander addressed a previous question regarding the use of the word "shall" in section 4, page 2, line 32 of the bill. He said the issue was whether there was a constitutional problem if someone's probation was revoked and there was a "liberty interest" at that point. Mr. Neilander stated the case law found "...if revocation of probation is ordered, the sentence probationer is required to serve is punishment for the underlying crime, not for failure to comply with probation." He said this indicates "probation is a privilege that is legislatively given, and without constitutional implications," and the use of the word "shall" is proper.
SENATOR SMITH MOVED TO DO PASS A.B. 5.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
* * * * *
ASSEMBLY BILL 51:Clarifies fee on collection of credit instruments held by certain gaming licenses.
SENATOR McGINNESS MOVED TO PASS A.B. 51.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
* * * * *
ASSEMBLY BILL 74:Imposes additional penalty for criminal violation of certain provisions governing securities and commodities if victim is 65 years of age or older.
Senator James stated this legislation augments the enhancement for crimes against the elderly which already exists in statute. He said although there was no testimony in opposition to the bill, there were questions regarding wording. The chairman indicated he had requested Mr. Neilander to research whether Racketeering-Influenced and Corrupt Organization Act (RICO) liability, which is one area in which persons committing securities and commodities fraud could be charged, should be considered or whether there is a sufficient existing enhancement. Mr. Neilander said the crimes already enumerated under existing law were all crimes which are predicate acts under RICO. He said under RICO, a person must have committed two of the 25 crimes listed within a 5-year period. He added the crime for a RICO violation was 5 to 20 years in prison, and under the commodities and securities act, the penalty was lower. Therefore, he said, passage of A.B. 74 would allow a higher maximum under the RICO statutes.
Senator James asked Mr. Neilander if he had found out why there were different maximum penalties for securities fraud and commodities fraud, and Mr. Neilander stated the Assembly Committee on Judiciary was still looking into that matter and may request a bill draft to clarify the situation.
Senator Jacobsen asked if language could be added to the legislation which would make it more "inclusive" in order to cover all types of "schemes" perpetrated on the elderly. Mr. Neilander stated the bill listed "all major felony crimes."
SENATOR SHAFFER MOVED TO DO PASS S.B. 74.
SENATOR McGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR SMITH ABSTAINED FROM THE VOTE.)
* * * * *
SENATE BILL 151: Allows offender to be returned to custody of department of prisons pending completion of inquiry concerning alleged violation of terms or conditions of his residential confinement.
Senator Adler had a question regarding custody during the hearing on the bill, and Mr. Neilander addressed the issue of whether custody should be defined as "legal" or "physical." He said in a discussion with legislative counsel, it was determined if such a definition were done in this bill, "...they would have to go through the statutes and identify which type of custody was being referred to throughout." Mr. Neilander stated "custody" was used to describe almost every kind of incarceration situation. He said it was the decision of legislative counsel not to address the issue in S.B. 151. Senator Adler said the language, "...return to the custody of the department of prisons" was confusing if the prisoner had never been out of the legal custody of the department itself. He suggested making it clear for the record that the reference in S.B. 151 is to "physical custody."
SENATOR ADLER MOVED TO DO PASS S.B. 151.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
* * * * *
There being no further business to come before the committee, the meeting was adjourned.
RESPECTFULLY SUBMITTED:
Marilyn Hofmann,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
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Senate Committee on Judiciary
February 22, 1993
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