The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:45 a.m., on Monday, March 29, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

STAFF MEMBERS PRESENT:

Jo Greeneslate, Committee Secretary

OTHERS PRESENT:

Rod Barbash, Collection Service of Nevada, and Nevada Collectors Association, testified that he asked Senator Raggio to submit this bill due to the situation in Washoe County wherein the county commissioners abolished the constable’s office. The sheriff advised Mr. Barbash his office was not interested in serving writs of garnishment. Mr. Barbash noted "process server" was added to section 1, subsection 1 of the bill, but everywhere else "sheriff" appears in the bill, process server was left out. He stated it is his association’s opinion that if process servers are going to serve papers, they should perform that function in the same manner that sheriffs do. In other words, the money should go to the process servers, and the process servers should deliver it to the plaintiffs. Mr. Barbash suggested the term "process server" be placed after "sheriff" throughout the bill.

Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, remarked the bill was drafted in the manner it was requested. He explained adding "process server" throughout the bill would allow process servers to perform the same functions that sheriffs currently perform, such as holding property, money, and other things that were not part of the request. Mr. Wilkinson said he would review the language of the bill to see exactly what the addition would do.

Chairman James pointed out that in the garnishment section of the bill, section 3, subsection 2, for example, it says, " . . . the filing of his answers to the garnishee interrogatories, may deliver to the sheriff . . . ." He noted it used to say, "or the officer serving the writ." He inquired why that was removed. Mr. Wilkinson replied this was a redraft from last session, and he did not know if that was a reference to a constable or if somebody other than the sheriff would be serving answers to the garnishee interrogatories. Chairman James advised that the committee needs to investigate the reason for changes in the bill and be certain the bill is drafted in a way that accomplishes the objective of the request.

Pete Lazetich, Owner, Reno/Carson Messenger Service, testified that he is also a state licensed process server in the State of Nevada, and was at the hearing to speak in favor of S.B. 212. He gave a brief history of his company, saying it was formed approximately 18 years ago. He has an office in Reno and one in Carson City, with over 30 employees. Mr. Lazetich advised his company serves law firms in three counties, twice daily. Continuing, he stated he serves well over 800 attorneys, and in polling those attorneys, he could not find one that opposed a process server serving a writ of garnishment. Mr. Lazetich commented he is also a member of the National Association of Professional Process Servers, and the majority of states allow private process servers to serve writs. He asserted the State of Nevada monitors the process servers in Nevada, and Nevada is the most prohibitive state in the country in which to obtain a process serving license. Mr. Lazetich remarked that in various counties throughout the country, sheriffs have given up serving the civil process for two reasons: 1) private industry is able to perform the service more efficiently at less cost; and 2) the sheriff’s offices did not do a good job serving process. Mr. Lazetich stated sheriffs have more important things to do, and S.B. 212 would merely change the statute language to offer more options for process service.

Senator Care mentioned that he has never heard anyone in the sheriff’s office or constable’s office in southern Nevada voice opposition to serving process. He added it may take a few days before they serve, but they always do it. He inquired whether there is a reluctance or refusal in Washoe County to serve process. Mr. Lazetich replied, especially after closure of the constable’s office, service is not something sheriffs particularly want to do. In Mr. Lazetich’s opinion, one reason counties around the country have gotten away from serving is that it costs taxpayers excess money. He maintained his company is able to serve writs at a much lower cost.

Chairman James made the point that if a process server is going to serve the process, the sheriff is still responsible to hold the money collected and return it to the court. He noted that if a process server is serving a writ of garnishment rather than a sheriff, there is no provision in the bill for the process server to hold money. Chairman James indicated the sheriff would need to know if a process server was collecting money so the sheriff would know why he was receiving property or money. Mr. Lazetich suggested if the bill was amended as Mr. Barbash suggested to allow process servers to monitor and handle funds, it should be further amended to include the provision that process servers have a substantial bond or errors and omissions insurance. He added they should let the public decide if they want a process server or a sheriff to serve process. Mr. Lazetich advised that in some other states there are private individuals that serve the documents, and the sheriff and/or clerks monitor the funds.

Mike Gach, Licensed Investigator, Stivers Investigations, testified his company has a process serving license. He stated this bill came about because it was requested by users of process serving companies. Additionally, Mr. Gach mentioned he has a private investigation license in California, as well as in Nevada, and in California he may serve process with his private investigation license. In Nevada, however, he had to get a process server’s license to serve process and is required to carry process servers’ insurance. Mr. Gach further testified in his experience, he has been on the other side and has sued people through the court process. In those situations, he sought process serving services through the constable’s office where he received better service than through the sheriff’s office. He reiterated that it would be beneficial if people had a choice as to process servers.

Michael Straw, Owner, Northern Nevada Investigations, noted he employs seven process servers in Washoe County, and they serve between 2 to 700 documents per month. He said he has been on the collection side of garnishments, processing up to 300 a month, and he is well aware of the needs of collection agencies and public utilities who use a sheriff or constable to serve their civil documents. Further, Mr. Straw mentioned that in the past the sheriff’s office has had problems with time constraints. Their hours are 8 a.m. to 5 p.m., Monday through Friday, and some documents must be served after that time. He advised that most of his clients insist that he have a bond of $1 million. A problem in the past with constables, according to Mr. Straw, was missing money. The constable in Washoe was sued, and he disappeared. He noted there have been problems with public individuals, and private individuals have not yet been tested in this area. Continuing, Mr. Straw remarked a private company would have far greater consequences than an elected official if garnishment money disappeared. He maintained there is nothing in the garnishment serving process that a private process serving company cannot do and provide excellent service in the process. He urged support of S.B. 212.

Chairman James queried whether Mr. Straw had any thoughts regarding private process servers holding collected money. Mr. Straw answered private process servers should hold the money in a trust fund, in his opinion. He advised that his company uses a certified public accountant for such purposes, and that it is important to ensure the money collected goes into the correct accounts.

Senator Care inquired what Mr. Straw’s fees would be for serving a writ of garnishment if the bill is enacted. Further Senator Care asked who fixes the fee. Mr. Straw replied currently the fee is set by statute. He stated he would prepare a bid for prospective clients and offer them a flat rate.

James F. Nadeau, Lobbyist, Captain, Patrol Division, Legislative Liaison, Washoe County Sheriff’s Office, stated with him at the meeting was Ernest P. Jesch, Captain, Administrative Division, Washoe County Sheriff’s Office, and Bob Towery, Sergeant, Public Information Officer, Washoe County Sheriff’s Office. He testified they were appearing to oppose S.B. 212, as written. Captain Nadeau remarked as written, the bill allows service of a writ of garnishment by a process server and collection of fees for that service. He asserted at this point, the process server would have no other duties. All other responsibilities and associated tasks, as directed by Nevada Revised Statutes (NRS) would remain with the sheriff with little or no compensation to the sheriff for the administration of these duties. He noted that section 3 of the bill outlines those duties. Captain Nadeau commented that this is, at the least, an unfunded mandate for the sheriff’s office. Further, he remarked if it is the decision of the committee to include process servers in this function, then the committee should give process servers all associated administrative duties as well.

Continuing, Captain Nadeau mentioned that chapter 31 of NRS is specific as to the manner in which a writ of garnishment may be administered, including not only collection, but how the payments to the garnishee must be handled, statutory limitations, and associated procedures. Additionally Captain Nadeau noted that a writ of garnishment does not stand alone, in and of itself. He asserted when a writ of garnishment is served, a writ of execution must also be served. As to fees, Captain Nadeau advised the Legislature is the one that sets the fees for the sheriff’s office. However, process servers are not bound by statute or any legislative action regarding fees. Chairman James pointed out if the public believes process servers are charging too high a price to serve documents, they may request the sheriff’s office to perform the service, and it will create competition. Captain Nadeau mentioned elimination of the constable within Washoe County was not the sheriff’s decision, but a county decision.

Bob Towery, Sergeant, Public Information Officer, Washoe County Sheriff’s Office, gave a brief overview of the garnishment process. He stated his office receives the execution document from the court, the sheriff’s office then prepares the writ and the interrogatories, and all three documents are served to the employer. The employer must return the interrogatories within 20 days, and the sheriff’s office tracks them. Once the interrogatories are returned, the sheriff’s office processes the interrogatories, makes copies, and returns them to the court and the plaintiff. Sergeant Towery said within 20 to 30 days they begin to receive the garnished wages from the employer. The sheriff’s office deposits the wages into a trust account and distributes the funds to the appropriate people. The problem the sheriff’s office has with the bill as written, according to Sergeant Towery, is that a percentage of the process services will be given to a private process server who will charge a fee, and the taxpayers will continue to pay county personnel to serve process. He stated the sheriff’s office is of the opinion it is inappropriate for taxpayers to have to fund an operation that is a benefit to private enterprise. Further, Sergeant Towery remarked there will need to be a system of checks and balances so the same problem that occurred with the constable’s office will not occur in private practice. He mentioned the sheriff’s office would like to see regular audits of the accounts that the private companies carry and some type of criminal sanction in the event they continue to accept wages and process them beyond the expiration date of the execution.

Ernest P. Jesch, Captain, Administrative Division, Washoe County Sheriff’s Office, expressed his concern that there is no relief for the taxpayer in the bill the way it is currently written. The private process server can serve the garnishment and the interrogatories. The bill is unclear to Captain Jesch as to who would prepare the garnishment, which is currently prepared by the sheriff’s office, as are the interrogatories, and there appears to be no relief to the sheriff to serve the execution that must accompany the other two documents. He maintained the only relief would be elimination of the fee for serving the garnishment, which would be removed from the sheriff’s revenues.

Senator Wiener asked if Captain Jesch had an estimate of the yearly costs of serving process and the revenues collected. Sergeant Towery answered the fees the sheriff’s office estimates it will lose are $150,000 to $185,000 if all process serving were to go to private process servers. The budget for the entire civil operation, which includes an average of 5,500 free process servings would be approximately $700,000 next fiscal year. The sheriff’s office anticipated revenue return, based on last year’s projection, would be approximately $306,000. He remarked the majority of that would be a result of the service fees for garnishments.

Senator Wiener referred to the recommendation that private process servers assume all of the administrative duties of process service along with the actual document serving, and asked if that were to happen, how that would factor into the costs and revenues he mentioned. Sergeant Towery answered roughly $110,000 to $115,000 a year in personnel costs and benefits, and approximately $180,000 a year in revenue.

Senator Care inquired whether the sheriff’s office serves writs of garnishment and execution in the order in which it receives them. If so, Senator Care asked how many business days it would take to serve writs. Sergeant Towery replied they aim for 1 day from the day they receive them in the front office, and a 1- or 2-day turnaround after the writs are processed for service. He said part of the problem is the current system sometimes results in between 60 to 100 garnishments arriving on 1 day for service; and receiving none in the next 2 to 3 days. Sergeant Towery remarked it typically takes no longer than 4 days from the time they actually receive and process writs before they are out for service. Captain Nadeau added most writs of garnishment are some type of wage garnishment, but something that has a high priority, such as an execution for a bank account, will generally be moved up in priority.

Donna Jeppson, Court Administrator, Reno Justice Court, stated she was with Janine Baker, Supervisor, Civil Division, Sparks Justice Court, and she was appearing on behalf of the five judges at Reno Justice Court to express their opposition to S.B. 212. Ms. Jeppson remarked that while Reno Justice Court employees are of the opinion process servers have a vital role in serving documents for the court, they are also of the opinion process servers should not be serving writs of garnishment. She expressed concern that not all process serving companies would implement proper checks and balances to prevent the type of situation caused by the dishonest Washoe County constable.

Ms. Baker testified Sparks Justice Court is also opposed to S.B. 212 for the same reasons mentioned by Ms. Jeppson. She noted that other chapters of NRS would also need to be amended for the process to work properly. Additionally, Ms. Baker stated if this bill were to pass, Sparks Justice Court would want to ensure there were regular audits of private process servers at the private process serving companies’ expense.

Madelyn Shipman, Lobbyist, Washoe County District Attorney, echoed previous testimony in opposition to the bill due to a reluctance of the county to extend authority for handling garnished wages to private process servers. Additionally, a concern of the county is that responsibilities be separated so the county does not end up having the accountability and follow through for work that is being done by private process servers. She reiterated that if the responsibility of serving writs of garnishment is given to private process servers, the entire process should be turned over to them, and private process servers’ bonds should be pursued in the event of an irregularity in the handling of a particular process. Ms. Shipman also mentioned the county has expended thousands of taxpayers’ dollars trying to clean up the mess caused by the Washoe County constable previously mentioned.

Seeing no further testimony on the bill, Chairman James closed the hearing on S.B. 212. He then opened the work session.

Chairman James referred to the work session document dated March 29, 1999 (Exhibit C). The first bill covered in the work session was S.B. 61.

Chairman James mentioned the two amendments to S.B. 61 were the combination of disclosure documents combining gaming enterprise districts and zoning and a conflict amendment addressing the provisions of S.B. 19 which was passed by the Legislature.

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Chairman James addressed the next bill, S.B. 122, and requested the committee’s motion to indefinitely postpone. The provisions of S.B. 122 were previously amended into S.B. 61.

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The Chairman called the committee’s attention to the subcommittee report on S.B. 273, under tab A of Exhibit C.

Senator Washington explained the revisions proposed by the subcommittee (tab A of Exhibit C). He remarked sections 1 through 9 were deleted, and sections 13 and 14 were deleted from the original draft of the bill. Section 11 was revised by deleting all the new language except for the language on page 10, line 1, regarding deportation. Therefore the only new change to section 11 is to authorize exoneration of the surety on the ground that the defendant is unable to appear because he has been deported. Language was deleted from section 12, lines 36 through 41 on page 10. Senator Washington advised the new language of section 12 reflects the authorization to exonerate the surety when a defendant has been deported.

Continuing, Senator Washington pointed out the new proposed language in section 16 is in bold, capital letters on the first page of the subcommittee report (tab A Exhibit C). Sections 17 and 18 have no significant changes. The controversial amendments are in sections 5, 10, and 15. He stated the language in section 5 was deleted and completely rewritten to state:

Senator Washington explained the concern was that if a surety bond was placed on a defendant and he was re-arrested on another charge, the surety would be exonerated for the first arrest. Responding to Senator Titus’s request that Senator Washington relay who had a problem with which revisions, Senator Washington advised the district attorney’s office had a problem with the language proposed by the subcommittee in this section. Language that the district attorney’s office preferred was that the additional charge is "equal to or greater than" the first charge.

Gemma Greene, Lobbyist, Washoe County Deputy District Attorney, Nevada District Attorneys’ Association, stated the district attorneys’ biggest concern with section 5 is that currently, if the surety is nervous for any reason, he can call the bail bondsman and request he surrender the person on the bail, because he no longer wants to put up his property or money. Since the surety is able to do this, Ms. Greene is of the opinion the revised language of section 5 is unnecessary.

David S. Gibson, Lobbyist, Clark County Public Defender, remarked that Ms. Greene had adequately stated his concerns. He agrees the language is not necessary.

Senator Washington continued with section 10, subsection 3, stating there was disagreement about proposed language that would strike out "Not more than 180 days," and insert, "Any reasonable period set by the court." The new language, according to Senator Washington, is to ensure there would be flexibility within the court system and discretion by the judge.

Ben Graham, Lobbyist, Nevada District Attorneys’ Association, gave a brief history on the 180-day provision. He said there was concern originally that 180 days was too much. The lower court judges submitted a bill draft that would reduce it back to 90 days. Mr. Graham proposed leaving it at 180 days to protect the court system and to keep the number of days consistent in all cases.

Senator Washington explained that section 15 once again deals with exoneration, and there was disagreement regarding the proposed revisions. He commented the new language offered (Exhibit C) is in bold, capital letters, subsection 3, paragraph (a) for Category A or B felonies, and paragraph (b) for Category C, D, or E felonies. Senator Washington stated the proposed language of paragraph (a) was offered by the District Attorneys’ Association, and the proposed language of paragraph (b) was offered by the Public Defender’s Office.

Mr. Gibson referred to paragraph (a) and stated, again, this is extra language. It is his opinion that it should be the discretion of the court to take the defendant into custody or allow him to remain out on bail.

Ms. Greene concurred with Mr. Gibson’s opinion it should be at the discretion of the court whether or not to take the defendant into custody once the finding of guilty is made. She noted that due to the severity of the penalty of a Category A or B felony, there is a greater risk the person will leave the jurisdiction; however, it should remain the court’s decision. Additionally, Ms. Greene mentioned there are post-conviction motions that may be made to order a new trial, and the district attorney may ask that bail be exonerated at the time of conviction and that the defendant be put into custody. She surmised although the district attorneys were not advocating that this be done, they recognize the court does have discretion, and if the committee is inclined to direct the court, the district attorneys would advocate they do so in the manner proposed in section 15, subsection 3, paragraphs (a) and (b).

Chairman James remarked he was not inclined to adopt the controversial changes due to the nature of the opposition to them, but rather his inclination was to amend the bill with the consensus amendments only.

Senator Washington reiterated the proposed amendment to section 5 was offered by representatives of the surety industry. The district attorney and public defender, along with the court, agree the court already has discretion, so the language is not absolutely necessary. Continuing, Senator Washington restated the proposed amendment to section 10 was a compromise by the surety representatives to address the concerns of the district attorney and the courts. In Senator Washington’s opinion, the surety representatives would probably agree to Mr. Graham’s suggestion of keeping the number of days at 180.

Chairman James announced he was informed the court was adamantly opposed to the language requiring it to issue a warrant for the arrest of the defendant in section 10, subsection 1, paragraph (b) of S.B. 273. He asked why the court was adamantly opposed. Ms. Greene replied she was not sure why the court was adamantly opposed; the court had not communicated that to her.

Mr. Gibson stated his recollection regarding section 10 was that many times the defendant’s presence is excused, and the court does not want to issue a bench warrant every time a defendant is not present, if his attorney is present and his presence is being waived. He pointed out if the language is changed, it would change the nature of court appearances. Chairman James stated he also did not agree to the proposed amendment to section 10.

Senator Washington remarked that of the three contentious section language changes, section 15 was most strongly defended. Senator Wiener referred to Senator Washington’s comment that the interested parties agreed to the proposed changes to section 15, and inquired if that included the amended language in subsection 3, paragraphs (a) and (b). Senator Washington affirmed that was correct and said it included new paragraph (c) as well.

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Chairman James addressed S.B. 297.

The Chairman inquired whether the amendments he requested were incorporated in the work session document. Mr. Wilkinson affirmed they were. Those amendments are: 1) addition of "high school" to section 1, subsection 3; 2) deletion of section 1, subsection 3, paragraph (b); 3) addition of a new section that defines "forced activity;" and 4) addition of a new section removing sports practices.

Ms. Greene suggested adding the word "intercollegiate" as between two colleges and "on or about the campus," to cover school practices conducted off campus.

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The next bill addressed by Chairman James was S.B. 396.

Chairman James briefly reviewed the amendments. The first one extends the definition of service animal to include a police animal for the purpose of allowing service animals access to establishments. The third amendment corrects a drafting error in which "unjustifiably" was in the wrong location in the bill. The second amendment raises the penalty for interfering with a service animal from a misdemeanor to a Category E felony. Chairman James suggested keeping interference with a service animal a misdemeanor, but making cruelty to service animals a felony. He noted the penalties for killing or cruelty to animals will be increased; but he does not agree with, for example, making petting a service dog a felony. He stated the problem is there is no intent requirement.

Senator Titus asked whether it would be possible to make interfering with a service animal a misdemeanor, but to make "beat, harass, or intimidate" a service animal a Category E felony. Mr. Wilkinson remarked it would be possible to separate the two. He mentioned another option would be to add a "state of mind" requirement for the interference to make it knowingly or maliciously to show there was intent. Senator Titus stated she was in favor of doing that even for a misdemeanor.

Chairman James suggested adding in section 3, subsection 1, "knowingly" before " . . . interfere with a guide dog . . . ," and making "willfully or maliciously beat, harass or intimidate a guide dog . . . ," a gross misdemeanor.

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Chairman James moved on to S.B. 400.

The Chairman remarked Mr. Graham has proposed an amendment that would put a preamble into the NRS indicating the Legislature does not believe the current language unconstitutional or invalid, but it is replacing the language to update it to the new definition. He further stated applicable cases have been provided in the work session document (Exhibit C) under tab C.

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The next bill addressed by Chairman James was S.B. 482.

Chairman James mentioned section 1 of the bill was deleted and noted the amendments proposed by Mr. Graham and Richard Wright, an attorney. He inquired why the effective date was being delayed. He requested John Morrow’s comments.

John C. Morrow, Lobbyist, Washoe County Public Defender, remarked deletion of section 1 of the bill was acceptable. However, regarding adequacy of the notice, in section 2, paragraph (c), he would prefer the word "and" rather than "or" after "charges" and before "provides." In Mr. Morrow’s opinion, "or" renders the statement meaningless. Mr. Graham explained that in the state’s opinion, if the target defendant is given the nature of the charges, in most instances the date of the offenses, and the investigative agency reference numbers, from a practical standpoint, providing a summary would be an extremely heavy burden. He also claimed it is not necessary for the defense attorney.

Chairman James pointed out that it is not a summary of evidence; it was changed to a factual summary. Mr. Graham strongly urged that the identifiable charges or a factual summary would leave some leeway for the defense and assure they would have some notice. He said he is fearful that if they leave it at "and" it would open up a whole other area to frustrate and delay the grand jury process unnecessarily. Mr. Morrow stated, in his opinion, the burden of providing a factual summary has been overstated. Chairman James suggested changing the wording to "The notice is adequate if it . . . provides a summary of the proposed indictable charges . . . with the dates of offense . . . and agency reference numbers." Mr. Graham agreed he could live with that. Mr. Morrow also agreed to Chairman James’ proposed amendment. Additionally, Chairman James stated the effective date would be October 1, 1999, rather than the proposed amended effective date of January 1, 2000.

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Chairman James addressed S.B. 453.

Chairman James stated he added S.B. 484 to the work session document due to testimony regarding background checks taking 3 to 6 months for such things as adoptions, and supposedly that time would be reduced to 5 or 6 days if this bill were passed.

Senator Titus inquired why a state must join the compact in order to obtain information to facilitate background checks. Chairman James answered he is not sure, because the state already uses the files.

Senator Porter suggested holding the bill for an additional day to give him a chance to talk to adoption agency employees to see what difference passage of the bill would make.

Chairman James mentioned there was unfinished business on Assembly Bill (A.B.) 55.

The Chairman advised A.B. 55 was amended with Warren Hardy’s amendment which changed the manner in which the person submitting scrap metal or selling it to the dealer had to prove that it was not burned unlawfully. He said Assemblyman Collins has requested the bill go to conference committee.

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There being no further business to come before the committee, Chairman James adjourned the meeting at 11:40 a.m.

RESPECTFULLY SUBMITTED:

Jo Greeneslate,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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