MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
April 12, 2001
The Committee on Judiciarywas called to order at 7:30 a.m., on Thursday, April 12, 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
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. Kathy McClain
Mr. Dennis Nolan
Mr. John Oceguera
Ms. Genie Ohrenschall
GUEST LEGISLATORS PRESENT:
Assemblywoman Vonne Chowning, District 28
Assemblyman Doug Bache, District 11
Assemblywoman Christina Giunchigliani, District 9
Assemblyman John Lee, District 3
Assemblyman Richard Perkins, District 23
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
William Magrath, Attorney, Caughlin Ranch Homeowners Association, Reno
Michael Trudell, Manager, Caughlin Ranch Homeowners Association, Reno
Pamela Scott, Senior Property Manager, Community Association Management, The Howard Hughes Corporation, Las Vegas
James Jackson, Attorney, Las Vegas
Jim Spinello, Clark County, Las Vegas
Sydney Wickliffe, Director, Department of Business and Industry, Carson City
Brian Hutchins, Chief Deputy Attorney General, Office of the Attorney General, Transportation and Public Safety Division, Carson City
Jeffrey Fontaine, Deputy Director, Nevada Department of Transportation (NDOT), Carson City
Fred Hillerby, Regional Transportation Commission, Washoe County, Reno
Madelyn Shipman, Assistant District Attorney, Civil Division, Washoe County District Attorney, Reno
Kermitt Waters, Attorney
Scott Canepa, Nevada Trial Lawyers Association, Las Vegas
Andrew List, Policy & Research Coordinator, Nevada Association of Counties, Carson City
Bob Nunes, Director, Douglas County Community Development, Minden
Mark Ferrario, Southern Nevada Homebuilders Association, Las Vegas
Kevin Child, representing self
Stephen Shaw, Administrator, Department of Human Resources, Division of Child and Family Services, Carson City
Susan Sturnetto, representing self
Jan Gilbert, Northern Nevada Coordinator, Progressive Leadership Alliance of Nevada (PLAN), Carson City
Victoria Riley, Nevada Trial Lawyers Association, Carson City
Noel Fisher, representing Assemblyman Williams, District 6
Tom Patton, First Assistant Attorney General, Office of the Attorney General, Carson City
Neil Carson, Reno Police Department and Nevada Sheriffs and Chiefs Association, standing in for Captain Jim Nadeau
Ben Graham, Legislative Representative, Nevada District Attorney’s Association, Carson City
Chairman Anderson made opening remarks and noted a quorum was present.
Chairman Anderson opened the hearing on A.B. 575.
Assembly Bill 575: Requires person filing tort action against certain governmental entities or their officers or employees to file notice of action within certain period of time. (BDR 3-363)
A letter from the Legislative Counsel Bureau was previously distributed indicating provisions of A.B. 575 appeared to be unconstitutional. Attempts were made by the Legislative Counsel Bureau to reach the League of Cities, specifically the city supporting the legislation; there was no response. Thus, the letter was given to Speaker Perkins and to the Assembly Committee on Judiciary. The City of Reno had wanted to set up a challenge to a case in front of the Supreme Court, Turner vs. Stagg. Due to time constraints, it was the intention of the Chair to entertain a motion based on the recommendation of the Legislative Counsel Bureau.
ASSEMBLYWOMAN KOIVISTO MOVED TO INDEFINITELY POSTPONE
A.B. 575.
ASSEMBLYMAN MANENDO SECONDED THE MOTION.
MOTION PASSED WITH MR. COLLINS, MR. NOLAN, MS. ANGLE AND
MS. BUCKLEY ABSENT.
Chairman Anderson asked Nicolas Anthony, Committee Policy Analyst, to explain the eleven-page workload summary of the Assembly Committee on Judiciary (Exhibit C). The following information was listed:
q Bills and Resolutions Pending in Committee
Work Session 4/12/01
Work Session 4/16/01
q Bills on the “Board”
q Bills that Sponsor had requested to not be heard
q Bills not heard as of 4/11/01 PM
Chairman Anderson opened the hearing on A.B. 484 and acknowledged Assemblywoman Vonne Chowning, District 28, as she approached the witness table.
Assembly Bill 484: Revises provisions governing disclosure statement required upon sale of unit in common-interest community. (BDR 10-584)
Assemblywoman Chowning, sponsor of the bill, explained a number of scenarios regarding real estate transactions in Clark County that would be affected by A.B. 484. Assemblywoman Chowning believed A.B. 484 was a common sense approach that required a statement outlining any unpaid fines, violations of governing documents regarding repairs, pending claims to arbitration or mediation, or legal actions that would reasonably be anticipated. Both the homeowners and association would sign the forms and disclosures could then be made to a new purchaser. This would release the new purchaser from the liability to pay any fines or make any corrections or repairs that were not disclosed to them by the association. The Nevada Association of Realtors and the Greater Las Vegas Association of Realtors supported A.B. 484.
Chairman Anderson asked what legal actions would “reasonably be anticipated to be filed” that the associations would have to disclose. Assemblywoman Chowning said there were instances where an association knew a legal action was going to be filed, but it had not happened at the time of the sale.
Assemblywoman Ohrenschall asked what would happen if the association purposefully “chose to keep it under wraps,” the association knew of pending actions but had not informed the owner. Assemblywoman Chowning said that was exactly what A.B. 484 hoped to correct. If the association failed to provide the information within ten days, it would no longer apply.
