MINUTES OF THE

      SENATE COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      April 23, 1993

 

 

 

The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 11:30 a.m., on Friday, April 23, 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 Raymond C. Shaffer

Senator Ernest E. Adler

 

COMMITTEE MEMBERS ABSENT:

 

Senator Dina Titus (Excused)

 

STAFF MEMBERS PRESENT:

 

Dennis Neilander, Senior Research Analyst

Sherry Nesbitt, Committee Secretary

 

OTHERS PRESENT:

 

Robert Rose, Chief Justice, Supreme Court of Nevada

Rob Calderone, Director, Washoe County Juvenile Services

John P. Sande, III, Lobbyist, Nevada Bankers Association

Ben Graham, Lobbyist, Nevada District Attorney's Association

Stephen R. Johnson, Appraiser, Johnson-Wright & Associates

 

 

 

Senator James opened the hearing on Senate Bill (S.B.) 392.

 

SENATE BILL 392:        Changes name of probation department and probation committee in certain counties and expands authority of committee responsible for certain juvenile services in those counties.  (BDR 5-1304)

 

Rob Calderone, Director, Washoe County Juvenile Services, provided oral testimony.  He advised the bill was inaccurately described, in that it would not expand the authority of the committee.  He stated the bill changes the names of the probation department and the probation committee.  He advised that Nevada Revised Statutes (NRS) Chapter 62 currently distinguishes between two categories of counties.  One category includes those under 100,000 in population and the other, those above 100,000 in population.  He noted that Washoe and Clark counties fall into the second category.  He advised S.B. 392 would create a third category of county, one having between 100,000 and 400,000 in population.  The new category would only apply to Washoe County.  The requested name change from the Department of Probation to the Department of Juvenile Services would only apply to Washoe County. 

 

Senator James asked the reason for the change.

 

Mr. Calderone explained the department does not feel that calling themselves a probation department accurately describes their function.  He stated the members of the department are making a major effort to become involved in early intervention and prevention efforts in the community.  He advised they are afraid those efforts will be subverted because of the title of the department.  He stated their goal is for parents and children to access their services more voluntarily than they do currently.  The department would still maintain its probation function, but basically would have three divisions; probation, detention, and early intervention and prevention.  

 

Senator James asked if Mr. Calderone would describe the changes in sections 2 through 5.

 

Mr. Calderone replied the changes being made apply to each place having the language "juvenile probation department" or "the probation committee."  S.B. 392 would change these phrases to read "department of juvenile services" and "the committee for juvenile services."  He stated the bill is lengthy only because of the creation of the third category of counties.  

 

Senator James asked for and received confirmation that sections 7 through the end of the bill would create the same changes as do sections 1 through 6.

 

Mr. John Sherman, Lobbyist, Washoe County, stated that Washoe County supports S.B. 392.

 

 

Senator McGinness asked for confirmation that the purpose of the bill was to allay the fears of public perception regarding the department's function.

 

Mr. Calderone replied the purpose is to make the department more receptive to a clientele which they wish to begin addressing.  He advised the statutes indicate that the department should or may develop preventative programs to keep people out of the juvenile system.  He stated his belief that this change will make his department more effective.

 

Senator McGinness asked if the department had found that people were not coming to the agency because of the stigma of the name.

 

Mr. Calderone stated he thought this was true.  His department wishes to access parents who are having problems with children  as the children start to become incorrigible and develop problems.  He stated he did not believe most parents are anxious to bring their child to the probation department, get them involved in a juvenile justice system and have them placed on probation simply because the children are experiencing initial problems.  He added the department is finding that by the time they see children in the probation system, the children are 15 or 16-years old.  These children have a history of family disfunction and acting-out behavior.  The department is, as Mr. Calderone described it, late on the scene in those cases.

 

Senator McGinness asked if the department viewed this problem as resulting strictly from the name.

 

Mr. Calderone replied this was not the case, but the department feels the name change will help in their efforts to access the families they are not currently reaching.  He gave the example of The McGee Center for Adolescent Programs, a facility in Washoe County.  He stated this facility is mainly for incorrigible children and runaways, and is run by the probation department.  He advised his department has been attempting to get adolescents into the facility voluntary, and do have some currently.  He stated his belief that more people would come voluntarily if they perceived the facility was run by the department of juvenile services, and was a full-service organization, providing services to families and children without a stigma attached. 

 

Senator James confirmed there was no further testimony, and closed the hearing on S.B. 392.

 

The hearing was opened on Senate Joint Resolution (S.J.R.) 25.

 

SENATE JOINT RESOLUTION 25:   Proposes to amend Nevada                                 constitution to  create intermediate appellate court.  (BDR C-1907)

 

Chief Justice Robert Rose, Nevada Supreme Court, provided oral testimony in support of S.J.R. 25.  Justice Rose advised this resolution, if passed in the 1993 legislative session, would again be brought before the legislature in 1995.  If the resolution is passed in 1995, the measure will be placed on the ballot in 1996.  He advised that the Nevada Supreme Court, after Ballot Question 6 was defeated by 8 percentage points in 1992, was reluctant to resubmit this proposal to the 1993 legislature.  He stated two things persuaded the court to propose the legislation.  He advised the court believes that three things worked against passage of the 1992 proposal.  First, the proposal required the expenditure of approximately $3 million, which presented a problem to voters in difficult economic times.  He stated the next problem was a conflict at the Nevada Supreme Court.  Thirdly, the Nevada judiciary did not do a good job in explaining the 1992 proposal and why it was necessary.  He related the court's belief that, had those negatives been avoided, the proposition probably would have passed.  He advised the court believes this is a worthwhile proposal, and that the state of Nevada and the Nevada judiciary needs more appellate judges in the system.  Justice Rose advised the Nevada Supreme Court has, since 1968, had five justices, and their caseload has more than doubled.  He stated the number of district court judges in Nevada has nearly doubled.  He advised all court surveys and authorities in court management indicate that, on the appellate level, each justice should handle not more than 100 cases of an ordinary mix.  He explained the mix as being some difficult, some easy, some voluminous, and some short.  This would mean that the Nevada Supreme Court should not handle more than 500 cases per year.  Justice Rose advised the court approached and exceeded those numbers in the 1970s.  He advised the court has done two things to accomplish current production of cases.  First, they have increased the number of staff attorneys and general staff at the Nevada Supreme Court and currently have one of the largest central staffs of attorneys in the United States.  He advised this helps to get opinions out and to analyze cases.  He stated that no matter how many staff members a court has, ultimately all cases come to the five justices.  He stated there is only so much each justice can do in processing cases adequately.  Justice Rose advised that secondly, the court has resorted to what they call "the order dismissing appeal."  He advised this order simply states an appellant loses the case and explains why.  He stated this order is very brief and simple and is not published.  He stated that it has been pointed out that 107 Nevada, 1991 is the largest book produced by the court.  He advised what is not realized is that this book of cases represents less than 20 percent of the caseload of the Nevada Supreme Court.  The other 80 percent is decided on order.  Justice Rose advised that the assistance and understanding of the legislature has permitted the court to accomplish the production of about 1,000 cases per year.  He stated the court had been able to stay with the increase of cases until 1992.  He advised the court now receives cases at the rate of 100 per month, and the court can complete 1,000 per year if everything goes well and the justices push as hard as possible.  He pointed out that, using simple mathematics, the court is falling behind at the rate of about 200 cases per year.  He advised the court year ended at the end of April with statistics showing the difference in cases coming in and going out, including the an increased backlog of 201 cases.  He advised that, at this time, the justices have no adequate means to keep up with the caseload.  He stated that the justices are at, or very near, their maximum capacity of 1,000 cases per year.  He advised this affects the justices' work product and the time it takes for them to process their cases.  Both of these things adversely affect the lawyers and the citizens of Nevada.  He advised that for these reasons, the justices felt it would be irresponsible for them not to again propose the establishment of an intermediate appellate court.  He stated the justices need the court now and will desperately need it by the time it could reach the ballot in 5 years.

 

Senator McGinness asked if Justice Rose knew the numbers of votes by which the proposal failed on the 1992 ballot.

 

Justice Rose replied he did not know the actual votes, but knew it was 46 percent to 54 percent. 

 

Senator Adler asked if Justice Rose believed the intermediate appellate court could be instituted without additional cost.  He asked if it could perhaps be done through increased filing fees.

 

Justice Rose replied it might be possible to defray some of the costs through additional filing fees.  He stated reluctance to do this.  He would not want to discourage people of moderate means from access to the courts by making filing fees prohibitive.  He stated that the administrative assistant assessment could possibly be increased by $1 or $2 to help with the intermediate appellate court.

 

Senator Adler asked for confirmation that there are possible ways of funding the appellate court without actually going to the General Fund.

 

Justice Rose replied that some funds may have to come from the General Fund.  He stated he had reviewed a report which stated the appellate court would cost approximately $3 million.  He stated his belief that it could be accomplished for about one-half that amount.

 

Senator Adler asked for and received confirmation that the remainder would be funded, if necessary, by an increased administrative assessment and/or increased filing fees.

 

Senator Jacobsen asked if the appellate court would handle all general cases.   He asked if certain cases could be segregated out, making the appellate court's function more expeditious.

 

Justice Rose stated S.J.R. 25 addresses this.  He stated the court would propose that the cases going to the appellate court would be decided in finality in that court, denying another appeal to the Nevada Supreme Court.  He stated cases such as appeals from governmental agencies, and criminal cases carrying lesser fines and imprisonments would be heard by the appellate court.  He reiterated his belief that the court did not do a good job in explaining the 1992 proposal, which bothered many Nevadans. 

 

Senator Jacobsen asked if there would be one appellate court in the south and one in the north.

 

Justice Rose advised the proposal was to have the appellate court sit in southern Nevada.  He stated the judges could use the courtroom at the Nevada Supreme Court to hear cases coming out of the northern part of the state. 

 

Senator Jacobsen asked for and received confirmation that this would require new quarters in southern Nevada.

 

Senator James asked how many other states do not have a court of appeals.

 

Justice Rose replied only about six or seven states do not have an intermediate appellate court.  He believed these were all some of the smaller states.  He advised every state bordering Nevada has an intermediate appellate court.  He advised that California has appellate courts.  He stated that Arizona, which on a case filing bases is somewhat larger than Nevada, has an appellate court, Utah, which is comparable with Nevada has an appellate court, and Idaho, which is one-half the size of Nevada has three justices on their appellate court.  Justice Rose advised that Oregon has an intermediate appellate court, but he did not know its size.  He stated that all the states have seen the need for these courts when the 500 case threshold is met. 

 

Senator James asked if Justice Rose predicted that caseload would be reached within the 5-year period it would take to get S.J.R. 25 through the legislature and a vote of the people.

 

Justice Rose reiterated the court is not able to keep up with the caseload now.  He stated that in 5 years they will have gone from a difficult situation to a crisis situation.  He estimated that in 5 years the court will hear 1,500 cases and upward.  He said the court numbers track almost perfectly with the population.  He advised the population explosion, particularly in southern Nevada, hits the Nevada Supreme Court in a delayed way.  There is an approximately 3 to 4 year delay from the time the cases proceed through the district courts until they reach the supreme court.  He stated the court is beginning to see those numbers, and the cases are hitting the court in waves.

 

Senator James referred to one problem being the time required to decide appeals, which increases with the caseload.  He asked if Justice Rose could advise the time required to decide an appeal in an average case.

 

Justice Rose stated most of the court's cases go through the system in 1 year, which is excellent in comparison to other courts.  He advised from the time a case is submitted to the court, the decisions are out in an average of 6 to 9 months.  He advised the problem arises with the more difficult, complex ones.  While the justices are processing the bulk of the cases, they do not have time to get to the more complex cases.  He advised this results in the more complex cases running 1 to 2 years.

 

Senator James asked if he saw the average case being pushed farther out in time as the crisis becomes a reality.

 

Justice Rose stated he believed the average case would be pushed some, but the justices will try to keep the time at under 1 year.  He advised that one or two cases out of every ten is a more difficult case, requiring more in-depth research and more commitment from the justices. 

 

Senator James commented that the more complex cases were not always the ones involving numerous parties or large companies.

 

Justice Rose replied the cases referred to were complex because of the legal issues.  He advised these cases could involve average people.  He advised the terms "large" and "complex" did not solely deal with the numbers of litigants.  He stated quite often these are cases such as divorce and business litigation.

 

Senator James asked for and received confirmation that cases of first impression relating to a legal question being presented to the court would fall into this category.

 

Senator James confirmed there was no further testimony, and closed the hearing on S.J.R. 25.

 

Senator James opened the work session on bills previously heard in committee.

 

The hearing was opened on Senate Bill (S.B.) 155.

 

SENATE BILL 155:        Limits liability of certain persons responding to emergency involving hazardous materials.  (BDR 3-1420)

 

Senator James advised the subcommittee appointed to review this bill had presented an amendment for consideration.  He asked Senator Jacobsen, who chaired the subcommittee, to advise the progress on the bill and the amendment.

 

Senator Jacobsen advised S.B. 155 concerned mostly volunteer firemen and others who belong to groups who respond to emergencies.  He advised he sponsored the first "Good Samaritan Bill," which  S.B. 155 expands.  He stated it has become evident within the past few years, as hazardous incidents have been responded to, that the volunteers were especially concerned about the liability they could incur.  He stated this has somewhat restricted the ability to get volunteers to respond to these occurrences.  He advised there are 153 fire departments in the state of Nevada, over three-fourths of the staffs of which are volunteers.  This is especially true in rural areas, and Senator Jacobsen advised that in these cases, many  times the volunteers are also the ambulance drivers.  He advised that ordinarily when a call is received at the station, the volunteers have no idea what the call involves until they arrive at the scene.  He gave an example of this problem and as it regards potential liability.  Senator Jacobsen referred to Senator Adler's concern with regard to not giving immunity to everyone in these situations.  He advised this was not his intent.

 

Senator Jacobsen advised the proposed amendment states that the person must be an employee or member of an agency or a group.  He advised that everyone in a volunteer fire department is on a fictitious wage, which is the basis for insurance.  He stated the provisions of S.B. 155 gives the person responding to an accident a little better protection regarding liability.  He stated it is difficult to obtain volunteers.  When a volunteer puts his or her life in jeopardy, assurance is needed that someone will not have the opportunity to come back later, state he or she was not qualified to do the job. 

 

Senator Jacobsen advised that there was a bill similar to S.B. 155 in the 1991 legislature.  He stated the previous bill was opposed by the trial lawyers, and did not pass through the legislature.  He stated his belief that this issue is important with the increasing numbers of hazardous materials being transported. 

 

Senator Adler agreed that the volunteer firemen should have the same immunity as any other governmental employee.  He stated the governmental entity would cover, through insurance, any catastrophe.  He advised he supports giving the immunity spoken of to the firefighters, but that the wrong statute is being amended. 

 

Senator James asked why it mattered where the immunity was given.

 

Senator Adler replied it matters greatly.  He stated under the Good Samaritan Act these people are given absolute carte blanche immunity.  He stated S.B. 155 would result in the damaged person being monetarily responsible.  He advised if the immunity was to the firefighter under the general governmental immunity section, the county has an insurance policy which might reimburse the damaged party.  He gave an example of a person owning a piece of property next to a roadway where hazardous material was spilled in an accident.  Under the provisions of S. B. 155, if a volunteer was involved in the aftermath of the accident, the owner of the property would be responsible for the damages. 

 

Senator James stated that the exclusion for gross negligence remains, to which Senator Adler agreed.  Senator James read from the amendment:

 

            Any person who is authorized pursuant to Chapter 450(b) of NRS to render emergency medical care and as an employe of an agency . . . ."

 

Senator James asked for and received confirmation that Senator Adler's concern was that the term "person" means more than just "people."  Senator James referred to this term and one in subsection b which states "as an employee or volunteer."   He stated this was only a person acting as an employee or volunteer.  He stated the only person receiving immunity is a person who falls under those categories.  He stated he believed that in most cases there would be a "deep pocket" who would be a substantial source of recovery to someone who might be harmed by the negligence.  He advised that whoever caused the hazardous spill or other incident would still be liable under the other liability statutes.

 

Senator Adler disagreed, and stated there would be an intervening cause which created the incident.  He stated that person may be able to argue that he or she was not directly responsible.

 

Senator James stated that every joint tortfeasor who is negligent in trying to help does not become a superseding cause of the person who did the original event.

 

Senator Adler asked how this would apply if the event was caused by nature. 

 

Senator James advised this would basically apply to situations such as the following example.  A train derails next to a river and a person attempts to render assistance.  If that person incramentally harms the fish or someone near the water, S.B. 155 would insulate that person from liability for trying to help.  He advised that the transportation people would still have their own liability.  He did not see this arising in a situation where, for example, a truck flips over, nothing is released in the accident, and the firefighter somehow releases all the material.  He stated if this was the case it would very likely be gross negligence.

 

Senator Adler referred to the other section which grants a person immunity, the ability to be defended by the county if he or she is sued, and other matters.  He stated his belief that this is in the other section of the statutes regarding governmental immunity.  He stated the statute being discussed is the Good Samaritan Statute, regarding a person stopping along a roadway to assist someone in an automobile accident.  He stated he fully supports this.  However, S.B. 155 extends this to high level nuclear waste or some other hazardous substance.  Senator Adler stated there are two different statutes involved.  He said if a volunteer fireman is a public employee and subject to qualified immunity, the individual firefighter is protected.  He stated S.B. 155 goes beyond that and says there is no liability.

 

Senator James asked where Senator Adler would amend the statutes.

 

Senator Adler replied he would use basically the same language, but put it under NRS Chapter 41.037, and define a volunteer firefighter and others in that section.  He stated the person would then have the protection of having governmental immunity, rather than saying he or she is a good samaritan.

 

Senator Jacobsen agreed that this was a good possibility.  He indicated that a person responding would not have caused the accident and did not know it happened until he or she reached the scene.  He understands the gross negligence issue. 

 

Senator James advised the reason he wanted this bill in a subcommittee was to accomplish the objective of insulating the individual person from liability.  He stated this really is in a "good samaritan" setting.  He stated he interpreted the amendment as doing just that.  He reiterated the various parts of the amendment.  He stated that if the subcommittee still has concern, they might wish to meet again.  He advised he had no problem with putting the language in the general immunity statute if the subcommittee determines this would better accomplish the objective. 

 

Senator Adler stated he agreed with Senator Jacobsen, and believed the debate is only as to which section the language should be placed. 

 

Senator James advised the bill would be held pending further review by the subcommittee.  He stated a good effort had been made by the subcommittee.  He closed the hearing on S.B. 155.

 

The hearing was opened on Senate Bill (S.B.) 353.

 

SENATE BILL 353:        Increases amount of homestead                             exemption.  (BDR 10-129)

 

Senator James briefly explained the bill.  He stated he had done research regarding facts about the medium price of a home in Las Vegas.  He advised he received information from the Realtor's Association provided in a publication entitled Home Sales Existing in New Single Family, Apartments, Condominiums and Co-ops.  He advised the homestead exemption was last increased in 1989, from $90,000 to $95,000.  He stated that S.B. 353 requests an increase from $95,000 to $105,000.  He said that in Las Vegas, in 1992, the medium sales prices of existing family homes was $101,400 in the first quarter, $105,000 in the second quarter, $106,000 in the third quarter and $103,000 in the fourth quarter.  He stated in 1990, the medium price was $93,000, in 1991 it was $101,000, and in 1992 it was $104,000, revised.  He advised that in Reno, the medium prices in 1991 were $116,000 in the first quarter, $119,000 in the second quarter, $118,000 in the third quarter and $117,000 in the fourth quarter.  He advised that Texas has a law that states in rural areas the homestead exemption is so many acres of land.  Therefore, it does not matter how expensive the home is, the exemption applies to the home and the piece of land.  He advised that in most other states a number is used which attempts to protect the equity.  If the home sells for more, the creditors take the excess, and the owner can take the amount of the exemption to attempt to buy another home.  He stated this was his concern in researching the issue.  He referred to the dichotomy in Nevada which makes the provision less valuable to the people in northern Nevada than in southern Nevada. 

 

Senator Adler stated that it would be comparable, as this refers to the equity amount.  Many owners have a note on the home. 

 

Senator James stated that, given the research results, he had no problem with the $105,000 exemption. 

 

      SENATOR SMITH MOVED TO DO PASS S.B. 353.

 

      SENATOR SHAFFER SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR TITUS WAS ABSENT FOR THE VOTE.)    

 

      * * * * *

 

Senator James opened the hearing on Assembly Bill (A.B.) 60.

 

ASSEMBLY BILL 60:       Provides consequences of environmental impairment of real collateral.  (BDR 3-480)

 

Senator James briefly described the bill.  He stated he initially had questions as to whether the debtor's interest was protected in the event a receiver is appointed even though the loan was not in default.  He stated he believed there was no problem with the procedure outlined in A.B. 60.

 

Senator Adler stated he had a question regarding the possibility of the cleanup costing more than the property is worth.   He said that at this point, in all probability other things such as bankruptcy would be occurring.

 

John P. Sande, III, Lobbyist, Nevada Bankers Association, addressed this question.  He advised that federal law would require the owner to accomplish the cleanup, regardless of the cost.  He stated that, from a practical standpoint, if the lender was trying to force the cleanup and seek damages, the damages would be only the amount owed. 

 

      SENATOR SHAFFER MOVED TO DO PASS A.B. 60.

 

      SENATOR SMITH SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR TITUS WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

Senator James opened the hearing on Assembly Bill (A.B.) 63.

 

ASSEMBLY BILL 63:       Requires separate penalty hearing in all criminal cases which result in conviction of defendant for murder of first degree.  (BDR 14-589)

 

Senator James briefly described the bill.  He invited Ben Graham to advise the committee regarding his discussions with Judge Charles Thompson who, on behalf of the judge's association proposed A.B. 63.  Senator James stated the Senate Committee on Judiciary was concerned regarding the fiscal impact of A.B. 63, and the possibility of it being inappropriate philosophically from a sentencing standpoint.

 

Ben Graham, Lobbyist, Nevada District Attorney's Association, provided oral testimony.  He advised he had a meeting with Judge Thompson and had a telephone conversation with Judge Becker, District Court Judge in Las Vegas, regarding A.B. 63.  Mr. Graham stated that everyone is in agreement that there is information from time to time which should be given to the sentencing judge, an option that under the current law is not available.  He stated that Judges Thompson and Becker advised the fiscal impact would be minimal.  They stated there would probably be 5 to 6 hearings per year in Clark County, the impact of which would be involve jurors' fees, and additional time for the judge to hear the penalty phase.  Mr. Graham relayed that the judges are not upset over the process, and have indicated that the jury should not be involved in the sentencing process at all, except in first degree murder cases.  Mr. Graham advised there is a split in the legal community over this issue.  Mr. Graham urged passage of A.B. 63, as amended, leaving the sentencing with the jury.  He stated this is what the judges, as well as some attorneys on both sides, would prefer. 

 

Senator James confirmed the language of the amendment.  He asked if the three judge panel in the amendment is a change from current law.

 

Mr. Graham advised it is not really a change.  He said the three judge panel is provided in current law, in the case of a non-jury trial and if the death penalty is sought.

 

Senator Adler asked if it was constitutional to have people stipulating to these procedures.

 

Mr. Graham advised this gives the defendant and the state the option of having a separate penalty hearing, the possibility of which currently does not exist.

 

Senator Adler asked if this would not create disparity in defendants who choose different procedures and receive different sentences.

 

Mr. Graham did not believe this would happen.  He reiterated it must be an agreement between the defense and the prosecution before the trial takes place.

 

Senator Adler stated that, as Clark County Public Defender, he has noticed that the only cases in which stipulations occur are those involving white people.  Black people never get a separate hearing. 

 

Mr. Graham stated he discussed the bill with a couple of defense attorneys.  He was advised it is generally the state who wants to put on the separate hearing. This is due to the evidence which can come in during a penalty phase which does not come in during the guilt phase.  He related the defense attorneys' assertions that they present different evidence if they know the jury is going to decide the sentence.  He advised there was feeling that the provisions of A.B. 63 would be fair to both sides, and in the right circumstances, the penalty hearing would be waived. 

 

Senator Adler stated there is much case law regarding prosecutorial discretion in charging, and he was still concerned regarding the constitutionality of A.B. 63.

 

Mr. Graham reiterated that the judges and members of the defense bar to whom he had spoken feel A.B. 63 is viable.

 

Senator James advised he would request the amendment be drafted, and the bill will be brought up for voting at a future work session.  He closed the hearing on A.B. 63.

 

The hearing was opened on Assembly Bill (A.B.) 80.

 

ASSEMBLY BILL 80:       Revises definition of value as it relates to eminent domain.  (BDR 3-455)

 

Senator James briefly explained the bill, and the two separate parts.  He advised the first part states an enhanced value will not be paid because the property is being condemned.  He stated the second major change inserts the definition of market value into the statute.  He advised he had received  memorandums from the Attorney General's Office, Johnson, Wright & Associates, and John Gezelin, Esq.  Senator James advised he believed it appropriate to adopt the statutory admonishment that, in determining property value, future improvement to the property resulting from condemnation not be taken into account.  He stated he also believed it appropriate to set forth criteria, which would essentially be the basis for jury instructions, on fair market value.  He advised these criteria would be the ones to which appraisers in the state of Nevada would uniformly testify in condemnation cases.  He stated A.B. 80 would change the definition of fair market value from "highest price," as set forth in the Nevada cases, to "most probable price."  He recalled that John Gezelin had argued the legislature should not diminish the constitutional meaning of "just compensation" received for property.  Senator James advised "just compensation" has been defined by the courts over the years.  He was concerned that a change from "highest price" to "most probable price" would diminish the meaning of "just compensation."  Senator James quoted from Mr. Gezelin's memorandum, a passage taken from an 1800s Nevada Supreme Court case:

 

            No legislature can diminish by one jot the rotund expression of the constitution of just compensation.

 

Senator Adler stated he had conferred with Chief Justice Rose regarding this question, and that Justice Rose stated the Supreme Court does not have a problem with adding to or changing the definition.  The court likes to keep their opinions intact, but the justices stated the legislature should feel free to implement something believed to be better.  Senator Adler further advised the court was not adverse to changing or adding to the definition of market value, as long as it was a better definition in the opinion of the legislature.

 

Senator Smith advised that Chief Justice Rose had similarly assured him.

 

Senator James advised that the taxpayers would not want the payments made to people whose land is being condemned to be higher than they should be.  On the other hand, the people whose land is being taken want to be justly compensated.  He stated that everyone states the proposed change is important, and he simply wanted assurance that property owners are getting their constitutional due.  Senator James asked Mr. Johnson to explain the information provided by his firm.

 

Stephen R. Johnson, Appraiser, Johnson-Wright & Associates, provided oral testimony.  He stated his belief that the term "most probable price" has been misinterpreted in many cases, and has not being equally applied in every instance.  He has seen inequities and inconsistencies resulting from the misinterpretation of that term.  He stated he did not believe that "most probable price" should affect just compensation, and in fact would result in more consistency of jury awards and final determinations.  He stated that with this definition, everyone would be treated more equally. 

 

Senator James confirmed there were no questions from the committee.  He advised he did not want to have A.B. 80 cite the definition of value as is defined in the Code of Federal Regulations (CFR), Chapter 12, part 34.42(f).  He advised the Nevada legislature, rather than a federal agency, will determine whether or not this change is made.  For this reason, he stated he would like to amend A.B. 80 to set forth, in full, the definition of "value," rather than citing the rule in CFR.

 

      SENATOR SMITH MADE A MOTION TO AMEND AND DO PASS A.B. 80.

 

      SENATOR MCGINNESS SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR TITUS WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

Senator James opened the hearing on three bills previously heard in committee regarding uniform acts.  He advised there was no opposition to any of the bills when heard in committee, and no amendments were made by the assembly.  Senator Adler advised that approximately 4 years are spent drafting each of these acts, and therefore everything in the bills has been thoroughly discussed and reviewed.

 

ASSEMBLY BILL 345:            Adopts Uniform Foreign-Money Claims Act.  (BDR 2-1216)

 

      SENATOR SMITH MOVED TO DO PASS A.B. 345.

 

      SENATOR ADLER SECONDED THE MOTION.

 

      THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

ASSEMBLY BILL 350:            Conforms Uniform Federal Lien                            Registration Act fully to latest revision by Uniform Law Commissioners.  (BDR 9-1023)

 

      SENATOR SMITH MOVED TO DO PASS A.B. 350.

 

      SENATOR SHAFFER SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR TITUS WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

ASSEMBLY BILL 362:            Adopts Uniform Law on Notarial Acts.  (BDR 19-1217)

 

      SENATOR SMITH MOVED TO DO PASS A.B. 362.

 

      SENATOR MCGINNESS SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR TITUS WAS ABSENT FOR THE VOTE.)

 

       * * * * *

 

Senator James reopened the hearing on S.B. 392.  He briefly reviewed the bill.

 

Senator McGinness asked for confirmation that the reason for changing the name was strictly for public perception.  He stated if passed, the portion of the bill relating to expansion of authority should be removed. 

 

Senator James stated that the summary and the title of the bill could be amended to reflect this change.

 

      SENATOR MCGINNESS MOVED TO AMEND AND DO PASS S.B. 392.

 

      SENATOR SHAFFER SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR TITUS WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

Senator James confirmed there was no further business to come before the committee, and adjourned the meeting at 12:48 p.m.

 

 

 

 

 

 

 

 

 

 

 

                  RESPECTFULLY SUBMITTED:

 

 

 

                                          

                  Sherry Nesbitt,

                  Committee Secretary

 

 

 

APPROVED BY:

 

 

 

 

                                

Senator Mark A. James, Chairman

 

 

DATE:                           

??

 

 

 

 

 

 

 

Senate Committee on Judiciary

April 23, 1993

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