The Committee on Judiciary was called to order at 8:10 a.m., on Tuesday, March 23, 1999. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Mr. Bernie Anderson, Chairman

Mr. Mark Manendo, Vice Chairman

Ms. Sharron Angle

Mr. Greg Brower

Ms. Barbara Buckley

Mr. John Carpenter

Mr. Jerry Claborn

Mr. Tom Collins

Mr. Don Gustavson

Mrs. Ellen Koivisto

Ms. Sheila Leslie

Ms. Kathy McClain

Mr. Dennis Nolan

Ms. Genie Ohrenschall

GUEST LEGISLATORS PRESENT:

Assemblyman Hettrick, District 39, Douglas County

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Chairman Anderson called the meeting to order and opened the hearing on A.B. 333.

Assemblyman Hettrick, District 39, Douglas County, explained A.B. 333 addressed the issue of involuntary manslaughter and he felt the bill "plugged a hole" in the law. He related an incident in Douglas County where a large truck was stopped across the highway and two individuals in a car hit the truck and went under the bed of the truck and both occupants were decapitated. The driver of the truck was not properly licensed and he was charged with a misdemeanor, but there was no way to charge him in the deaths of the two individuals.

Assemblywoman Buckley referred to Nevada Revised Statute (NRS) 193.190, which described criminal intent or criminal negligence. She stated she had discussed the difference between criminal and civil negligence with the legal staff of the Legislative Counsel Bureau (LCB). She pointed out criminal negligence had a higher standard and wondered if simple negligence referred back to the civil standard.

Ben Graham, representing the District Attorney’s Association, testified he offered the support of the district attorneys from all 17 counties in Nevada for A.B. 333. He stated from time to time there was a traffic violation that resulted in a death. He hypothesized a person ran a stop sign, hit another vehicle, and caused a death and all the family of the victim could be told was the driver could only be charged with running a stop sign.

Scott Doyle, district attorney, Douglas County, responded affirmatively to Ms. Buckley’s question and stated if the bill was passed and approved it would allow for a criminal misdemeanor conviction predicated on several elements. The first was a violation of chapter 484 or chapter 706 of the NRS, must be found, which were the motor vehicle and motor carrier chapters respectively. Most of the crimes codified in those chapters were misdemeanors. Secondly, it must be found the violation constituted either criminal negligence or simple negligence. He noted that was the reason for the affirmative answer for Ms. Buckley.

Mr. Doyle pointed out gross and criminal negligence were virtually interchangeable in law as far as the type of conduct that was found to exist. Criminal negligence was punished more severely and currently the law provided for a class D felony. He suggested because simple negligence, coupled with the motor vehicle code violation, was less blame worthy the recommendation was to punish as a misdemeanor.

Ms. Buckley questioned on page 2 of the bill where it was changed to simple negligence, the penalty would still be a misdemeanor and Mr. Doyle responded affirmatively. She stated it helped her comfort level with the bill, but she was concerned that simple or civil negligence was when somebody made a mistake. As an example, the person did not see the light turn red and they were sorry, it was a mistake. If it caused an accident the insurance paid for it and they paid the ticket. She noted that was not an intent to harm anyone.

Offering a background on the bill, Mr. Doyle explained for about 25 years the Nevada Supreme Court recognized the issue of simple negligence, if a court was going to try to prescribe criminal punishment for it, it must be done by statute. He noted in the letter he sent to Chairman Anderson (Exhibit C), many states, in the vehicular context, took a look at the violation of a motor vehicle code, plus the fact pattern giving rise to simple negligence, and prescribed a lesser punishment than the normal punishment seen for involuntary manslaughter. He commented that was the reason they were not just punishing simple negligence, which was a mistake, but it must be simple negligence plus a violation of the motor vehicle code or the motor carrier code, which would then result in a misdemeanor punishment.

Mr. Doyle stressed he did not want the committee to think they were punishing simple negligence and nothing more. They were looking for conduct that was negligent, but they were also looking for an act that would constitute a violation of existing traffic laws applicable to both motorists and commercial carriers.

Mr. Doyle indicated one of the primary concerns in the 1995 and 1997 sessions was a fear on the part of law enforcement the charge of vehicular involuntary manslaughter at the misdemeanor level might be used by prosecutors as a means to dispose of cases in which a more serious penalty had been prescribed. In the bill the list of crimes had been increased from two, eluding peace officers and reckless driving causing death, to four crimes. The additional crimes were failing to stop at a road block causing an accident giving rise to substantial bodily harm or death, and driving under the influence causing substantial bodily harm or death. He stressed those four crimes were excluded from eligibility under the new crime defined under A.B. 333. He clarified if the fact pattern for the other four charges existed, prosecutors must pursue those rather than the new crime. That prevented the potential for misuse which law enforcement officials in the past had a concern about in A.B. 333.

Assemblyman Nolan related a recent accident in Illinois where a truck driver pulled the truck onto the railroad tracks causing a major accident, and asked how the bill would affect a situation like that one.

