MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-First Session

March 5, 2001

 

 

The Committee on Judiciary was called to order at 9:04 a.m., on Monday, March 5, 2001.  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

Mrs.  Sharron Angle

Mr.    Greg Brower

Ms.   Barbara Buckley

Mr.    John Carpenter

Mr.    Jerry Claborn

Mr.    Tom Collins

Mr.    Don Gustavson

Mrs.  Ellen Koivisto

Ms.   Kathy McClain

Mr.    Dennis Nolan

Mr.    John Oceguera

Ms.   Genie Ohrenschall

 

GUEST LEGISLATORS PRESENT:

 

Speaker Richard Perkins

Speaker Emeritus Joseph E. Dini, Jr.

 

STAFF MEMBERS PRESENT:

 

Nicolas Anthony, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Sandra Johnson, Committee Secretary

OTHERS PRESENT:

 

Scott Garner Sr., Father of deceased Scott Garner, Jr.

Thomas Christensen, Attorney at Law

Viola Gould, Mother of deceased Scott Garner, Jr.

Doug Gould, Stepfather of deceased Scott Garner, Jr.

Richard Wilkie, Legislative Advocate, City of Henderson

Bobbie Gang, Nevada Women’s Lobby

Leonard Pugh, Director, Washoe County Juvenile Services

Laurel Stadler, Chapter Director, Lyon County Chapter of Mothers Against Drunk Driving

Ruedy Edgington, Assistant Director, Operations, Nevada Department of Transportation

Joetta Burke, Mother of deceased Maleyna Stoltzfus

Crystal Chilton, best friend of deceased Maleyna Stoltzfus

 

Assembly Bill 27:  Prohibits person or entity that supervises juvenile ordered to perform work or community service from placing juvenile on highway or other dangerous situation. (BDR 5-671)

 

Chairman Anderson opened the hearing on A.B. 27, at 9:07 a.m.  He noted there was a quorum present.  He then encouraged any and all witness to testify before the committee, and for them to sign in at the door.

 

Speaker Richard Perkins, who represented Assembly District 23, introduced A.B. 27.  He described an accident in Las Vegas, which occurred March 19, 2000.  The accident resulted in the deaths of six teenagers from the Las Vegas area, Jennifer Booth, Scott Garner, Jr., Rebeccah Glicken, Anthony Smith, Maleyna Stoltzfus, and Alberto Puig, while fulfilling their community service obligation as part of a crew consisting of youths in the Clark County Probation Service Work Program, next to Interstate 15.  Jessica Williams drove off of the roadway and killed all six of them while under the influence of drugs.

 

Speaker Perkins recognized community service performed its duty to encourage personal responsibility, but felt that it was unconscionable for government to place children in any dangerous or hazardous situation.  He cited that several bills, which increased the use of community service, had been passed since the 1995 Session (Exhibit C).  He referred the committee to Exhibit C, which listed community service related assembly bills in the 1995, 1997, and 1999 sessions.  He noted that he supported the bills and believed in the use of community service, so long as it was performed in a safe environment.  He addressed the concern of who would be left to perform the needed work on the roadsides by stating that workers paid to take the risks, and who used proper safety equipment and precautions necessary to do the job, should perform the work.  Speaker Perkins also noted that the same procedure should apply to any and all dangerous and hazardous situations.

 

Speaker Perkins explained that the purpose of A.B. 27 was to meet the responsibility of government to prevent the future occurrence of such horrible incidents as the Las Vegas accident proved to be.  He then introduced two of his cospeakers, Mr. Scott Garner, Sr., and Mr. Thomas Christensen.

 

Speaker Perkins informed the committee he had received some concerns regarding the language of the bill.  He asked the committee to consider their suggestions for amendments to A.B. 27.

 

Chairman Anderson expressed his sympathies to the situation, and noted that when they passed previous legislation, they did not foresee such a tragedy as the Las Vegas accident, let alone for it to have involved children.  He clarified that he agreed upon the importance of community service as a punishment for juveniles, but not with such tragic results.  He voiced his appreciation of the bill and thanked Speaker Perkins for having brought it before the committee.

 

Chairman Anderson notified the committee that due to pending litigation from the afore mentioned accident in Las Vegas, they would not hear from the Clark County District Attorney’s Office, regarding this legislation.

 

Mr. Collins raised his concerns that the bill should also protect adults performing community service as well as juveniles.  He clarified his understanding that the issue actually regarded untrained people on the roadsides.

 

Speaker Perkins responded that they couldn’t protect people in every situation, but we could try our best to do so.  He believed the public policy of Nevada should be to not order any person into unsafe situations to perform community service.  He noted that he would like to incorporate the bill to cover adults as well; it didn’t have to be limited to juveniles.

 

Chairman Anderson expressed his concerns to keep the bill separated between adults and juveniles, for differences of expectations between the two groups.

 

Mr. Brower inquired about the process of assignment of work projects to the juveniles through the community service program.  Speaker Perkins summarized the process that the court order is issued, then the juvenile system assigns the youths to supervisors of the community service system.  However, he did not know how they were chosen for specific project assignments.  Mr. Brower asked Speaker Perkins if he had knowledge of any other situations besides roadside work that would be considered dangerous or hazardous. 
Speaker Perkins noted he did not know of any other situations at this time, and welcomed any suggestions.

 

Chairman Anderson recognized Mr. Brower’s concern of the language of “any other dangerous situations.”  He felt the language needed further clarification.  Should they include a higher standard for danger?  Speaker Perkins offered some amendment language to the committee for their deliberation, including proximity to a highway, what would be “near or by a highway” and what would “any other dangerous situation” consist of.  He also offered the language “any other situation which would place a child at unreasonable risk of harm or bodily injury, or in any other situation which would pose a reasonable foreseeable risk that harm or bodily injury could occur.”  He emphasized that he did not want there to be another tragedy to make them further define this piece of legislation.

 

Chairman Anderson called Speaker Emeritus Joseph E. Dini, Jr., to testify before the committee.

 

Speaker Emeritus Dini voiced his concerns about defining what highway means.  He noted that there were rural roads such as Highway 208 through Mesa Valley, which weren’t heavily traveled and wouldn’t be considered a dangerous highway as opposed to urban roads and highways that were heavily traveled.

 

Chairman Anderson thanked the Speakers for their testimony, and called Mr. Garner and Mr. Christensen to testify.

 

Mr. Scott Garner, Sr., father of deceased Scott Garner, Jr., informed the committee that his son was one of the six teenagers killed in the March 19, 2000, accident in Las Vegas.  Mr. Garner described the area of the freeway where his son died.  He informed the committee that the teenagers were located in the median of the freeway.  He noted that surviving children testified that rocks kicked up and hit them whenever trucks passed by, and that there was a 20 ft. embankment behind them.  He stated that even if the teenagers had seen the van approaching at 75 mph, there still would have been no escape.  Mr. Garner informed the committee his son’s body was found 14 ft. from the edge of the freeway.  He also stated he had no idea his son was working on the side of a freeway, and wasn’t informed of his son’s death until 5:00 p.m. that night.  The accident occurred at 1:40 in the afternoon.  The government had no record of which child was on which bus.

 

Mr. Garner expressed the violation of trust Clark County committed by having placed his child in harms way.  He also expressed his concern that the community service program should have notified him of the work assignment they intended to give his son so that he could have had the opportunity to object.  He implored to the committee to not let his son’s death to have been in vain, to pass A.B. 27 and prevent any other child from such tragedy as befell his son.  He noted that he felt his son’s accident was a foreseeable situation and could have been prevented.  He continued to offer other suggestions for community service projects that he felt would be safe.

 

Mr. Garner informed the committee that the group of children his son was working with that day were not given proper safety equipment and precautions as regular Nevada Department of Transportation workers used.  There were no cones placed and no signs posted.  All they had was an orange vest and a white van parked a distance from where they were working.  He indicated if it were himself that placed his son in the situation, he would have been arrested for child endangerment.  He felt the accident could have been avoided had there been proper safety precautions followed, and the children not placed in such a dangerous situation without protection.

