Legislature(2003 - 2004)
04/20/2004 08:08 AM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 514-CHILD SUPPORT ENFORCEMENT/CRIMES
MR. JOHN MAIN, staff to Representative Pete Kott, reminded
members that at the last meeting, Senator French had asked
for an amendment [to clarify the language in Section 5
(2)(A)-(C) on pages 3 and 4].
CHAIR SEEKINS confirmed that amendment is now labeled XA.1
and entertained a motion to consider the amendment as
Amendment [2].
SENATOR OGAN so moved.
SENATOR FRENCH asked for an explanation.
MR. MAIN said it basically specifies that the standard is
"intentionally" in subsections (A)-(C) and renumbered those
sections.
CHAIR SEEKINS and SENATOR FRENCH felt that Amendment [2]
reads better than the original language.
SENATOR FRENCH asked what lines 6 through 15 on page 2 of
Amendment 1 would do.
CHAIR SEEKINS clarified that the amendment should be
referred to as Amendment 2.
MR. MAIN explained that provision has been in the statute
and CSED has had no problem with that language in the
prosecution of cases.
CHAIR SEEKINS questioned whether the only change is to
correct the numbering sequence to conform to the changes
made in the first part of Amendment 2.
MR. MAIN said that is correct.
SENATOR FRENCH removed his objection to the adoption of
Amendment 2 so it was adopted. He then asked Mr. Main the
theory behind revoking sport hunting and fishing licenses
for non-payment of child support in Section 9 on page 4.
MR. MAIN told members that deal was brokered between the
federal government and the State of Alaska. The federal
government requires that hunting and fishing licenses be
revocable but Alaska does not track hunting and fishing
licenses in the same way that other states do. Other states
have an updated database; in Alaska, that information is
turned in to the state in February or May. The legislature
did not want to make the revocation of fish and game sport
licenses part of the earlier bill that provided for
revocation of occupational and drivers' licenses.
Therefore, the best remedy was to revoke the sport hunting
or fishing license at the time of a criminal conviction for
non-support. He explained:
There are two ways that it can be taken that way,
one is civil, which is to be held in contempt -
the court can take at that time or if the
individual is convicted of failure to pay child
support, criminal non-support misdemeanor, as it
presently is, and that satisfied the federal
government. They're not happy about it but
they're satisfied that at least there is a
provision with which to be able to remove the
hunting/fishing license. Basically, it's the
privilege of hunting and fishing as a sport
compared to subsistence, and that was one of the
issues that was placed under [AS]09.50.020. It
lists out what is considered a recreational
license and what is considered to be subsistence
and personal. Recreational is only considered to
be sports fishing and sport hunting. The personal
use fishing - dipnetting, that kind of stuff that
is exempted, subsistence fishing and subsistence
hunting is also exempted.
CHAIR SEEKINS said every resident in the state is
considered by state law to be a subsistence hunter, which
is why the state has tier 2 permits that anyone can apply
for. That is not the case under Alaska law for fishing and
there is no license for subsistence fishing. However, for
personal use fishing, a person must have a license. He was
not sure whether Alaska law differentiates between
recreational fishing and personal use fishing to feed one's
family.
MR. MAIN responded that personal use fishing under AS
16.05.940 is described as:
'personal use fishing' means the taking, fishing
for, or possession of finfish, shellfish, or
other fishery resources, by Alaska residents for
personal use and not for sale or barter, with
gill or dip net, seine, fish wheel, long line, or
other means defined by the Board of Fisheries;
MR. MAIN added that sport fishing is different than
personal use fishing.
CHAIR SEEKINS said the same license exists for sport and
personal use fishing.
MR. MAIN noted that sport fishing is described under AS
16.04.940(29); while personal use fishing is described
under AS 16.04.940(24). Sport fishing is described as:
...means the taking of or attempting to take for
personal use and not for sale or barter any fresh
water, marine, or [anadromous] fish by hook or
line held in the hand, or by hook and line with
the line attached to a pole or rod which is held
in the hand or closely attended, or by other
means defined by the Board of Fisheries;
CHAIR SEEKINS referred to his own fishing license and noted
it did not contain a category for personal use. He
questioned how a person could personal use fish to feed his
family but not recreational fish.
SENATOR OGAN indicated that a person must buy a sport fish
license to personal use fish.
CHAIR SEEKINS expressed confusion about whether or not a
sport fish license could be revoked if it is not being used
as a recreational license.
MR. MAIN pointed out the language in the present law says
"the court may" and in the 24 cases in which individuals
were convicted of criminal non-support, CSED did not
request the revocation of recreational fishing licenses and
the court did not order any such revocations.
CHAIR SEEKINS suggested, for the sake of accuracy, putting
language in the bill to explain that a recreational license
does not mean a license necessary to participate in
personal use or subsistence hunting and fishing.
MR. MAIN noted that Senator Ogan said he wrote most of that
statute and that it doesn't apply to those items that are
not considered to be recreational licenses.
CHAIR SEEKINS announced a brief recess.
9:30 a.m.
Upon reconvening, Senator Therriault rejoined the
committee.
CHAIR SEEKINS commented that the key word in the penalty
for aiding and abetting in the non-payment of child support
is to "restrict" a recreational fishing or hunting license
for a period not to exceed one year, as defined in AS
09.50.020(c). He said that subsection refers to a sport
fishing license unless it is required to participate in
personal use or subsistence fishing. He said this is a
toothless law except that the court could order a person to
only use a hunting or fishing license for the purpose of
personal use or subsistence, and not for recreation.
SENATOR FRENCH questioned whether the law should read, "the
court may restrict" and not address suspend or revoke
because the court cannot suspend a license.
MR. MAIN repeated this was a way to comply with the federal
mandate but not require the Alaska Department of Fish and
Game (ADF&G) to create a database that was accessible by
others.
CHAIR SEEKINS said it just seems that all an offender would
have to say is that he or she needs the license for a
personal use fishery. He said he feels comfortable with
that because he did not want a person's personal use or
subsistence license to be affected.
Members then updated Senator Therriault on the issue they
were discussing.
SENATOR THERRIAULT asked if that penalty has been imposed
on people for non-support and this bill will now impose it
on those who aid and abet the offender.
MR. MAIN said that is correct.
SENATOR FRENCH questioned how an ADF&G officer would look
at a sportfishing license, know the difference, and enforce
that provision.
CHAIR SEEKINS said he couldn't imagine.
SENATOR OGAN recalled that requiring social security
numbers on fishing licenses was very controversial several
years ago and he believed that law was amended to remove
that requirement. He stated, "I suppose we may hear that
they have to wear a scarlet letter or other things as well,
since we do all this stuff to them."
CHAIR SEEKINS noted that fishing and hunting licenses have
been very useful in terms of finding people.
SENATOR OGAN told members he heard from a man last night on
this topic who did not want to go on record, which he
thinks is common because of the scarlet letter factor. He
said as a legislator, he has heard many constituents
complain about CSED and he relayed some of their stories to
members. He expressed concern that those people who lose
jobs or have other problems and get behind with child
support payments will now become felons and that there is a
whole contingent of people who do not testify and are not
being represented. He said he does not like people who will
not help support their children but he cannot support the
bill as is because it will make some people felons who are
trying to support their kids but cannot.
CHAIR SEEKINS said he shares some of Senator Ogan's
concerns but two things on page 2 give him comfort. The
first is on line 2, which is the phrase, "without lawful
excuse," to provide the support. That phrase is defined on
lines 23, 24, and 25 as having the financial ability or the
capacity to acquire that ability through the exercise of
reasonable efforts. He said if the person Senator Ogan
referred to does not have the financial capacity, that
would be a lawful excuse unless the person has the capacity
to acquire that ability and refuses to do so.
MR. MAIN confirmed that is true.
CHAIR SEEKINS said someone who has fallen on hard times and
cannot support their child would not fall under this
statute.
MR. MAIN said given that CSED has only four investigators
and has been able to prosecute only 24 cases in 4 years,
this bill will not increase its caseload but it will allow
CSED to negotiate deals with people because the law will
have more teeth. He noted there will always be people who
refuse to pay, no matter what, and people who cannot afford
to pay, no matter what.
CHAIR SEEKINS asked what process CSED would have to go
through to prosecute a person with a class C felony.
MR. MAIN said a supervisor would review a case. If the
amount owed is significant (at least $15,000), and there
has been no record of payment, except perhaps a permanent
fund dividend, all civil remedies have been exhausted, and
no data shows the individual is earning wages or has
assets, the supervisor would refer the case to the
investigations unit. That unit would gather evidence
through subpoenas and interviews, and present findings to
an assistant attorney general. The assistant attorney
general would then review the case to determine whether it
meets the criteria. If it appears the case will be
successful, she will take that case to a grand jury. If the
grand jury give the go ahead, the DOL would proceed with
prosecution. He pointed out that red flags could be raised
at many points along the way to where the case would not be
pursued as a felony.
MS. WENDLANDT added that the requirement that a person have
lawful excuse comes down to, in most cases, that person's
ability to pay. She said Mr. Main's description of the
process is absolutely correct.
CHAIR SEEKINS asked if DOL is looking for the person who is
living large on their children and refusing to pay any
child support.
MS. WENDLANDT said that is correct.
SENATOR OGAN said although the lawful excuse language is in
the bill, the policy is to not let people in arrears drive
or to have an occupational license. Therefore, that person
cannot work, hire a lawyer, or get the support order
modified. He expressed concern that the policy creates a
death spiral and is counterproductive to the children, as
they will get no support. He said he has talked to a lot of
men who see no way out and ultimately the children are
hurt.
SENATOR THERRIAULT said he has heard from people over the
years that they can pay their child support obligation
under Rule 90.3 but to do so would disenfranchise their
current families. He questioned how to balance the
possibility that a person might have to move his current
family out on to the street to pay a child support
obligation from a previous family.
MR. MAIN said if that individual will struggle to pay, he
can request a hearing before a revenue hearing officer. He
indicated he is aware of more than one case in which the
hearing officer reduced the child support obligation. In
addition, CSED has reduced payments when establishing
modifications when a second family is involved.
SENATOR FRENCH asked at what stage of the process would a
person lose a driving license.
MR. MAIN said a person does not have to be convicted of
criminal non-support to lose a driver's license or
occupational license. CSED is asking the individual to come
to the table at that point because the individual owes a
lot of money. If the person comes to the table and sets up
a payment agreement, the person can have his driver's and
occupational licenses back. In most of those cases, the
individuals have not paid any support for quite some time.
He repeated that a person could be in arrears for 11 months
before losing the ability to drive. He said that CSED is
setting up programs to outreach to rural areas to help
people understand the process and to help people pay their
obligation on an ongoing basis. He said if the person has a
hardship issue, CSED will reduce payments until the person
is back on his feet.
CHAIR SEEKINS asked how CSED would deal with an obligor who
says he cannot even begin to pay until he gets his driver's
license back.
MR. MAIN said it does.
SENATOR OGAN stated:
Part of my argument, [indisc.] is that we've
given into the federal mandates to suck up the
federal money and we've given judicial powers to
bureaucrats. Okay - you lose your license. Okay -
you can't operate your business anymore just
because, you know, then go for a hearing - there
might be some hearing process in the department
but...[END OF TAPE].
TAPE 04-47, SIDE A
CHAIR SEEKINS agreed with Senator Ogan but said, at this
point, he is questioning what to do with the person who
owes over $10,000 in child support or has not made a single
payment for 24 months and has been previously convicted
under this section or a similar provision in another
jurisdiction and the aggregate amount accrued is more than
$5,000 and has no lawful excuse.
SENATOR OGAN said the second offense would be a
misdemeanor. He noted a person would lose his or her
ability to own a weapon if convicted with a class C felony.
He pointed out these people are not violent and the idea
behind a felony is that it is a crime committed with evil
intent. He repeated that the constitution bans putting
people into prison for debt. He suggested that the judge
would come down harder on a second misdemeanor conviction.
SENATOR THERRIAULT commented that this is the worst part of
a legislator's job - trying to legislate people's lives.
CHAIR SEEKINS announced that HB 514 would be the first bill
heard at the committee's next meeting. He then adjourned
the meeting at 10:00 a.m.
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