Assemblyman Gustavson asked how many disclosure forms were required. Assemblywoman Chowning, as a realtor, replied there was only one disclosure form that would be required as a result of A.B. 484. As a member of an association, there was another form that would disclose information. The amount of disclosure forms required by the lender was voluminous, because of federal laws. Assemblywoman Chowning believed the more disclosures made, the better people were protected. Assemblyman Gustavson asked if people read all the Covenants, Conditions and Restrictions (CCRs). Assemblywoman Chowning cautioned prospective buyers to read the CCRs since this gave them information about living in the common-interest communities and it did require their signature.
Assemblyman Claborn asked if a title search would show any of this information. Assemblywoman Chowning replied in the negative. If there was a lien levied against a particular unit that would show up. If it was against the association, including fines, it would not show up unless the association had filed a lien for the items.
Assemblyman Carpenter asked for clarification on the wording “correction or repair of any violation of the governing documents of the association.” Assemblywoman Chowning responded the governing documents included the association’s bylaws as well as the CCRs, outlining the requirements of the association, which were used to judge whether there were any violations and whether repairs had been completed within the standard required by the CCRs. Assemblyman Carpenter felt the wording in the bill needed to be more clear; making it obvious that the repairs were to the physical items such as walls, property, etc. not to modify the governing documents. Assemblywoman Koivisto stated it would be clearer if the wording said “existing violation.” Assemblywoman Chowning replied that was the intent.
William Magrath appeared as a homeowner and a member of a homeowners’ association. He submitted a letter (Exhibit D) as an unpaid volunteer member of the Board of Directors of Caughlin Ranch Homeowners’ Association. Mr. Magrath believed A.B. 484 would create obligations for the association to inspect the property in order to be able to disclose any violations of the governing documents. The penalty for not having this completed within ten days would be a waiver for any existing violations. If the seller knew of existing problems and did not cooperate, not allowing the property to be inspected within those ten days, that would be unfair to the association. There were other proposed amendments that Mr. Magrath shared with Assemblywoman Chowning and explained to the committee. Mr. Magrath suggested amending the wording questioned by Assemblyman Carpenter to include “required by the governing documents”; he believed that would clear up any misunderstanding of that phrase. Mr. Magrath had no problem with conducting an inspection of the property for violations and subsequently issuing a certificate of inspection, but he believed the association had the right to be reimbursed for any expenses incurred for the inspection, preparing the certificate, copies, etc. Chairman Anderson was concerned about the costs passed on to association members, believing that such costs should be part of running the homeowners’ association. Mr. Magrath stated the law provided for photocopy expenses at 25 cents per page, which is what his homeowners’ association charged to all its members.
Assemblywoman McClain believed the inspection was an outside inspection only, certainly not inside the house. Mr. Magrath agreed the inspection would involve walking around the outside property. If the purpose was to provide disclosure, the association should be allowed to put together a “laundry list” and then the buyer and the seller could talk about it.
Assemblywoman Chowning stated the intent of A.B. 484 was to have the association disclose existing violations known by the association, not to hire an inspector to find violations. A.B. 484 talked about repairs and fines the association already knew about and that a future purchaser would have no way of knowing about. Chairman Anderson asked Assemblywoman Chowning to work with Mr. Magrath on proposed amendments. Mr. Magrath agreed with Assemblywoman Chowning’s comments about “known violations,” that would eliminate the need for an inspection; but he believed A.B. 484 was written in such a way as to cover “unknown” violations.
Michael Trudell, Manager of Caughlin Ranch Homeowners’ Association in Reno, was in favor of the disclosure requirements and would like to see title companies be part of the disclosure process. He submitted a letter (Exhibit E) summarizing his concerns. Chairman Anderson asked Mr. Trudell if his letter included suggested language for A.B. 484. Mr. Trudell answered in the negative. Mr. Trudell believed there would be a fiscal impact and there were “taking” issues. Chairman Anderson reassured Mr. Trudell that every bill was reviewed for a fiscal impact.
Pamela Scott, Senior Property Manager, Community Association Management, The Howard Hughes Corporation, currently managed the Summerlin Master Planned Community in Las Vegas. She and her staff processed between 120 to 150 resales every month and put together the disclosure packets on a daily basis. Her concern was that once the seller took the package, she had no control over that package and did not know whether those disclosures were given to the buyer. Quitclaim sales were also a concern. And what about foreclosures, did the financial institution then become responsible for repairs and outstanding dues? Chairman Anderson asked if Ms. Scott would be available to work with Assemblywoman Chowning. Ms. Scott said she would make herself available.
Chairman Anderson asked for further testimony. There being none, Chairman Anderson closed the hearing on A.B. 484. Chairman Anderson asked Assemblywoman Chowning to work with Mr. Magrath, Ms. Scott and Mr. Trudell to address issues, find common ground and provide amendments.
Chairman Anderson opened the hearing on A.B. 485.
Assembly Bill 485: Establishes office of private property ombudsman within department of business and industry. (BDR 3-585)
Assemblywoman Chowning, sponsor of the bill, stated A.B. 485 would create an office of a private property ombudsman to deal with issues relating to takings of real property for public use. For a property owner, a taking could be very traumatic. After the initial shock that one’s home or business was about to be taken for public use, there would be a lengthy and very complicated process to arrive at a fair evaluation for the property; the exercise of eminent domain could lead to months of costly litigation. A.B. 485 intended to make the process a lot easier and less costly. In the Department of Business and Industry, a position would be created, an office of a private property ombudsman, whose purpose would be to provide a competent and independent source of information and assistance for both the property owners and the public entity. As an attorney, the ombudsman would have knowledge of “takings” law and carry out duties to assist and advise property owners faced with takings. The ombudsman “may” provide information and advice on how takings claims might be submitted to mediation and arbitration, and may also assist local governments and state agencies in developing guidelines for takings.