Chairman Anderson asked Mr. Doyle to relate the details of the accident Mr. Hettrick had noted in his presentation, to help answer Mr. Nolan’s question.

Mr. Doyle responded there was a hay truck pulling a double tandem trailer loaded with hay, traveling on U.S. Highway 395 south of Gardnerville. The truck did not have adequate clearance lights on the sides of the trailer and the individual operating the truck did not have proper licensure under both the motor vehicle code and the commercial carrier chapters of the NRS. He attempted to execute a U-turn on the eastside of the highway, overshot the shoulder mark, and the tractor tires went off of the shoulder and into a drainage ditch and the vehicle was stopped across the highway. Another vehicle was heading southbound with a driver and a single occupant, both United States Marines, and they did not see the trailer across the highway because of the lack of the amber clearance lights on the side of the trailer. Mr. Doyle related the driver saw the trailer too late, attempted to brake, slid underneath the trailer, and sheared off the top of the vehicle causing massive blunt force trauma and they succumbed to their injuries at the scene.

Mr. Doyle observed his office was able to charge the driver with the licensure violation and the clearance light violation which were both misdemeanors. He expressed how dismayed the families of the victims were because they felt a manslaughter charge should have been present because there were fatalities involved in the case.

Mr. Doyle pointed out, if A.B. 333 had been law at that time, because it was simple negligence and misdemeanor violations under the motor vehicle code and the motor carrier code, his office would have been able to charge a misdemeanor manslaughter case. He noted the charge filed against the driver, as well as the conviction obtained, would have better reflected the facts in the case noting fatalities were involved.

Mr. Nolan apprised the cases were very similar and the response addressed his question.

Assemblyman Brower related a hypothetical situation where a person ran a red light and caused an accident and asked if that currently was a misdemeanor offense and Mr. Doyle responded affirmatively. Mr. Brower continued by asking under the bill, if a person ran a red light due to simple negligence and caused an accident, and somebody died due to the accident, if that would also be a misdemeanor. Mr. Doyle again responded affirmatively.

Mr. Brower indicated he was having trouble seeing the difference the bill would make if the result of the amendment was to create a misdemeanor. He noted there already was a misdemeanor under the current statutes.

Mr. Doyle replied the difference was a matter of policy. What victims had told prosecutors in the state was, rather than having the person convicted of the misdemeanor charge of disobedience to the red light signal, they would like to see, if a death resulted from an accident, a misdemeanor reflecting the fact of death, which was what the involuntary charge would do. He opined it became the decision of the legislature if they wanted to define the additional charge, which better reflected the fatality, or if they wished the law to continue in its current form, which would mean the misdemeanor charge would be the disobedience of the traffic control device.

Mr. Brower reiterated it was his understanding there was really no difference in terms of the punishment for the offense because it was still a misdemeanor. He thought it was more along the lines of being able to charge in a way that reflected the death and as a result gave comfort to the victims or families of the victims.

Mr. Doyle replied it not only gave comfort to the victims, but it made, if a conviction was obtained, the perpetrators criminal history more accurately reflect the culpable conduct they committed.

Mr. Brower asked if a person was convicted of a misdemeanor death offense would it enable the victims, in a subsequent civil action, to obtain a finding of wrongful death.

Mr. Doyle responded affirmatively, but pointed out the same finding could be made under current law for the disobedience of the traffic control device. He conceded he did not know if it made it any easier if the criminal liability was there for purposes of use in the civil proceedings.

Mr. Graham concluded the bill would provide some culpability to the survivors and that was why the committee was being asked to process it.

John Morrow, chief deputy, Washoe County Public Defender’s Office, testified he withdrew his opposition to the bill.

Chairman Anderson closed the hearing on A.B. 333 and moved it to a work session.

Chairman Anderson opened the hearing on A.B. 327.

Assembly Bill 327: Prohibits person from seeking noneconomic damages resulting from accident involving motor vehicle if person owned or was operating or using motor vehicle without insurance for motor vehicle at time of accident. (BDR 3-944)

James R. Jinks, assistant vice president and senior legislative counsel, United Services Automobile Association (USAA), opened his testimony by indicating he had the authority of the property and casualty and the independent agents to state they supported A.B. 327.

Mr. Jinks read section 1, subsection 1 (a) and (b), of the bill, which defined when a person could not seek noneconomic damages arising out of the operation or use of a motor vehicle. He stressed the bill would force uninsured motorists to assume personal responsibility for their violation of Nevada’s financial responsibility laws.

Mr. Jinks explained he covered the legislature of 13 states for his company. He noted Nevada was one of those states that was examining the "no pay, no play" concept, which was what the law had come to be known in those states. Ten of the 13 states were considering or had considered the law and 1 had enacted it. He pointed out the law existed in some form in California, Louisiana, and New Jersey.

