Thursday, June 12, 2003
Copyright © Las Vegas Mercury

Laws and disorder

The 2003 Legislature is deadlocked on taxes, but it did manage to meddle in lots of other business

The Nevada Legislature's style of law-making is kind of like watching sausage being made. It's not a pretty sight.

But while legislators remain deadlocked over taxes, a conflict that could continue for weeks, they did get some real work done during their recent 120-day session in Carson City. Largely out of public view, the Legislature tackled issues big and small, churning out changes they hope will make life a little better for their constituents. We'll see. But for those who weren't paying attention, or for those who were but couldn't stand it any longer, here's a rundown on some key achievements (or not) of the 2003 session.

Death penalty reforms: Nevada gets slightly more humane

The conventional wisdom of cynics holds that government groups formed to study an issue don't do squat. In the case of the death penalty, however, the 2003 Legislature made some major headway on the issue--thanks in part to the Interim Study on the Death Penalty, chaired by Assemblywoman Sheila Leslie, D-Reno. Four of the five bills recommended by the group were passed by the Legislature and signed into law by Gov. Kenny Guinn. Another bill, AB118, which wasn't included in the study, died in a Senate committee; it would've abolished the death penalty for those under 18.

"This brings us up to speed with other states across the nation in making sure the death penalty is applied appropriately and fairly," says Leslie. "This shows that public opinion on the death penalty is changing. It's not a sea change by any means, but it reflects that people want to take a second look at this issue."

The four bills that passed make death sentences harder to hand down. One of the bills, AB15, bans the execution of the mentally retarded. Leslie had taken on that bill as her main cause back in 2001, when the proposal died in a Senate committee while Senate Majority Leader Bill Raggio, R-Reno, was said to have stalled by fighting a proposed moratorium on execution of the mentally retarded pending further study.

Another bill, AB17, increases the pay of defense attorneys in capital cases and mandates that two attorneys serve on every defense in such cases. AB16 allows a person convicted and sentenced to death to request genetic marker analysis of evidence--in other words, DNA testing as a means to ensure his guilt or prove his innocence. Finally, AB13 eliminates a three-judge panel that was used in certain death penalty hearings; bill supporters charge that the way the panel is structured allows racial bias into decisions concerning the death penalty.

Leslie herself is surprised that Nevada got that much more humane that quickly.

"I thought [proposing AB15 in 2001] would be the death knell for me politically, and that I'd never be re-elected," she says. "What a difference a couple of years makes. I think we're seeing a major change in how we view human rights. I do think murderers should be punished, but life without parole is a much better alternative than killing someone."--Andrew Kiraly

Got homeland security?

Assembly Speaker Richard Perkins' Nevada homeland security bill, AB441, passed in March with a whoosh. The Assembly voted unanimously for it, and all but one senator gave it the nod. But lone holdout Sen. Joe Neal, D-North Las Vegas, raises questions about the bill. Neal's biggest beef: whether we actually need a Nevada homeland security bill.

"The bill would not solve any problems in terms of protecting the citizens of Nevada," Neal says. "It may have made Perkins and others feel like they had done something good, but if there was a terrorist act in the state of Nevada, the role that local law enforcement would play would be minimal at best."

Neal says federal agencies such as the ATF and FBI are handling homeland security well enough. Furthermore, Neal and others are nervous about language in the bill that they say would allow easy surveillance and wiretapping of innocent citizens. "I'm a little bit afraid that in time of heightened alert, the real enemy may turn out to be the person in authority," he says. Assembly Speaker Richard Perkins' executive assistant said Perkins would not be able to comment before deadline.

Critics say it didn't help that the dangerously vague language of a similar, failed bill proposed by Senate Majority Leader Bill Raggio, R-Reno, was folded into AB441. "I commend Perkins and others who worked very diligently on that bill to at least amend some of the language so that it ended up being more respectful of civil liberties and civil rights," says Gary Peck, executive director of the Nevada ACLU. "But is it perfect? Absolutely not. Some of the language is very messy, very unwieldy and leaves open the possibility for government abuse. The language that defines the kind of activity that could be considered either terrorism or support of terrorism is far too loose in what it covers."

AB441 may make Nevada more secure, but at a price.--Andrew Kiraly

Bad cops, no doughnut

ACLU of Nevada director Gary Peck is taking a much-needed break after some serious time in the trenches during the 2003 Legislature. The ACLU's biggest foe this session: the state-spanning range of police unions that bum-rushed the Legislature to get their hands on a variety of bills that would affect police accountability. Fortunately, they didn't completely get their way. AB330, which died in committee, would have made it much more difficult to investigate officers accused of wrongdoing and, many say, would have hamstrung the Metro Police Citizen Review Board; the bill was pushed hard by the Nevada Conference of Police and Sheriffs. Senate Minority Leader Dina Titus' SB360 would have prevented racial profiling; the bill would have required logging traffic stops, training for cops on awareness of racial profiling and informing motorists on what they could do if they felt they were subject to such profiling. The bill was killed along with an earlier racial profiling law proposed by Sen. Joe Neal, D-North Las Vegas.

"The law enforcement unions from across the state were just relentless," says Peck. "Instead of showing any willingness to try to balance their interests by and large with those of the public, they just basically behaved like bullies." Gee, what a surprise.--Andrew Kiraly

Housing defects -- are they really fixed?

After five consecutive, and rancorous, legislative sessions, both sides in the housing defect debate seem satisfied with the latest compromise.

At least so far.

Lobbyists for the construction industry, trial attorneys and homeowners struck a deal in this Legislature, giving builders a chance to fix defects while attorneys can still file lawsuits.

The deal gives builders 105 days for simple repairs and 150 days for complex jobs. After that, a homeowner can call his lawyer. What may be historic about the agreement is that nothing like it was forged in legislative sessions dating back to 1995, when both sides came away essentially empty-handed.

"Builders who truly want to make lasting repairs will really benefit from this legislation," says Dan Geary, head of Safe Homes Nevada, which represents mainly homeowners. "Home builders who do not choose to make the repairs will not benefit. If a homeowner is not satisfied, he has the right to go to court. This is a well thought out and thoroughly negotiated compromise."

Early in the session, any compromise looked like a pipe dream. Advocates tangled over the issue in newspaper headlines, each claiming the others--builders or attorneys--were getting rich at the little guy's expense.

But Steve Hill, chairman of the industry's Coalition for Fairness in Construction, insisted from the beginning the lobbying would be more focused this time. He attributed previous legislative failures to the building industry's inability to work together.

For the consumer, the issues were the ability to fix a badly built house, and whether lawsuits would drive housing prices even higher. Builders claim construction defect lawsuits are pushing insurance costs to unaffordable levels, up 1,000 percent in two years. As of last year, there were 86 such cases ongoing in Clark County. In November, a special 3,000-square-foot courtroom was constructed just to handle the crush of attorneys, homeowners, contractors, subcontractors and insurance representatives.

Hill also warned that unchecked litigation could harm the state's economy, since about 10 percent of the work force is in the construction industry. Geary sees all parties winning in the compromise.

"The homeowners' rights are effectively preserved," Geary says. "We've crafted a change that benefits builders who want to do the right thing."

Hill calls the right to repair the major issue this session. "That was our main goal when we went up there," he says.

But will it work this time? Other compromises have broken down, bringing everybody back to the Legislature. "We have to make sure these things work in the field and in the courtroom," Hill says.

Geary agrees. "It is our hope that with this compromise will be given the time to work. It's good for the good guys on both sides."--Larry Wills

Malpractice malaise

Feeling poorly and the doctor isn't answering his phone?

Don't worry. Just stay on the line--for about 18 months.

The Legislature managed to fumble the medical malpractice insurance issue this session, placing it on the ballot in November 2004, presumably when at least one physician will still be in Nevada. They're bailing out of the state for places with lower malpractice insurance rates.

This was the second time in a year that the Legislature grappled with the issue. Last August, a special session passed a $350,000 cap on damages for pain and suffering. But a lobbyist for the doctors insists that law isn't working. And Scott Craigie insists the doctor shortage is getting worse.

"What's happened since it went into effect is more doctors have left, more practices have shut down," Craigie says. "Three medical insurance companies are not renewing physicians" as a prelude for the firms leaving the state. "The crisis grows by the month."

Craigie says he tried to convince the Legislature to enact a law similar to California's, where rates are lower and health-care access is stable. "We had hoped to have gotten more support," he says.

The ballot issue will have several parts, including a cap on damages, limits to legal fees and for jurors to be given information on previous litigation by the plaintiffs. Nevada attorneys opposed this in the Legislature, pushing for a vote on what was passed last summer. They argued that a patients' right to sue would be unreasonably limited. But the Legislature defeated that proposal.

Larry Matheis, executive director of the Nevada State Medical Association, says that without reforms there will be a "continuing erosion of the medical system." "There have been huge increases in the number of cases filed in Clark County," Matheis says. "And we're going to see more rate increases."

And he insists the Legislature did answer concerns about monitoring the quality of care. Senate Bill 250, which was sent to Gov. Kenny Guinn, requires doctors to submit to the Board of Medical Examiners all malpractice allegations. A physician's performance could then be investigated.

Craigie concedes the 18-month delay to get the issue on the ballot may cause the situation to get worse before it improves, with more doctors heading for the border. "We're hoping the health-care community and the institutions will stick this out with us," Craigie says. "It's tragic."--Larry Wills

Light 'em up

Good news, cancer-causers: You still get to smoke in Nevada restaurants, grocery stores, malls and other public places--that is, unless the owner of any particular joint exerts her private property rights and kicks you out. Otherwise, legislators have (once again, just like in past sessions) mostly shied away from officially stubbing out people's cigs.

This, even though Clark and Washoe counties' voters approved two ballot initiatives last fall that showed a desire to let the counties enforce anti-smoking rules that are tougher than state law and to ban smoking in certain public places.

"The public obviously doesn't like secondhand smoke," says Dan Geary, communications consultant for the Nevada Tobacco Prevention Coalition. "Two out of three Nevadans don't smoke. And secondhand smoke isn't just an annoyance. It causes asthma in children, and it can be flat out lethal. Over 300 people in Clark County die from secondhand exposure to smoke each year."

Opponents of tougher tobacco use laws say it's unconstitutional to make private businesses ban smokers. Geary counters with a comparison: "The right to free speech still doesn't allow you to yell "Fire!' in a movie theater."

Anyway--although there were others, the two key anti-smoking bills the Legislature considered were SB50 and AB96. AB96, pushed by Clark County, died. It would have banned smoking in grocery stores, drug stores, schools, video arcades, restaurants and other places that children frequent. SB50 would initially have granted state agencies and local governments the ability to adopt tougher tobacco restrictions than those enforced by state law. After being amended to apply only to schools, it passed.

Geary says the next step in the fight is to increase public awareness and to make secondhand smoke a campaign issue. "As public sentiment against tobacco use grows, there will be more of an incentive for lawmakers."

Helen Foley, lobbyist for the Clark County Health District and anti-tobacco campaign, says the Legislature at least "made a few baby steps this session."

"I think what's next is to encourage more restaurants to go smoke free, and then a serious consideration of a ballot initiative," Foley says. And, she says, we can probaby expect help from another source: the droves of anti-smoking acolytes moving here from virtually smoke-free California. Gasp!--Heidi Walters

Red Rock love conquers all, almost

Now they know we care--they being the rest of Nevada, especially the smug North with its jewel-like Lake Tahoe, its quaint biggest-little-city schtick, its Black Rock Desert and its mysterious Pyramid Lake. We in Southern Nevada have, ha-ha, Red Rock Canyon National Conservation Area. And though everybody knew this, nobody really knew it.

We also have, ironically, a couple of misguided developers to thank for this newfound recognition of our very own glowing nugget of extravagant nature. Yes, though we maligned John Laing Homes and, later, Jim Rhodes, they ultimately were the ones who, by threatening to build thousands of homes on top of the sentinel hill that overlooks (but is not in) Red Rock, provoked ordinary citizens, county government and ultimately the state into better protecting the areas surrounding the conservancy.

Sen. Dina Titus' SB358 permanently freezes in place existing zoning that allows one home per two acres in a defined area surrounding the conservation area. The Senate and Assembly passed the bill unanimously, and Guinn signed it May 19. The bill follows the text of the Red Rock Overlay District zoning ordinance that Clark County had been working on and finally approved May 21.

Rhodes, who bought the contentious 2,400 acres on Blue Diamond Hill for $53.8 million in March, wanted to build up to 5,500 homes on top of the hill. (Laing, who retreated under citizen fire and who knows what else, was proposing as many as 8,000 dwellings.) Under the new ordinance and the new state law, Rhodes can build about 1,200 homes on the hill--that, point out Red Rock defenders on www.redrock.org, is still "10 times the size of Blue Diamond" village. Rhodes also will have to reclaim the mine site--for the property he purchased has been a gypsum mine since the 1920s. In fact, his public relations ploy was to insist that dense housing would be the best sort of reclamation up there. Didn't work.

But vigilance is in order, says Red Rock Citizens Advisory Council Chairman Evan Blythin, who lives in Blue Diamond.

"I don't think Rhodes is going to stop," Blythin says.

In fact, he says, Rhodes has applied for a zoning change on 90 acres, from rural to commercial, at the base of the hill near the gypsum processing plant.

"I find it so outrageous," Blythin says. "I think he's trying to enhance the value of what he's got for when he ultimately trades with the BLM. I think the guy's incredibly greedy. As I've said before, he wants the sun, the stars and the moon. I hope he comes to his senses and starts negotiating."--Heidi Walters