Assemblywoman Chowning distributed a pamphlet and some forms (Exhibit G) and briefly explained how the forms could be used.
Assemblywoman Chowning also requested an amendment to delete lines 21 through 25 on page 2. Although it was the intent for the ombudsman to provide information and advice, it was not intended for that person to become an intervener. The ombudsman position would provide a third party to ask questions, discover options, and understand obligations without involving litigation.
Chairman Anderson noted A.B. 485 would have a fiscal impact on the state, requiring the bill to be sent to the Assembly Committee on Ways and Means. Assemblywoman Chowning spoke with the Department of Business and Industry and determined approximately $80,000 would be required for the ombudsman position.
James Jackson, law offices of Kermitt Waters, supported the concept of A.B. 485. There existed mistrust and distrust in the condemnation procedure; an ombudsman could serve the state of Nevada and its citizens to encourage more trust.
Jim Spinello, representing Clark County, supported the concept of A.B. 485 and the amendments purposed.
Sydney Wickliffe, Director, Department of Business and Industry, pointed out two items in the bill. Ms. Wickliffe questioned the liability for the state of Nevada if a “state” attorney (ombudsman) would give advice to private citizens. She said the fiscal impact for the ombudsman also needed to include benefits in addition to the $80,000 salary, as well as clerical support, space rental, computer equipment, etc.; she did not know whether it would require two people or ten people.
Assemblyman Brower agreed the key problem with the bill was putting the state in the business of advising people on their legal rights. Assemblyman Brower did not think the state could or should do it.
Brian Hutchins, Chief Counsel to the Nevada Department of Transportation (NDOT), Attorney General’s Office, agreed with Assemblywoman Chowning that the ombudsman should not be an intervener. It should be clear that any advice or information given would not be admissible in later litigation. Conflicts with other state agencies and local government entities should be avoided. The ombudsman should also be able to tell the private property owner when they would not have a case for action.
Assemblyman Carpenter asked Mr. Hutchins if mediators or arbitrators were used to resolve issues before litigation. Mr. Hutchins said NDOT did not use arbitrators or mediators; the Right-of-Way Division of NDOT had agents that talked with landowners to provide the offer and attempt to obtain the property voluntarily. The Legal Division of NDOT had occasion to use arbitrators or mediators; it was a process NDOT should use more. Assemblyman Carpenter believed arbitration and mediation was required up to a certain amount before litigation was actually begun. Mr. Hutchins said current court rules and statutes provide for arbitration and mediation but there were exemptions as well. One such exemption was when title to property was involved. Assemblyman Carpenter asked if mediation or arbitration would save money. Mr. Hutchins agreed that it would.
Jeffrey Fontaine, Deputy Director, Nevada Department of Transportation (NDOT), felt Mr. Hutchins had voiced NDOT’s concerns on the bill and supported any concept that would make actions under eminent domain easier for NDOT, as well as property owners.
Chairman Anderson asked for further testimony on A.B. 485. There being none, Chairman Anderson closed the hearing on A.B. 485 and asked Assemblywoman Chowning to deal with any issues that might prevent the committee from taking action on the bill.
Chairman Anderson opened the hearing on A.B. 579 and acknowledged Mr. Hutchins as he approached the witness table.
Assembly Bill 579: Establishes statute of limitation for certain actions for inverse condemnation. (BDR 3-1481)
Mr. Hutchins submitted copies of a PowerPoint presentation (Exhibit H), which after discussion with Chairman Anderson, he decided to forego during the hearing. The Board of Directors of NDOT recently discussed the issue of the statute of limitations in inverse condemnation actions, resulting in the request to reduce the current statute of limitations from fifteen years to something more reasonable. The Nevada Constitution and Nevada law required there be just compensation paid for any individual owner whose property would be taken for a public purpose and/or necessity. Inverse condemnation was the “flip side” of an eminent domain action; an action brought by the landowner against a condemning agency, an entity that had the power to take property. The taking could be a physical taking of the property or taking by a regulation.
Nevada Revised Statutes (NRS) 40.090 allowed a statute of limitation of fifteen years for adverse possession which was defined as when one individual possessed another individual’s property over a lengthy period of time; open, notorious and continuous for that period of time. If no legal action was taken during that time, the person could possess and own that property. If a local entity took an action, which the landowner felt was a taking of his property; that landowner would have up to fifteen years to file an action of inverse condemnation to get his property back or receive just compensation. There were numerous reasons for reducing the statute of limitations:
q Hold condemning agency accountable closer to event for possible correction of the action
q Agency fiscal responsibility closer to event for budget planning and prevention of problems due to large judgments
q Avoid unreasonable fiscal impact of not going to trial quickly or paying interest back to the date of taking
q Consistent with landowner’s desire to go to trial and be compensated in a timely manner
q Memories fade
q Employees or witnesses leave and may not be found
q Documents might be lost or destroyed
The proposal of A.B. 579 was to reduce the statute of limitations to eight years. Other statutes of limitations were discussed and compared (pages 9 and 10, Exhibit H). On page 11 (Exhibit H) was a list of the statute of limitations on adverse possession from other western states ranging from ten years down to three years. On page 13 (Exhibit H) was written a proposed amendment to A.B. 579 that included the eight years statute of limitations. On page 14 (Exhibit H) was a “savings clause” for those landowners whose actions might be cutoff by the enactment of A.B. 579.
Chairman Anderson was concerned about the “savings clause.” Mr. Hutchins explained a number of scenarios. Chairman Anderson disagreed and asked for clarification from Risa Lang, Committee Counsel. Mr. Hutchins agreed with Ms. Lang’s statement.
Mr. Hutchins said there was an exception listed at NRS 408.497 for construction claims. Ms. Lang said the exception covered claims for compensation or damage due to construction and improvements of highway. NRS 408.497 had a different statute of limitations, which was why the exception was created. Mr. Hutchins stated a claim had to be filed with NDOT not later than two years after final acceptance of a contract, and then six months to file a claim in the district court.
Madelyn Shipman, Assistant District Attorney, Civil Division, Washoe County District Attorney, was neutral on the bill but wanted to prevent any unintended consequences as it related to NRS 278.0235 that provided a 25-day statute of limitations subsequent to the filing of a letter with the clerk regarding a permit granted. NRS 278 dealt with the discretionary permitting processes, and Ms. Shipman did not want A.B. 579 to affect that process in any way. Chairman Anderson clarified that by amending the language in A.B. 579 (Exhibit I) to show an exception for NRS 278.0235 those current statutes would continue to apply as written. Ms. Shipman agreed.
Fred Hillerby, Regional Transportation Commission of Washoe County, supported A.B. 579 and noted that Mr. Hutchins’ proposed amendment (page 13, Exhibit H) should include the recovery of “property or compensation.” Chairman Anderson clarified that Mr. Hillerby supported Mr. Hutchins’ proposed amendment. Mr. Hillerby agreed.
Assemblyman Collins asked for clarification regarding inverse condemnation, getting the property back, and getting compensation for that property. Mr. Hutchins replied that an inverse condemnation action typically sought compensation for property; a quiet title action sought the property and got back the title to the property. Assemblyman Collins said the true intent of A.B. 579 was to receive compensation, not to get the property back. Would that weaken a case for a person who wanted the property back? Mr. Hutchins said it should be recognized that in many instances the property might be used in such as way as to be impractical to be given back.
Mr. Jackson introduced Kermitt Waters, the leading authority on inverse condemnation, who testified from Las Vegas. A letter (Exhibit J) was submitted setting forth Mr. Waters’ opposition to A.B. 579. This bill proposed to change a long-standing Supreme Court opinion where it found compelling reason to set the statute of limitations at fifteen years.
Kermitt Waters opposed A.B. 579. Mr. Waters was concerned about unintended consequences as a result of this bill. He stated instances of navigational takings, changes that affected elevations of homes, etc.
Chairman Anderson asked for further testimony. There being none, Chairman Anderson closed the hearing on A.B. 579.
Assemblyman Carpenter moved to indefinitely postpone
a.b. 579.
assemblywoman ohrenschall seconded the motion.
MOTION PASSED WITH MR. BROWER ABSENT.
Chairman Anderson opened the hearing on A.B. 498.
Assembly Bill 498: Makes various changes to provisions governing construction of residential dwellings and actions for constructional deficiencies and defects. (BDR 22-926)
Assemblyman Mark Manendo, District 18, was the sponsor of A.B. 498 that proposed to implement preconstruction standards and procedures to protect the homebuyers and insure their homes were built to last. The bill would prevent construction defect problems from ever happening.
Scott Canepa, Nevada Trial Lawyers Association, reviewed the bill section-by-section discussing drainage problems, geotechnical and soil problems, structural components of the residence, and certificate of occupancy requirements. There was a problem to reconcile the existing statute of limitation of four years from the date of construction and the statute of repose, which included six years for patent (apparent by reasonable inspection) deficiencies, eight years for latent deficiencies, and ten years for deficiencies known by the builder at the time of construction. Section 11 of A.B. 498 was identical to a section in A.B. 81 that revised provisions governing claims for constructional defects, dissolution of corporations and limited-liability companies and common-interest community associations. If a homeowner gave a builder a notice of a defect, which presented an imminent risk of harm to the homeowner, the builder would be obligated to make repairs or suffer the penalty of paying attorney fees and costs for the homeowner.
Assemblywoman Koivisto asked if A.B. 498 shifted the responsibility from the builder/developer to the engineer. Mr. Canepa replied that was not the intent; it was to provide redundancy to insure the original engineering recommendations were followed resulting in a home free from defects.
Assemblyman Collins asked if this would result in higher permit fees. Mr. Canepa agreed and said it could result in an increase of the price of the home, too.
Mr. Canepa said an oral proposed amendment had been brought to his attention in Section 11, page 6, lines 8-9, the deletion of the penalty of “treble damages,” leaving the statutory penalties in place.
Assemblyman Nolan asked if A.B. 498 would provide for more than one engineer in large developments. Mr. Canepa said he would be willing to amend language to clarify that question.
Chairman Anderson said A.B. 498 would be held for further discussion at the work session with the other construction defect bills.
Andrew List, Nevada Association of Counties, spoke in opposition to the bill. He did not believe requiring an engineer for all the counties was a good idea. He thought an ordinance requiring an engineer on a county-by-county basis could be part of an overall solution.
Bob Nunes, Director of Community Development and Public Works, Douglas County, submitted information (Exhibit K) previously shared with the Senate Committee on Commerce and Labor. Mr. Nunes did not believe the smaller communities had the same problems with construction defects.
Mark Ferrario, Southern Nevada Homebuilders Association (SNHA), objected to the first few sections of the bill, which only added another layer of administrative bureaucracy to the homebuilding process, and would increase the cost of homes. The SNHA did not have a problem with the statute of limitations and the statute of repose; but felt if there was a problem homeowners should not wait to bring suit against a home builder/developer. Mr. Ferrario believed the current statute regarding imminent risk of harm was sound.
Kevin Child, Clark County Real Estate Agent and a member of the Homebuilders Association, opposed A.B. 498.
Chairman Anderson asked for further testimony. There being none, Chairman Anderson closed the hearing on A.B. 498. A.B. 498 would be “put on the board.”
Chairman Anderson called a five-minute break before starting the Work Session.
Chairman Anderson reconvened with a quorum and turned his attention to the Work Session document.
Mr. Anthony read the A.B. 77 summary from the Work Session document (Exhibit L).
Assembly Bill 77: Revises provisions governing unclaimed property. (BDR 10-410)
Chairman Anderson entertained a motion to amend and do pass A.B. 77.
ASSEMBLYMAN MANENDO MOVED TO AMEND AND DO PASS A.B. 77.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
MOTION PASSED WITH MS. ANGLE, MS. BUCKLEY, MR. CARPENTER AND MR. GUSTAVSON ABSENT.
Chairman Anderson asked Assemblywoman McClain to present the bill on the Assembly floor.
Mr. Anthony read the A.B. 248 summary from the Work Session document (Exhibit L).
Assembly Bill 248: Requires adoption of regulations governing provision of certain information to foster or adoptive parents and revises certain provisions governing procedures for protection of children from abuse and neglect. (BDR 38-356)
Assemblywoman McClain, subcommittee Chair, submitted the Subcommittee Report on A.B. 248. The Division of Child and Family Service (DCFS) and the Attorney General’s Office submitted amendments. Further legislation would be worked on during the interim for next session. One recommendation was made to amend and do pass A.B. 248. A second recommendation was made for a bill draft request in the 2003 legislature.
Chairman Anderson entertained two separate motions. The passage of A.B. 248 would require a majority of the committee (eight votes); the second motion to request the drafting of a new piece of legislation for the 2003 legislature would require a vote of ten.
ASSEMBLYWOMAN McCLAIN MOVED TO AMEND AND DO PASS
A.B. 248.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
MOTION PASSED WITH MR. GUSTAVSON, MS. BUCKLEY AND MS.
ANGLE ABSENT.
Chairman Anderson called a short recess to speak with Speaker Perkins.
Chairman Anderson reconvened the meeting and continued with the second motion to request a bill draft request to address the issues raised at the subcommittee hearing relative to the Children’s Attorney Project to include protection for children and recognize the child as a party to the proceedings.
ASSEMBLYWOMAN McCLAIN ON BEHALF OF THE SUBCOMMITTEE MOVED TO REQUEST A BILL DRAFT REQUEST TO BE PLACED IN THE NAME OF THE JUDICIARY COMMITTEE FOR THE 2003 LEGISLATURE ON ISSUES RAISED AT THE SUBCOMMITTEE HEARING.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
ROLL CALL VOTE WAS CALLED.
MOTION PASSED 12-0 WITH MS. BUCKLEY AND MR. GUSTAVSON
ABSENT.
Steve Shaw, Division of Child and Family Services (DCFS), had spoken with Assemblywoman Buckley and agreed issues might be addressed in a subsequent bill this session. Mr. Shaw also noted for the record that through the Children’s Justice Act, money had been set aside to study Chapter 432B, which was the Child Protection Act in total. As a result of the study, DCFS would come back with recommendations for more comprehensive legislation for the next session.
Chairman Anderson asked Assemblywoman McClain to present A.B. 248 to the Assembly floor.
Mr. Anthony read the A.B. 471 summary from the Work Session document (Exhibit L).
Assembly Bill 471: Revises provisions governing declaration to withhold or withdraw life-sustaining treatment and durable power of attorney for health care. (BDR 40-867)
Chairman Anderson asked if anyone who had participated in the original hearing was present. There being none, Chairman Anderson asked Ms. Lang for clarification on the proposed amendments.
Ms. Lang said there were no problems with the proposed amendments. One change involved substituting the word “end stage” for “incurable,” which Ms. Lang believed might not be necessary. Other changes included taking out the provision for the nursing homes and changing the provisions for resuscitations.
Assemblyman Carpenter asked if the provision regarding treatment with antibiotics had been taken out? Chairman Anderson replied in the affirmative.
Assemblyman Nolan was concerned with referrals to language where the terms were inherent in the industry but were not defined in statute. Such terms as “end stage,” “no code,” “Code 99,” and “DNR” should be defined. There was also concern regarding the procedures for “Do Not Resuscitate” orders in long-term facilities and acute care facilities. A “Durable Power of Attorney” with a litany of yes-no questions, positive and negative phrasing of questions and check boxes seemed to complicate the situation.
Assemblyman Oceguera concurred with Assemblyman Nolan’s statement, he believed that DNR orders applied in long-term facilities as well. Assemblyman Oceguera also agreed that terminology could vary between different facilities. Assemblyman Oceguera commented on a bill recently heard in the Assembly Committee on Health and Human Services, and asked Assemblywoman Koivisto how A.B. 471 might be affected and/or coincided with that other bill. Assemblywoman Koivisto said more detail had been added to the DNR section, but she still found the DNR issue in A.B. 471 confusing.
Chairman Anderson said there was a demonstrated need to perfect the bill.
Assemblywoman McClain was concerned with the inclusion of Alzheimer’s disease in the list of illness at line 13-38. Chairman Anderson replied that was the very point of the bill, senior citizens who found themselves in an age-related behavioral condition or complications from stroke did need this type of protection.
Assemblywoman Koivisto suggested taking out the “no code” and leaving in the DNR language. Chairman Anderson clarified amended language throughout the bill with Ms. Lang’s assistance.
Assemblyman Nolan stated a scenario which could result in conflict regarding a resident of a long-term facility who went into acute distress of some type, the staff would dial 911, the paramedics would arrive, the staff would produce a file with a copy of the durable power of attorney in it and which might have a yellow sticker across the file that said “no code” or “do not resuscitate.” The paramedics who operated under a different section of statute would request a copy of the official “do not resuscitate” order from the county health district. If the staff said they did not have the county health district form, only the durable power of attorney form and the yellow sticker on the file, the paramedics would be required by state statute to resuscitate the patient. This would cause conflict for the facility staff as well as the paramedics.
Assemblyman Nolan also called attention to a loophole concerning life-sustaining efforts for those who might be having difficulty breathing but were not going into cardiac arrest. If allowed to continued, they might go into cardiac arrest, but what should be done in the interim?
Chairman Anderson proposed language to include “medical chart shall indicate that desire….” Ms. Lang said the DNR language should precede mention of the medical chart. Assemblyman Oceguera believed that was what happened now.
Chairman Anderson asked about the use of “end stage.” Ms. Lang believed “end stage” was already included within the word “terminal.” “End stage” was a subset of the word “terminal” used to identify the end of the illness.
Assemblywoman Ohrenschall commented that “end stage” could indicate the terminal illness is “imminent.” Chairman Anderson read the dictionary definition of “end stage” and believed it should stay in the bill. Ms. Lang believed that “end stage” and “terminal” were the same and created a redundancy when used together. Assemblyman Oceguera disagreed. Assemblywoman Koivisto suggested end stage “of” a terminal illness would make the phrase clearer. Ms. Lang cautioned that the wording “end stage of a terminal illness” would place limits on the provision. Assemblywoman Ohrenschall agreed that “end stage” was a terminal illness but a terminal illness might not be in the “end stage.”
Ms. Lang felt if the suggested amendments would limit the bill to only cover the final phase of a disease, other changes would be needed. The original intent of the bill was to cover all phases of a terminal illness; this might lead to problems.
Assemblywoman Koivisto believed if the bill was not specific regarding “end stage” and imminent “checkout,” it could lead to assisted suicide. Chairman Anderson agreed.
Susan Sturnetto, representing herself, said “end stage” was defined on line 1-5.
Assemblyman Nolan said the discussion started because “incurable” was replaced by “end stage.” Would adding “and where death is imminent” resolve the conflict?
Chairman Anderson clarified the amended language with Ms. Lang. Chairman Anderson asked if the amendments defeated the purpose of the bill.
Jan Gilbert, Northern Nevada Coordinator, Progressive Leadership Alliance of Nevada (PLAN), suggested leaving the bill the way it was; adding other language seemed to make it complicated.
Victoria Riley, Nevada Trial Lawyers Association, was concerned that some of the definitions in the bill were actually making the bill very narrow and very weak. There were a lot of terminal illnesses that were very painful and lasted for a long time before they became “imminent” or “end stage.” People should have the right to designate the type of treatment they wanted throughout that lengthy illness.
Chairman Anderson said it appeared the committee had several concerns to be addressed. The amendment as presented was unsatisfactory. Ms. Miles and Assemblywoman Freeman should be contacted. It was unclear whether the bill should be killed or amended in a limited manner; it would be put on the work session for April 16, 2001.
Mr. Anthony read the A.B. 500 summary from the Work Session document (Exhibit L).
Assembly Bill 500: Directs Attorney General to conduct study of traffic stops by law enforcement officers in certain counties. (BDR S-386)
Chairman Anderson acknowledged Mr. Fisher, Mr. Patton and Mr. Carson as they approached the witness table.
Noel Fisher, intern for Assemblyman Wendell Williams, District 6, said the proposed amendments represented Assemblyman Williams’ feelings.
Tom Patton, First Assistant Attorney General, Office of the Attorney General, agreed the proposed amendments met the desire of the Attorney General’s Office.
Neil Carson, Reno Police Department and Nevada Sheriffs and Chiefs Association, representing Captain Jim Nadeau, reported the proposed amendments from Assemblyman Williams’ and the Office of the Attorney General answered every concern they had.
Mr. Patton, representing the Attorney General’s Office, said the change “to carry out the study (Section 2 paragraph 2) based upon the recommendations of the Director…and the heads of the affected local law enforcement agencies” resulted because there were eight local law enforcement agencies and the Department of Motor Vehicles, which might have differing capabilities in terms of how they would collect the information. The bill needed to be broad enough to accommodate differing methods and capabilities; it would not necessarily be one identical system of data collection and transmission for every agency involved.
Assemblyman Collins stated the amendment specified “counties whose population is 100,000 or more and by the Nevada Highway Patrol.” Was the Nevada Highway Patrol limited to areas with 100,000 or more? Mr. Patton replied the Nevada Highway Patrol was not limited; the intent was to encompass the Nevada Highway Patrol’s entire statewide jurisdiction.
ASSEMBLYMAN COLLINS MOVED TO AMEND AND DO PASS A.B. 500.
ASSEMBLY MANENDO SECONDED THE MOTION.
Assemblyman Brower said those involved in bringing this issue to a consensus should be recognized for their hard work. Chairman Anderson agreed it spoke very highly for the Attorney General’s Office, the Nevada Highway Patrol and the other law enforcement agencies of the state; it took courage to accomplish this. Chairman Anderson applauded Assemblyman Williams and the agencies for their willingness to cooperate.
MOTION PASSED UNANIMOUSLY WITH MS. BUCKLEY ABSENT.
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ASSEMBLYMAN BROWER MOVED TO SEND A LETTER COMMENDING THOSE WHO HAD BEEN INVOLVED IN BRINGING THIS ISSUE TO A CONSENSUS FOR THEIR EFFORTS.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
MOTION PASSED UNANIMOUSLY WITH MR. NOLAN AND MS.
BUCKLEY ABSENT.
Mr. Anthony read the A.B. 328 summary from the Work Session document (Exhibit L).
Assembly Bill 328: Makes various changes concerning sealing of criminal records and restoration of civil rights. (BDR 14-122)
Chairman Anderson read the proposed amendments submitted by Assembly-woman Giunchigliani. Ms. Lang stated the amendments for Section 4 dealt with when it would be appropriate for the court to seal records.
Chairman Anderson relinquished the Chair to Vice Chairman Manendo.
Opponents of the bill confronted Assemblyman Collins with accusations that this bill would allow destroying records. There were also statements regarding a person still in prison having his records sealed; obviously another false statement. Neither of these concerns were intended by A.B. 328; the amending language made it “more better.”
Assemblyman Brower voiced concern over the “automatic reinstatement of voting rights upon honorable discharge from probation and/or parole or when records are sealed whichever comes first.” Ms. Lang said the last sections of the bill dealt with voting rights. Assemblyman Brower clarified the bill would reduce the amount of time a person would have to wait to apply to restore their voting rights? Assemblywoman Giunchigliani agreed. Thirty-three other states had moved in that direction, allowing application for restoration of civil rights upon honorable discharge. Assemblyman Brower queried if the current law addressed restoration of voting rights. Assemblywoman Giunchigliani said the current law did not include similar language; this was a summary resulting from conversations with Ben Graham and Stu Bell, Clark County District Attorney. Assemblyman Brower believed it was necessary to keep in place the current law that required a convicted person to apply for restoration of voting rights. It should be an easy, cheap if not free, process. Assemblywoman Giunchigliani stated that was the intent of the paragraph; documentation existed showing they were being charged, it was not easy, and many times it was requested but the application was not accepted.
Ms. Lang said she would work with the committee to finalize the amended language. Section 10 dealt with pardons, which needed to be clarified. Also of concern were the time limitations.
Assemblyman Brower recalled a resolution from the Seventieth Session that was aimed at this issue. Since it was a constitutional issue as to who was eligible to vote; would a statutory change be adequate? Ms. Lang said it was provided for now; she did not see a problem. Chairman Anderson believed in the discussions from the previous session, there was a mechanism by which a person could have their voting rights restored to them. A.B. 328 would change that process, making it easier. Assemblyman Brower wanted to review the Nevada Constitution to ascertain if it specified a “felon whose civil rights had not restored was ineligible to vote”; if so then a statutory change would be sufficient.
Ben Graham, on behalf of Stu Bell, reported they did meet with Assemblywoman Giunchigliani and felt those matters were appropriate and would not interfere with the administration of justice.
ASSEMBLYMAN COLLINS MOVED TO AMEND AND DO PASS A.B. 328.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
Ms. Lang asked what the committee had decided to do with the amendment language on page 3 subsection 4. Assemblywoman Giunchigliani said it should include “charged” and not arrested, keeping the language as it is.
Assemblyman Carpenter was unsure regarding the “automatic” reinstatement part. Assemblywoman Giunchigliani said “automatic” might be confusing, the person still had to apply to have their voting rights restored.
Assemblyman Brower asked what a typical situation would be for a felon to get his voting rights back. Assemblywoman Giunchigliani said a person would get honorably discharged, they would make application with documentation to prove they had been honorably discharged, and their rights would be reinstated.
Ms. Gilbert, PLAN, suggested that language should be clarified for those who received a pardon (page 7, Section 10, line 5). Ms. Lang said she would work with Ben Graham and Assemblywoman Giunchigliani to determine the appropriate language to achieve the intent of the committee.
Assemblyman Carpenter supported the bill with the understanding the person must make an application.
Assemblywoman Angle stated she would abstain from voting until she saw the amended language.
ROLL CALL VOTE WAS CALLED.
Chairman Anderson explained the vote choices each committee member had.
MOTION PASSED 10-0 WITH MS. ANGLE, MR. BROWER AND MR. GUSTAVSON ABSTAINING AND MS. BUCKLEY ABSENT.
Vice Chairman Manendo asked Assemblywoman Giunchigliani to present the bill on the Assembly floor.
Chairman Anderson verified the roll call vote.
Vice Chairman Manendo relinquished the Chair to Chairman Anderson.
Mr. Anthony read the A.B. 166 summary from the Work Session document (Exhibit L).
Assembly Bill 166: Reduces concentration of alcohol that may be present in blood or breath of person while operating vehicle or vessel. (BDR 43-142)
Chairman Anderson supported the bill with the amendment. A.B. 166 would be referred to the Assembly Committee on Ways and Means. There was a question as to whether to do this now or wait; this had been an issue in previous sessions.
ASSEMBLYWOMAN McCLAIN MOVED TO AMEND AND DO PASS A.B. 166 WITH AN EFFECTIVE DATE OF JULY 1, 2001 TO TAKE ADVANTAGE OF FEDERAL DOLLARS.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
Assemblyman Carpenter said he would vote no; he believed the .08 had not been adequately proven.
Assemblyman Collins said he did not see the dollar value waiting till 2007; he felt strongly that it would be more beneficial to vote no.
Assemblyman Gustavson said he had always supported the bill in the past, but he had a strong objection to the passage of this bill just to fall under federal guidelines. Nevertheless, Assemblyman Gustavson would support the bill.
Chairman Anderson agreed with Assemblyman Gustavson. Chairman Anderson thought it was good public policy when it had passed last session, it would be good public policy now; and he also did not like to be held hostage, it goes against his Nevada nature to be held hostage by the federal government. But good public policy and federal policy every once in a while coincided, surprising as it might be.
Assemblyman Manendo stated during the debate at the hearing of the bill, those issues were brought up by a number of the committee members. With the current piece of legislation and the effective dates, Nevada would be taking action on its own rather than waiting to have it mandated by the federal government. Nevada would also receive additional funding by enacting A.B. 166 now. Letters from AAA and Nevada Highway Patrol had been received showing support for A.B. 166. Also recently there was a newspaper article where the national liquor industry was in support of .08 where they had not been before. The Nevada Resort Association had also indicated that they supported .08.
ROLL CALL VOTE WAS CALLED.
MOTION PASSED 11-2 WITH MR. CARPENTER AND MR. COLLINS
VOTING NO WITH MS. BUCKLEY ABSENT.
Chairman Anderson said the amendment would be prepared and A.B. 166 would be sent to the Assembly Committee on Ways and Means.
Chairman Anderson said A.B. 294 would be held for a Work Session on April 13, 2001.
Assembly Bill 294: Revises provisions pertaining to sealing of juvenile records. (BDR 5-690)
Chairman Anderson opened the hearing on A.B. 453. He queried the committee for any problems with A.B. 453 and asked Assemblywoman Giunchigliani to approach the witness table.
Assembly Bill 453: Authorizes medical use of marijuana in certain circumstances and revises penalties for possessing marijuana. (BDR 40-121)
Assemblywoman Giunchigliani stated revised amendments (Exhibit M) were submitted to answer questions raised at the original hearing. After a meeting with bill drafters, modifications were made to assure that there was no “state- run” intent language contained within the bill. In Section 13 “production” was defined to include planting, growing and harvesting. The Oregon model would be adopted regarding registered cardholders being allowed to have a certain number of plants and quantity of usable marijuana.
Chairman Anderson verified the amendments; taking the state out of the production of marijuana. Assemblywoman Giunchigliani also said there would be no reference regarding an Internet line for purchases of seeds. Chairman Anderson said the amendments took into consideration Assemblyman Carpenter’s concerns for first-time offenders who might have an addiction problem. Assemblyman Carpenter felt it should be mandatory that first-time offenders receive an evaluation. Then if an addiction problem existed, there should be mandatory treatment. Ms. Lang said it would probably need to be included in Chapter 453.
Assemblyman Nolan was concerned that nothing had changed the current statute in regards to trafficking and subsequent penalties. Assemblywoman Giunchigliani reassured the committee that no changes had been made to that statute; if caught with more than that deemed the appropriate number of plants or usable marijuana, the person would be “busted.” Assemblyman Nolan asked who would be monitoring the patients as to growing what they were supposed to be growing and using what they were supposed to be using? Assemblywoman Giunchigliani said DEA would leave the monitoring to the states; local law enforcement would handle it with normal enforcement.
Assemblyman Collins asked, besides growing their own, if the state was out of the business, where would patients get the marijuana? Assemblywoman Giunchigliani said the legislation did not address distribution; the patients would continue obtaining the marijuana by whatever means they had in the past.
Assemblywoman Buckley said the amendments looked good, and there was no doubt that the legislation would implement the will of the people. She was concerned about the state running “pot” farms. Following the Oregon model was a good choice and she believed the amendments still sent the message that Nevada was tough on crime. Assemblywoman Buckley wanted to entertain a motion to amend and rerefer to the Assembly Committee on Ways and Means. It would provide time to get the proper language into the amendments.
ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND REREFER
A.B. 453.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
Assemblyman Oceguera reserved the right to vote no on the floor.
Assemblyman Nolan said he would vote for the bill although he still had concerns.
Chairman Anderson said this particular issue had already passed the voters in Nevada and there was an indication that this should be done.
Assemblyman Brower said he would vote no. He recognized the majority of Nevadans voted in favor of the concept that medical marijuana be allowed for certain people; he supported that. But he did not think A.B. 453 would effectively do that. Also the ballot initiative that was referenced did not address the second part of the bill, there was not a consensus that defelonization was the way to go. Washoe County judges who dealt with this problem every day felt the current system was required to effectively deal with those charged with small amounts.
MOTION PASSED 11-2 WITH MS. ANGLE AND MR. BROWER VOTING NO AND MR. GUSTAVSON ABSENT.
Chairman Anderson adjourned the meeting at 1:15 p.m.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: