Legislature(1995 - 1996)
02/22/1995 01:40 PM House FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
February 22, 1995
1:40 P.M.
TAPE HFC 95-28, Side 1, #145 - end.
TAPE HFC 95-28, Side 2, #000 - 501.
TAPE HFC 95-29, Side 1, #000 - end.
TAPE HFC 95-29, Side 2, #000 - 400.
CALL TO ORDER
Co-Chair Mark Hanley called the House Finance Committee
meeting to order at 1:40 p.m.
PRESENT
Co-Chair Hanley Representative Martin
Co-Chair Foster Representative Mulder
Representative Brown Representative Navarre
Representative Grussendorf Representative Parnell
Representative Kelly Representative Therriault
Representative Kohring
ALSO PRESENT
Nancy Slagle, Director, Division of Budget Review, Office of
the Management and Budget, Office of the Governor; Bob Cole,
Director, Division of Administrative Services, Department of
Corrections; Gary Hayden, Director, Alaska Marine Highway
System, Department of Transportation and Public Facilities;
Arthur H. Snowden, II, Administrative Director, Alaska Court
System; Ron Lind, Director, Division of Administrative
Services, Department of Transportation and Public
Facilities; Bob Baratko, Director, Division of
Administrative Services, Department of Revenue; Patty
Swenson, Staff, Representative Bunde; Margot Knuth, Criminal
Division, Department of Law; Jerry Luckhaupt, Legislative
Legal Counsel, Legislative Affairs Agency; Mary Lou Burton,
Statewide Budget Director, University of Alaska.
SUMMARY
HB 74 An Act relating to the assault of children by
adults.
CSHB 74 (FIN) was reported out of Committee with a
"do pass" recommendation and with three zero
fiscal notes by the Department of Law, Department
of Corrections, and Department of Public Safety.
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HB 137 An Act making supplemental appropriations for
operating expenses of state government for fiscal
year 1995; and providing for an effective date.
HB 137 was HELD in Committee for further
discussion.
HB 178 "An Act making supplemental and special
appropriations for the expenses of state
government; making and amending capital and
operating appropriations; and providing for an
effective date.
HB 178 was HELD in Committee for further
discussion.
HOUSE BILL NO. 137
"An Act making supplemental appropriations for
operating expenses of state government for fiscal year
1995; and providing for an effective date."
NANCY SLAGLE, DIRECTOR, DIVISION OF BUDGET REVIEW, OFFICE OF
MANAGEMENT AND BUDGET, OFFICE OF THE GOVERNOR continued her
review of HB 137.
DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES
RON LIND, DIRECTOR, DIVISION OF ADMINISTRATIVE SERVICES,
DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES explained
that Sections 41 - 43 relate to the extreme snow falls
experienced in the state of Alaska during FY 95. He stated
that Section 41, Highways and Aviation Snow Removal was
reduced to $2,170.0 million dollars. He added that Section
42, which funds maintenance and operations of statewide
facilities for snow removal could be reduced to $49.8
thousand dollars. He observed due to heavy snow falls,
Section 43, Anchorage International Airport needs to be
increased to $350.0 thousand dollars.
Mr. Lind observed that Sections 44 - 47 are related. He
noted that the Department has received, in past years,
between $1.0 and $1.5 million dollars in capital
appropriation for emergency repairs to the aviation or
highway system. He explained that no appropriation was made
in FY 95 with the understanding that emergencies would be
identified and selected items submitted to the Legislature.
He briefly described projects listed in Sections 44 - 47.
Mr. Lind explained that spring maintenance was identified as
a problem area. Section 48 would appropriate $750.0
thousand dollars for spring maintenance. The funding would
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be used for gravel resurfacing, leveling frost heaves with
asphalt and pot hole patching. He added that approximately
$150.0 thousand dollars will be allocated per district.
In response to a question by Representative Martin, Mr. Lind
clarified that there is some money for spring maintenance in
the Department's budget. He stressed that the deferred
maintenance amounts in the Department's capital budget was
reduced in FY 95. He did not think that the supplemental
appropriation would result in a reduction to their FY 96
budget. Representative Navarre spoke in support of Section
48. He emphasized that delayed maintenance will result in
more costly repairs.
Mr. Lind discussed Section 49. He noted that the Department
owes $230.3 thousand to the Department of Law for litigation
related to the Copper River Highway. He explained that the
Department of Transportation and Public Facilities is billed
by the Department of Law. He noted that most of the $2.0
million dollars paid to the Department of Law comes from
federal funds.
Representative Therriault observed that the amount is
reflected in the Department of Law as interagency receipts.
In response to a question by Co-Chair Hanley, Mr. Lind
clarified that the appropriation would pay for attorney
legal costs which were not asked for by the Department. He
explained that the Department is unable to anticipate the
exact expenditure.
In response to a question by Representative Brown, Mr. Lind
stated that the charge has been paid by the Department of
Law. If the appropriation is not funded the accounting
system would show that the Department of Law spent money
that the Legislature appropriated with the assumption that
they would be reimbursed, but for which they were not
reimbursed. He noted that the Legislature can write off the
revenue that the Department of Law did not receive. The
effect on the General Fund would be the same.
Representative Parnell asked how the Department of Law
billed the Department of Transportation and Public
Facilities. Mr. Lind explained that the Department of Law
submits a billing by case number showing which attorneys
spent how many hours working on a project.
Mr. Lind explained that Section 50 also reimburses the
Department of Law for state right-of-way litigation. Ms.
Slagle noted that some of the costs may pay for outside
counsel.
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Mr. Lind discussed Section 51. This section pays personnel
costs for two airport employees that were laid off when they
were unable to pass certification by the Alaska Police
Standards Council. The employees failed the vision portion
on the test. The court ordered that you cannot demonstrate
that an employee cannot do a job that they have been
employed to do for 10 to 12 years. The employees were put
back to work.
Representative Mulder suggested that the settlement terms
could be influenced by a preknowledge of the amount
appropriated for settlement by the Legislature.
GARY HAYDEN, DIRECTOR, ALASKA MARINE HIGHWAY SYSTEM,
DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES discussed
Section 52. He noted that the Alaska Marine Highway System
Fund is facing a $1.6 million dollar deficit for FY 95. He
acknowledged that revenues sales were down approximately
$400.0 thousand dollars. He added that the Leconte was
brought into service in November and December. The decision
to run the Leconte during November and December cost an
additional $200.0 thousand dollars. He stressed that the
Columbia has been laid up an addition 4 weeks in an attempt
to reduce costs. He added that an attempt is being made to
encourage ridership. He discussed factors contributing to a
reduction in ridership.
Co-Chair Foster questioned how much the Department of
Transportation and Public Facilities pays to the Department
of Labor. Mr. Lind responded that the Department of
Transportation and Public Facilities pays very little for
violations to the Department of Labor.
DEPARTMENT OF COMMUNITY AND REGIONAL AFFAIRS
Ms. Slagle explained that Section 53 would extend the lapse
date for Rural Development Grants. The grants were part of
the operating budget.
Ms. Slagle noted that Section 54 funds the city of Egegik's
first year organization grant.
DEPARTMENT OF CORRECTIONS
Ms. Slagle observed that Section 55 represents a fund source
change for prison phones of $200.0 thousand dollars from
general fund program receipts to general fund dollars. She
explained that the system is not in place to track receipt
of the funds from the prisoners.
Ms. Slagle stated that Section 56 would pay $39.3 thousand
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dollars to implement the transfer of the community jails
from the Department of Public Safety.
Ms. Slagle noted that Section 57 would fund $1,611.5 million
dollars in contempt of court fines related to the Cleary
settlement.
Ms. Slagle explained that Section 58 pays $457.0 thousand
dollars in legal personnel actions for pending decisions.
UNIVERSITY OF ALASKA
Ms. Slagle noted that Section 59 pays $130.0 thousand
dollars for snow and ice removal at the Anchorage and Prince
William Sound Campuses.
MARY LOU BURTON, STATEWIDE BUDGET DIRECTOR, UNIVERSITY OF
ALASKA noted that Section 68 funds $153.0 thousand dollars
for the cost of removing the panels on the Butrovich
Building. Section 69 is $1,326.0 million dollars for
replacement of the panels. She explained that the
University had planned to wait for the litigation settlement
before replacing the panels. She stated that the University
was informed that the panels needed to be taken off
immediately because they were in danger of falling and
causing injury. The panels were removed at a cost of $153.0
thousand dollars from the University's Risk Loss Prevention
Fund. Section 68 would replace the funds used to remove the
panels. She stated that the University would be willing to
make the appropriation of Section 69 conditional to repay
any amount to the general fund for any litigation proceeds.
Ms. Burton explained that the appropriation needs to made in
the supplemental in order to allow work to proceed this
summer. If the panels are not replaced further
deterioration may occur. Litigation is being pursued
against the contractor, manufacturer and the architect. The
University has recovered $1.0 million dollars in insurance.
(Tape Change, HFC 95-28, Side 2)
Representative Navarre questioned the University's
motivation to pursue the case if the state prepays the cost
of replacement. Ms. Burton assured him that the University
will pursue litigation to recover costs.
ALASKA COURT SYSTEM
ARTHUR H. SNOWDEN, II, ADMINISTRATIVE DIRECTOR, ALASKA COURT
SYSTEM stated that Section 60 will support trial costs
associated with the North Slope Royalty Case.
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Mr. Snowden noted that Section 61 will pay $51.7 thousand
dollars for retroactive magistrate pay based on a
reclassification. He observed that Section 61 is a one time
cost.
In response to a question by Representative Parnell, Mr
Snowden clarified that the North Slope Royalty case will go
to trial in April.
STATEWIDE
Ms. Slagle explained that Section 62 pays miscellaneous
claims and stale-dated warrants that cannot be paid without
an appropriation for the lapsed funds. She stressed that
misplaced bills or improperly billed claims result in funds
lapsing.
CAPITAL SUPPLEMENTAL REQUESTS
Ms. Slagle stated that Section 63 appropriates to Alaska
Housing Finance Corporation (AHFC) $258.0 thousand dollars
for low income weatherization after Kobuk River flooding.
Ms. Slagle noted that Section 64 appropriates $1.8 million
dollars to AHFC for the supplemental housing program.
BOB BARATKO, DIRECTOR, DIVISION OF ADMINISTRATIVE SERVICES,
DEPARTMENT OF REVENUE explained that Section 64 is an
underestimate of the Program's need. He noted that another
$6.6 million dollars was identified by HUD. The $1.8
million dollar appropriation will make the federal match.
Ms. Slagle observed that Section 63 can be reduced to $149.1
thousand dollars.
Ms. Slagle noted that Sections 65 - 67 are capital projects
in the Department of Public Safety. She briefly review the
projects. Section 65 appropriates $41.6 thousand dollars
for the Civil Air Patrol hangar roof at Merrill Field.
Section 66 appropriates $100.0 thousand dollars for the city
of Homer jail upgrade to code compliance. She observed that
the appropriation is needed to assure life and safety.
Co-Chair Hanley expressed concern that the state will not be
reimbursed. He noted that the state is negotiating
contracts that will upgrade the amounts paid to communities.
He observed that some communities will receive an additional
capital appropriation.
Representative Parnell noted that many of the community
jails suffer from building code violations.
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HB 138 was HELD in Committee for further discussion.
(Tape Change, HFC 95-29, Side 1)
HOUSE BILL NO. 74
"An Act relating to the assault of children by adults."
PATTY SWENSON, STAFF, REPRESENTATIVE BUNDE testified on
behalf of HB 74. She stated that HB 74 was introduced in
response to an attack on a 14 year old newspaper boy in
Anchorage. She observed that Sean Jensen was attacked by
three adults at 5:30 a.m. while he attempted to deliver a
newspaper. The three adults were intoxicated. They knocked
out his permanent front teeth, caused neck injuries and ran
him over with a snow machine. The adults are only charged
with a misdemeanor. If Sean had been 10 years old or
younger a felony charge would have been possible. If he had
been an adult a felony charge would also have been possible.
Ms. Swenson observed that Section 2 provides the prosecutor
with flexibility to charge a defendant with a misdemeanor if
the defendant reasonably believes the victim was 16 years of
age or older.
Representative Kohring asked why the limit was set at 16
years of age. Ms. Swenson stated that the sponsor felt that
16 year old children begin to look like adults and at that
point you could not reasonable say that two adults were not
having a fight.
Representative Brown asked how "medical treatment" on page
2, line 5 would be interpreted. She stressed that "medical
treatment" should be defined. She hypothesized that
children could be injured playing sports.
MARGOT KNUTH, CRIMINAL DIVISION, DEPARTMENT OF LAW stressed
that AS 11.81.900 defines "physical injury" to mean a
"physical pain or an impairment of physical condition". She
stated that the intent of the legislation is to make it a
more serious circumstance than a simple physical injury
which could be pain. She acknowledged that medical
treatment could still be a relatively minor matter.
Ms. Knuth noted that AS 11.41.220 (a) was amended to state:
"A person commits the crime of assault in the third degree
if that person (1) recklessly... (C) while being 18 years of
age or older (i) causes physical injury to a child under 10
years of age and the injury reasonably requires medical
treatment." She asserted that there is no difference
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between the statute and the amendment except that the age is
being changed from 10 to under 16 years of age. She
questioned if "intentionally" was deleted by a drafting
oversight. She stressed that the law will assume that
"recklessly" applies.
She advised that if the intent is to provide a broad
interpretation then AS 11.41.220 (a)(1)(C) should be amended
by deleting "10" and inserting "16". She stated that if the
intent is to differentiate children under 10 from those over
10 then "intentionally" could be added for cases involving
children over the age of 10.
Ms. Swenson pointed out that "intentionally" would not cover
adults who injure a child while intoxicated. Ms. Knuth
agreed that statutes would allow intoxication as a defense
for intentional acts. She noted that intoxication would not
be a defense to acting recklessly. She reiterated that the
standard for the legislation as written would be "reckless"
for children under and over the age of 10. Ms. Swenson
recalled that the drafter indicated that the legislation as
written would identify two different mental states. She
noted that the House Judiciary Committee opposed the
addition of "intentionally".
Representative Brown questioned how a person would be
charged if a 17 year old child was injured. Ms. Knuth
answered that the charge would be assault in the fourth
degree, a class A misdemeanor, punishable up to one year in
prison. If a dangerous instrument were used or serious
physical injury was caused a felony charge could be made.
Ms. Swenson noted that even though the newspaper boy was run
over by a snow machine a felony charge was not possible
since the injury did not occur as a result of the snow
machine. Injuries were caused by the adults striking the
child with their fists.
Ms. Knuth noted that AS 11.81.610 states that: "If a
provision of law defining an offense does not prescribe a
culpable mental state, culpable mental state that must be
proved with respect to (1) conduct is `knowingly ; and (2) a
circumstance or a result is `recklessly.'"
Representative Brown asked if Ms. Knuth foresaw an impact on
sports or other activities that young people play with older
teenagers. Ms. Knuth agreed that district attorneys would
not want to charge cases involving sport injuries as
felonies. She acknowledged that sport injuries would
technically fall under this provision of law. She
reiterated problems with "intentionally" in regards to
intoxication as a defense.
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Representative Brown noted that the accompanying fiscal
notes are zero. She suggested that there will be some
fiscal impact as a result of the legislation.
In response to a question by Representative Kohring, Ms.
Knuth observed that the maximum penalty for third degree
assault is five years imprisonment. A class A misdemeanor
is a maximum one year imprisonment. She stated that she
would not expect more than 90 days to be imposed for a first
offense class A misdemeanor.
Representative Mulder MOVED to report HB 74 out of Committee
with individual recommendations and with the accompanying
fiscal notes. Representative Brown OBJECTED. She suggested
that AS 11.41.220 (a)(1)(C) should be amended to delete "10"
and insert "16".
Ms. Swenson stressed that the fiscal note is zero because
there are no statistics available between misdemeanors and
felonies. She understood that there will not be enough
cases under the legislation to result in a fiscal impact.
Representative Brown emphasized that even one case would
have a fiscal impact.
JERRY LUCKHAUPT, LEGISLATIVE LEGAL COUNSEL, LEGISLATIVE
AFFAIRS AGENCY explained that the legislation was drafted
with the intention of providing a stair-step approach. He
stated that he was operating under the assumption that if
the conduct itself is the cause of the physical injury then
a "knowing" mental state would be read into the statute. He
acknowledged that other interpretations could result in
"reckless" as the implied standard. He suggested that
"knowingly" could be added if the Committee supports a
stair-stepped approach. He observed that "knowingly" is a
higher mental state and requires a greater burden of proof
on the prosecution.
Ms. Swenson stated that the sponsor's intent was to provide
a stair-stepped approach.
Representative Parnell clarified that "reckless" requires a
lesser burden of proof than "knowingly". Mr. Luckhaupt
observed that a reckless standard is kin to a gross
negligent standard in civil context. He explained that the
risk is perceived by the defendant and the disregard of risk
is viewed as a gross deviation from what a reasonable person
would do in the circumstances.
Mr. Luckhaupt explained that "knowing" is the awareness of
the act you are doing a the time. It is not intentional to
cause harm, but it is intentional to do the act.
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Co-Chair Hanley reiterated reasons for a stair-stepped
approach.
Representative Therriault MOVED to add "knowingly" on page
2, line 3.
Mr. Luckhaupt reiterated that "knowingly" would add a higher
mental state. The prosecutor will have to prove that the
defendant intended to do the act that results in harm. He
discussed the reasoning behind a reckless mental state for
abuse of children under 10.
Representative Brown reiterated concern that injuries as the
result of organized sports would fall under the
legislation's sanction. Representative Mulder echoed
concerns that 18 year old high school students may be
involved in injuries to other high school students who are
16 years old.
Mr. Luckhaupt observed that the District Attorney will
decide if charges are filled in each circumstance. He noted
that the knowing mental state would be more difficult to
prove.
Representative Brown clarified that intoxication does not
operate as an offense to general intent crimes such as
"knowing".
Mr. Luckhaupt pointed out that section two of the
legislation was inserted to allow the defense that the
person reasonably thought the minor was 16 years of age or
over.
Representative Therriault WITHDREW his motion to amend HB 74
by adding "knowingly" on page 2, line 3. Representative
Mulder WITHDREW his motion to move HB 74 from Committee.
Therriault MOVED to add "knowingly" on page 2, line 3.
Representative Martin spoke in support of a "reckless"
mental state. A roll call vote was taken on the MOTION to
add "knowingly" on page 2, line 3.
IN FAVOR: Brown, Grussendorf, Navarre, Kelly, Kohring,
Mulder, Foster, Hanley
OPPOSED: Martin
Representative Parnell was absent from the vote.
The MOTION FAILED (9-1).
Representative Brown argued that ordinary activities where
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individuals choose to play sports and take physical risks
where they might injure someone, even knowingly, should not
be a crime.
(Tape Change, HFC 95-29, Side 2)
Representative Grussendorf recognized that injuries occur in
organized sports. Mr. Luckhaupt acknowledged that
individuals participating in organized sports have been
prosecuted for assault in cases where serious bodily injury
was inflicted on another player. He restated that the
prosecutor must decide if charges are warranted. He
insinuated that "knowingly" would make it more difficult to
prosecute the case where an elbow is thrown in a pick-up
basketball game. He acknowledged that an affirmative
defense could be added to the legislation to allow the
defense that the injury occurred while engaged in the normal
acts of a game.
In response to a question by Representative Kelly, Mr.
Luckhaupt reiterated that in case of an intentional act, the
prosecution would have to show that the defendant had the
specific intention to cause physical injury which requires
medical treatment. He observed the difficulty of proof in
most circumstances.
Representative Therriault pointed out that a jury must also
be convinced of the defendants guilt.
Representative Mulder felt confident that the incidental
aggressive behavior on basketball courts or other sporting
events are protected by the "knowing" standard.
Representative Mulder MOVED to report CSHB 74 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal notes. Representative Kelly OBJECTED.
Mr. Luckhaupt estimated that charges would not be filed in a
normal sport situation unless there is some conduct outside
the bonds of reason. Representative Kelly WITHDREW his
objection. Representative Brown continued to have concerns
that the "knowing" standard is not proper for the creation
of a felony crime. Co-Chair Hanley spoke in support of the
legislation as amended. He suggested that the legislation
would adequately protect normal sport circumstances.
Mr. Luckhaupt stressed that the legislation takes the middle
ground between adoption of a "reckless" and "intentional"
mental state. He pointed out that there is no requirement
for prosecutors to file felony charges against everybody
that meets the circumstance.
Representative Grussendorf observed that some organized
sport participants actually try to inflict injuries to their
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opponentes within the rules of the game.
A roll call vote was taken on the MOTION to move CSHB 74
(FIN) out of Committee.
IN FAVOR: Grussendorf, Navarre, Kelly, Kohring, Martin,
Mulder, Parnell, Foster, Hanley
OPPOSED: Brown, Foster
The MOTION FAILED (2-9).
CSHB 74 (FIN) was reported out of Committee with a "do pass"
recommendation and with three zero fiscal notes by the
Department of Law, Department of Corrections, and Department
of Public Safety.
ADJOURNMENT
The meeting adjourned at 4:00 p.m.
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