 

Chairman Anderson thanked Mr. Garner for his testimony and expressed his condolences.  He explained the committee had to also consider tort liability when they evaluated the bill, and the government should not treat citizens any less whether or not they were arrested; they were citizens all the same.

 

Chairman Anderson asked if this incident was the first time Mr. Garner’s son was assigned to community service.  Mr. Garner answered yes.  Chairman Anderson agreed with Mr. Garner that children should be protected.  He expressed his support of community service and asked if Mr. Garner valued community service or thought it should be eliminated.  Mr. Garner informed the committee that he did support community service, but not if it would be performed in a dangerous situation.  He felt there were many other things the children could be doing that weren’t dangerous.

 

Mrs. Angle extended her sympathies to Mr. Garner.  She stated her experience as a supervisor of juvenile community service in the past, and wanted to hear more about parental notification.  She explained in her case, she allowed the parents to come to the site to see what their children were doing, and asked how he would like to phrase parental notification.  She wanted parental notification and permission to be included in A.B. 27.

 

Mr. Garner described the process he went through with his son in the Clark County juvenile justice system.  He stated that his participation was rejected by the court for his son’s first-time, minor offense.  He explained the system should evaluate each case on its own.  He indicated that they could not have a single solution for all cases.  One size did not fit all.  He said they should include an interview of the child’s parents to assist in evaluation of the child’s case and how they should proceed.  He cited that his son knew he did something wrong and wanted to step up and take responsibility for his actions.  He felt he should’ve been able to take a larger part in his son’s punishment, but the court refused to hear him.

 

Chairman Anderson requested Mrs. Angle to research the background of parental consent with regards to inclusion in the bill.  He then called upon
Mr. Thomas Christensen, Attorney at Law.

 

Mr. Christensen responded to Mr. Brower’s and Mrs. Angle’s questions.  He stated that Mr. Garner attempted to be heard at his son’s first hearing.  He was cut off by the judge and instructed that he was not part of the process, and could not take part in the proceedings.  In the second hearing where Scott Garner, Jr., was sentenced, Mr. Garner did not speak in remembrance of the judge’s instructions from the first hearing.  Mr. Garner did attempt to be involved in the process, but was denied.  Scott Garner, Jr.’s, case was then referred to a probation officer who gave them the forms, which instructed him where and when to show up.  He explained that the rules of this particular program basically tell the parent not to be involved, that the child would be in the custody of the juvenile community service program, therefore they were not to interfere.  Mr. Christensen explained his own experience with his son in the Las Vegas juvenile system.  He cited the same kind of experiences as Mr. Garner with regard to noninvolvement.

 

Mr. Brower asked Mr. Christensen for detailed information of how projects were assigned to the juveniles.  Mr. Christensen could not fully answer the question, but summarized the majority of community service appeared to be performed on the highways due to the constant need for trash removal.  He informed the committee that there were children in this program that weren’t court ordered, just referred to the program as a deterrent.  He then offered that the children should be assigned to help seniors in need of assistance.

 

Ms. Ohrenschall agreed with Mr. Christensen’s comments.  She expressed her position that the risk to our children being placed in such dangerous situations could not be justified under any circumstances by the legislature.

 

Mrs. Viola Gould, mother of deceased Scott Garner, Jr., testified on behalf of her son.  She wanted to show her love and respect for all of the children involved in the accident by her support of A.B. 27.  She informed the committee that Mr. Garner had addressed her concerns, but that she still wanted to read three letters, which she had received from nurses she worked with.  Chairman Anderson expressed the committee’s condolences and recognized her grief.  He accepted the letters as testimony for the record.  Mrs. Gould read from
Exhibit D, a letter from Claire L. Matthews, a resident of Las Vegas, Nevada.  She then read from Exhibit E, a letter from Wendy See, also a resident of the Las Vegas area.  Last, she read from Exhibit F, a letter from Susan L. Roe, R.N., a resident of Henderson, Nevada.  All of the letters expressed their extreme objections to having children placed in dangerous and hazardous conditions, and offered other ways children could perform community service in the hopes of preventing such unnecessary tragedies from being repeated.

 

Mr. Manendo informed the committee he was subpoenaed in the litigation regarding the accident, but explained he did not feel there was a conflict.  He asked Mrs. Gould if she felt elimination of road cleanups would be appropriate.  He also inquired if she felt it would be appropriate for kids to cleanup graffiti in a park, clean an empty lot, etcetera, if they were in residential neighborhoods.  Mrs. Gould answered no.  She stated her only concerns would be that the children were provided proper safety equipment and instructed concerning specific safety precautions needed to perform the assigned tasks.

 

Mr. Manendo clarified his question to be if in her opinion it would be safe for the children to clean graffiti in a neighborhood with a speed limit of 25 mph.  He expressed his concerns of children forming the idea that they wouldn’t have to face consequences for their actions if community service would be eliminated.  He wanted to clarify the intent of A.B. 27 would not eliminate all community service, just to make it safe.

 

Mr. Gould, stepfather of deceased Scott Garner, Jr., requested the committee to consider safety as the most prevalent issue when amending A.B. 27.  He expressed his agreement of the necessity for children to perform community service as a consequence of their actions.  Placement of children in the middle of a super highway would not be appropriate, he said.  However, if they were placed in a field on the side of a road with a 15 mph, he felt it would be reasonably safe.  He implored the committee to please use common sense when they changed the language of the bill.

 

Chairman Anderson explained that when previous legislation was drafted, they assumed common sense would prevail.  Obviously, it did not.  He invited
Mr. Gould to provide alternate language, which would still allow juveniles to perform community service.  He noted there were youths that performed community service on a volunteer basis, which also needed to be considered.  He stated even the simplest tasks involved some inherent dangers.

 

Mr. Gould recognized inherent dangers in all tasks, but he wanted the legislature to recognize the difference in the level of dangers involved with different tasks, and to see that everything possible would be done to prevent tragedies such as his family suffered, from ever happening again.

 

Mr. Nolan informed the audience of his profession as a Transportation Safety Expert for public transportation systems.  He explained that there were Department of Transportation (DOT) and National Traffic Safety Board (NTSB) statutes and regulations, which seemed to have been ignored in the described accident.  He indicated if statutes and regulations were properly followed, tragedies as happened to the Garner’s and Gould’s, should not have occurred.

 

Mr. Richard W. Wilkie, Legislative Advocate, representing the city of Henderson, testified in support A.B. 27.  He felt the legislation would protect the children of Nevada, and prevent the senseless tragedy from being repeated.

 

Ms. Bobbie Gang, Lobbyist, representing Nevada’s Women’s Lobby, urged the committee to support A.B. 27.  She brought to the committee’s attention to the need for the juvenile system to evaluate the efficiency and effectiveness of their system in regards to first-time offenders.  Could they be exposed to role models specific to their offense, she asked.  She felt service in soup kitchens and other special needs groups could teach more meaningful lessons to the juveniles than roadside work, for instance.

 

Chairman Anderson noted that A.B. 125 of the Sixty-Eighth Session, ironically tried to teach the same lessons she described in regards to graffiti.  He stated it would be almost impossible to create meaningful programs for every kind of offense.  He recognized the mixed views regarding community service.  He indicated when the public saw people picking up trash from the side of the highways, it displayed the indication that justice was served.  Yet at the same time, those same sites posed danger to those people who worked there.

 

Ms. Ohrenschall voiced her preference to keep children off of the sides of roads and highways, yet if it could not be done, she would like to see the same standards of safety, such as lowered speeds and stiffer penalties, be enforced for community service as had been done for state road workers.

 

Mr. Leonard Pugh, Director of Juvenile Services for Washoe County, clarified their work assignment process.  He informed the committee that they handled a myriad of offenders through his office, which ranged from first-time misdemeanors to repeat felony cases.  He indicated the first step of the process was the appearance before a juvenile master in court, placement on probation, and/or as a consequence of court, could be assigned to community service.  He noted their program tried whenever possible to place first time offenders into community based programs.  Occasionally, location of work spots became limited and children were placed in their program.

 

Mr. Pugh cited the difficulties of supervision they experienced with placement of certain types of offenders into community-based programs such as assistance to senior centers.  In those cases the offenders were brought back under the county’s program to keep them under close supervision.  Also, they attempted to keep similar kinds of offenders together on the same crews, such as misdemeanor offenders on one crew, and felony offenders on another crew.  Work sites were identified by supervisors throughout time periods and assigned to work crews.  He indicated the freeway was a long-standing work site for the program.  He noted one crew was always assigned to community projects like parks, fairgrounds, etc.  He informed the committee that safety assessments of sites were performed as a normal part of their process before crews were assigned.

 

Mr. Pugh asserted to the committee that community service was an important and beneficial tool to impact and deter juvenile offenders from repeating their criminal behavior.  He asked the committee to provide them with direction through the bill.  He noted that several parks were surrounded with roads.  He asked how far from roadways would juveniles have to remain.

 

He notified the committee of the changes they made in safety procedures after hearing of the March 19, 2000, accident in Las Vegas.  He indicated children were only allowed to work behind large cement block walls and cement jersey barriers when they worked on the road.  He felt “dangerous situations” was too broad of a term.

 

Chairman Anderson inquired if parental notification and or permission were required in the program directed by Mr. Pugh.  He expressed his concerns of parents not being notified of their children’s location.

 

Mr. Pugh informed the committee that parents didn’t know the details of their children’s work.  He said they were given a general idea of the kind of work their children would perform.

 

Mrs. Angle asked Mr. Pugh if his program ever sought parental permission slips or parental notification for the work program.  Mr. Pugh responded if the child was serving community service through an informal process such as referral to community service due to a misdemeanor, the juvenile would sign a form that would accept guilt and community service as a consequence for their actions.  If placed on this program, they would be issued a list of rules, and a sheet describing general information of type of work juvenile would perform, which would require a parental signature.  If court ordered, parental signature would not be required because participation in work program would be under an order of the court.

 

Mr. Carpenter inquired if a juvenile was injured while performing community service, would they be covered under the community service program. 
Mr. Pugh indicated they would be covered by the county’s workers’ compensation insurance plan.  He noted that to date, they had not had any serious injuries occur to juveniles while under their supervision.

 

Laurel Stadler, Chapter Director, Lyon Chapter of Mothers Against Drunk Driving, informed the committee that she felt A.B. 27 did not focus on the real problem, which she indicated was people driving under the influence of alcohol and drugs.  The Chair accepted Ms. Stadler’s letter to put into the record in place of her testimony (Exhibit G).  He recognized her position in regards to drunk drivers, and invited her to testify on behalf of Mr. Manendo’s bill, A.B. 166, which would reduce the legally impaired driving blood alcohol level   to .08 percent from .10 percent.

 

Mr. Ruedy Edgington, Assistant Director of Operations, state of Nevada Department of Transportation (NDOT), testified before the committee in regards to A.B. 27.  He stated he felt the bill would be good for the state of Nevada.  He expressed his concerns of clarification of the bill to identify “dangerous situations.”  He indicated his strong support of the juvenile community service program, and stated how important their participation was to assist NDOT in maintaining the roadways.  He explained how the juvenile work crews kept the Damonte Parkway interchange in Reno on Highway 395 clean after only two days of work on each quadrant of it, per month.  He said that he felt they were not in any danger while working at that site.  Mr. Edgington then offered his services, or the services of members of his staff to assist the committee in consideration of amendments to the bill.

 

Mr. Nolan asked Mr. Edgington if to his knowledge and experience, any safety rules were followed and precautions applied to the work crew that was involved in the March 19, 2000, accident in Las Vegas.  He refrained from comment on the particular incident, stating he was not knowledgeable enough about the situation to answer.

 

Chairman Anderson inquired about the lead-time for NDOT to set up signage and place cones.  Mr. Edgington informed the committee that it usually took approximately an hour to set up cones, but would take more time to set up signs, dependent of type of signs to be placed regarding the type of work to be performed.  He explained if work were only to be performed off the surface of the road/highway, the typical setup would consist of placement of signs.  If work were to be performed on the shoulder of the road, they would cone off the shoulder and post signs.

 

Chairman Anderson asked to clarify that the personnel who placed the safety equipment on the roadways were properly trained.  Mr. Pugh answered in the affirmative, that they had a training program, which followed a standard plans book and the Manual of Uniform Traffic Control Devices, to ensure all proper safety precautions were learned and performed.  He also described that traffic typically slowed down when cones were placed or lanes were closed, after Chairman Anderson inquired.  Mr. Edgington commented that he felt clear zones, shoulder size, and barriers would be safe precautionary measures.  He added that work crew vehicles should also be parked off of the roadway as a safety precaution.

 

Chairman Anderson thanked the witness for his testimony and advised him that the committee accepted his offer to provide assistance to the committee in regards to A.B. 27.

 

Joetta Burke, mother of deceased Maleyna Stoltzfus, encouraged the committee to pass legislation to prevent another senseless tragedy, and expressed her concerns regarding the placement of children in such dangerous situations as her daughter.  She indicated that if she had been notified that her daughter was to be placed on the busy freeway to perform her community service, she would never have permitted it.

 

Chairman Anderson expressed the committee’s condolences and inquired of her daughter’s age, and if it was her first assignment to community service. 
Ms. Burke responded that her daughter was fifteen years old and it was a minor, first-time offense.  Her daughter was issued a citation for being out after curfew.  She explained her daughter had 16 hours of community service to perform, and that she dropped her off at juvenile hall.  She was not informed of the type of community service her daughter was to perform, nor was she asked for permission for her to be placed on the freeway.  She felt betrayed by the county for placing her daughter in the middle of a busy freeway.  She thought her daughter would work safely in a park.  She informed the committee that she missed her daughter very much and had been torn with grief by the tragedy.

 

Mrs. Gould returned and stated that their children gave up their lives in hopes of saving the lives of others.  They respectfully implored the committee to support A.B. 27.

 

Crystal Chilton, best friend of deceased Maleyna Stoltzfus, requested the committee to prevent any other children from ever being placed in such dangerous situations.  She described her grief in the loss of her best friend, and did not want anybody else to have to needlessly go through the same pain.  She did not want anyone else hurt from somebody else’s mistake.

 

Chairman Anderson expressed the sorrow of the committee, and the remorse of Clark County for the action that placed the children in harms way.  He then closed the hearing on A.B. 27.

 

Chairman Anderson clarified to the members of the committee that his intents were to review potential amendments of the language to A.B. 27, to modify and form a clear understanding of “along the shoulders of the road,” and “on or near a highway.”  He explained they needed to form a consensus of the meaning of “other dangerous situations.”  He did not want to leave that portion of the language ambiguous.  He indicated his wish for research to find out the process of assignment of children to work projects for performing community service.  He wanted more information with regards to parental notification throughout the process.  Also, he wanted to know precautions that were used to protect children, since requirements were already set in place for employed road workers.  What standards could reasonably be expected to be followed when persons worked in or near dangerous or hazardous areas.  He then referred the bill to review in the work session on March 16, 2001.

 

There being no further discussion, Chairman Anderson adjourned the meeting at 10:42 a.m.

 

RESPECTFULLY SUBMITTED:

 

 

 

           

Sandra C. Johnson

Committee Secretary

 

APPROVED BY:

 

 

 

                                                                                         

Assemblyman Bernie Anderson, Chairman

 

 

DATE: