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Communique - November 2012

The November 2012 issue of Bar Journal Communiqué Focuses on Elections, Legislature, & The Lobby

NOVEMBER 2012 ARTICLES


Local Lobbying—What to Do and How to Do It By Elizabeth M. Sorokac and Jacqueline N. Walton

Round 4: Plaintiff’s Bar v. The Construction Industry by Ian P. Gillan

The Search for Legislative Intent—”Just what the hell were you guys thinking?” By Terry Care

© These articles were originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association.(November 2012, Vol. 33, No. 11). All rights reserved.

Communique November 2012 Cover

PUBLICATION INFORMATION: The Communiqué publishes timely articles to keep attorneys abreast of current CCBA events and trends with scholarly articles, features, CCBA news and event calendars. Space is available for businesses to showcase their services or products.

Get more information on this publication on the Communiqué page or by calling the Clark County Bar Association at (702) 387-6011.

COVER IMAGE: "Tumbling Eve" is a digital painting created by Steph Abbott. © 2012 Steph Abbott. All rights reserved.


Local Lobbying—What to Do and How to Do It

By Elizabeth M. Sorokac and Jacqueline N. Walton

© 2012 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (November 2012, Vol. 33, No. 11). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

Long-time clients call. They are frustrated, in a panic, and unsure what to do. They have a problem—they just received a recommendation of denial on their recently submitted land use application. Not only are they frustrated with the process (which can be confusing), but they need their application approved in order to conduct their business at a location where they have already signed a lease and set a grand opening date. The client has called you to fix their problem. What can you do?

Lobby!

As you may be aware, not all lobbying is done in Washington D.C or Carson City, and not all lobbying deals with enacting new laws. There is a substantial amount of lobbying done within the borders of Clark County and it involves solely local issues, like land use applications. Knowing how to advocate on behalf of your client to an elected official may be just the solution to your client’s problem. The following steps are a guide to help those new to (or perhaps rusty in) lobbying in the Las Vegas valley.

Determine the jurisdiction

In the Las Vegas valley, there are four different jurisdictions: (1) Clark County; (2) the City of Las Vegas; (3) the City of North Las Vegas; and (4) the City of Henderson. Before beginning your lobbying work, you must determine the jurisdiction of your clients’ property due to each of the jurisdictions having its own lobbying rules and regulations. Your clients may be able to provide you with the jurisdiction of the property if they have already filed a land use application; however, they may be unsure. Further, you will want to do more investigation to determine what elected official represents the area the property is located within. The jurisdiction of the property and the elected official representative can be determined using publicly available information. There are two tools available online to assist you with this determination: (1) Clark County’s Geographic Information Systems program, available at http://gisgate.co.clark.nv.us/openweb/ (it provides the jurisdiction and the local elected official for the property regardless of which local jurisdiction the property is located within); and (2) Clark County’s Department of Business License Jurisdiction Locator, available at http://gisgate.co.clark.nv.us/ziploc/ (it provides the local jurisdiction the property is located within).

Contact the right people

Once you determine the jurisdiction of the property in question, contact the office of the appropriate elected official to schedule a meeting to discuss your client’s application. Follow the lead of the elected official’s office, but try to get a meeting immediately before any scheduled hearing on your client’s application. If you meet with the elected official too far in advance of a hearing, you run the risk that the elected official may not be aware of your client’s application (i.e., they have not received their back up materials and/or staff briefing yet), and/or they may not remember all of the details of your client’s application by the time the hearing does occur.

Register as a lobbyist when required

The City of North Las Vegas has no lobbyist registration requirements, but the other three local jurisdictions in the Las Vegas valley—Clark County, the City of Las Vegas and the City of Henderson—have regulations requiring lobbyists to register and report lobbying activity.

1. Clark County

Clark County defines a lobbyist as “a person who communicates directly with a Commissioner on behalf of someone other than himself for the purpose of influencing governmental action of the [Clark County Board of County Commissioners (Board)] with regard to an agenda item that is to come before the [Board] for action, whether or not any compensation is received for the communication.” Clark County Code (CCC) § 2.39.020(A)(4). A governmental action is defined as “any item or matter that may be or is acted upon by the [Board] including, but not limited to, the adoption of ordinances and resolutions, the approval of contracts, the approval of licenses, the approval of zoning applications, and adoption of, or amendments to, land-use plans.” CCC § 2.39.010(3). Elected officers of the State of Nevada or representatives of the federal government whose activity is directly related to the scope of the office to which they were elected are excluded from the otherwise broad definition. CCC § 2.39.020(B).

A lobbyist must register and file a disclosure form with the County Clerk, Commission Division, within five days after any direct communication with a commissioner. CCC §§ 2.39.020, 2.39.030(1) and 2.39.040. In order to register, you must complete and submit a registration statement to the County Clerk. CCC§ 2.39.030(1). Clark County combines the registration statement and the disclosure form into one document, which is available on the Clark County Web site (http://www.clarkcountynv.gov/). Once you submit the registration statement and disclosure form, the County Clerk will furnish an identification badge that must be worn when you engage in lobbying activity. CCC § 2.39.030. If you intend to lobby in Clark County on a regular basis, then you must file an annual lobbying registration statement no later than January 10th of each year. CCC§ 2.39.030(1).

Lobbyists who file an annual registration, however, do not need to wear their lobbyist identification badge when engaged in lobbying activity. CCC§ 2.39.030(3). Be sure to comply with all of the requirements of Clark County when lobbying its elected officials. Failure to comply with the lobbyist registration requirements can result in a fine of up to $1,000.00. CCC 2.39.080.

2. City of Las Vegas

The City of Las Vegas defines a lobbyist as “any person who communicates directly with a member of the City Council on behalf of someone other than himself or herself to influence action by the City Council, and is compensated for the communication.” Municipal Code of the City of Las Vegas (MCLV)§ 2.51.010. The City of Las Vegas exempts representatives “of a bona fide news medium in connection with communications that are made solely in the course of that person’s business of gathering news for or on behalf of that news medium” from the definition of a lobbyist. Id. The City of Las Vegas requires that all lobbyists complete a registration form for each communication with a public officer—defined as the Mayor or any other member of the Las Vegas City Council. MCLV §§ 2.51.010 and 2.51.030(A). If the lobbying of a public officer occurs at the City Hall complex, then the registration form must be filed with the City Clerk the same day. MCLV § 2.51.030(A).

If the lobbying of a public officer occurs anywhere other than the City Hall complex, then the registration form must be filed with the City Clerk within five working days of the communication or before the next scheduled City Council meeting, whichever is earlier. Id. Once the registration form is filed, the City Clerk will give you an identification badge that must be worn whenever you are acting as a lobbyist. MCLV § 2.51.030(C). If you intend to lobby in the City of Las Vegas on a regular basis, then you may request an annual badge from the City Clerk. Id. Thereafter, you only need to provide specific information after each communication with a public officer. Id.

Compliance with all of the requirements of the City of Las Vegas when lobbying its public officers is important as the failure to do so is unlawful. MCLV § 2.51.030(E).

3. City of Henderson

The City of Henderson defines a lobbyist as “a person who appears in City Hall including the city council chambers or any other building in which the City Council or the Planning Commission, or any of their standing committees, hold meetings or any other location an appointment to meet has been set; and communicates directly with a member of the City Council, the Planning Commission and/or City staff on behalf of an individual, group or entity and will lobby for their interests or benefit to influence staff, legislative or council action; and receives a salary from an employer or compensation from that individual, group or entity and will lobby for their interests or benefit to influence legislative or council action.” City of Henderson Ordinance No. 2952 (Ordinance), §1(1)(a). Please be aware of the effect of this provision; Henderson’s ordinance is very broad and contacting an employee in a division of the City of Henderson may be considered lobbying!

The City of Henderson exempts certain persons from the definition of a lobbyist, such as employees of bona fide news media and public officers, depending on the scope of lobbying activities. Municipal Code of the City of Henderson (MCH)§ 2.100.010(b). The City of Henderson also requires all lobbyists to register. MCH § 2.100.020.

A lobbyist must file a registration form with the City Clerk annually and prior to any communication occurring that is considered lobbying. Ordinance, § 1(2)(a). The registration form is available on the City of Henderson’s Web site (http://www.cityofhenderson.com/). Once you file a registration form, you will be issued an identification badge that must be worn whenever you engage in lobbying activity. Ordinance, § 1(2)(c). In addition to the registration form, you must also file a disclosure form for any communication with the City Council or Planning Commission. Ordinance, § 1(2)(d). The disclosure form is also available on the City of Henderson’s Web site, and must be filed with the City Clerk within five working days of the communication. Id. Additionally, if your lobbying includes communication with the City staff, then you must file a disclosure form within five working days of the end of every month during which a communication occurred. Ordinance, § 1(2)(e). Again, be sure to comply with all of the requirements of the City of Henderson when lobbying its City Council, Planning Commission or City staff—any person who willfully or knowingly violates these requirements is guilty of a misdemeanor. Ordinance, § 1(4).

4. City of North Las Vegas

Although the City of North Las Vegas does not have any lobbyist registration or reporting requirements, lobbying is permitted. The same advocacy principles set forth herein apply equally to North Las Vegas.

Put your best foot forward

When preparing for a meeting with an elected official, take into consideration your audience. Realize that lobbying differs from arguing in court in that your audience may not have a background in the law. There is no “adverse” party here and the setting is more relaxed—you may be meeting with the elected official in their office or at a coffee shop. Despite the meeting’s more relaxed setting, always be prepared. Know your client, your client’s application, and your client’s business. Prepare a list of topics for discussion. Work to anticipate the elected official’s questions and have answers ready. Oftentimes their questions will go beyond the information required in the application you are there to discuss.

For the meeting itself, be sure to bring any helpful visual “exhibits” (e.g., photographs, maps or a site plan) and be ready to succinctly present your “case.” Highlight the positive portions of your client’s application, but be ready to address the negatives, just as you would for oral argument before a judge. Finally, always treat the elected official with respect, make your point without being overly aggressive (your meeting is a time for honest discussion), and be personable.

Follow up and follow through

After a meeting with an elected official, follow up may be required. Did the elected official have a question you did not anticipate or request a photo that you did not have? If so, make sure to provide the elected official with the answer to the question or the document requested before the hearing, if possible. The elected official may be depending on the answer or the document to make a decision regarding your client’s application. Do not make the mistake of attending the hearing without having provided the elected official with the requested information or documentation.

Even if no specific follow up is required, it never hurts to send an email thanking the elected official for the time spent with you as you may need to contact them in the future. Always strive to make a good impression and think about your relationship with each elected official you meet in the long-term and not the short-term. In lobbying, your reputation is everything.

Elizabeth M. Sorokac is an owner and founding member of Reisman Sorokac . She has been practicing in Las Vegas since 2001. Her practice focuses on real estate, government affairs, administrative law and corporate matters. She can be reached via phone at (702) 727-6258 or via email at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

Jacqueline N. Walton is an associate at Reisman Sorokac. She practices in the areas of real estate law, government affairs and corporate matters. She can be reached via phone at (702) 727-6258 or via email at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it


 

Round 4: Plaintiff’s Bar v. The Construction Industry

By Ian P. Gillan

© 2012 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (November 2012, Vol. 33, No. 11). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

It fairly can be assumed that the majority of time spent contemplating or negotiating a piece of original legislation is done prospectively with an eye toward the future. This is primarily the result of the process. Legislation is generally proposed to some extent in a vacuum with only conjecture, opinion, and, hopefully, some form of independent analysis to forecast the likely effect of enactment and subsequent utilization.

This general concept is changed, however, when dealing with efforts to amend existing legislation. Although the general outside forces and factors are still present during the amendment process (primarily constituent pressures and lobbying efforts), legislators have the benefit of real world application and empirical data to aid in the decision making process.

There appears to be no better legislative scheme to utilize as an example of this procedural dichotomy than the construction defect, “right to repair” law colloquially referred to as Chapter 40. NRS 40.600 et seq. Chapter 40 can be retrospectively reviewed and analyzed from its inception as an abstract idea to a hotly debated piece of legislation, which has been interpreted by the Nevada Supreme Court on numerous occasions, see, e.g., Shuette v Beazer Homes Holding Corp., 121 Nev. 837, 124 P.3d 530 (2005) and D.R. Horton v. Eighth Jud. Dist. Court, 123 Nev. 468, 168 P.3d. 731 (2007), and is likely subject to further deliberation and consideration by the Nevada Legislature and Nevada courts.

In general terms, Chapter 40, which was originally enacted in 1995 and subsequently amended in 1999 and 2003, created an encompassing procedure whereby contractors and subcontractors were allowed the opportunity to inspect and repair alleged construction defects prior to the homeowner’s attorney’s institution of litigation. This well intentioned concept, although simplistic in the abstract, was riddled with nuances, creating exhaustive debate over the past 13 years. Consequently, an ideological battle has played out in committee rooms, on both congressional floors, and in the district courts between developers, subcontractor representatives, and the plaintiffs’ bar.

Most would agree the 2003 legislative session’s “right to repair” was the most dramatic change to the initial product of 1995. Nonetheless, after the voices were heard and the votes tallied, a result touted as a compromise left most feeling like a lot was left on the field. While the construction industry got the “right to repair,” the plaintiffs’ bar retained what is arguably the most rare and powerful weapon in litigation, a non-reciprocal attorney’s fees and costs provision. It is this provision—in a rather comprehensive statutory scheme—that has caused the most turmoil and perpetuated the most debate over Chapter 40 and construction litigation in general.

Now, on the cusp of the 77th regular session of the Nevada Legislature, it is a good time to look at how the process worked, failed, and, given the data collected since the original enactment, how to remedy the situation, so that the aims and intent behind the legislation is truly satisfied . (Notably the 2013 legislative session Bill Draft Request No. 480 provides “make various changes concerning construction defects.”)

The lobbies and alliances here are easily delineated: there is the construction industry on one side and the plaintiffs’ bar on the other. The goals have also always been clearly delineated: the plaintiffs’ bar want to maintain the non-reciprocal attorney’s fees/cost provision, whereas the construction industry wants to limit their potential exposure to repair of or payment for actual, verifiable defective conditions. The recent media focus on the plea deals and personal tragedies surrounding individuals allegedly associated with the Homeowner’s Association (HOA) scandal has, and likely will, emphasize this fact.

The pertinent “recovery” section provides in relevant part that “. . . the claimant may recover only the following damages to the extent proximately caused by a constructional defect: (a) Any reasonable attorney’s fees; . . . (f) Any additional costs reasonably incurred by the claimant . . . .” NRS 40.655. This deviation from the American Rule governing attorney’s fees and costs was purportedly included in Chapter 40 to allow for the hypothetical individual homeowner to seek redress for construction defects to their home without the need to contribute a portion of any recovery to attorney’s fees or expert costs. It is this hypothetical, sentimental homeowner figure that has been at the heart of Chapter 40 efforts in both the 2009 and 2011 legislative sessions.

The legislative strategies on both sides differed drastically between those two sessions. In 2009, the focus was on whether to completely do away with the pre-litigation statutory scheme. In 2011, the plaintiffs’ bar proposed a revision that did not touch the central issue, but dangled in front of the construction industry what facially amounted to the shortening of the statute of repose period. The strategies on both sides—albeit creative and passionately delivered—resulted in little compromise and the status quo has been maintained.

This time around there is a real need and opportunity to overcome the tactical smokescreens of the prior legislative sessions. It will be hard to ignore the 600 pound gorilla of the federal investigation into the alleged construction defect/HOA scandal. In reality, the Chapter 40 process rarely precludes litigation as intended. Many cases have gone to trial over the past few years after the full Chapter 40 process was exhausted and extensive repairs were made or offered. The broad assertion that the construction “boom” created fast-paced, shoddy construction—which was the backbone of the sentimental, individual homeowner argument—has become nearly irrelevant at this time. The majority of the homes built during the construction “boom” either have or soon will be beyond any statue of repose period or have already been through some form of litigation and potentially subject to the doctrines of res judicata or collateral estoppel. The non-reciprocal attorney’s fees and costs provision is the tail wagging the dog of almost every construction defect claim. Attorney’s fees and expert costs typically outpace recovery for the alleged defective condition by nearly five to one.

This is where the dichotomy between the enactment of original legislation versus subsequent amendment or change should be brought into the clearest focus. Nevada has more than a decade’s worth of information and data going into the next legislative session to determine whether the oft-cited sentiment of the hypothetical, individual homeowner will prevail once more. In 2013, the accumulation and presentation of solid facts and statistics should trump conjecture and hypothetical. The efforts in 2009 and 2011 appear marred by excessive lobbying and extreme political strategies. It should be of no surprise that it has and will be hard to get the legislators past these lobbying efforts and argument. If it were easy, the lobbyists on both sides would not be doing a very good job. Nonetheless, if the process is to work at its best, the hard and consistent facts and data should carry the day. Hopefully, the age old adage that “history repeats itself because no one was listening the first time” will not, once again, be proven.

Ian P. Gillan, Esq. is a partner with Koeller, Nebeker, Carlson & Haluck, LLP . His practice is focused primarily in the areas of construction litigation, insurance bad faith, and appeals. Please visit www.knchlaw.com for more information on Mr. Gillan or his firm.


The Search for Legislative Intent—”Just what the hell were you guys thinking?”

 

By Terry Care

© 2012 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (November 2012, Vol. 33, No. 11). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011. 

The number varies, but each regular session the Nevada Legislature passes something close to 700 bills, some of absolutely no importance and others overwhelmingly significant. Inevitably, a few months after adjournment, many legislators receive a call, usually from a practitioner who had happened across one of those legislative summaries all Communiqué subscribers see and sometimes read, asking:

“I have a case implicating a new and really, really ambiguous statute from the last session, and I absolutely need something that shows legislative history, legislative intent. I’ve looked at all the committee minutes and everything else, and I can’t tell what you idiots were even trying to do. Just what were you thinking?”

Such a question, of course, presumes legislators were thinking, and, to the extent the deadlines contained within the 120-day limitation allowed for it, they were. But here is some important context: a regular session equates to the introduction of about 1,200 bills. With few exceptions, bills must be introduced by a certain date, pass out of the committee of the house of origin by a certain date, and be voted out of the house of origin by a certain date. And then the process must be repeated in the other house. It is akin to legislating with a shot clock: one deadline comes and goes and the countdown begins immediately for the next one. Some committees meet twice weekly, others three times, others Monday through Friday. It is not unusual for a committee to entertain four or five bills in a hearing. Ideally, there would be time for each legislator to read every bill, or at least to review each bill that comes before any of the three or so committees each legislator sits on. Most lawmakers will tell you there isn’t. They’re being honest.

Instead, a legislator’s vote on a bill is often based upon the recommendation of a caucus, a plea from the bill’s sponsor, a returned favor, the persuasive request of legislative leadership, or a quick understanding—or misunderstanding—of the bill’s purpose as summarized hurriedly by proponents and opponents. It is the exception that a legislator digests a bill word-for-word, thinks about it, then independently goes with thumbs up or down. There is no indictment intended here. This is simply the process. In the end, legislating is a purely political, not an academic, exercise. And generally legislators are no more concerned about clarifying their intent than they are about the next solar eclipse.

So where in all this, whether it is a newly effective statute regarding foreclosure or anything else, can one unearth what the legislature collectively was trying to do?

The issue arises where a statute is indeed ambiguous, where a statute “is capable of being understood in two or more senses by reasonably informed persons.” McKay v. Board of Supervisors, 102 Nev. 644, 649, 730 P.2d 438, 442 (1986). Before reasoning that a statute is ambiguous, however, a court first “will give the statute its plain meaning and will examine the statute as a whole without rendering words or phrases superfluous or rendering a provision nugatory. [The] court will award meaning to all words, phrases, and provisions of a statute.” Haney v. State, 124 Nev. 408, 411–12, 185 P.3d 350, 353 (2008). But if, after that, “the statute is ambiguous, then [the] court will look beyond the statutory language itself to determine the legislative intent of the statute.” Id. at 412, 185 P.3d at 353. So what does that mean?

Courts have resorted to several considerations to determine legislative intent, including: (1) statutory construction “in line with what reason and public policy would indicate the legislature intended,” Gallagher v. City of Las Vegas, 114 Nev. 595, 599–600, 959 P.2d 519, 521 (1998); (2) statutory interpretation “according to the entire statutory scheme,” State Industrial Insurance System v. Bokelman, 113 Nev. 1116, 1123, 946 P.2d 179, 184 (1997), though a court may not “insert qualifying provisions not included, and may not rewrite the statute to conform to an assumed intention which does not appear from [the statute’s] language,” Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 950 P.2d 1086, 1099 (Cal. 1998), (superseded by statute on other grounds); (3) “circumstances which propelled the enactment of the statute,” Roberts v. State, 104 Nev. 33, 38, 752 P.2d 218, 224 (1988); (4) “contemporaneous circumstances” such as “the history of the times existing when the law was enacted, the previous state of the law, the evils intended to be corrected, and even, according to some cases, the habits and activities of the people,” Orr Ditch and Water Company v. Justice Court, 64 Nev. 138, 170–71,178 P.2d 558, 573–74 (1947); and (5) interpretation by another jurisdiction’s court of a similar statutory provision from that state, Zabeti v. State, 120 Nev. 530, 534–35, 96 P.3d 773, 775–76 (2004).

Courts also examine extrinsic aids such as: (1) committee reports and legislative journals, University and Community College System of Nevada v. Nevadans for Sound Government, 120 Nev. 712, 732, 100 P.3d 179, 194 (2004); (2) testimony in committee and exhibits offered with testimony, Lowe Enterprises Residential Partners, L.P. v. Dist. Ct., 118 Nev. 92, 103–04, 40 P.3d 405, 412 (2002); and (3) the history of a bill’s amendments adopted and rejected, Nevadans for the Protection of Property Rights, Inc. v. Heller, 122 Nev. 894, 911, 141 P. 3d. 1235, 1246 (2006).

What courts will not consider is a post-adjournment assertion of legislative intent by the very lawmakers responsible for the legislation. “[I]n ascertaining the meaning of a statute the court will not be governed or influenced by the views or opinions of any or all of the members of the Legislature, or its legislative committees or any other person.” See 2 Sutherland Statutory Construction, § 5011, 3d Ed. So, while you are free to press a legislator for an explanation of a bill—and most are willing to offer one—the response is no more authoritative than yesterday’s weather forecast. And it can happen that the history of a statute one would expect to find in committee testimony and journals with floor debate virtually doesn’t exist. As one court remarked, accurately, “[a]lthough Nevada legislative history is scarce and often fraught with peril for the careful investigator, it can sometimes be useful.” In re Giampietro v. Giampietro, 317 B.R. 841, 847 n.8 (D. Nev. 2004). How can that be?

Many committee witnesses distribute exhibits, and some actually submit copies of their testimony. In those cases where legislators then tailor their questions and remarks to those handouts and testimony, intent is fairly decipherable. But not all witnesses subscribe to that practice. Also, committee members, usually because of scheduling conflicts, do not attend all hearings, and when they are present they don’t always say something on the record. Thus, legislative intent before a committee might be confined to the ruminations of a single legislator. And sometimes a committee will process a bill with barely any questions or comments, usually because the members have been told prior to the hearing that there is no opposition, or because a deal was negotiated prior to the hearing. In such cases, committee minutes will offer nothing in the way of legislative intent.

With few exceptions, both the Senate and Assembly convene daily for floor sessions, and each body keeps and makes public a journal for each such day. But that doesn’t mean that a legislator’s remarks will appear in the journal for a particular day. During my time in the legislature, a senator ordinarily had to request his remarks be entered in the journal, and even then he was permitted to review and revise his remarks before they were published. On occasion, a senator would request that all comments regarding floor debate on a specific bill be made part of the journal. Senators were then allowed to review their comments in draft form, and even revise them. So the printed journal did not contain the remarks as captured in original form.

When testifying before legislative committees, attorneys should consider beforehand whether intent might become an issue later. If so, they will want to provide committee staff sufficient written copies of their testimony, with exhibits, for distribution to committee members and staff. (Each house committee has its rules on the number of copies. Further, each house committee has its rules on how far in advance written materials should be submitted.) This does not mean an attorney need to stick to his script when testifying, but he should offer some notion of what he believes the bill is intended to do if enacted. It is not uncommon for a committee chairman to limit the amount of time for a bill’s discussion, and to request that a witness hold his remarks to, say, five minutes. If so, say what you can in the allotted time and then ask that your written testimony be made part of the record. It will be. Someday a court might need to read it. And if that ever happens, odds are that court will have before it starkly competing briefs but with a shared passage: “In its wisdom, the legislature clearly intended . . . .”

Terry Care is a partner at McDonald Carano Wilson LLP . He served 12 years as a Nevada state senator (1998–2010), during which time he was Assistant Majority Leader, Chairman of the Senate Judiciary Committee, Vice-Chairman of the Senate Committee on Government Affairs, and Vice-Chairman of the Senate Committee on Taxation. Care is now the chair of the firm’s Government Affairs Group.


 

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