The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:30 a.m., on Monday, May 10, 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

GUEST LEGISLATORS PRESENT:

Assemblyman Tom Collins, Clark County Assembly District No. 1

Assemblyman Dennis Nolan, Clark County Assembly District No. 13

STAFF MEMBERS PRESENT:

Silvia Motta, Committee Secretary

OTHERS PRESENT:

Chairman James opened the hearing on Assembly Bill (A.B.) 86.

Stephen Dahl, Justice of the Peace, Clark County Justice Court, North Las Vegas Township, submitted a letter dated April 28, 1999 which he sent to Senator Porter in favor of A.B. 86 (Exhibit C.). Attached to Exhibit C are informational documents of crime rates, population figures and other statistics which favor passage of A.B. 86. Judge Dahl also submitted Exhibit D showing requirements for running for the office of justice of the peace and giving information about the eligible candidates for the North Las Vegas Justice of the Peace position. He stated Clark County requested A.B. 86 to create certain population limits that would require the justices of the peace in Henderson and North Las Vegas be attorneys because of the explosive population growth in both of the townships, the proportionate growth in the size and complexity of the caseload of those townships, and to conform with the requirements that already exist in the Las Vegas Township and Las Vegas Municipal Court.

Kent Dawson, Justice of the Peace, Clark County Justice Court, Department 2, Henderson, read a letter the executive director of the Henderson Chamber of Commerce had sent to the Nevada State Senate dated May 7, 1999 requesting passage and approval of A.B. 86. He stated in 1996 he paid for an issues poll to be conducted by a professional polling organization which is recognized statewide and the results of the poll showed that the population overwhelmingly favored the requirement that judges also be licensed attorneys in the Henderson Justice Court. Judge Dawson indicated attorneys are used in the Henderson Justice Court in the absence of a justice court judge.

Rodney Burr, Justice of the Peace, Clark County Justice Court, Department 1, Henderson, emphasized in 1987 the Legislature made a decision at the request of Clark County, based on population, caseload, complexity of the cases and the issues, that the Justice of the Peace in Las Vegas should be an attorney. He said since that 1987 decision, the cities of Las Vegas and Reno have come before the Legislature to request their city charters be amended allowing the law degree requirement. Judge Burr said Henderson has now surpassed the size of Reno and is in the same position Las Vegas was in when it came before the Legislature on this very issue in 1987.

Senator Care asked if the judges’ respective townships allow them to hire law clerks and if the judges could explain how many of each type of matters they hear in a typical day.

Judge Dahl replied the justices of the peace do not get to utilize law clerks. He said he hears 40 to 50 criminal cases, felonies and gross misdemeanors, every day, 5 days a week and sets 10 to 12 preliminary hearings a day for felonies and gross misdemeanors which are heard two afternoons a week. He stated he also hears eviction cases and has a pro tem judge who helps out with the small claims cases.

Judge Dawson responded the Henderson Justice Court has criminal hearings 2 days a week for each judge and will handle around 70 criminal cases per day. He continued the Henderson Justice Court hears 20 eviction cases per day; hears traffic matters 1 day a week; holds small claims court 1 day a week, usually 10 to 20 cases. He stated Henderson Justice Court now has civil jury trials that are in line waiting for the county to decide how it is going to provide juries to the justice court. Judge Dawson added the Henderson Justice Court does not have law clerks and the justices of the peace do their own research.

Senator Wiener asked Judge Dawson to provide the Senate Committee on Judiciary with the results of the survey conducted in 1996 at his request, the percentages of the poll, and the phrase of his question. Judge Dawson replied of those polled approximately 80 percent were of the opinion it made a difference having justices of the peace who were licensed attorneys.

Karen C. Winckler, Nevada Attorneys for Criminal Justice, supported A.B. 86 with the understanding the bill is limited to the townships of Henderson and North Las Vegas.

James J. Spinello, Lobbyist, Clark County, said Clark County brought A.B. 86 forward and defined it very narrowly so that it only applies to the townships of Henderson and North Las Vegas.

Assemblyman Tom Collins, Clark County Assembly District No. 1, said he is in opposition to A.B. 86 and the Senate Committee on Judiciary will be hearing more testimony on why A.B. 86 should not pass.

Robert Crowell, Lobbyist, Nevada Judges Association, is opposed to A.B. 86 on the grounds that it restricts the public’s right to choose who its elected officials will be. He stated the Nevada Constitution does not require justices of the peace to be lawyers.

Robey B. Willis, Lobbyist, Nevada Judges Association, said the proposed job requirement of A.B. 86 is not a valid or legitimate job requirement. He stated A.B. 86 is a self-serving attempt to limit election competition for the sake of a few, at the expense of many. He corrected Judge Burr in that Reno does not have an "attorney only" requirement for its Justice of the Peace position. Judge Willis pointed out this is about the fourth time a bill of this nature has come before the Legislature. He emphasized cases are not going to become more complex because of the increasing caseload and that he believes the voters are quite capable of electing qualified judges. He said he would not oppose A.B. 86 if the voters in Henderson and North Las Vegas wanted to limit themselves to attorney judges only. Judge Willis submitted a memorandum dated May 6, 1999, to members of the Nevada Judges Association in opposition to A.B. 86 (Exhibit E).

John Tatro, Justice of the Peace, Department II, Carson City, and Lobbyist, Nevada Judges Association, stressed that crimes in Carson City are no less serious than crimes in North Las Vegas and people have the same rights in Fallon as they do in North Las Vegas. He recently conducted a preliminary hearing with 11 defendants, 11 criminal defense attorneys, and 2 district attorneys. He said he did not think preliminary hearings can be more complex than the one he just described. Judge Tatro said he did not think having a license to practice law would have made him any better qualified as a judge in that particular case. He stressed the voters understand the issues and frequent the justice courts.

Senator Care asked how often the judges go to the judicial college and who briefs the justices of the peace when there is a change in the law. Judge Tatro said the Nevada Judges Association does an excellent job of educating the judges and all of the seminars deal with the most recent case decisions.

Senator Care asked if Judge Tatro believes a justice of the peace who is not an attorney has more difficulty applying the changes in case law than an attorney who is a justice of the peace. Judge Tatro said he felt confident and competent in interpreting case law because of the clear and concise way in which the courts issue decisions.

Judge Willis said the Nevada Judges Association gives two weeklong seminars a year which are well attended. He stated in addition to the seminars most of the judges also go to the judicial college where new opinions are reviewed.

Senator Titus asked how the Carson City judges were affected by A.B. 86. Judge Tatro replied he would not personally be affected by A.B. 86, but it will affect Washoe County sometime in the future. He stated he is a member of the Nevada Judges Association and it is the Nevada Judges Association’s opinion to oppose bills such as A.B. 86.

William A. Maddox, Attorney, opposed A.B. 86. He stated one way to include lay people in the justice system is to let them be at the level where most of the justice is dispensed. He said he believed non-attorney justices of the peace can absorb what he is trying to advocate as well as justices of the peace who are attorneys.

Judge Burr said he wanted to make it clear for the record he did not speak to Reno Justice Court, but to the city charters of Las Vegas and Reno Municipal Courts.

There being no further testimony, Chairman James closed the hearing on A.B. 86 and opened the hearing on A.B. 392.

Sam Sorich, Lobbyist, National Association of Independent Insurers, submitted a Statement of the National Association of Independent Insurers to the Nevada Senate Committee on Judiciary in support of A.B. 392, as amended on March 26, 1999 (Exhibit F). Mr. Sorich said he believed A.B. 392 offers an opportunity for parties to a lawsuit to obtain a quick and final resolution of their dispute outside the arbitration system and outside of traditional support procedures. He continued A.B. 392 offers the hope of improving the arbitration system and clearing up some of the trial court backlog.

Bill Bradley, Lobbyist, Nevada Trial Lawyers’ Association, stated he has worked with the insurance industry on A.B. 392 and he believes the bill has the potential to be a good alternative for an efficient and quick resolution to certain disputes.

Chairman James said he had a concern with section 1, subsection 2, of A.B. 392. Mr. Bradley responded the language Chairman James referred to was over a concern Assemblywoman Barbara E. Buckley, Clark County Assembly District No. 8, had that insurers could not put a binding short-trial provision in their contracts. Mr. Bradley added this language came in as an amendment to the original bill to make sure the intent was very clear the only way a binding short trial can occur is if the parties, at the time of the dispute, agree to go to a same-day jury trial as opposed to having it forced on someone through a large group insurance contract.

Chairman James questioned the purpose of the language in section 2 of A.B. 392 regarding the court authorizing the use of settlement conferences and other alternative methods of resolving disputes. Mr. Bradley said it was collectively agreed that the actual procedural rules which govern a binding short trial would be better worked out through a supreme court alternative dispute resolution committee than in the Legislature.

Chairman James pointed out the language in section 2, subsection 1, paragraph (a), of A.B. 392 gives the supreme court the power to obliterate Nevada Revised Statutes (NRS) 38.250A. Mr. Bradley responded that was not necessarily so because NRS 38.250A deals with the concept of binding arbitration, but the typical separation-of-powers argument applies here as well. Mr. Bradley stressed the court should be implementing the procedural rules just as it has done in arbitration.

Chairman James said his understanding is all civil actions under $40,000 must be arbitrated, yet section 2 of A.B. 392 is giving the supreme court the power to authorize alternative methods of resolving disputes. Mr. Bradley said the hope was, rather than to arbitrate a dispute and then submit the case to a binding jury trial, to have the opportunity to go straight to a binding jury trial. Mr. Bradley furthered the only way to accomplish this is if both parties to a dispute agree to take the dispute in the direction away from arbitration and to a binding jury trial.

Chairman James said the language of section 2, subsection 1, paragraph (a), of A.B. 392 is ambiguous. He stressed the bill should not give the supreme court the option of ignoring NRS 38.250.

Senator Care said the binding arbitration program has been on the books for about 10 years. He explained the purpose of the binding arbitration program was to have a less expensive and quicker resolution. He wondered aloud what A.B. 392 does to the philosophy behind arbitration.

Mr. Bradley said having heard the testimony on S.B. 315, he feels there is dissatisfaction in some parts of the state with the current arbitration program because the program does not accomplish the intent. He said A.B. 392 has the potential to deal with problems in a different way than nonbinding arbitration and attain resolution in a quick and expedient manner. He stated if A.B. 392 works, he believes the philosophy will shift to this kind of a resolution and if it does not work, he believes at some point the arbitration program issue will have to be revisited in more detail.

Chairman James asked about the status of S.B. 315. Mr. Bradley said it is on the Chief Clerk’s desk in the Assembly, he believes because of concerns by the insurance industry and compromises the industry is trying to work out.

C. Joseph Guild, Lobbyist, State Farm Insurance Companies, offered part of the reason S.B. 315 is on the Chief Clerk’s desk is because there were serious concerns on the part of the Washoe County delegation and the Assembly based upon what the Washoe County judges have said about the bill.

Chairman James indicated only one judge in the State of Nevada called him with concern about S.B. 315, and the judge was not from Washoe County. Chairman James said ultimately the judge who called him let the issue go.

Senator Wiener said she received an electronic mail message from a judge urging the Legislature to enact some kind of qualifying language to A.B. 392 and the easiest solution would be to use language stating, "The provisions of this section do not apply to small claims cases." Senator Wiener stated the judge indicated such a solution would preserve the benefits of A.B. 392 in civil cases without complicating the informal nature of small claims cases. She said the judge had additional concern that A.B. 392 could be used to create similar concerns in cases involving summary evictions and unlawful detainers.

Mr. Sorich said he also saw the message to which Senator Wiener referred and said he thought it was a legitimate concern that somehow A.B. 392 could be read to imply the Legislature is now saying jury trial should be available for small claims matters. He said he believed the issue could be resolved through the Supreme Court Rules in that this bill is allowing the supreme court to develop rules that will give parties options and improve the system.

Senator Care asked if A.B. 392 would contemplate a role of attorneys who would act as short trial judges, much like the role of arbitrators. Mr. Bradley replied the rules that will be implemented by the supreme court will indicate attorneys with 15, 20, or 25 years of civil litigation experience will be asked to serve as the pro tem judges.

Chairman James said he does not want to have the bill drafted in a fashion that the arbitration program could be obliterated. There being no further testimony, Chairman James closed the hearing on A.B. 392 and opened the hearing on A.B. 409.

Assemblyman Donald (Don) G. Gustavson, Washoe County Assembly District No. 32, explained A.B. 409 extends limited immunity from liability regarding the use of automated defibrillators to physicians, nurses, and other persons trained in the use of the devices who render emergency care gratuitously and in good faith. He said the bill further extends limited immunity to emergency medical attendance to registered nurses or licensed practical nurses who obey instructions by physicians and nurses in rendering emergency care. He continued A.B. 409 further provides limited immunity from liability regarding the use of automated external defibrillators (AEDs) to persons and governmental entities that provide requisite training in accordance with the standards of the American Heart Association or the American Red Cross. He furthered businesses and organizations which place AEDs on their premises are not liable for any civil damages as the result of any act or omission not amounting to gross negligence by the person rendering such care. Assemblyman Gustavson added A.B. 409 provides "gratuitously" means the person receiving care or assistance is not required or expected to pay any compensation or other remuneration for receiving the care or assistance.

Maureen Brower, Lobbyist, American Heart Association, submitted her testimony along with additional testimonial documents that were provided by people who were unable to attend this hearing on A.B. 409 (Exhibit G).

Assemblyman Dennis Nolan, Clark County Assembly District No. 13, said A.B. 409 is a concept he endorses having spent a great amount of time in his professional career as a paramedic and as an instructor in advanced cardiac life support. Assemblyman Nolan stated in his 15-year career as a paramedic there were many occasions where an individual would have died had Assemblyman Nolan not had access to a defibrillator.

Senator Care expressed concern over the "gross negligence" issue. Mr. Bradley said Senator Care’s concern is valid, although the Nevada Trial Lawyers’ Association has identified more cases and a jury instruction on gross negligence that they believe would carry the day. Mr. Bradley stated it had always been the intent to reserve Good Samaritan laws to the gross negligence standard.

Judy Henderson, Director, Emergency Services and Customer Service, American Red Cross, Sierra Nevada Chapter, read her testimony (Exhibit H) in support of A.B. 409.

Richard Hardman, Clark County Fire Department, said since the inception of the AED program in March 1997 he has supported the AED movement and has been able to quantify some of the theories of organizations such as the American Heart Association that AEDs do save lives. He stated with the AED program in place the survival rate of sudden cardiac arrest victims in Clark County has risen to 55 percent from 14 percent in years prior to the AED program.

There being no further testimony, Chairman James closed the hearing on A.B. 409 and asked for a motion on A.B. 409.

*****

Chairman James opened the work session on S.B. 121.

Senator Porter said the essence of the amendment to S.B. 121 is that the seller is to notify the buyer and he suggested adding to the amendment that it could also be the owner’s designee who makes the acknowledgment of the gaming enterprise district in the closing documents. Senator Porter indicated such an amendment would make the real estate agent also responsible for divulging the gaming enterprise district information.

Chairman James asked if the intent was to make both the seller and the real estate agent liable for divulging the information independently. Senator Porter said that was correct. Chairman James asked for a motion to not concur.

*****

Allison Combs, Committee Policy Analyst, Research Division, Legislative Counsel Bureau, explained the amendments to A.B. 617 as outlined in the work session document (Exhibit I).

Chairman James asked for a motion to adopt the amendment under Tab A of Exhibit I, and to change the "or" to an "and" on line 31, page 3, of A.B. 617.

Senator Care said he thought the Barone v. State case discussed at the May 4, 1999 Senate Committee on Judiciary hearing on A.B. 617 applies. Chairman James agreed that under the Barone decision the burden of going forward will

be with the defendant, but the burden of proof to prove the ability to pay will be on the state.

*****

Ms. Combs explained the amendments to A.B. 645 as outlined in the work session document (Exhibit I). Chairman James asked for a motion to amend and do pass A.B. 645.

*****

There being no further business, Chairman James adjourned the meeting at 11:05 a.m.

RESPECTFULLY SUBMITTED:

Janice McClure,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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