Mr. Jinks asked to address some of the objections he thought would be heard regarding the bill. He noted the bill did not speak to the issue of the drunk or felonious driver and suggested the bill be amended to deny all recovery of damages to a convicted felon whose injuries were caused during the commission of the felony or during the immediate flight from that felony. He also felt recovery should be denied for noneconomic damages to drivers who were convicted for driving under the influence (DUI), if they were injured while operating a vehicle. He suggested an exception should be provided for uninsured motorists to be able to seek damages against a DUI and felonious driver who were involved in an accident. He noted under those circumstances it would be appropriate for the insurer not to be liable for the damages, but the opposing driver should be responsible.

Mr. Jinks explained the "no pay, no play" evolution began in California in 1996 by an overwhelming vote on the initiative ballot of 77 percent of the voters. He noted it was not a financial issue with most of the voters, it was an issue of fairness that caused them to vote for it and continued to support the initiative.

Mr. Jinks stated after the initiative was passed, the California insurance commissioner required all insurers to file rates reflecting the savings from the initiative. The first year’s filings reflected savings for private passenger and commercial auto policies of approximately $459 million.

Mr. Jinks opined the issues of consumer savings and the reduction of uninsured motorists on Nevada’s highways would not be solved by A.B. 327. He noted California had many more uninsured drivers than in Nevada. In California the statewide average for uninsured motorists was approximately 25 percent and in Nevada it was approximately 5 percent. He indicated because of those numbers there was not going to be a big savings to the consumers in Nevada as in California. He asked if it was fair for the 95 percent of consumers who were purchasing insurance to subsidize the 5 percent.

Mr. Jinks concluded his testimony by pointing out how unfair it was for consumers and taxpayers to absorb the cost of uninsured motorists who sued self-insured businesses and state and local agencies. He pointed out the bill, if passed, would be self-enforcing and consumer friendly and would only inconvenience those who were violating the law.

Samuel Sorich, assistant vice president, National Association of Independent Insurers (NAII), explained approximately 200 of their member insurance companies did business in Nevada. He informed the committee insurance was a system where consumers paid premiums to insurance companies, those companies held those premiums in funds, and those funds were paid out to individuals who had accidents. Mr. Sorich expressed there was something inherently unfair when people who had not paid into that compensation system were able to draw benefits from it. He noted that was the inequity A.B. 327 tried to remedy and was why they supported the bill. The customers told the insurance companies they expected them to take action to make sure the auto insurance system operated fairly and the insurance companies felt it was their responsibility to support bills like A.B. 327.

Mr. Sorich pointed out the bill did not withhold all compensation from uninsured drivers. Under the bill, an uninsured driver who was involved in an accident would still be able to recover his or her medical and wage losses and anything needed to repair damage to the vehicle. What it did restrict was the recovery of noneconomic damages.

In addressing the subject of cost, Mr. Sorich felt there would be savings resulting from the bill. He noted they would not be as great as the savings in California, but there would be some cost savings. He noted they would support a provision in the bill authorizing the insurance commissioner to require insurance companies to reflect those cost savings in their future rate filings.

Ray Bacon, representing the Nevada Manufacturers Association (NMA), called attention to a case where one of their members was involved in a probable "staged" accident where the company vehicle was entrapped and the driver in front of him slammed on the brakes and caused him to hit the car. An uninsured driver was behind the wheel of the vehicle that was hit and the case was still in litigation. He pointed out for 9 years he was a volunteer fire chief in the state and his territory was a portion of highway 395 between Gardnerville and Carson City. In a 1-year period of time there were 12 deaths on that section of the highway and too many of them involved DUI’s. He opined the vast number of the perpetrators of DUI type incidents and gross violations of traffic regulations seemed to be the ones who were uninsured.

Mr. Bacon stated when he read the bill he felt the individuals who were not paying their fair share and violating the law requiring insurance, were guilty of fraud in the entire system. He thought the bill would level the playing field to some degree and would be a major step in the right direction.

Chairman Anderson commented, when residents of Nevada registered their vehicles they were required to show proof of insurance as part of the registration process. He pointed out many individuals carried insurance for a short period of time and after it was canceled, the Department of Motor Vehicles (DMV) was notified the driver was uninsured, and the driver was notified as well. If they did not obtain insurance, their driver’s registration was revoked. He asked if California had a similar law.

Mr. Jinks responded California had a law requiring proof of insurance at the time of registration and they were currently looking at the uninsured motorist database that Nevada had implemented. He felt neither of those was foolproof because the system only worked for registered vehicles.

Chairman Anderson asked if somebody missed a payment on their insurance, would the insurance company consider them an uninsured motorist. Mr. Jinks replied he could not speak for how other insurers reacted to that situation, but with his company it took a minimum of 60 days before someone became uninsured. Chairman Anderson continued the discussion by asking, if somebody in the family was driving a vehicle they were not authorized to drive, would they be considered an uninsured motorist. Mr. Sorich observed the standard auto policy covered drivers who had permission from the owner to drive the vehicle.

Assemblyman Nolan stated it was his experience in automobile accidents noneconomic damages constituted between 2 and 4 times the amount of tangible damages and those included the "pain and suffering" part. He questioned beyond the inconvenience and the punitive assessment what else constituted noneconomic damages.

