MINUTES OF THE

      SENATE COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      March 19, 1993

 

 

 

The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1l:10 a.m., on Friday, March 19, 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

Sherry Nesbitt, Committee Secretary

 

OTHERS PRESENT:

 

Captain Randy Oaks, Lobbyist, Las Vegas Metropolitan Police

  Department

Jim Weishaupt, Lobbyist, Walker River Irrigation

  District

Chief Justice Robert Rose, Nevada Supreme Court

Madelyn Shipman, Lobbyist, City of Reno

Cathy Grigy, Member of the Public

Lieutenant James Nadeau, Lobbyist,Washoe County Sheriff's Office

Jim Weiss, Manager, Walker River Irrigation District

 

Senator James opened the hearing on Assembly Joint Resolution (A.J.R.) 22 of the Sixty-sixth Session.

 

ASSEMBLY JOINT RESOLUTION 22

OF THE SIXTY-SIXTH SESSION:         Proposes to amend Nevada constitution to allow increase in salary of justice of supreme court and district judge during term. (BDR C-1931)

 

Chief Justice Robert Rose, Nevada Supreme Court, provided oral testimony, and voiced his support and that of the supreme court of A.J.R. 22 of the Sixty-sixth Session.  He advised justices serve 6-year terms.  He believed the adage "equal work for equal pay" should apply to the justices at the time the pay is authorized.  He stated the resolution would change constitutional language to match the current practice.  The present practice is to equalize pay through the method or procedure of payment through service on the library board, for district judges, and the pardons board for the Nevada Supreme Court. 

 

Senator Jacobsen requested an enumeration of the salaries. 

 

Chief Justice Rose replied at present, salaries received by district judges are a base of $79,000, and justices receive $85,000.  After 6 years a judge or justice receives a 1 percent longevity increase each year, beginning in 6 years.  The 6 percent is received all at once at the 6th year, and 1 percent thereafter.  He advised the only person needing the new mechanism is himself, because the raise was authorized January 7, 1991, taking the supreme court justices from $73,500 to $85,000.  If not for the mechanism to pay through the pardons board, he would have to wait 4 years before receiving an increase.  He further advised this procedure always affects the chief justice, being he is the last in line by nature of rotation.  The chief justice presumably does the most work, being responsible for the normal caseload as well as the administrative load, shouldered for 2 years.  Yet the chief justice is paid the least.  He advised, to equalize that inequity, payment through the pardons board and the library board on the county level, had been authorized and funded by the legislature.  He stated a change in the constitution pursuant to A. J. R. 22 of the Sixty-sixth Session would obviate those methods and procedures, and match the language of what is currently occurring.  Chief Justice Rose advised the process used to equalize salaries on the district court level is not necessary for justices at present, because the raise coincides with the new term of all district judges.  The only exception to this are the new family court judges created in January, 1993. 

 

Senator James confirmed there was no further testimony and closed the hearing on A.J.R 22 of the Sixty-sixth Session.

 

The hearing was opened on ASSEMBLY BILL (A.B.) 85

 

 

ASSEMBLY BILL 85:       Allows declaration made under penalty of perjury by person who withdraws sample of blood from another for analysis to be admitted in criminal or administrative proceeding to prove certain facts.  (BDR 4-437)

 

Captain Randy Oaks, Lobbyist, Las Vegas Metropolitan Police Department (Metro), presented oral testimony.  He advised A.B. 85 was requested by Metro in an attempt to allow simplification of administrative procedures.  He pointed out the changes of language beginning on page 2, line 21.  He stated the bill allows a declaration made under penalty of perjury, rather than a sworn affidavit, to establish certain facts.  He stated the necessity for the bill arises because when a person suspected of driving under the influence (DUI) has a blood sample taken, particularly in a hospital environment, a nurse is assigned to draw blood and this action is witnessed by a law enforcement officer.  A notary public must then be summoned to notarize the sworn affidavit of the nurse.  The affidavit identifies the nurse as the party drawing the blood, the person from whom she drew it, and other pertinent facts.  He advised if the case is a felony, more than one blood sample is drawn, possibly by more than one person.  At times it is difficult to locate the nurse or phlebotomist.  He advised the legal requirement of a sworn affidavit could easily be replaced by a declaration made under penalty of perjury.  Both documents are equally acceptable under federal law, and certain provisions of Nevada law.  His organization requests the circumstances enumerated be included in those provisions.

 

Senator Jacobsen asked if this would affect emergency medical technicians and fire fighters.

 

Captain Oaks replied the effect would be the same on anyone drawing blood under these circumstances.

 

Lieutenant James Nadeau, Lobbyist, Washoe County Sheriff's Office, advised his department supports A.B. 85.

 

Senator James confirmed there was no further testimony and closed the hearing on A.B. 85.

 

Senator James requested the committee to sponsor a bill draft which would make a declaration under penalty of perjury of the same force and effect as that of an affidavit.

 

            SENATOR SMITH MOVED TO MAKE THIS A COMMITTEE BILL DRAFT.

 

            SENATOR JACOBSEN SECONDED THE MOTION.

 

            THE MOTION CARRIED UNANIMOUSLY.

 

      * * * * *

 

The hearing was opened on Senate Bill (S.B.) 88.

 

SENATE BILL 88:         Provides governmental immunity for torts arising out of uninvited use of unimproved public land.  (BDR 3-280)

 

Madelyn Shipman, Lobbyist, City of Reno provided oral testimony. She advised S.B. 88 was requested by the City of Reno, for clarification.  She advised the bill parrots language existing in Nevada Revised Statutes (NRS) 41.510, extending immunity to owners, lessees and other persons owning land, who allow the use of the land for recreational purposes.  She stated the reason for the bill was to assure that if the city got into the business of acquiring open space for passive recreational use, there would be no liability on the part of the city.  There would be no liability  as long as the city was not present on a regular basis maintaining or improving the property.  She stated the clarification was necessary because NRS 41.510 provided an owner absolute immunity for allowing their property to be used for recreational purposes.  However, other sections of NRS Chapter 41 seem to impose a duty on a city to keep their premises safe for reasonable use. 

 

Senator James asked Ms. Shipman to enumerate the other sections referred to.

 

Ms. Shipman replied she did not have them with her, but the sections basically state when a political subdivision is on notice of a dangerous or hazard, the entity has a duty to correct the condition within a reasonable time.  She explained instances in which entities had acquired open space and had no intention of improvement, but faced possible liability.  She asked the record to reflect that, regarding the language in the bill talking about unimproved and uninvited, the city is not talking about parks which are improved with recreational facilities.  The current liability of $50,000 would still apply to the cities in that situation.  However, she stated for purely passive recreational use, the city believes the bill would essentially protect the state and all political subdivisions. 

 

Again for the record, Ms. Shipman wished to state, she assumed the words "unimproved and uninvited" did not mean if a wetland area was acquired and signage was desired, that would not constitute an invitation.  Also, the city was concerned that if a handicapped accessibility at a trailhead was created, that this would make it improved property, and thereby create liability for the entire trail system, and not just for the improved portion. 

 

Senator James asked the definition of "trailhead."

 

Ms. Shipman answered this is a place where cars park at the beginning of a trail.

 

Senator Adler, referring to the existing $50,000 limited liability, stated the way the bill read, an entity could own unimproved property containing a mine shaft and not have to post a sign.  If someone fell down the mine the entity would not be liable.  He could think of no public purpose this would promote.

 

Ms. Shipman directed attention to subsection 3 which reads " . . .willful and malicious . . ."

 

Senator Adler stated the entire section bothered him, because of the lack of liability altogether.

 

Ms. Shipman advised the same language appeared in NRS 41.510, applying to private property owners.

 

Senator Adler replied he had the same problem with that statute.  He believed minimal effort should be made to warn of potential danger.

 

Senator Jacobsen asked if any statute existed covering emergencies, for example an emergency landing of a plane.

 

Ms. Shipman's understanding was NRS 41.510 specifically mentions recreational activities.  She would assume this would cover that eventuality.

 

Senator James asked for and received clarification of NRS 41.510 and the ramifications of S.B. 88. 

 

Ms. Shipman stated she did not believe it was the intention of the city, when they requested S.B. 88 to move away from any liability for any hazard they create or for anything they did positively or actively. 

 

Senator James believed two different situations existed.  First, private persons had a right to keep their land and not allow anyone on it, as a tresspass.  When the person allows and tolerates someone to cross, for beneficial purposes, he could see the logic.  However, the government has a duty to act reasonbly, which S.B. 88 seemed to be removing.  Secondly, he believed the language in subsection b was inherently ambiguous.  He stated that the way the statute works, the first subsection 1 gets rid of the duty. Subsection 2 says that no action may be brought,  however, this refers only to unimproved public land, and uninvited use of that land.  He believed this would be an issue in every case, and a change in the language was needed to clarify the intent.

 

Ms. Shipman stated she would happy to attempt this.

 

Senator Adler was concerned, because of the wording of the bill, about where liability stops.  He agreed it needed to be clarified.

 

Ms. Shipman stated liability and related concerns is one issue keeping the City of Reno from going forward to create trail systems currently being used by the people of Reno.  The city wants to provide those facilities to its citizens, but wishes to prevent the city's payment of liability claims. 

 

Senator James reconfirmed his concerns and asked Ms. Shipman to redraft the language to be presented as an amendment to the committee.  Ms. Shipman agreed to do this.

 

Senator Titus also voiced concern regarding unmarked potential hazards on public land. 

 

Ms. Shipman felt that because there is specific legislation dealing with that issue, that situation would create a known hazard.  She also agreed it could be ligitable.

 

Jim Weiss, Manager, Walker River Irrigation District presented oral testimony.  He wished to point out, with reference to paragraph 3b of S.B.88 , that a high risk of exposure arising from overuse exists at Topaz Reservoir.  He explained the reasons of the overuse, and the district's dilemma, which results from the state line running through the middle of the reservoir.  The original intent of the district was to store agricultural water and release it downstream.  He stated the district is working with the state, Douglas and Mono counties to get supervision of the entire shoreline.  They have not been able to accomplished this because of the state line.  The district's assets are falling water, land (which is limited) and recreational agreements.  For them to continue to pay for the supervision of the Topaz Reservoir shoreline, they would have to turn to the water users, and they cannot do this.  They must therefore turn to a private concessionaire who can operate on both sides of the state line, at which time the district would have to get monetary consideration from those using the reservoir.  He advised Douglas county charges fees for use on their portion, but two-thirds to three-quarters of the reservoir is totally unsupervised, allowing the public free access.  He stated the district fears they may have to turn to a fee system, at which time the district would be open to exposure under section 3b of S.B. 88.  Mr. Weiss offered to work with the City of Reno in revising the language of the bill.

 

Senator Adler questioned whether irrigation districts should be liable for matters discussed, and enumerated his reasons.  He felt possibly it should be a state liability. 

 

 

Mr. Weiss agreed and reiterated that was the reason work needed to be done in NRS Chapter 41, to increase immunity of the district.

 

Senator Adler advised a section existed in that chapter to allow the district to be under the state's umbrella.

 

Mr. Weiss advised there is also some opportunity for a joint powers agreement between the two states.

 

Senator Smith asked Mr. Weiss if there had not recently been legislation regarding Nevada and California sharing tort liability.

 

Mr. Weiss stated Senate Joint Resolution (S.J.R.) 10 had been passed.  This resolution requested California to consider the  Walker River Irrigation District be considered a municipality. Presently, the district is treated as a person.

 

Senator Jacobsen advised Mr. Weiss he had requested a bill draft which the senator believed would help his situation.  He suggested S.B. 88 be held, to possibly be combined with the upcoming bill draft.

 

Mr. Weiss stated that would be appreciated.  Senator James advised S.B. 88 would be held pending work on sections mentioned.

 

Senator James confirmed there was no further testimony on S.B. 88, and closed the hearing.

 

Senator James advised he had a bill draft request.  It was requested by him, after discussing the problem with members of the LeLeche League in Las Vegas, Nevada, to provide a woman could not be charged for any crime, such as indecent exposure, for breast feeding a baby in public.

 

            SENATOR JACOBSEN MOVED TO REQUEST A BILL DRAFT AS SET FORTH ABOVE.

 

            SENATOR SMITH SECONDED THE MOTION.

 

            THE MOTION PASSED UNANIMOUSLY.

 

      * * * * *

 

Senator James advised he had requests for the committee to sponsor two bill draft requests, Bill Draft Request (BDR) 16-916 and Bill Draft Request (BDR) 16-499.

 

BDR 16-916:       Clarified provision governing minimum time to be served before prisoner is eligible for parole.

 

BDR 16-499:       Requires director of department of prisons to establish by regulation reasonable deduction from money credited to account of offender to repay certain costs.

 

            SENATOR TITUS MOVED FOR COMMITTEE INTRODUCTION OF BDR 16-916.

 

            SENATOR MC GINNESS SECONDED THE MOTION.

 

            THE MOTION CARRIED UNANIMOUSLY.

 

      * * * * *

 

            SENATOR SMITH MOVED FOR COMMITTEE INTRODUCTION OF BDR 16-499.

 

            SENATOR MC GINNESS SECONDED THE MOTION.

 

            THE MOTION CARRIED UNANIMOUSLY.

 

      * * * * *

 

There being no further business to come before the committee, Senator James adjourned the meeting at 11:55 a.m.

 

 

 

 

 

 

 

 

 

 

 

                        RESPECTFULLY SUBMITTED:

 

 

 

                                                

                        Sherry Nesbitt,

                        Committee Secretary

 

 

 

APPROVED BY:

 

 

 

 

                                

Senator Mark A. James, Chairman

 

 

DATE:                           

??

 

 

 

 

 

 

 

Senate Committee on Judiciary

March 19, 1993

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