Legislature(1995 - 1996)

02/22/1995 01:40 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
                                                                               
                     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.                   
                                                                               
                                                                               
                                1                                              
                                                                               
                                                                               
  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                 
                                                                               
                                2                                              
                                                                               
                                                                               
  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.                                                                     
                                                                               
                                3                                              
                                                                               
                                                                               
  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                 
                                                                               
                                4                                              
                                                                               
                                                                               
  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.                                
                                                                               
                                5                                              
                                                                               
                                                                               
  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.                                  
                                                                               
                                6                                              
                                                                               
                                                                               
  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                 
                                                                               
                                7                                              
                                                                               
                                                                               
  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.                                                   
                                                                               
                                8                                              
                                                                               
                                                                               
  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.                             
                                                                               
                                9                                              
                                                                               
                                                                               
  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                 
                                                                               
                               11                                              
                                                                               
                                                                               
  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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