MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
May 3, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 2:05 p.m., on Monday, May 3, 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
Marilyn Hofmann, Committee Secretary
GUEST LEGISLATORS PRESENT:
Senator Matthew Callister
OTHERS PRESENT:
Robert Barengo, Nevada Consumer Finance Association (NCFA)
Mel Kaulkin, ITT Consumer Financial Corporation and Nevada Consumer Finance Association (NCFA)
Paula Treat, Nevada Judges Association (NJA)
The Honorable Ed Johnson, Justice of the Peace, Dayton Township
The Honorable Robey Willis, Nevada Judges Association (NJA)
Kelly Krick, Process Server, Allied Services
Robert Hadfield, Executive Director, Nevada Association of Counties (NACO)
Stephanie Tyler, Representing Various Wedding Chapels
George Flint, Chapel of the Bells, Reno, Nevada
Fred Hillerby, Associated Pathologists Laboratories (APL)
Kevin G. Higgins, Senior Deputy Attorney General, State of Nevada, Office of the Attorney General, Criminal Justice Division
Beverly J. Saucedo, Extradition Officer, State of Nevada, Office of the Attorney General
* Committee member only present for a portion of the meeting. This is noted in the body of the minutes.
Senator James opened the hearing on Senate Bill (S.B.) 413.
SENATE BILL 413: Makes various changes regarding civil actions.
The first to testify on the measure was Robert Barengo, Nevada Consumer Finance Association (NCFA). Mr. Barengo stated the NCFA supported raising the jurisdiction of justices and small claims courts, and did not take a stand regarding the first portion of the bill regarding service of process. He said the legislation would raise the jurisdictional amount in small claims court from $2,500 to $5,000. Mr. Barengo added it was "increasingly difficult to bring an action in justice court" because of the cost of attorneys' fees, and stated support for a $10,000 limit.
The next to testify was Mel Kaulkin, ITT Consumer Financial Corporation and the NCFA. Mr. Kaulkin set forth support for S.B. 413. He said those he represents would like to see the jurisdictional amount in small claims court be raised to a number "that would not have to be revisited in a short period of time," i.e, $5,000. Mr. Kaulkin said small claims court was expedient and inexpensive for all parties involved.
Senator McGinness asked when the last time jurisdiction was raised in the justice courts, and Mr. Barengo replied it was raised during the last session in 1991. He added small claims jurisdiction has not been raised "for several years." Mr. Barengo stated there was opposition on the part of the justices during the past session, therefore the amount was only raised "somewhat." He added, "We are finding now, particularly in the larger counties...it is not worth [the people's] time to go into court for $5,000...."
Senator James indicated he was concerned with "overburdening the justice courts with new cases" since the limit would be doubled. He added the legislature has made many efforts to try to ease the burden on the district courts, including the implementation of the family court system and the arbitration law. Senator James added, "It seems like our district courts move remarkably fast compared to other states...in weighing the burdens of the district courts versus the justice courts...," and asked Mr. Barengo if he felt there would be a fair allocation of those burdens if S.B. 413 were passed. Mr. Barengo replied the district courts "while they may move more speedily than other states, are much slower than they used to be." He added while there might be $10,000 monetary jurisdiction in justice court, "...a lot of other things that would go into district court would not be included in the justice court, because of the way the jurisdiction reads."
Mr. Barengo stated all the business people he had spoken to were in favor of higher jurisdictional levels in the smaller courts. Senator James repeated his concern regarding burdening the justice courts with more cases and asked if that system would then become clogged. Mr. Barengo answered the burden in the larger counties was large but added the courts were "cheaper to operate." He stated studies regarding the judicial system have been done since the mid-1970s and there have been many recommendations to broaden the base of the justice courts and small claims courts, rather than the district courts. Mr. Barengo said Nevada "has chosen to add more district court judges over the years...and I think this [the justice court] level is cheaper."
Senator Titus entered the room at 2:20 p.m.
Speaking in opposition to S.B. 413 was Paula Treat, speaking for the Nevada Judges Association, (NJA), which represents all judges in the lower courts in the state. Ms. Treat stated they had no objection to the first section of the bill, regarding service of process but added, "From there on we are highly opposed." Ms. Treat said they worked with the assembly committee last year when the jurisdictional amount for justice court was changed from $2,500 to $5,000.
The next to speak was The Honorable Ed Johnson, Justice of the Peace, Dayton Township, speaking on behalf of the NJA. Judge Johnson agreed with earlier testimony that "you can get into justice court a lot quicker than district court" but added the monetary increase would double the jurisdiction of the court and have a "great impact on our court...especially the administrative staff." He said it would entail the hiring of additional personnel. Judge Johnson stated most of the justice courts have had an increase in filings of 100 percent to 400 percent since the amount was increased in 1991. He said the Reno Justice Court in one day had 409 filings by one company, causing the staff to work overtime in order to handle those filings.
Senator James asked Judge Johnson if he could provide a "written digest of the figures in the various justice courts around the state," showing what happened from the time the jurisdictional limit was raised in 1991 with respect to an increase in work load. He also asked for a breakdown of what the courts were required to do fiscally and if increased personnel was necessary. Senator James stated this information was necessary so the committee could have an idea of how much burden will be placed upon the justice courts if S.B. 413 is passed. Judge Johnson indicated he would provide that information to the committee.
Judge Johnson pointed out S.B. 413 does not address any increase in filing fees. He indicated additional staff could be hired if there was such an increase. Ms. Treat pointed out Judge Robey Willis, who would testify next, saw an increase in his court from 300 to 980 cases after passage of the 1991 legislation. She pointed out, as did Judge Johnson, there would be a tremendous increase in caseload, "without financial assistance to keep the courts running smoothly."
Senator Shaffer asked if the economy would have had an influence on the increase in the number of cases filed during the time period referred to by Ms. Treat. Ms. Treat answered it may have had "some influence" but indicated the majority of the new cases involving sums between $2,500 and $5,000 were the result of the change in the law.
Senator James indicated it would be very helpful to see a breakdown of which cases were filed in the justice courts which would have had to be filed in the district courts if the monetary jurisdiction had not been raised. Senator Adler agreed and added a survey of projected extra courtroom space for new judges would be helpful. Judge Johnson stated he did not believe the impact would necessarily cause an increase in the number of judges, except in the larger courts, because only a few of the cases filed actually go to court. He said it would be the clerks and clerical staff who would "be inundated by all the filings."
The next to speak to the committee was The Honorable Robey Willis, President, Nevada Judges Association. He concurred with the testimony of Ms. Treat concerning the increase in the amount of cases filed since the 1991 legislation went into effect. Judge Willis stated the increased filings impacted the civil division of the Carson City Municipal Court and created the necessity of hiring an additional clerk. He said the court in Carson City had no space for additional clerks and he understood the situation was the same in Douglas County. Judge Willis stated he did not oppose the increase to $5,000 which was passed in 1991 but added, "Give us some breathing time to catch up...don't keep coming back and doubling each session." He provided various statistics to the committee regarding the monetary jurisdictions in the lower courts of surrounding states. A breakdown of that information is contained on Exhibit C attached hereto.
Judge Willis indicated he had received a call from the justice court in Las Vegas, at which time concern was expressed as to how passage of the bill would affect that court. He stated he was asked to strongly oppose the bill.
Ms. Treat said when they worked with the assembly committee last session and agreed to support raising the jurisdiction to $5,000, "...we didn't anticipate we would be asked to double again this year." She added the original request in 1991 was a raise to $10,000, but $5,000 was agreed upon at that time. Ms. Treat indicated there was a request by the committee for the judges association to return in 1993 and let them know if the higher jurisdiction had been a burden.
Judge Willis reiterated earlier testimony by Judge Johnson that many of the cases which involve attorneys do not "go to court" but stated the burden on the clerical staff was tremendous.
The next to testify was Senator Matthew Callister who indicated he wished to speak regarding section 1 of the bill. Senator Callister stated the proposal set forth in that section was requested by several process servers. He said it involved the ability to serve a guard at a gated community with legal process, when access could not be made inside the gates of that community. Senator James indicated there was a lot of cost involved when a party could not be served by normal means. Senator Callister stated service by mail was the "least effective means of service" but was the "fallback measure" when more effective means could not be utilized.
Joining Senator Callister to testify on S.B. 413 was Kelly Krick, a process server who owns and operates Allied Services in Reno, Nevada. Mr. Krick stated he was appearing in front of the committee "in order to make my job a little easier." He referred to a community in Reno which requires passing through a secured gate. Mr. Krick said the resident is called by the security guard and if he or she does not want to accept service of process, "...they tell you to go jump in the lake." He said this begins a process which elongates the service and becomes more expensive.
Senator Callister stated the remaining provisions of S.B. 413 address concerns of small lending companies. He said with the advent of new rules involving mandatory arbitration, a lot of litigation which should be fairly simple has been extended and made more difficult. Senator Callister said the result was legislation to consider the increase "to some appropriate level" of the justice court jurisdictional limits. He stated he was "not wed to" the numbers set forth in the bill and would leave it to the committee to discuss what might be an appropriate jurisdictional limit. Senator Callister stressed the need for an increase, especially in small claims court. He said he was "sensitive to the concerns that have been raised by the NJA and suggested consideration by the committee of an increase in filing fees. Senator Callister added, "Justice comes with a price tag and we need to keep the system moving expeditiously." He said at this time there are a number of "very simple actions which are being compelled into courts of higher jurisdiction...because they happen to fall on the wrong side of $5,000."
Senator Adler suggested one of the problems may be the district court's rules "which are supposed to make things run smoothly...but cost litigants a ton of money...," such as pretrial reports and early case conferences. He added he believed it would be advantageous to suspend some of those rules for persons with cases under $15,000, "...and have a streamlined district court process, so you could get in and get out...." Senator Callister responded this was the same line of reasoning behind S.B. 413. He continued, "If you have a suit which involves $6,000...you are compelled to file other than in justice court...you must go through the lengthy process you have talked about...." Senator Callister added in an era where attorneys' fees can be in excess of $200 per hour, "...you can spend more in the cost of fees because of the obligations to litigate...than you are litigating about...that does a disservice and stands the system on its head."
Senator James stated it would be interesting to see objectively how much of a fee increase would offset the anticipated additional costs to cover needed staff. Senator Callister indicated he would research that subject and report back to the committee. Senator James said that information, together with that requested from the NJA, would provide the committee with all the information they will need to make a good decision on the bill.
The last person to testify on S.B. 413 was Robert Hadfield, Executive Director, Nevada Association of Counties (NACO). Mr. Hadfield stated NACO normally does not become involved in issues related to the administration of the justice system. He added, however, "...due to financial conditions...this year our board decided we had to take a position on anything we believe could have a negative impact on the county and its ability to fund its operations...." Mr. Hadfield said the judges who appeared raised issues regarding costs which NACO believes are important, and which should become part of deliberations on the issue. He said there are staff and space problems in the various counties and added some counties have reached the statutory cap for raising revenue, thereby having no general revenues to devote to increased costs for any segment of county government. Mr. Hadfield said he sees no shift in costs, but rather added costs if the legislation were passed.
Mr. Hadfield indicated there would be a "omnibus fee bill" introduced in the assembly in the near future, which addresses the issue of county fees across the board. He said many of the fees in the statutes have not been increased in the past 10 years. Mr. Hadfield stated the provisions of that bill "did not anticipate this type of shift...it was done to give us back what has been eroded by inflation over the years." He said he would share the provisions of the anticipated legislation with the committee as soon as it was prepared and introduced.
There was no further testimony on S.B. 413. The chairman closed the hearing on the bill and opened the hearing on Assembly Bill (A.B.) 361.
ASSEMBLY BILL 361: Authorizes municipal judge to perform marriages in this state and authorizes justice of the peace to perform marriages in commissioner townships.
Testifying on behalf of the legislation was Paula Treat, representing the Nevada Judges Association (NJA). Ms. Treat said the bill would allow municipal judges and justices of the peace in commissioner townships to officiate at weddings under certain circumstances. She said the original bill would have allowed the judges or justices of the peace to conduct a limited amount of such weddings, without receipt of compensation. Ms. Treat stated the assembly committee changed the number of weddings which could be performed from five to "an unlimited amount." She indicated the NJA would like the number to be limited to no more than 20.
Senator Adler referred to an earlier request for a bill draft, which would allow clergy from out of the state to perform marriages in Nevada for family members and asked Ms. Treat if she would consider an amendment to A.B. 361. Ms. Treat replied, "If it is anything that will jeopardize our simple piece of legislation, I would oppose it."
George Flint, Owner, Chapel of the Bells in Reno, spoke to the issue of out-of-state clergy. He pointed out a simple word change to Nevada Revised Statutes (NRS) 122.061 could solve this problem. Mr. Flint said county clerks are "very liberal" in giving permission for an out-of-state minister or priest to perform a ceremony, particularly if that minister is related to the couple. Senator James indicated he would consider holding a separate hearing on the matter of a possible amendment to A.B. 361 which would address the issue of out-of-state clergy.
The next to testify on A. B. 361 was Stephanie Tyler, representing various wedding chapels. Ms. Tyler stated her clients feel the bill is a "good happy medium." She said the original bill draft provided that municipal judges would have to obtain permission from a district court judge in order to perform a marriage ceremony. Ms. Tyler said as a "compromise," they feel it is correct to place a cap on the number of marriages which could be performed. She stated the bill, nicknamed "the friends and family bill," would prohibit the justices of the peace and municipal judges from conducting marriage ceremonies for compensation. Ms. Tyler concluded, "This addresses the original intent but puts a cap back on which is very important for the state of mind of the wedding chapel industry...."
Senator James closed the hearing on A.B. 361 and opened the hearing on Assembly Bill (A.B.) 363.
ASSEMBLY BILL 363: Allows admission into evidence affidavit of certain laboratory directors to prove results of test conducted at medical laboratory.
Testifying on behalf of Associated Pathologists Laboratories (APL), Las Vegas, Nevada, was Fred Hillerby. Mr. Hillerby stated the bill was requested by APL "in response to the changing times." He said in the current statutes regarding evidence, there is specific authority for laboratories to use affidavits for admission into evidence regarding blood alcohol and controlled substances, when those are involved in drunk driving cases. Mr. Hillerby indicated the law also allows for specific authority to submit affidavits in cases where parentage is the issue. He continued, "More and more we find laboratory tests are being used as evidence in cases regarding wrongful termination after drug testing and other such testing." Mr. Hillerby said rather than have to address each different situation as it arises, the APL felt it would be better to have legislation which states, "In a licensed laboratory...if that test if being used as evidence...an affidavit from the laboratory director would be acceptable in evidence." He added if a defendant wishes to cross-examine the expert witness, he or she may do so, a privilege which is already present in the statutes. Mr. Hillerby concluded, "This will save some of our pathologists from sitting 8 hours waiting their turn to testify...." He said they asked for and received support of the Nevada District Attorney's Association.
Senator Jacobsen asked if the affidavit contained details, and Mr. Hillerby answered it was "very detailed...very explicit...because they become evidence."
Senator Titus asked Dennis Neilander, Senior Research Analyst, how this legislation compares with a previous bill which dealt with sworn statements and affidavits. Mr. Neilander indicated that legislation used a declaration in place of a notarized statement in affidavits submitted by persons who draw blood in a Driving Under the Influence (DUI) case. He said the committee had requested a bill draft request (BDR) to allow a declaration in place of notarized affidavits throughout the statutes, but it has not yet been prepared. Senator James stated if legislation were passed in that regard, it would state a declaration could be filed any place which required an affidavit. Mr. Hillerby indicated that legislation would be beneficial to the APL.
There was no further testimony on A.B. 363 and the chairman closed the hearing on the bill and opened the hearing on Assembly Bill (A.B.) 487.
ASSEMBLY BILL 487: Requires filing of post-conviction petition for writ of habeas corpus in county where conviction occurred.
The first to testify was Kevin G. Higgins, Senior Deputy Attorney General, State of Nevada, Office of the Attorney General, Criminal Justice Division. Mr. Higgins explained the bill as "basically a technical correction" and provided a written statement, which is attached hereto as Exhibit D. Mr. Higgins stressed there was no impact by way of the legislation except to make clear where writs of habeas corpus (post-conviction relief) were to be filed.
There was no further testimony on A.B. 487. Senator James opened the hearing on Assembly Bill (A.B.) 489.
ASSEMBLY BILL 489: Requires attorney general to pay expenses to extradite person located outside United States.
Appearing on behalf of the Nevada Office of the Attorney General were Kevin G. Higgins, Senior Deputy Attorney General, Criminal Justice Division, and Beverly J. Saucedo, Extradition Officer. Mr. Higgins provided a written statement of explanation, which is attached as Exhibit E. In addition, he stated, "We have been doing something for years that we are not technically provided to do...which is to pay for international extraditions." Ms. Saucedo said last year the attorney general's office paid approximately $673,000 in extradition costs, of which amount $10,434 was to cover international extraditions.
Senator James indicated he would check with the finance committee regarding any possible fiscal impact before he would ask for a vote on A.B. 489.
Senator Jacobsen questioned whether "it was worth it" to extradite a person for a minor crime. Ms. Saucedo indicated most persons who are extradited have committed murder or sexual assault. Senator Jacobsen asked how many international extraditions were done during an average year. Ms. Saucedo answered out of 756 extraditions in 1992, only two were international extraditions.
Senator James closed the hearing on A.B. 489. The chairman then opened the hearing to a work session on bills previously heard.
SENATOR TITUS MOVED TO DO PASS A.B. 487.
SENATOR McGINNESS SECONDED THE MOTION
THE MOTION CARRIED UNANIMOUSLY
* * * * *
SENATOR TITUS MOVED TO DO PASS A.B. 363.
SENATOR ADLER SECONDED THE MOTION
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
Senator James indicated a request for a bill draft regarding the "statute of repose" for real estate improvements had been received, because the statute had been rendered unconstitutional after being changed during the last session. The chairman explained the "statute of repose":
The statute of limitations is a limitation within which time an action can be filed. The statute of repose sets an outer limit with respect to some specific fact circumstances...such as the improvement of real estate.
The chairman said this type of statute has been "constitutionally sensitive" and Nevada's law has been ruled unconstitutional on two occasions.
SENATOR ADLER MOVED TO REQUEST A BILL DRAFT REGARDING THE STATUTE OF REPOSE.
SENATOR McGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
SENATE BILL 225: Authorizes issuance of subpena by attorney general or district attorney in criminal investigation of racketeering.
Senator Adler stated the Nevada Division of Investigations has asked for a revival of the bill, which was earlier indefinitely postponed, in order to present an amendment. Senator James said the committee has expanded "a lot of things in the law enforcement area" during this session. He said this particular bill was indefinitely postponed at the request of many law enforcement representatives. Senator James stated he did not wish to revive S.B. 225. The committee members had no objection.
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
May 3, 1993
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