Mr. Sorich noted the bill also included loss of consortium and emotional distress as part of the definition of noneconomic damages.

Mr. Nolan queried if his policy included uninsured or underinsured coverage and the other party who was uninsured was the primary cause of the accident, his insurance company would pay for the medical costs of the responsible party.

Mr. Jinks responded nothing would change for the insured, but if the other party was at fault they could still try to get their medical costs covered. The bill would prevent them from going after noneconomic damages.

Mr. Brower asked for clarification on Mr. Jinks’ statement regarding product liability suits.

Mr. Jinks responded a product liability suit was one of those unanticipated interpretations of the law. He explained an uninsured motorist in the San Francisco bay area was involved in an accident and brought a lawsuit, based on a product liability problem, against the automobile manufacturer for their injuries. The court denied the action. Mr. Brower questioned if the language in A.B. 327 would lead to the same result if it passed and Mr. Jinks replied he mentioned the incident so the committee would be secure in their deliberations whether they wanted to eliminate the possibility or not.

Mr. Brower indicated the witnesses had testified they were looking for fairness with the bill and raised the idea only those who paid into the system should be able to benefit from it. He pronounced he took issue with that point because some victims of accidents were passengers, pedestrians, and those from other countries and were not participants in the system but should be entitled to compensation from the system. Mr. Sorich replied that was correct, but drew a distinction between a pedestrian and somebody who got behind the wheel of the car and decided to participate in the auto system of the state. He felt if a person got behind the wheel of a car they were deliberately participating in the auto insurance system and had a responsibility to pay into the system if they expected to receive benefits, unlike a pedestrian.

Mr. Brower indicated he was trying to focus on the real policy goal, which was to provide a punishment to obtain the legally required insurance. He opined that was what was being discussed, not the fairness of the issue.

Mr. Sorich disagreed and stated he would still focus on the idea of fairness based on what they had heard from their customers. He felt another valid justification for the bill was to create an incentive among people. If they chose not to purchase insurance, a price would be paid in addition to the penalties imposed by DMV, by jeopardizing any chance of receiving the full compensation that would normally be available to them.

Joe Guild, representing State Farm Insurance, testified he was in support of A.B. 327.

Robert Cedar, representing the State of Nevada Insurance Commissioner’s Office, testified he was authorized to speak for the insurance commissioner and informed the committee the office supported the bill. They supported all of the factors of the bill including those suggested by Mr. Jinks, which were DUI and felonious driving.

Mr. Cedar addressed earlier testimony regarding late payments and pointed out Nevada was required to give 30 days notice of cancellation. If a person was cancelled for a late payment, he or she would still have 30 days before the cancellation would take effect. He also addressed the issue of somebody in the household driving an insured’s vehicle. Even if the person was not listed as a driver on the vehicle, Nevada had a Supreme Court decision stating the minimum liability would follow the vehicle since the insurance followed the vehicle.

Mr. Carpenter asked if any thought had been given to the savings the bill would provide if it was passed. Mr. Cedar responded they supported Mr. Sorich’s suggested amended language to dictate the cost savings would be passed on to the consumers. He conceded the office had not done any economic impact studies, and agreed the savings would not be as great in Nevada as they were in California.

Cliff King, supervisor, State of Nevada Division of Insurance, testified he had extensive discussions with Ron Hood at DMV who was responsible for the insurance verification program and they estimated there was approximately 5 percent uninsured drivers in Nevada. He explained that was a "troublesome" number to capture because the state had a notification system that tracked insured vehicles, but it became a shortfall to attempt to tract uninsured vehicles. He noted another problem was the number of tourists in the state, with California being one of the major sources of those tourists and many were uninsured. He pointed out the actual number of uninsured drivers on Nevada highways was probably higher than 5 percent, but there were approximately 5 percent of uninsured drivers among Nevada’s registered drivers.

Mr. Collins pointed out in earlier sessions DMV had trouble with the percentage of uninsured drivers and felt, because of the 1-month policies individuals purchased, he thought the number was closer to 13 to 16 percent.

Mr. King thought that was a very important factor because of the large number of 1-month policies which were usually the non-standard variety and issued with only the basic limits. He noted those created a problem for DMV because they required a filing every month by the carrier. They were also required to notify DMV 1 day after the 30-day policy expired, so DMV received 2 notifications from non-standard carriers every month.

Mr. King clarified earlier testimony regarding cancellation notices. Nevada law required a 30-day notice of cancellation for reasons other than nonpayment of premium and 10-days notice for nonpayment of premium; however, a policy remained in force until it was legally cancelled. Therefore, missing a payment could not cause a policy to lapse except at renewal.

Chairman Anderson indicated that was an important point and wanted it clear that mere notification by the insurance company was not termination and the 2 dates were not simultaneous.

Richard W. Myers, representing the Nevada Trial Laywers Association, testified he was opposed to A.B. 327, and called attention to the financial interest of the insurance industry. He did not believe all of the savings went to the consumers in California. He felt some of it went to the insurance industry in the form of increased profits.

Mr. Myers observed nobody was present to speak for the average man on the street, the "common Nevadan," except for the trial lawyers who would see the hardships if the bill was passed. He found the bill philosophically offensive and thought it was cruel in its practical operation.

Mr. Myers opined the practical effect of the bill would be to condemn certain members of the poor to second class justice and violated the promise of equal justice for all. He discussed how fortunate the well-dressed individuals in the committee room were to afford automobile insurance, but there were people "out there" who could not afford it.

Mr. Myers pointed out there were already sanctions in place to punish individuals who did not have automobile insurance. The law allowed for fines of no less than $600 and no more than $1,000 and the mandatory suspension of their driver’s license. He noted the insurance industry had an "arsenal" of law and tactics to sort out the phony claims and indicated he was just as interested in sorting out the claims as the industry was.

Mr. Myers indicated there were several people in society who did not have insurance because they did not own a car. He noted if a family member who did not own a car and therefore, did not have insurance, was a passenger in a vehicle involved in an accident, under the absolute language of the statute they would be considered uninsured and "out of luck." He felt if the bill passed every passenger who rode in a vehicle would be required to check the status of the driver’s insurance.

Mr. Myers concluded his testimony by pointing out there was no guarantee there would be a premium savings to Nevada’s insured if the bill passed. He noted there had been some talk the Nevada insurance commissioner would "keep an eye" on the savings. He informed the committee he had a proposed amendment (Exhibit D) that would guarantee all savings would be passed on to the consumer.

Matthew L. Sharp, representing the Nevada Trial Lawyers Association, addressed an earlier concern of the Chair’s regarding the payment of the insurance premium in a timely fashion. Nevada law provided for a 10-day notice of cancellation. He pointed out it would be very easy for responsible individuals to be uninsured for a short period of time due to a late payment and under the bill that individual would be subjected to a very harsh penalty.

Mr. Carpenter questioned in a "real world scenario" if a person did not have insurance on a vehicle and somebody who had too much to drink ran a red light and hit the car and injured that person and the passengers. Under the bill, the driver and passengers would not be compensated for noneconomic damages.

Mr. Myers responded it was true and in the fact pattern described, the person driving would be unable to collect noneconomic damages, but the passengers, if they owned vehicles and had insurance, would be able to collect under the proposed law. If the passengers did not own a vehicle and were riding with the driver who did not have insurance, they would be "out of luck."

Mr. Carpenter asked, if he was not insured and his grandchild was riding with him who was not old enough to drive, but they were users as the bill referred to them, would they be able to collect noneconomic damages.

Mr. Myers replied, if the child was living in a household that owned a vehicle that was insured, he thought the child would be covered under the meaning of the statute. If the child lived in a household that did not have a vehicle or had vehicles that were not insured, the child would not receive full justice as they would presently under the law.

Chairman Anderson referred to section 1, subsection 1 (a) and (b), when he asked if he owned a vehicle but did not have insurance, he could not make a claim. If he was the operator of a vehicle he could not make a claim because he did not have insurance, so why would a passenger not be covered.

Mr. Myers responded passengers were users and he called attention to a California case where a passenger getting into and out of a vehicle was a user.

Chairman Anderson asked for clarification of section 1, lines 6 and 7, regarding the owner, operator, or user of a motor vehicle.

Ms. Lang responded when she read the bill she did not read user as meaning a passenger, but if that was how it was interpreted, the committee needed to decide if they wanted that language included in the bill.

Mr. Nolan reiterated in the case where there was an accident and the driver was uninsured and not at fault, and would only be entitled to receiving compensation for their tangible damages, he questioned if the driver felt inclined to sue for additional damages, was that remedy still available.

Mr. Myers responded it would be limited to economic damages, but would preclude noneconomic damages. Mr. Nolan noted those types of cases were usually taken on a contingency basis and wondered if the attorney’s fees were taken out of the entire settlement of the claim and Mr. Myers responded affirmatively.

Mr. Nolan and Mr. Myers discussed hypothetical situations involving attorney’s fees and Mr. Nolan stated he was concerned if the bill would limit an individual’s access to an attorney. If there were no additional assessments available, most attorneys would not be willing to take a case if they could not achieve any noneconomic damages. Mr. Myers replied that would be another economic hardship. He hypothesized an individual was involved in an automobile accident in which they were not at fault and sustained financial losses due to lost income in the amount of $10,000. He thought that amount might be enough to interest a lawyer to represent the person on a contingency fee basis and take a percentage of the $10,000, but it would mean the injured person still suffered a financial loss. Mr. Nolan asserted under that hypothetical situation loss of wages would be covered under economic damages and Mr. Myers agreed the person could sue for damages.

Chairman Anderson pointed out Mr. Myers had distributed a statement to the committee (Exhibit E) opposing A.B. 327 and wanted it entered for the record.

Mr. Sharp concluded the testimony on the bill by pointing out when somebody obtained an attorney and was only entitled to recoup economic damages, that person, after paying the attorney’s fees, would not be made whole.

Chairman Anderson closed the hearing on A.B. 327 and did not take any action it.

Chairman Anderson opened the hearing on A.B. 523.

Nancy E. Hart, deputy attorney general, Nevada Attorney General’s Office, testified the office was involved in domestic violence at many levels. During the 1997 session the position of a statewide ombudsman was created which dealt with domestic violence complaints and concerns and was located in the Reno Office of the Attorney General. She indicated Attorney General Frankie Sue Del Papa, chaired a statewide domestic violence prevention council. The office also administered three federal grants, the most prominent of which were the grants the state received under the Violence Against Women Act. The grants amounted to more than $1.5 million annually for the State of Nevada and the Attorney General’s Office maintained those grants.

Ms. Hart explained in the 1997 session, the legislature approved several changes to Nevada’s domestic violence laws. She commented A.B. 523 concerned three issues, two of which were necessary followups to the 1997 changes. She referred to a letter (Exhibit F) that was addressed to Chairman Anderson from the Attorney General’s Office which noted one of the 1997 changes was "persons in a dating relationship" as those to whom domestic violence laws would apply. She stated upon passage of the law it came to their attention the bill had not referenced the necessary change in NRS 178.484, which was the mandatory bail and 12-hour hold statute concerning domestic battery. To be consistent with the 1997 amendments, NRS 178.484, should be amended to include persons in a dating relationship should not be admitted to bail until 12 hours had elapsed since the time of the arrest. That would be accomplished not by adding "dating relationship" to the current list in the statute, but by replacing that list with a reference to NRS 33.018, which defined acts and persons subject to protection orders against domestic violence.

Ms. Hart called attention to another 1997 domestic violence change which created a registration process for orders for protection against domestic violence that were issued by the court of another state or jurisdiction. She said the registration created some confusion about the need for registration prior to enforcement and explained the details in paragraph three of the letter (Exhibit F).

Ms. Hart observed the third issue addressed by A.B. 523 concerned juveniles who committed domestic battery. She explained under existing law, juvenile batterers were not covered by NRS 178.484, which was the statute covering mandatory bail in a 12-hour hold. In paragraph 4 of the letter (Exhibit F) she noted under the current statute, juvenile batterers were not required a 12-hour hold prior to being released to their parents, who often were the victims of the battery. She stressed Chapter 62 of the NRS should be amended to require a 12-hour hold before release of a juvenile who had been taken into custody for domestic battery.

Chairman Anderson questioned by adding the 12-hour "cooling off" period, if it would cause additional problems in the bill and Ms. Hart replied it would not. She explained the first two sections of the bill were the "clean up" of oversights in the bill and it brought dating relationships into conformity with other people who were already protected under domestic violence laws.

Chairman Anderson clarified they were only dealing with a "clean up" piece of legislation and also changed it to reflect the federal statutes which provided people from other countries should be accorded full faith and credit and enforced as if the order were from the enforcing jurisdiction.

Mr. Carpenter commented under the current statute a person arrested for battery upon a spouse and other listed individuals must not be admitted to bail sooner than 12 hours after his arrest. He questioned if that part of the bill was being removed and NRS 33.018 was being added, which contained a long list of elements that constituted domestic violence including arson and sexual assault, did it mean those people would be released after 12 hours with a $3,000 bail.

Ms. Lang responded the language found in NRS 33.018 was found in many different sections of the NRS. Because it was a battery that constituted domestic violence, all it did was refer back to NRS 33.018, to the list of people, and if one of those people committed a battery, it would be a battery that constituted domestic violence under that section. She noted it was a drafting choice the attorney general had specifically requested, in terms of making sure it included the same people as listed in the current statutes.

Ms. Hart agreed it was mostly a drafting decision so it would simplify things and it cross referenced NRS 33.018 for purposes of the list rather than reiterating the list every time. She stressed it was intended to cover just the battery part as defined in NRS 33.018 for the list of persons, not for the list of acts.

Mr. Carpenter expressed concern that the bill specifically mentioned a person arrested for battery, and in NRS 33.018 it mentioned all of the different offenses and felt a battery could be committed at the same time a person was committing the other offenses.

Ms. Buckley indicated it had been opined to her by defense attorneys the 12-hour hold was unconstitutional and they thought it would be challenged some day. She noted their argument had been it was an equal protection problem and everybody had a right to apply for bail and a separate class could not be set aside. She wondered if there had been any discussion expanding the time period for juveniles.

Ms. Hart responded there had not been a discussion among the prevention counsel about extending the time period beyond 12 hours. She noted it was the concept that the "cooling off" period for adults was a useful tool and would be minimally prudent in the context of juveniles as well.

Ms. Hart concluded her testimony by calling attention to NRS 200.485, which was the statute defining battery that constituted domestic violence and it also referred to battery that constituted domestic violence pursuant to NRS 33.018. She said that tracked to what the other criminal statute referred.

Joni Kaiser, representing the Committee to Aid Abused Women, testified she supported A.B. 523. She discussed how the bill was a cleanup bill and hoped they could eliminate the errors. She felt the 12-hour "cooling off " period should apply to juveniles as well.

Susan Meuschke, executive director, the Nevada Network Against Domestic Violence (NNADV), distributed a letter to the committee (Exhibit G), which indicated her support for A.B. 523. She called attention to paragraph 2 of her letter regarding bail and noted it was brought to her attention by personnel from the local jails. In paragraph 3 of her letter regarding protective orders, she noted it needed to be in line with the federal legislation to provide full faith and credit to all protective orders.

Jim Nadeau, captain, Washoe County Sheriff’s Office, testified it was a good bill and he supported it.

Chairman Anderson closed the hearing on A.B. 523. He indicated he liked the bill; however, the committee was going to hear a similar bill the following week, so he asked if they could hold A.B. 523 in the event they could meld the two together to end up with one piece of legislation.

Chairman Anderson convened the work session.

Don Williams explained A.B. 18 was requested on behalf of the State Bar of Nevada and first heard in committee February 15, 1999. The bill was assigned to Assemblyman Claborn.

Referring to the work session document (Exhibit H), Mr. Williams indicated at the hearing various representatives of the bar testified they had requested the bill because of the increased number of complaints concerning persons not licensed to practice law and those engaged in the unauthorized practice of law. He noted the committee had received correspondence from many paralegals opposed to the bill.

Mr. Williams asked the committee to refer to the yellow attachment (Exhibit H) in the document, which was a proposed amendment from Mr. Claborn and a letter dated February 12, 1999, from Attorney General Frankie Sue Del Papa.

Assemblyman Claborn explained he had numerous meetings with those supporting and opposing A.B. 18. He formed a committee of those with whom he met and they agreed upon the amendments found on the yellow pages in Exhibit H.

Chairman Anderson discussed individuals who were not included in the bill who were negotiating contracts with public employee groups, state agency personnel and others, and they would be protected because the regulatory body allowed nonattorneys to come forward to speak. He distributed an amendment to the committee (Exhibit I) that he proposed for A.B. 18, which addressed the issue of the bill not applying to state officials.

Ms. Buckley indicated she was in favor of the bill because she ran Clark County Legal Services which gave free advice to people who could not afford a lawyer. She indicated she wanted more people to have access to legal advice because she saw many individuals who legitimately could not afford a lawyer. She noted she saw paralegals working with lawyers who were wonderful. They provided needed service for a fraction of the cost, thereby allowing more legal services to be provided. She also saw paralegals setting up shop on their own who were "ripping people off." She pointed out some individuals performed duties incident to their regular professions who did not and should not fall under the provisions of the bill. She stressed the intent of the bill was to prohibit those individuals who were harming the public.

Assemblywoman Angle and Assemblyman Gustavson expressed concern for the provisions of the bill because they felt it was too broad.

Assemblywoman McClain informed the Chair she would have to abstain from voting because her husband taught at a private college where the largest curriculum was the paralegal program.

A discussion ensued among the rest of the committee noting their reasons for supporting the bill.

Chairman Anderson entertained a motion to amend and do pass A.B. 18, which would include the proposed amendments found in Exhibit H and Exhibit I.

A roll call vote was taken.

Mr. Williams stated A.B. 287 was requested by Assemblywoman Segerblom and was heard in committee on March 8, 1999. He referred to page 2 of Exhibit H where it discussed how individuals had their property taken under state or local government exercising the power of eminent domain. He pointed out representatives from the Office of the Attorney General and Nevada Department of Transportation (NDOT) testified in opposition to the bill (page 2, Exhibit H).

Mr. Williams indicated since the hearing, the committee had received correspondence from other local governments in opposition to the bill. He stated Assemblyman Carpenter had asked proponents of the bill to provide a narrower definition of "goodwill" and to clarify the offer of judgment issue. The committee had received proposed amendments to the bill from Laura FitzSimmons, the attorney representing the property owners who testified at the original hearing on the bill and from Jim Spinello, representing Clark County. He informed the committee the pink attachment in Exhibit H was the proposed amendment from Ms. FitzSimmons and the green attachment was the proposal submitted by Mr. Spinello.

Chairman Anderson distributed a letter from the Nevada Association of Counties (NACO) (Exhibit J), which was an explanation of where they stood on the proposed amendment by Ms. FitzSimmons.

Laura FitzSimmons, attorney at law, stressed it was very important for the committee to look at the fiscal impact from the bill and to understand it in practice. She noted NDOT was federally funded for almost all of the highway projects in the state. She felt the things to which people were objecting and the figures being quoted did not have any basis in reality for the real practice in those cases. Ninety eight percent of those instances where the government took somebody’s property never made it to court. Of the other 2 percent a small number made it to trial after 2 years from the filing of the complaint. She noted from her experience it only happened in Clark County, but in other areas of the state the case always made it to trial within 2 years.

Ms. FitzSimmons indicated she was there on behalf of those individuals who had invested in the State of Nevada by purchasing homes and land and those people should not be forced to bear a disproportionate burden because their land happened to be where a road was being widened. She reiterated her position had always been the key provisions in sections 6 and 7 and stated she was only seeking to undo what she felt was not intended by the legislature in 1991. She concluded by stating there was no real effect on the State budget because NDOT already had preferential trial settings.

Chairman Anderson conceded there were federal dollars being spent, but he noted there were local dollars being spent as well. There was a budget for a certain number of projects and if one project took more of the allocated dollar, some projects at the bottom of the list were eliminated.

Ms. FitzSimmons replied she had submitted a letter and proposed amendments (Exhibit H) to the committee (already referred to in earlier testimony by Mr. Williams). She indicated an agreement could not be reached with NACO because of a "sticking point" regarding the section dealing with "trial date of value," and she felt it was the section that needed to be passed.

Tom Grady, executive director, Nevada League of Cities, opined the government was the constituents, and he felt the bill had an effect on the State of Nevada in every city and county. He noted the state only had a certain amount of money, and if it was used in Clark County, then projects could not be finished in other parts of the state. He conceded maybe only 2 percent went to trial, but if the bill moved forward as drafted he thought the percentage would rise.

Mary Henderson, representing Nevada Association of Counties and the Regional Transportation Commission of Washoe County, thought they had addressed the issues in items 6 and 7 in the bill. She referred to the letter (Exhibit J) stating it made the local government’s position clear. They conceded on section 7, but there was still an issue with section 6. She addressed the fiscal note aspect stating from the local government’s perspective it was not based on where they were today, but it was based on their best guess of what the bill in its entirety would do to them in the court process. She concluded if the bill moved forward as it was written it would increase regional impact fees about 25 percent.

Jim Spinello, representing Clark County, explained he could only speak to the issue that was raised regarding the credibility of the numbers being proposed. He noted those numbers were provided by fiscal analysts within the jurisdictions who built roads and made those kind of projections. They were relying upon them for correct information, and he did not have a reason to doubt those numbers or projections.

Chairman Anderson called for a discussion among the committee members regarding A.B. 287.

Ms. Buckley expressed eminent domain was a sensitive topic. She felt the way the bill was written tilted the balance and there should be a balance between the homeowners and the government and how to interpret valuation. She supported section 7 of the bill, but she was concerned with section 6 because of the valuation issue. She noted she wanted to move only sections 6 and 7 forward.

Mr. Carpenter commented the government had a right to take property, but they had to adequately compensate for it. When the government did a project they needed to plan to pay fair market value for the property, and he wondered what constituted fair market value. He referred to section 6, which stated the court had discretion, but he felt location should be part of the formula when deciding market value, and location should be part of the bill. He read from section 5, which defined goodwill and felt that should be the section adding the location element.

Ms. Buckley referred to page 3, lines 27 through 31, which defined goodwill and questioned if Mr. Carpenter wanted to leave goodwill in the bill or was he suggesting a limited goodwill factor of considering location. She wanted clarification.

Mr. Collins discussed the bill from a homeowner’s standpoint and used examples in his own life regarding property value. He mused about goodwill versus location and quality of life and felt goodwill could not be legislated.

Mr. Nolan expressed he agreed with Mr. Carpenter regarding location because the survival of a business depended on location. He pointed out when businesses were relocated, in some cases harm was done to them, and that harm could be measured in the success or failure of the business, and in other cases relocating enhanced some businesses. He thought either definition of goodwill did not measure the success or failure of the business when it was taken under eminent domain. He felt the current language in the bill was too broad and left a level of subjectivity on behalf of the businessowner and the local government as to find what the fair market value was over and above fair market value of the assets.

Ms. Buckley, Ms. McClain, and Mr. Brower discussed the issue of goodwill regarding how it could be determined and if it was too complex. They also discussed goodwill in the terms of location and felt it was assumed in the valuation process.

Ms. Leslie pronounced she supported sections 6 and 7 and she also supported the goodwill provision as proposed in the bill. She noted it was done in California, and it did not cause a significant increase in costs and she felt it was appropriate for eminent domain.

Brian Hutchins, deputy attorney general, Office of the Attorney General, called attention to page 4, lines 4 through 6, and pointed out that was new language since the 1991 session.

Chairman Anderson explained they would leave sections 6 and section 7 as written in the bill and remove sections 1, 2, 3, 4, 5, and 8.

ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND DO PASS A.B. 287.

ASSEMBLYMAN COLLINS SECONDED THE MOTION.

A roll call vote was taken.

ASSEMBLYMAN BROWER, ASSEMBLYMAN CLABORN, AND CHAIRMAN ANDERSON VOTED NO. THE MOTION CARRIED.

Chairman Anderson assigned the bill to Ms. Segerblom.

Chairman Anderson discussed concurring with the Senate in regard to Assembly bills they had passed. He announced he would appoint a subcommittee chaired by Mr. Collins and included Mr. Claborn and Mr. Gustavson to hear those amendments.

The meeting adjourned at noon.

RESPECTFULLY SUBMITTED:

Chris Casey,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: