MINUTES OF THE
SENATE Committee on Judiciary
Seventy-First Session
April 20, 2001
The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:30 a.m., on Friday, April 20, 2001, 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 Bernie Anderson, Washoe County Assembly District No. 31
STAFF MEMBERS PRESENT:
Bradley A. Wilkinson, Committee Counsel
Allison Combs, Committee Policy Analyst
Heather Dion, Committee Secretary
OTHERS PRESENT:
Cam Ferenbach, Attorney, President, Clark County Legal Services
Nancy M. Saitta, Judge, Department 18, Eighth Judicial District Court
Robert E. Gaston, Judge, Department F, Family Division, Eighth Judicial District Court
Estelle Murphy, Executive Director, Safe Nest
Joni A. Kaiser, Lobbyist, Executive Director, Committee to Aid Abused Women
Paula Berkley, Lobbyist, Nevada Network Against Domestic Violence
Frances M. Doherty, Court Master, Family Division, Second Judicial District Court
John C. Morrow, Lobbyist, Chief Deputy, Washoe County Public Defender
Bobbie Gang, Lobbyist, Nevada Women’s Lobby
David Crook, PLS, Secretary, Nevada Association of Land Surveyors
Dave Moreland, Surveyor, President, Lahontan Chapter, Nevada Association of Land Surveyors
Senator James opened the hearing on Assembly Bill (A.B.) 239.
ASSEMBLY BILL 239: Authorizes board of county commissioners to impose additional fee for filing certain actions and responses thereto in district courts and justices’ courts to offset costs of providing pro bono programs and of providing legal services without charge to abused or neglected children, victims of domestic violence and other needy persons. (BDR 2‑298)
Cam Ferenbach, Attorney, President, Clark County Legal Services:
Clark County Legal Services provides representation for needy persons who cannot afford lawyers in civil cases. The types of cases handled are those that are not economical for private attorneys to handle. The office has staff attorneys who handle cases for (paying) clients and, in addition, administers the pro bono project, which handles cases at no charge to qualifying needy persons.
Clark County receives fees through Nevada Revised Statutes (NRS) 19.03141(a), which allows the county commissioners to provide for filing fees to be distributed to the legal services organizations. In the last 1½ years, our board has encouraged staff to pursue new areas involving victims of domestic violence and abused or neglected children, which we have perceived as a great need in Clark County and throughout the state. We have established a Children’s Attorneys Project (CAP). I hope the committee members have received a booklet prepared by Clark County Legal Services that gives an overview of what we have been able to achieve with seed money for the project (Exhibit C). All the money is on a year-to-year grant, and what we hope will happen, through this enabling legislation, is to have a stable source of funding from the filing fees so we can continue and expand this work.
According to the statistics compiled by the attorney general’s office and the Nevada Uniform Crime Reporting Program, in 1999, statewide, there were 17,960 domestic violence incidents reported, with 38 percent having children present. In Clark County, for the same period, there were 10,409 domestic violence incidents reported, 36 percent with children present. We are talking about reporting here. I think Judge Saitta, through her studies, might be prepared to comment on what the ratio is between what is reported and what is actually going on.
In Clark County, 1400 children a year are taken from their parents or guardians because of abuse or neglect problems. Every year, over the last few years, 1300 children have been in foster care, at any one time. Currently, with the temporary funding we have, we estimate our Children’s Attorneys Project is meeting, at best, 10 percent of the need. We recognize we will never meet all of the need, but we hope, with this program, we can do a better job. The reason attorneys are so important in these domestic violence situations is often the abusive spouse, who is the powerful spouse in the family, controls the family finances, can afford a lawyer, and can essentially continue to abuse, through the court system, or by denying access to the court system. Through this enabling legislation, we hope our organization, and others like it throughout the state, will be able to help the system of justice work better.
We are hopeful the county commissioners will follow up on this bill, based on their experience with us. There would be provision for local oversight on how the organization is doing, because the commissioners are well aware of what is going on. We hope to be able to pursue certain other benefits from this program, on a permanent basis. The family court, for example, encouraged the $25 filing fee for motions to modify or adjust final orders in family court. As the law stands now, once a litigant is in court, he or she can move without any further fee and keep coming back to court. This not only burdens the court system, but can cause an abuse of the court system. Additionally, we hope to be able to use a portion of these funds to further expand our pro bono efforts, where volunteer attorneys give back to the community, not through taxation, but through volunteer, private efforts. We respectfully urge approval of this bill.
Mr. Ferenbach’s testimony was submitted as Exhibit D.
Senator Wiener:
Do you have any anticipation of what kind of dollars you are talking about, projected revenues you see coming in?
Mr. Ferenbach:
I am sorry, but I am not prepared to get that to you right now. I think it would be very hard to estimate, because we do not know what impact the $25 filing fee will have on the recurrence of filing those motions to modify; that is a huge unknown. We are already receiving funding through NRS 19.03141(a); we receive a total of $10.50 for each civil case filed, through the two revisions of the bill. I think there is an additional difference that raises the fee to $25, when it is a family court case. In any event, it is a substantial part of our budget and is very helpful to us.
Nancy M. Saitta, Judge, Department 18, Eighth Judicial District Court:
I would like to add only a few things to Mr. Ferenbach’s testimony in terms of foundational background. The Children’s Attorneys Project, which is in need of some of these funds, has been hugely successful to the extent two attorneys, working more than 24 hours a day, are able to provide services to the children in our system. To the extent funding might be received as a result of this enabling legislation, I believe we could certainly affect the lives of many others. The victims of domestic violence oftentimes are not heard until they are tragically a part of the system. In fact, I would like you to know we have recently, in Clark County, created the domestic violence fatality review team, which is a team that, by statute, reviews all the cases coming into our system involving homicides directly related to domestic violence.
While Mr. Ferenbach accurately reports 38 percent of domestic violence instances occur with children present, for each one of those reported instances the statistics will tell you approximately 2½ other instances occurred in the family before the situation came to the light of authorities. My reason for giving you this statistic and linking it to the fatality review team is that I believe, with the representation provided through this legislation, we might be able to keep a number of those cases from becoming homicides or fatalities, by dealing with the problem much earlier on in the system.
Typically, children who are a part of these situations are
virtually never represented. They are
oftentimes simply removed from the home and put into the never-ending foster
care system, through no fault of their own.
They need representation; they need it sooner; and they need aggressive
advocacy. And, this is an area our
lawyers, for a number of reasons, have not been able to
adequately address. I believe the
enabling legislation we have before us today would create an opportunity for
adequate representation for victims of domestic violence, whether they be
children or adults. I think allowing
the county commissioners to address this through a fee borne primarily by those
who use the system makes very good sense.
I urge the committee to support and pass this legislation inasmuch as it
would certainly provide an opportunity for our legal services here, as well as
throughout the other counties, to offer a very needed service.
Senator McGinness:
You mentioned other areas throughout the state. Are there any legal services available in rural Nevada? I know there are in Washoe County.
Judge Saitta:
As you read in section 1, the only counties affected by this will be those set forth, or provided for, under NRS 19.031. With respect to rural accessibility to these programs, we need to begin to open the opportunity for them to have access. And again, I think by allowing the larger counties to have funding, we will create an attitude that can spread into the rural communities, whereby they might access the experience and opportunity we will create by allowing there to be greater representation in the larger counties.
Senator McGinness:
I think the problem is, in counties such as Esmeralda or Lincoln, even if you put a $100 fee on every filing, you would not be able to raise enough money to provide any meaningful representation. I am wondering if there is any way for Clark County or Washoe County to reach out to the rural communities.
Mr. Ferenbach:
Clark County Legal Services is a local legal services agency that operates within Clark County. There is also Nevada Legal Services, which provides certain types of services in Clark County and throughout the state. If these funds were to be raised in the other counties, I think it would best be addressed through Nevada Legal Services, given its scope of operation. Maybe they could find a way to coordinate it, rather than the county agencies trying to reach outside their own areas.
Senator Porter:
I applaud all of those who have worked on this program. Assemblywoman Buckley (Barbara E. Buckley, Clark County Assembly District No. 8) and Judge Saitta, we appreciate everything you are doing. Having heard some of the benefits today, I think it is a tremendous program, and I thank you. I had mentioned the question of the fees to Assemblywoman Buckley and whether there is assistance for those who cannot afford some of these fees. We would not want to penalize those with a challenge of their own while we are trying to help others. I want the record to reflect there are steps available to those families who have trouble paying the fees involved in the court process.
Judge Saitta:
In those instances the fee is entirely waived.
Robert E. Gaston, Judge, Department F, Family Division, Eighth Judicial District Court:
I am speaking, as an individual, in favor of A.B. 239. Coincidentally, I am a member of the (Nevada) Domestic Violence Prevention Council, which strongly supports this bill. In 1997 this body wisely passed a watershed bill in the area of abuse and neglect, commonly called the Adoption and Safe Families Act of 1997 (ASFA). A similar act had been previously enacted by the Congress of the United States, and Nevada conformed to the congressional enactment by our own law contained in NRS 432(b). The law is a good one, but it requires a major restructuring of our system in handling abuse and neglect cases. Without going into great detail, it is my contention we will not be able to conform to the state and federal laws, finding permanency for a foster child within 12 months, by doing business as usual.
The average length of stay in foster care in Nevada is 3.2 years, with some children in the system anywhere from 8 to 10 years. To reduce that time would require a major overhaul. One of the critical elements of the federal and state acts allows for legal representation for the child from the very beginning of the case; it is a good provision. A child should be able to have his position advocated in court on equal footing with everyone else. The bad news is the Legislature did not provide funding for such representation. Individuals who passionately support the rights of child to representation in court proceedings have attempted to comply by the provision of the law, notwithstanding the funding problem. A Court-Appointed Special Advocate (CASA) has also been ready to provide a voice for the children. Although the individuals are volunteers and lack legal training, they have provided some assistance to fill the gap; but there are not enough volunteers to fill the need.
Judge Gaston:
Assemblywoman Buckley, along with Commissioner Myrna Williams (Board Member, Clark County, Board of Commissioners) began a project in Clark County called the Children’s Attorneys Project. This program received enough funding to provide two children’s advocate attorneys. I was honored to serve on that project for 2 years, and I began its implementation into the family court.
My main message to you today comes from that experience with the CAP program, sitting as a juvenile judge in cases of abuse and neglect over a period of 2 years. You need to know the dramatic difference it makes to have legal representation for the child. It adds a critical ingredient to the overall puzzle before the court; it gives the judge insight to facts and issues not previously possible. As a judge, I have found the issues are clearer and the cases are resolved more expeditiously when children are represented. Also, the children are placed in permanent homes more quickly. We had an ASFA pilot program in Clark County in which every one of the children and each parent was represented by an attorney from the beginning of the case, and every case within that pilot program was resolved within the 12-month limit; most were resolved within 9 months. It is a difference of night and day for the court. The court does not have to guess or infer the children’s positions, because their positions are actively advocated in court by qualified attorneys. It does not make sense to spend months adjudicating what is in the best interest of the child and not have the child participating. Assembly Bill 239 is a mechanism to expand this needed representation for children by allowing county commissioners to impose an additional $5 filing fee for the initial filing and $25 for a motion to modify an existing order.
Having actively worked on the issue of domestic violence for
the past 15 years, I am acutely aware of the need to provide some victims of
domestic violence with legal assistance.
Domestic violence is often an issue of control and, more often than not,
the victim is without any means of support other than from the abuser. Many women simply do not report violence or
assert their rights in court, because they are financially helpless. The Nevada Domestic Violence
Prevention Council salutes and supports this effort to provide these needy
victims with a legal advocate. I thank
the committee for this opportunity to address you, and would urge you to
support A.B. 239 unanimously for the sake of the displaced children and
the victims of domestic violence in our state.
Senator James:
Judge, I know the statute establishing the fee, chapter 19.031 of NRS, was one we adopted in 1993. We put the $25 dollar fee on the (motions for) modification of orders involving child custody and child support under chapters 125, 125(b), and 125(c) of the NRS. As a former litigator, it seems to me the people who use the courts and can afford to add some money to this very worthwhile cause are those of us filing motions on business cases. Why don’t we make those people pay an additional fee to help this cause, instead of making people who are in court on cases such as divorce pay?
Judge Gaston:
Senator James, are you referring to the people in civil actions, that they should be a part of this?
Senator James:
Yes, people such as Cam Ferenbach and I, and our clients; we should be paying.
Judge Gaston:
I wholeheartedly support that proposition, Senator. I think the whole philosophy behind it is for those using the system to pay. There is another element you should be aware of: Sometimes individuals abuse the system and come back over and over for modifications of orders, and they are very litigious. I would certainly be in favor of expanding this to include all civil actions.
Senator James:
Cam, are we putting in our fair share in this?
Mr. Ferenbach:
I am here in an individual capacity, and in some ways I am
conflicted a little in that I would not want my clients to hear that I am
advocating they pay more to get access to court in regular civil cases. Frankly, I am really conflicted by this
question. In my view, Clark County
Legal Services and Nevada Legal Services are providing a huge need for the community,
so there is respect for our system
of justice and people can access the system regardless of their ability to hire
lawyers, especially where lawyers are not willing to take the cases because of
economic constraints. Focusing on the
$25 filing fee for motions to amend, I do not appear much in family court, and
there are not that many motions to amend in a business case.
Senator James:
I am not talking about motions to modify or amend judgments, which are fairly rare. I am just wondering whether, on the civil side, the business cases and the litigators who spend a lot of time in court are putting enough into this.
Mr. Ferenbach:
In our types of cases, it is certainly not the attorneys who are paying the filing fee; the cost is passed on to the client. The bill as it stands now presents a significant source of revenue, but we could always use more. All I am saying is, it would be up to the discretion of the senators. Perhaps someone can supplement the record to get an idea of how much funding we are getting from this bill; it seems you would need to know how much funding we are getting now and how much is predicted.
Senator James:
Maybe someone can tell us how much money coming from section 1, for this project we are talking about, comes from the regular litigation.
Mr. Ferenbach:
Again, I apologize. Ms. Buckley may know those facts.
Senator James:
She can give that information to the committee later.
Senator Porter:
Is there a way, when collecting fees, to differentiate by size or type, to help narrow this down? Twenty-five dollars is pretty serious for many small businesses, but there are some businesses for whom $1000 is minimal. I am not suggesting $1000. Is there a way to differentiate between types of litigation in the court system?
Senator James:
Well, we do it for cases greater than $40,000 not subject to the mandatory arbitration program. That is one way. I would have to think about it. There are certainly a lot of people who use the courts for various things for whom the $25 is not even a bump in the road. They could pay a little more to help with these other worthwhile endeavors. The only reason I brought it up is that people who are in court for divorce or child custody already have enough problems to deal with; they are “kicking in,” so why can’t those who are in court on business issues kick in, too?
Senator Porter:
One solution might be to collect fees from companies outside Nevada which are utilizing our court system.
Senator James:
I do not know whether we can do that, constitutionally, but I agree with you. We can think about it. Cam, maybe you can give some thought to collecting fees for business court cases over a certain dollar amount. I know there is a dire need for money in this program, and you would only be scrimping by with what you get from this bill. So, I am just throwing out some ideas.
Estelle Murphy, Executive director, Safe Nest:
We are the primary domestic violence program in Clark County. The judges and Cam spoke very eloquently about the need for the program. I just wanted to add that we did some checking on the number of people we referred last year to Clark County Legal Services. There were 855 victims needing representation or motions in terms of divorce, custody, and contested orders. I know only a small percentage of those actually were able to receive service, because the waiting lists have been very long and Clark County Legal Services simply did not have the financial resources. I have submitted my written testimony (Exhibit E), as well.
Senator James:
What is the fee for filing a complaint in the district court?
Mr. Ferenbach:
I would say $128, but I rely on my secretary to write that check.
Senator James:
What is it in federal court?
Mr. Ferenbach:
I think it is comparable. In federal court you do not have a filing fee when you respond; only the person who files the complaint pays a fee.
Senator James:
I was thinking you could look at certain kinds of actions under certain rules, class actions and other kinds of things, and come up with additional fees that would go toward this project.
Mr. Ferenbach:
If you want us to do something like that, I can certainly come up with something and provide it to your office.
Senator James:
Just give it some thought, and when we act on the bill next week, we will add that to it, if everybody agrees.
Senator Porter:
Maybe special emphasis could be placed on some of those areas on the dark side that many times are abusing the system. Not to define dark side, but maybe we can look closely at some areas that take advantage of the system.
Mr. Ferenbach:
As was suggested in our testimony, the family judges are concerned about the abuse of the motion to amend or reconsider in family court. Are you suggesting something comparable for the business cases in the district court, in addition to a fund-raising component, Senator?
Senator Porter:
Yes.
Mr. Ferenbach:
I would be happy to do that. One thought I have is that we might need to get some input from the judges. Perhaps, if we are not able to get the data to you within the next couple of days, the panel might consider acting on the bill as is, see how it works, then revisit it the next session.
Senator Porter:
Cam, I think we are very serious about making some adjustments before we move this bill this session.
Joni A. Kaiser, Lobbyist, Executive Director, Committee to Aid Abused Women:
An important need of victims of domestic violence is pro bono or affordable legal services. Seventy-one percent of the women who flee to our emergency shelter are unemployed. Once they have escaped their abusive homes, they do not have the financial resources to secure the legal counsel vital to keeping themselves and their children safe. In fact, this lack of resources leaves children and victims vulnerable to further victimization. Legislation such as that proposed in A.B. 239 can help provide legal relief to these families and to victims of domestic violence in our state. I have submitted my testimony to the secretary (Exhibit F).
Paula Berkley, Lobbyist, Nevada Network Against Domestic Violence:
The only thing I would add is another figure indicating need: statewide the number of referrals to attorneys was 4,500, which represents quite a few documented cases. I do not know how many received services, but there is a definite need. Thank you, and I have submitted a letter from the executive director (Exhibit G).
Frances M. Doherty, Court Master, Family Division Second Judicial District Court:
Because the Second Judicial District Court has significant interest in this bill, I would like to express that interest in the form of support and communicate to you how the bill would affect the current caseload and the children we serve. We have a little over 500 children on our caseload in the Second Judicial District Court; I preside over half of those cases. We have been involved for at least 2 years in seeking funds to provide representation for children in child abuse and neglect cases, for all of the reasons Judge Gaston and Judge Saitta identified.
Federal law has changed, to the benefit to children; but
those children will not be able to fully benefit from the law without a good
strong advocate who understands federal law, federal regulations, Nevada law,
and the intricacies of the system.
Children in child abuse and neglect cases are faced with a situation in
which their parents and the agencies are represented, and there is a terrific
amount of discussion in the courtroom of a technical nature. But we rarely, despite the best efforts of
CASA, have the opportunity to discuss the legal ramifications of these cases or
the perspectives of children in any great detail, without the assistance of
counsel.
I was chairperson of a committee that researched this issue last year, and the national standards all create the expectation that children have representation. The American Bar Association (ABA), the Children’s Law Project, and the National Council for Juvenile and Family Court Judges all have the expectation that children will be represented.
I picked up the Chicago Tribune recently and it had a high-profile child abuse and neglect case in which a 6-year-old was receiving counseling; the agency’s attorneys and the parents’ attorneys were both interfering with counseling critical to the stability of the child. If it were not for that child’s representative, the counseling would have been suspended. This scenario is repeated on a daily basis in our courts and nationally; we really do need a system. We, in Washoe County and the rest of the state, do not have a system to serve the children. This is a very difficult project for entities to understand and for which to provide funding. I will also tell you I have sat on the (Nevada) Domestic Violence Council, and also signed orders of protection on a regular basis, for women, men, children, and the elderly. What we see in domestic violence is that some are able to come through the courthouse doors and access temporary protection and some semblance stability in their lives for a brief period of time. But, what we clearly see is those victims of domestic violence do not have the resources to complete the steps necessary to access protection on a permanent basis.
I would like to answer a couple of questions I heard. I do not know all of the answers, but I am
aware rural counties have a provision for Nevada Legal Services to access the
funds and make the services we are talking about today available through their
pro bono programs. This bill is a
statewide initiative and will benefit us all.
The family court right now is very aggressive in identifying families
who cannot afford to access the court system through filing fees. We aggressively sign waivers for those
families who cannot get into court. We
feel assured we are not going to unduly harm or impose on a certain segment of
the community, who may just be getting by, in order to provide for other
members
of our community who cannot even come through the courthouse doors. We see this as financially complementary to
families. The final note is that our
CASA program is something we are very proud of in the Second Judicial District
Court; but, despite all of the aggressive recruiting, training, and community
support we have for CASA, CASAs are available for only 25 to 30 percent of our
cases. We are seeing more sexual
assault cases than we have ever seen; we are seeing incredible domestic
violence and emotional abuse cases. As
a court, we feel strongly the children’s voice needs an attorney to complement
the voice of CASA; it will not be duplicative in any way. I am leaving the research the committee
spent a tremendous amount of time on with the secretary (Exhibit H).
John C. Morrow, Lobbyist, Chief Deputy, Washoe County Public Defender:
I do not have a lot add to what is here, but I want to give you the perspective of a practitioner who represents parents in these abuse and neglect cases. It has always seemed an anomaly to me that you have a prosecutor vigorously representing an agency, lawyers for both parents or concerned members of the family, and the child is either not in court or not represented. It has always seemed to me this is a problem area. This bill, in particular, as it addresses the funding to make attorneys available for the children, is a marvelous thing, and I support it.
Bobbie Gang, Lobbyist, Nevada Women’s Lobby:
We would like to urge support for this bill. All constituencies mentioned in the bill are those we try to represent at the Legislature. We know there is a need for additional pro bono services. I would like to add a comment on a personal observation, as a person who follows the legal system and is proud of what the legal profession can provide. I have been disappointed in recent years to see fewer pro bono services offered by many lawyers. Listening to some of the conversation earlier, I was taxing my memory. I thought the state bar association made a move to relieve attorneys from a commitment to provide pro bono services by offering them an opportunity to make a financial contribution in lieu of those services. I am not sure where the financial contribution went. Perhaps the members of the bar can look into that, and the contribution could be increased, if it goes for pro bono services.
Senator James:
We will close the hearing on A.B. 239, and open the hearing on A.B. 126.
ASSEMBLY BILL 126: Revises provision regarding recording of certain documents relating to real property. (BDR 10-842)
Assemblyman Bernie Anderson, Washoe County Assembly District No. 31:
Assembly Bill 126, as amended in this first reprint, represents a good piece of legislation. It was brought to me by surveyors who are concerned about keeping the county records straight in terms of metes and bounds questions. Metes and bounds is an old historic idea; when one farmer would say, “Your land goes to . . . where your tree there on the top meets mine and these stones meet those. I am on this side of the line and you are on that side of the line . . . ”
Vice Chairman Porter:
Is this like redistricting, or reapportionment?
Assemblyman Anderson:
It is a great deal like that; it is like the redistricting questions. This is such an interesting topic to me, but I know nothing about it, other than that historic reference. That is why these two gentlemen are here. They will tell you what the intent of the bill is and what it is supposed to accomplish. We hope we will be able to help people keep the records of property transfers a little cleaner.
David Crook, PLS, Secretary, Nevada Association of Land Surveyors:
We would like to affirm our support for this bill and answer any questions the committee might have.
Vice Chairman Porter:
Will you take a moment to explain what this does and how it benefits the public?
Mr. Crook:
What this actually does is make the descriptions on a parcel transfer traceable. If I were to write a description for a parcel transfer, by law, being a surveyor, I would have to sign and stamp it. But anybody can write a description for a transfer of property without having any traceability to where the description came from. What this bill is proposing is, if the parcel description is created by someone, he would put his name and address on it for contact information, pursuant to section 3. Pursuant to section 4, if he is just perpetuating a document that has already been created, the reference would be to the document number of the previous recording.
Vice Chairman Porter:
So, right now, someone can determine the metes and bounds; but you would not know who did it; so, there is no history. That must be a pretty serious problem.
Mr. Crook:
Yes, it can be a very serious problem. If you come up against two bounds and they do not agree, it is nice to be able to trace the description back to the author.
Vice Chairman Porter:
So, you can have two properties abutting each other, with different bounds, legally, and you would not know that until there was a dispute or you were surveying. Is it frequent the bounds are not the same?
Mr. Crook:
It is hard to put a number to it. There are minor discrepancies, nothing major. However, when you do come up with a description that has different bounds, it is generally untraceable, because you cannot determine where the original description came from.
Vice Chairman Porter:
Even if you could, would that necessarily make it appropriate? Just because John Doe said that is the way it is, what does that give you?
Mr. Crook:
You could go back to John Doe and ask him his reasoning in determining this description.
Vice Chairman Porter:
It sounds like a “Hatfield and McCoy” problem; there must have been some real battles over this through the ages.
Mr. Crook:
Yes, there have been. The bill would clarify traceability for those descriptions.
Senator Wiener:
I know this is a presumption, but are documents dated, so at least you would know what would be precedent to another claim or description?
David Crook:
Yes, the recording dates are on the documents.
Senator Care:
Subsection 3 talks about a document containing a legal description in metes and bounds, but does not require a legal description. It says if you happen to have a legal description when you are recording the document, you must include the name and address of the person who prepared the legal description. When you get to subsection 4, is it possible for someone to record a document that has already been recorded, without knowing someone else has already recorded it and not knowing he must do a search for book and instrument number?
Mr. Crook:
It is book and page and/or instrument number. Generally, if you do a metes and bounds description from a previously recorded document, you are copying it from that document; you would have a copy of the document. What subsection 3 provides for are documents containing a legal description, as opposed to a lot and block description. If you own a lot in a subdivision that has a lot number, block designation, and subdivision map name and number, there is no requirement to have the author’s name or the previous recording information; that information is required only if it is a metes and bounds, and bearing and distance description.
Senator Care:
Would it be possible for someone recording a document to not know a document had previously been recorded on the same property, and thus not make reference to the prior recording?
David Crook:
If two people were to prepare a description on the same piece of property and one person recorded his description first, the second person, unaware of the first recording, would put his or her name and address on the description, thus creating a new description.
Vice Chairman Porter:
If you take a new subdivision in a city, I assume they have already worked out the metes and bounds before they started the lot and block description.
David Crook:
Yes.
Vice Chairman Porter:
Lot and block is actually a more defined science, I assume. I see surveying markers around the community. Would that be for the lot and block?
David Crook:
Yes, that would be for a retracement of lot and block.
Vice Chairman Porter:
So, they would argue out the metes and bounds before the subdivision started. Do they still use metes and bounds? Do you actually have a choice, if you are doing a new subdivision? It seems to me the lot and block description would be a more accurate science than the metes and bounds description.
David Crook:
It is. But, if you have a piece of property that was a portion of a ranch and the rancher parceled it and sold off a certain portion, it will have been surveyed and have bearing and distance descriptions around the parcels. When you do a subdivision of those parcels, you have the lot and block description. But, prior to the subdivision of the land, there is no lot and block description.
Dave Moreland, Surveyor, President, Lahontan Chapter, Nevada Association of Land Surveyors:
I am a land surveyor in Nevada and work for the Bureau of Land Management, U.S. Department of the Interior. I am not here in that capacity; I am here as president of the Lahontan Chapter, Nevada Association of Land Surveyors. From my experience, over many years with surveying for the bureau, I believe this addition or revision would clarify any intent a person might have had when doing a description. As they go through the years, there may be some confusion, and retracing it would help clarify the description.
Vice Chairman Porter:
There being no further business the meeting is adjourned at 9:54 a.m.
RESPECTFULLY SUBMITTED:
Heather Dion,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE: