Legislature(1999 - 2000)
04/07/1999 01:27 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 7, 1999
1:27 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
* HOUSE BILL NO. 34
"An Act relating to the crime of misprision of a crime against a
child."
- HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE
HOUSE BILL NO. 57
"An Act relating to immunity for certain claims against the state,
a municipality, or agents, officers, or employees of either,
arising out of or in connection with the year 2000 date change; and
providing for an effective date."
- HEARD AND HELD
* HOUSE BILL NO. 151
"An Act relating to revocation and reinstatement of the driver's
license of a person at least 14 but not yet 21 years of age."
- TABLED
HOUSE BILL NO. 108
"An Act relating to the use, operation, and regulation of boats;
establishing a uniform state waterway marking system; and providing
for an effective date."
- HEARD AND HELD
* HOUSE BILL NO. 99
"An Act relating to sexual assault and the definitions of 'sexual
contact,' 'sexual penetration,' and 'legal guardian' in AS 11."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 79
"An Act relating to letters of credit under the Uniform Commercial
Code; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 34
SHORT TITLE: REPORTING CRIMES AGAINST CHILDREN
SPONSOR(S): REPRESENTATIVES(S) DYSON
Jrn-Date Jrn-Page Action
1/19/99 27 (H) PREFILE RELEASED 1/8/99
1/19/99 27 (H) READ THE FIRST TIME - REFERRAL(S)
1/19/99 27 (H) JUDICIARY
4/07/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 57
SHORT TITLE: STATE & MUNI IMMUNITY FOR Y2K
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
1/22/99 64 (H) READ THE FIRST TIME - REFERRAL(S)
1/22/99 64 (H) CRA, JUDICIARY
1/22/99 64 (H) ZERO FISCAL NOTE (ADM)
1/22/99 64 (H) GOVERNOR'S TRANSMITTAL LETTER
2/04/99 (H) CRA AT 8:00 AM CAPITOL 124
2/04/99 (H) MOVED OUT OF COMMITEE
2/04/99 (H) MINUTE(CRA)
2/05/99 142 (H) CRA RPT 5DP 1NR
2/05/99 142 (H) DP: DYSON, MORGAN, HARRIS, MURKOWSKI,
2/05/99 142 (H) HALCRO; NR: KOOKESH
2/05/99 142 (H) ZERO FISCAL NOTE (ADM) 1/22/99
2/05/99 142 (H) REFERRED TO JUDICIARY
3/15/99 (H) JUD AT 1:00 PM CAPITOL 120
3/15/99 (H) HEARD AND HELD
3/15/99 (H) MINUTE(JUD)
3/17/99 (H) JUD AT 1:00 PM CAPITOL 120
3/17/99 (H) MOVED CSHB 57(JUD) OUT OF COMMITTEE
3/17/99 (H) MINUTE(JUD)
4/07/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 151
SHORT TITLE: REVOCATION OF MINOR DRIVER'S LICENSE
SPONSOR(S): REPRESENTATIVES(S) KOTT, Austerman
Jrn-Date Jrn-Page Action
3/22/99 531 (H) READ THE FIRST TIME - REFERRAL(S)
3/22/99 531 (H) JUD
3/24/99 562 (H) COSPONSOR(S): AUSTERMAN
3/29/99 (H) JUD AT 1:00 PM CAPITOL 120
3/29/99 (H) SCHEDULED BUT NOT HEARD
4/07/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 108
SHORT TITLE: USE, REGULATION, AND OPERATION OF BOATS
SPONSOR(S): REPRESENTATIVES(S) HUDSON, Halcro, Phillips, Kerttula
Jrn-Date Jrn-Page Action
2/22/99 278 (H) READ THE FIRST TIME - REFERRAL(S)
2/22/99 278 (H) TRA, JUDICIARY, FINANCE
2/26/99 328 (H) COSPONSOR(S): PHILLIPS, KERTTULA
3/30/99 (H) TRA AT 1:00 PM CAPITOL 17
3/30/99 (H) MOVED CSHB 108(TRA) OUT OF COMMITTEE
3/31/99 618 (H) TRA RPT COMMITTEE SUBSTITUTE(TRA)
5DP
3/31/99 619 (H) DP: COWDERY, SANDERS, HALCRO, HUDSON,
3/31/99 619 (H) MASEK
3/31/99 619 (H) FISCAL NOTE (ADM)
3/31/99 619 (H) 2 ZERO FISCAL NOTES (DPS, DNR)
3/31/99 619 (H) REFERRED TO JUDICIARY
4/07/99 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
Telephone: (907) 465-2199
POSITION STATEMENT: Sponsor of HB 34.
AMOS KISSEL
8187 Threadneedle Street
Juneau, Alaska 99801
Telephone: (907) 789-3024
POSITION STATEMENT: Testified on HB 34.
COREY DAYTON
4318 Conifer Lane
Juneau, Alaska 99801
Telephone: (907) 790-4818
POSITION STATEMENT: Testified on HB 34.
ANNE D. CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified on HB 34.
BLAIR McCUNE, Deputy Director
Central Office
Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
Telephone: (907) 264-4400
POSITION STATEMENT: Testified on HB 34.
CORY WINCHELL, Administrative Assistant
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-3777
POSITION STATEMENT: Testified on HB 57.
GAIL VOIGTLANDER, Assistant Attorney General
Special Litigation Section
Civil Division
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Testified on HB 57.
KEVIN SMITH, Risk Manager
Alaska Municipal League
Joint Insurance Association, Incorporated
217 Second Street, Suite 200
Juneau, Alaska 99801
Telephone: (907) 586-3222
POSITION STATEMENT: Testified on HB 57.
REPRESENTATIVE BILL HUDSON
Alaska State Legislature
Capitol Building, Room 108
Juneau, Alaska 99801
Telephone: (907) 465-3744
POSITION STATEMENT: Sponsor of HB 108.
JIM STRATTON, Director
Division of Parks and Outdoor Recreation
Department of Natural Resources
3601 C Street, Suite 1200
Anchorage, Alaska 99503-5921
Telephone: (907) 269-8700
POSITION STATEMENT: Testified in support of HB 108.
MIKE FOLKERTS, Member
Alaska Boating Safety Advisory Council
23739 Sunny Glen Drive
Eagle River, Alaska 99577
Telephone: (907) 265-7525
POSITION STATEMENT: Testified in support of HB 108.
JEFFERY JOHNSON
2041 Courage Circle
Anchorage, Alaska 99507
Telephone: (907) 269-0705
POSITION STATEMENT: Testified in support of HB 108.
SUE HARGIS, Boating Safety Coordinator
Seventeenth Coast Guard District
United States Coast Guard
Department of Defense
P.O. Box 25517
Juneau, Alaska 99802-5517
Telephone: (907) 463-2297
POSITION STATEMENT: Testified in support of HB 108.
MARK JOHNSON, Chief
Community Health and Emergency Medical Services
Division of Public Health
Department of Health and Social Services
P.O. Box 110616
Juneau, Alaska 99811-0616
Telephone: (907) 465-4101
POSITION STATEMENT: Testified in support of HB 108.
ROBERT NAUHEIM, Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1944
Telephone: (907) 269-5100
POSITION STATEMENT: Testified on HB 108.
ACTION NARRATIVE
TAPE 99-22, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:27 p.m. Members present at the call to order
were Representatives Kott, Green, Rokeberg, Murkowski, Croft and
Kerttula. Representative James arrived at 1:35 p.m.
HB 34 - REPORTING CRIMES AGAINST CHILDREN
CHAIRMAN KOTT announced the first order of business is HB 34, "An
Act relating to the crime of misprision of a crime against a
child."
CHAIRMAN KOTT called on Representative Fred Dyson, sponsor of the
bill.
Number 0100
REPRESENTATIVE FRED DYSON, Alaska State Legislature, referred to a
newspaper article regarding a crime in Las Vegas, Nevada whereby
other people knew about a child being assaulted and ultimately
murdered, but didn't do anything about it. In looking at that
situation, HB 34 was drafted. It sends a very clear message that
there is a requirement to go to the aid or report a felonious
assault on a child that's in progress. The companion bill in the
Senate, SB 5, is broader in that it includes adults as well. If
the two bills get through the houses there might have to be some
compromise on that. He noted that he has three small amendments:
one takes it from a felony to a misdemeanor, one adds a positive
defense for not reporting in fear of one's own safety, and one adds
a small change. Most people assume in this culture that most
people will aid a child that is being hurt, but there is no
requirement to do so. As a professional mariner, he is required by
law to aid another vessel. He believes that aviators have similar
responsibilities as well. He reiterated the bill adds a provision
for citizens to go to the aid of a child who is being assaulted.
Number 0399
AMOS KISSEL testified in Juneau. He commented that he is for the
bill, but the wording needs to be changed. It is unconstitutional
in two ways. Firstly, it forces people to speak thereby violating
their First Amendment right. Secondly, he wondered whether the
"commiter" of a crime would also be a witness; and, if so, it would
put that person in double jeopardy prohibited in the Fifth
Amendment. He suggested the following language:
Any person other than the 'commiter' of the crime that saw and
then fails to report the sexual abuse, murder, kidnapping, or
felony assault of a minor commits a class C crime.
MR. KISSEL noted that the suggested language might still be in
violation of the First Amendment, however.
Number 0486
REPRESENTATIVE GREEN expressed how proud he was of Mr. Kissel for
testifying today.
Number 0502
REPRESENTATIVE ROKEBERG asked Mr. Kissel whether amending the bill
to allow an excuse for the failure to report a crime would help the
constitutionality issue. Therefore, if a witness felt that his
well-being was in jeopardy, he would not commit a crime if he
failed to report a crime.
MR. KISSEL replied yes.
Number 0552
REPRESENTATIVE CROFT asked Mr. Kissel whether he sees any way to
fix the First Amendment problem. The government sometimes forces
the people to speak. For example, a person has to file a tax
return which tells the government how much money he has made.
MR. KISSEL replied most people are scared that their life would be
in danger. If there was protection for speaking out that would
probably make people more willing to call in a crime.
Number 0667
COREY DAYTON testified in Juneau. He commented that he personally
likes the bill. He thinks it is good that somebody should report
a crime against a child, but he finds it unconstitutional because
of the First Amendment. House Bill 34 is a violation of any United
States citizen. Alaska is part of the United States and passing
the bill is a violation of a person's freedom of speech. He thinks
that if somebody sees a crime against a child, he should report it,
but if he doesn't the state shouldn't make him.
Number 0753
REPRESENTATIVE CROFT said the police say on television, "You have
the right to remain silent", but under this bill a person wouldn't
have that right.
MR. DAYTON said when the police don't read a person his
rights...(indisc.--coughing).
Number 0797
REPRESENTATIVE GREEN asked Mr. Dayton how he would react after
witnessing his buddy get "whopped up on."
MR. DAYTON replied he would report it.
REPRESENTATIVE GREEN asked Mr. Dayton whether he would still report
it if the person who did the whopping saw him.
MR. DAYTON replied yes.
Number 0836
REPRESENTATIVE ROKEBERG asked Mr. Dayton if he saw a fight before
school started would he have committed a crime under this bill if
he didn't report it to a police officer or the principal.
MR. DAYTON replied he was told that his student rights are
different at school. In other words, a fight like that has to be
reported. The constitution also says that student rights are
different than public rights when a student is away from school.
Therefore, it would be a crime if he saw a fight during school
hours and he didn't report it. But, if school hadn't started yet
it probably wouldn't be a crime.
Number 0922
CHAIRMAN KOTT noted that kids at school don't have any rights.
Number 0992
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, noted that
the department supports, for the most serious crimes, a bill like
HB 34. The department would suggest clarifying the bill to make it
clear that a victim is not required to report an offense if that
victim chooses not to. In comparison to SB 5, the department
supports the provision of reporting a crime against a child because
it further limits the bill. The department would suggest trying
only murder in the first and second degrees and kidnapping. She
understands the concern of requiring parents who know that their
children are being sexually abused to report it to the police.
However, last year the legislature adopted a law that addresses
endangering the welfare of a child in the first degree, which makes
it a class C felony for a parent to leave a child with any person,
including another parent, knowing that that person has hurt a child
either sexually or physically and the child suffers an injury. As
long as a parent is protecting a child, it is best to leave
reporting an incident to the discretion of a parent. There are
other things that can be done to remove a child from danger, such
as counseling, that may be in the best interest of that particular
child. The department would suggest removing sexual abuse of a
minor and sexual assault thereby leaving it up to the parent or
individual involved. The department would also support the
amendment reducing it to a misdemeanor. Hindering prosecution in
the first degree makes it a class C felony to witness or know about
a crime, or to aid a person who has committed a crime, or in some
way benefit from the commission of a crime.
Number 1227
MS. CARPENETI further said the First Amendment argument expressed
by the earlier testifiers is a wonderful argument. There are some
justices on the Alaska Supreme Court that say Congress may adopt no
law hindering the freedom of speech. But, laws have been held up
in the past that require teachers and physicians to report child
abuse, and to her knowledge, those laws have not been overturned
using a First Amendment argument. She thinks a court would hold
that the interest of the freedom of speech would be overridden in
the interest of child protection.
Number 1270
REPRESENTATIVE CROFT noted that Mr. Kissel also brought up double
jeopardy and the Fifth Amendment.
MS. CARPENETI said that is an interesting argument. She thinks
that probably wouldn't be applied to a person who has committed a
crime, and it probably wouldn't be upheld in court. She doesn't
think that it would be a problem in practicality.
Number 1311
REPRESENTATIVE DYSON said he thought double jeopardy was being
tried twice for the same crime, not concurrent charges of the same
crime.
REPRESENTATIVE CROFT noted that Representative Dyson is right, but
there is a possible Fifth Amendment violation by adding another
crime of misprision. The right to remain silent is the right to
shut up.
Number 1353
REPRESENTATIVE DYSON said the bill doesn't require a defendant or
perpetrator to speak up.
REPRESENTATIVE CROFT commented that Representative Dyson is correct
because of the term "another" [page 1, line 9].
Number 1373
REPRESENTATIVE GREEN wondered whether most people understand what
"assault punishable as a felony" is, where to go to immediately
report a crime, and can determine if a person is under the age of
18. It would be tough to distinguish between a 17 year old and a
19 year old, for example.
Number 1450
REPRESENTATIVE DYSON said a person would only be charged if it was
determined that a person was under the age of 18. He suspects that
a person could use, as a positive defense in court, ignorance and
misperception of the reality of a person's age. Most folks know
that a felony assault is pretty serious, however. It's not a
playground scuffle. He is sure that a court would only require a
reasonable effort to help a victim.
Number 1550
CHAIRMAN KOTT asked Ms. Carpeneti to discuss the concern of
immediately reporting a crime. He can think of instances in rural
Alaska where a person might not be able to report a crime until the
next day or for several hours, for example.
MS. CARPENETI replied the Senate included unclassified person
felonies as the type of offenses that have to be reported: murder
in the first degree, murder in the second degree, kidnapping, and
arson. The Senate considered the problem of immediately reporting
[a crime] because in some circumstances there would be a need to
get the child to a safe place before calling the police or law
enforcement agency. The Senate did not limit it to a person under
the age of 18 because it is sometimes hard to tell the age of a
child, and because unclassified person felonies are a small group
of crimes that are easy to...There is no assault crime that is an
unclassified felony.
Number 1633
REPRESENTATIVE GREEN said that issue has been brought up with other
types of reporting for the bush communities. He asked Ms.
Carpeneti whether that would apply for several days, until the
Village Public Safety Officer returns, for example.
MS. CARPENETI replied yes there would definitely be a defense of
impossibility to fulfill a responsibility in that case.
REPRESENTATIVE GREEN asked Ms. Carpeneti whether there would be
concern because a person could have used a phone and called
Anchorage, for example, if that person lived 300 miles away.
MS. CARPENETI replied that is a question of fact that a jury would
have to decide. It doesn't seem unreasonable to pick up a phone
and report the death or murder of a child. She hopes that the
courts would charge for using common sense under the circumstances.
She sees the bill as addressing cases like the one in Nevada, but
the law should be written clearly so that everybody knows its
intent.
Number 1695
REPRESENTATIVE GREEN said he is in favor of the concept. He just
doesn't want somebody to get trapped in a class C felony when he
was trying to do what he could for fear of his own safety or
further retribution to the child.
Number 1716
REPRESENTATIVE ROKEBERG said the bill does not distinguish between
juveniles. He asked Ms. Carpeneti whether a juvenile who reports
a crime to a person in authority would fit into the fact-pattern of
the bill. The bill says "assault."
MS. CARPENETI replied she would limit the bill to unclassified
felonies. It is possible for a child, who doesn't report a
schoolyard fight to a teacher or principal, to be reported to DFYS
(Division of Family and Youth Services). It is unlikely, however.
Number 1776
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether misprision is
a felony of common law.
MS. CARPENETI replied misprision is an old crime in common law, but
there are no common law crimes in Alaska.
Number 1798
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether it would be
possible to give rights to a cause of action in tort for monetary
damages if the alleged victim was over 18 years of age and
consented to some type of sexual abuse. In that case no crime was
committed.
MS. CARPENETI replied people can sue for just about anything. She
doesn't feels she is the best person to answer that question. It
is a civil law question.
Number 1837
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether there is
accessories to crimes in Alaska.
MS. CARPENETI replied yes. There is accomplice liability. She
explained when the bill was first introduced she asked the district
attorneys whether these types of situations even arise in Alaska.
The Fairbanks district attorney responded that there had been a few
cases in which people were present at the scene of a bad crime, but
hadn't done anything enough to be liable according to any
accomplice or hindering prosecution theories.
Number 1878
CHAIRMAN KOTT asked Representative Rokeberg whether he is concerned
that if a victim consented and someone reported it as a crime that
person's name could be defamed.
REPRESENTATIVE ROKEBERG replied exactly. The bill creates a new
classification of crime. It is the job of the House Judiciary
Standing Committee to look at the most bizarre fact-patterns to
ensure that the bill fits them.
Number 1915
REPRESENTATIVE CROFT said he is concerned because he sees felonious
assault as encompassing a vehement schoolyard brawl. The people
surrounding that brawl would then be either liable for a class C
felony or class A misdemeanor. It's important to determine whether
or not a child who is a perpetrator or a witness has to report it.
It creates a different tilt on reporting. The bill doesn't say
that a person can either "help" or "report". In other words, if a
person jumps in and beats a perpetrator off and walks away, that
person might be liable for a class C felony.
Number 2017
REPRESENTATIVE DYSON said he doesn't believe that he would have a
problem with putting an age limit on the person guilty of
committing the crime of misprision. There should be discussion on
what age it should be - 18, 21, 16, 14, etc. Obviously, there is
a lower limit where a kid would not be charged because he doesn't
understand this type of responsibility. In addition, he believes
that someone should be there to intervene. Just because the
perpetrator is a child it doesn't mean that there isn't a
responsibility to do the best thing. He doesn't want to exclude
perpetrators on an age-basis. He wants to send a clear signal to
citizens that they have a good Samaritan kind of responsibility to
help out. If a person intervened and stopped a crime in process,
that would accomplish his goal of rescuing the victim. But, if a
crime was precipitated in a person's presence, it rises to the
seriousness of kidnapping, rape and murder, and that person has the
responsibility to report the crime. He suspects that this would
very seldomly be enforced. He suspects it would be enforced for
the very flagrant cases like in Nevada or New York. There may be
people out there who have observed a crime and didn't report it,
and society has a right to know. The bill puts in code a societal
responsibility to be a good citizen, and tries to stop evil from
happening. He also hopes that reporting a crime would cut down on
the recidivism rate, particularly for crimes against children
because folks who get into that tend to like it and there is often
more than one victim.
Number 2179
CHAIRMAN KOTT asked Ms. Carpeneti whether a mother would have to
report a crime of sexual assault by her husband that her daughter
confessed to her.
MS. CARPENETI replied the term "witnesses" signifies being in the
presence of the offense or close enough to hear it. The Senate
bill says "witnesses or has actual knowledge of the crime." The
term "witnesses" would avoid criminal responsibility of a mother if
she learns later from her child of the crime. Under endangering
the welfare of a child Act, that the legislature adopted last year,
that mother could not leave the child again [with the perpetrator]
and escape criminal charges if the child is sexually assaulted or
abused again.
Number 2247
REPRESENTATIVE DYSON said he wouldn't object to deleting the
phrases, "sexual assault of a child" or "sexual abuse of a minor".
That was dealt with in HB 375 last year.
Number 2262
REPRESENTATIVE JAMES said she is extremely concerned about the
broadness of this bill. She understands the concerns, but she also
understands that "you cannot make a perfect world." The more the
legislature tries to make this a perfect world the more government
is built in, which is distressing to her. It is difficult to
believe that she wouldn't report a crime, except in the case of two
people observing a crime and one of them is the mother of the
victim. In that scenario, she believes it's the responsibility of
the mother to report the crime, and she hopes that there would be
other choices for that mother. She is concerned about exacerbating
the complications for the mother and the child if the second person
who witnessed the crime reported it and the mother didn't in that
same scenario. In addition, if a perpetrator is a "big, bad
hombre" a person might take caution and notice of that person's
protection before reporting a crime. She wants to see a new
drafting of the bill encompassing some of the concerns discussed
today. She's not pleased with how it is written now.
Number 2364
REPRESENTATIVE MURKOWSKI referred to the language, "assault
punishable as a felony", and cited a scenario whereby a witness saw
a fight outside a hub bar but didn't report it, and one of the
persons involved ended up dead. It is an issue of timing. At what
point does a person intervene? she asked.
Number 2428
REPRESENTATIVE DYSON noted that a person is only guilty of
misprision if that person knows a crime is being committed. A
prosecutor would have to prove that a person knew there was a crime
being committed. It's just like slander. There has to be
malicious intent.
Number 2460
CHAIRMAN KOTT said that's not the way he reads the bill. The bill
doesn't say, "knowingly witnesses".
MS. CARPENETI said, if the statute doesn't give a culpable mental
state, the courts must read in "knowingly" under those
circumstances.
TAPE 99-22, SIDE B
Number 0001
MS. CARPENETI continued. It might not be a bad idea to clarify
culpable mental state as knowing that the act being witnessed is a
crime.
Number 0020
REPRESENTATIVE DYSON said the bill sends a message of
responsibility in helping a child who is either being raped, killed
or kidnaped, if a person witnesses it. The only other choice is
the status quo, which is utterly unacceptable.
Number 0055
CHAIRMAN KOTT noted that all the committee members agree with
Representative Dyson, according to their comments. The committee
members are just trying to make the bill clear and concise for a
defense.
Number 0067
REPRESENTATIVE GREEN cited a scenario whereby a perpetrator
threatens both a witness and the victim for reporting an crime, but
the victim eventually reports it. He asked whether either or both
of them are liable of a class C felony.
MS. CARPENETI replied she thinks so. It could probably be argued
that this doesn't include a victim's responsibility to report [a
crime], but it needs to be made clear. In addition, the felonious
assault needs to be considered and possibly...
Number 0138
REPRESENTATIVE CROFT interjected and stated, under American theory
of liberty, the government only has the right to stop a person from
conduct that harms another. "If we're to retain any bit of
liberty, I have the ability to walk through without impacting, but
without corresponding obligations, that you're making a fundamental
change in an American, possibly English, but now largely American
idea of liberty that I didn't cause that, I did nothing to aid it,
but I'm not gonna do nothing to stop it. And, where do you get off
telling me I have to?"
Number 0176
REPRESENTATIVE DYSON replied it is the same argument of leaving a
burning building without saying anything and everybody burned to
death. He reiterated this bill is for a crime against a child. A
child is not a fully responsible person, and adults have an extra
responsibility to look out for their welfare. Children are on a
continuum from complete self-dependence to complete dependance.
This bill follows along that tradition. It is also why he chose
not to include adults, even though his heart is there as well.
Number 0216
REPRESENTATIVE KERTTULA said she is concerned about legislating
good and evil. In addition, from all her years of practicing
criminal law, she didn't even know the term "misprision." She is
also concerned about problems of proof in court coupled with Fifth
Amendment issues. If a witness does not come forward and report [a
crime] and is charged, there is a circular Fifth Amendment problem.
The difference between this type of approach and the approach used
last year of not leaving a child with someone who has assaulted a
child, is that this approach will wind up in the courts with
prosecutions thrown out. That is probably the reason it is not
seen in America today. The other approach is much stronger. She
commented she looks forward to seeing the bill brought back and
noted that taking the victim out is an absolute, otherwise it's
re-victimizing the victim.
Number 0294
REPRESENTATIVE ROKEBERG asked Representative Dyson the status of
H.R.4531.
REPRESENTATIVE DYSON replied, he believes, that it has not passed
yet.
REPRESENTATIVE ROKEBERG explained H.R.4531 mandates a criminal
penalty on an individual 18 years of age or older who fails to
report to a state or local law enforcement official that the
individual has witnessed another individual engaging in sexual
abuse of a child. He wondered whether last year's bill satisfies
this requirement.
MS. CARPENETI said she is not familiar enough with H.R.4531 to
answer his question.
REPRESENTATIVE ROKEBERG commented that Representative Dyson has
indicated he would agree to remove sexual abuse from the bill.
REPRESENTATIVE DYSON said his biggest concern is getting the victim
out of the situation. Four states now have good Samaritan laws
whereby a person who fails to do what that person can to rescue a
child can be prosecuted. He will get that information to the
committee members at the next meeting.
Number 0392
REPRESENTATIVE KERTTULA asked Ms. Carpeneti whether most of those
types of situations get prosecuted as accomplice liability. That
has been her experience. If there was any furtherance, a person
would be an accomplice after the fact.
Number 0412
MS. CARPENETI reiterated this is not a common occurrence in Alaska,
which is why when she saw the bill she asked the district attorneys
whether or not they have seen situations like this. When there is
any aid on behalf of a defendant, there is a charge of hindering
prosecution or accomplice liability if there is evidence of helping
in the commission of a crime.
Number 0436
REPRESENTATIVE GREEN noted that during a children's caucus he heard
from three victims who noted that this is not an uncommon situation
in Alaska, and these were not necessarily Native types. At least
one of the victims was Caucasian.
MS. CARPENETI replied she was talking about stranger-type offenses.
She wasn't talking about parental knowledge of child abuse, for
example. She has heard that there are a lot of situations where
one parent is aware of something going on with her husband or
boyfriend, but those situations are covered under endangering the
welfare of a child statute.
Number 0506
REPRESENTATIVE GREEN asked Ms. Carpeneti whether there is anything
in federal law that deals with misprision or something like it.
MS. CARPENETI replied misprision laws were common about a century
ago. They have fallen into disuse for the reasons discussed today.
It is hard to legislate decent behavior.
Number 0533
REPRESENTATIVE GREEN asked Ms. Carpeneti how the four states, that
Representative Dyson referred to, are getting around these types of
questions.
MS. CARPENETI deferred the question to Representative Dyson.
REPRESENTATIVE DYSON said he doesn't know. He will find out.
Number 0556
CHAIRMAN KOTT opened the meeting up to public testimony.
Number 0568
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency, Department of Administration, testified via teleconference
from Anchorage. In the 1980's, when the legislature adopted the
criminal code, it decided to have a very broadly written hindering
prosecution law to cover situations like the one in Nevada. He
enjoyed hearing the argument of the Fifth Amendment from the
students who testified earlier. Even if the law was passed, a
person still has the right not to report [a crime] even if that
person was involved. The courts have interpreted the Fifth
Amendment so that a person does not have an affirmative duty to
come forward if there is a reasonable possibility that he might be
prosecuted and he has the right to remain silent. "So, you have
kind of a strange situation. If you were in cahoots at all with
the person who did this, you would be privileged. If you don't
have any criminal liability, if you're pure as the driven snow, you
do have--you are--you run the risk of being charged with a felony
or misdemeanor under the way it's amended in the Senate." In
addition, if a person doesn't immediately report [a crime] perhaps
that person would have a further Fifth Amendment privilege with
this statute. In other words, "Oh my God, I didn't immediately
report it. Do I have to report it now? No, that could mean I'd be
liable for a charge if I did." He also noted that he believes the
federal misprision has not been repealed, but has gone to the
hindering prosecution route as a way to deal with these types of
situations.
Number 0773
CHAIRMAN KOTT declared, based on what he has heard today, there are
some problematic issues that need to be addressed. He assigned the
bill to a subcommittee consisting of himself, Representative Dyson
and Ms. Carpeneti. The subcommittee will try to bring something
back to the full committee tomorrow.
HB 57 - STATE & MUNI IMMUNITY FOR Y2K
CHAIRMAN KOTT announced the next order of business is HB 57, "An
Act relating to immunity for certain claims against the state, a
municipality, or agents, officers, or employees of either, arising
out of or in connection with the year 2000 date change; and
providing for an effective date."
Number 0830
REPRESENTATIVE JAMES made a motion to rescind the action of passing
HB 57 from the committee earlier. There being no objection, it was
so moved.
Number 0847
REPRESENTATIVE JAMES made a motion to adopt the committee
substitute for HB 57, 1-GH1005\D. There being no objection, it was
so moved.
Number 0886
CORY WINCHELL, Administrative Assistant to Representative Pete
Kott, Alaska State Legislature, noted that the word "not" was not
included on page 3, lines 8-10. As a result, the immunity
described in this section would apply if clear and convincing
evidence is shown. Originally, the committee wanted to show that
the immunity would not apply if clear and convincing evidence is
shown.
CHAIRMAN KOTT noted that is what "some" of the committee members
wanted to show.
Number 0960
GAIL VOIGTLANDER, Assistant Attorney General, Special Litigation
Section, Civil Division, Department of Law, testified via
teleconference from Anchorage. She stated, if the intent is to
make this an immunity to avoid a lawsuit, a definition of the
phrase, "good faith efforts", would be appropriate.
Number 1018
REPRESENTATIVE GREEN asked Ms. Voigtlander whether simply
establishing a definition would remove the problem of going through
a trial for a factual determination.
MS. VOIGTLANDER replied it would help if it was crafted in a way
that there wouldn't be an issue of fitting the conduct within the
definition. The problem is getting everybody to "read off the same
page" in terms of the facts and what they mean. It is more often
the case that a trial judge is unable to resolve any factual issues
and, therefore, it has to go to trial to be resolved.
Number 1084
REPRESENTATIVE GREEN asked Ms. Voigtlander, even with a definition,
whether the state would still have to go through the riggers of a
trial each time something like this came up to determine whether
there were good faith efforts.
MS. VOIGTLANDER replied findings would be made at the trial court
level, presumably the superior court level. And, under the laws of
the state one superior court does not have to follow another
superior court's findings or rulings if the parties are not the
same. Superior court is bound only be appellate case law as
controlling. In addition, depending on the claim the facts might
change.
Number 1185
CHAIRMAN KOTT announced there are three amendments and labeled them
as "Amendment 6", "Amendment 7", and "Amendment 8".
Number 1292
REPRESENTATIVE ROKEBERG spoke to Amendment 6 before adopting it.
It reads as follows:
Page 3, lines 8-10:
Delete "The immunity described in this subsection applies
only if the affected party shows by clear and convincing
evidence that the state did not use good faith efforts to
avoid the failure that caused the damages in the civil
action."
REPRESENTATIVE ROKEBERG explained Amendment 6 fundamentally takes
away the defense of the state against any year 2000 (Y2K) action.
This bill doesn't have the criteria as set out in HB 82, and
without that language it does severe harm to the intent of the bill
and the desire of the Administration to have immunity for the
state. The amendment may leave the municipal governments below the
state level still liable, however.
Number 1458
MS. VOIGTLANDER asked whether there is a parallel change to AS
09.65.070.
CHAIRMAN KOTT AND REPRESENTATIVE ROKEBERG replied no
simultaneously.
REPRESENTATIVE ROKEBERG said he's not sure where it would fit into
AS 09.65.070 precisely.
Number 1497
REPRESENTATIVE CROFT stated, if Representative Rokeberg is trying
to make a distinction between the state and municipality, then
there would need to be a technical change on page 4 for it to make
sense.
REPRESENTATIVE ROKEBERG said that is a separate issue, and
suggested discussing each one separately.
REPRESENTATIVE CROFT said it would be easier to clean up the
language then debate it. Amendment 8 would get the bill to where
the committee intended it to be.
Number 1595
REPRESENTATIVE GREEN said either one of the amendments would still
have the problem of good faith efforts. The state or a
municipality would still be subject to a full trial each time an
issue came up. It and would open it up for lawyers to have a "good
time."
Number 1650
REPRESENTATIVE ROKEBERG said the state justifiably deserves
immunity because it is making good faith efforts to try to resolve
the problem. He cannot say that, however, for the local level
governments. If blanket immunity is granted to them, there is no
incentive to take corrective actions. "Therefore, if you wish to
have the standard where there is the right to claim, it should not
be against the state, but it should be against the local level
government where they should have--should have to prove their good
faith effort to do this. Whereas, we already know the state is
already doing a good faith effort. And, if they're not, that's the
legislature's fault for not giving them enough money."
Number 1750
REPRESENTATIVE GREEN retracted his comments on Amendment 6. He
misread it.
Number 1778
REPRESENTATIVE ROKEBERG made a motion to move Amendment 6
(1-GH1005\D.1, Ford, 3/23/99).
REPRESENTATIVE CROFT objected. It comes back to the fundamental
issue of what it takes to get action. In this society, it takes
responsibility to get action, and the state is absolving itself of
responsibility here. The reason for getting action is because of
the potential liability. Mr. Poe [Commissioner, Department of
Administration] testified that the money he has used came from the
Risk Management Fund. If there is no risk, he could not have used
that money. It is the risk of somebody holding the state
responsible for its actions that caused the state to act
responsibly. The efforts that the state has made so far have met
the good faith standard, but there are still eight months to go,
and this is a license to stop. He predicts that the state's
efforts will not be as substantial with this amendment.
Number 1944
REPRESENTATIVE MURKOWSKI said she wishes that there is a way to
define the phrase, "good faith efforts", as the committee is trying
to do in HB 82.
Number 2048
REPRESENTATIVE KERTTULA said that deleting this section opens up
the dilemma of intentional misconduct. If that is the way the
committee goes then she has other amendments that will be necessary
to protect against things like that.
Number 2076
REPRESENTATIVE JAMES she has a problem hearing that efforts will be
stopped because of immunity. If the legislature wasn't in control
and there wasn't interest from the Administration, that might be
fair to say. However, there ought to be immunity in this case
because she believes that the state is making a good faith effort,
otherwise "you have to go to court to show why you should." It's
the going to court that is expensive and she wants to avoid that.
Number 2156
REPRESENTATIVE GREEN asked whether there is the possibility of
handling this administratively rather than going to court over and
over again.
CHAIRMAN KOTT replied there is always that possibility, but it
might happen too often.
REPRESENTATIVE GREEN replied it would have to be a rare case, but
at least "you wouldn't be subjecting yourself to constant court
actions."
CHAIRMAN KOTT called for a roll call vote. Representatives Green,
Rokeberg, James and Kott voted in favor of the motion.
Representatives Murkowski, Croft and Kerttula voted against the
motion. The motion passed by a vote of 4-3.
Number 2270
REPRESENTATIVE ROKEBERG made a motion to move Amendment 7
(1-LG1005\D.2, Ford, 3/24/99). It reads as follows:
Page 1, line 3, following "change;":
Insert "amending Rule 23, Alaska Rules of Civil
Procedure;"
Page 3, following line 10:
Insert a new subsection to read:
"(b) A civil action brought against the state, or
against an agent, officer, or employee of the
state, for damages arising from the year 2000 date
change and not precluded by (a) of this section may
not be brought as a class action unless each member
of the class has a claim for economic loss that
exceeds $50,000."
Reletter the following subsections accordingly.
Page 5, following line 16:
Insert a new bill section to read:
(f) A civil action brought a municipality or
against an agent, officer, or employee of the a
municipality, for damages arising from the year
2000 date change and not precluded by (d)(7) of
this section may not be brought as a class action
unless each member of the class has a claim for
economic loss that exceeds $50,000."
Renumber the following bill sections accordingly.
Page 5, lines 17-18:
Delete "09.65.070(e)(4) and 09.65.070(e)(5)"
Insert "09.65.070(e)(4), 09.65.070(e)(5), and
09.65.070(f)"
Page 5, following line 18:
Insert a new bill section to read:
"* Sec. 7. AS 09.65.255(b), enacted by sec. 2 of this
Act, and AS 09.65.070(f), enacted by sec. 5 of this Act,
have the effect of amending Rule 23, Alaska Rules of
Civil Procedure, by requiring, in certain class actions
relating to the year 2000 date change, that each member
of the class have a claim for economic loss that exceeds
$50,000."
Renumber the following bill sections accordingly.
REPRESENTATIVE CROFT objected.
REPRESENTATIVE ROKEBERG explained Amendment 7 says that, if there
is any civil action taken against the state or a municipality,
economic losses would have to exceed $50,000 for a class action.
The idea is to limit vexatious litigation for relatively minor
amounts of money. It is similar to language in the private sector
Y2K bill. He noted that this doesn't preclude a class action.
Number 2425
REPRESENTATIVE CROFT stated he is not sure whether the amendment to
Page 3 is needed at all since the state now has complete immunity.
The amendment to Page 5 is poor public policy. It mirrors only one
section of the private sector Y2K bill...
TAPE 99-23, SIDE A
Number 0001
REPRESENTATIVE ROKEBERG said Representative Croft may have a point.
REPRESENTATIVE ROKEBERG made a motion to amend Amendment 7 to
delete lines 3-8 of the amendment [Page 3, following line 10:].
Number 0084
REPRESENTATIVE MURKOWSKI noted that she has a copy of HB 82 and it
is basically the same provision.
REPRESENTATIVE ROKEBERG said the issue on amending Amendment 7 is
that if there is blanket immunity for the state a provision for a
class action limitation is not needed. It is redundant.
CHAIRMAN KOTT agreed.
REPRESENTATIVE CROFT noted it is a good amendment to Amendment 7;
it just doesn't go far enough.
CHAIRMAN KOTT asked whether there is any objection to the motion to
amend Amendment 7. There being none, it was so moved.
REPRESENTATIVE JAMES asked Representative Rokeberg to explain the
changes to Page 5, lines 17-18 of Amendment 7, as amended.
REPRESENTATIVE ROKEBERG replied it has to deal with the automatic
repealers.
Number 0284
CHAIRMAN KOTT asked Representative Rokeberg to explain the changes
to Page 5, following line 18 of Amendment 7, as amended.
REPRESENTATIVE ROKEBERG replied it is a court rule change reflected
in the change to the title.
Number 0456
REPRESENTATIVE CROFT said, "If we're going to mirror...Now that
we've modified it--if we're going to mirror the provisions of the
private immunity bill, Y2K immunity bill, in this respect, then it
seems to me that we ought to in the respective liability...That if
we took a fair amount of care to list a way that you could--steps
that you could take to get out of liability, or more general if you
wanted that. And, we took a fair amount of this committee's time
trying to craft that just right. And, if it's 'good for the goose,
it should be good for the gander.' So, if we're gonna treat
private entities with that level of immunity, a schedule of
immunity or an option for a margin of error, I wouldn't have any
objection to this mirroring provision, if we then go ahead and put
the same sort of language from the private into the governmental.
If we're not going to, and staff is passing around the new version
of HB 82 that has that language, if we're not going to put that
level or that description of that specificity of liability than I'm
will object to this. Not knowing, what the committee's wish is,
I'll maintain this objection. If we had some sense that we were
trying--gonna mirror what we're doing--asking the private sector to
do, that would be something different."
Number 0564
REPRESENTATIVE ROKEBERG said he doesn't have an objection to that
conceptually. He objects to cleaning up the Governor's bill. He
can't find fault with Representative Croft's logic.
CHAIRMAN KOTT asked Representative Rokeberg to withdrawal his
motion on Amendment 7, as amended, for public testimony. It is the
intent to hold the bill over to clean it up.
Number 0651
KEVIN SMITH, Risk Manager, Alaska Municipal League, Joint Insurance
Association, Incorporated, testified in Juneau. As Representative
Croft pointed out, "What's sauce for the goose is sauce for the
gander." He feels that all the arguments applied towards Amendment
6 for the state could be extended to municipalities. Public
resources would be more wisely spent solving the problem as opposed
to being spent on a defense to court. There are a whole bunch more
targets in the municipal arena than the state arena. As a result,
the problems are larger in terms of a defense. He encouraged the
committee members to consider applying the same standards to the
municipalities.
Number 0724
REPRESENTATIVE ROKEBERG said the reason for the distinction and
concern is for the municipalities that haven't undertaken
compliance programs. He agrees with Mr. Smith in terms of avoiding
litigation and focusing on compliance. He thinks that the
committee's intention of setting up a defense for good faith
standards would be available to those governments that take the
actions. He is concerned because he knows what the state is doing,
but he doesn't know what every municipal government is doing in the
state.
Number 0786
MR. SMITH said the incentive is the same for the local government
leaders as it is for the legislators which is being responsible to
constituents. There is an incentive for the governments to do what
they are suppose to without having to be driven by the court
system. He wondered whether showing a demonstration of the efforts
being taken would go towards helping to apply Amendment 6 to
municipalities.
Number 0826
REPRESENTATIVE ROKEBERG said the (indisc.--coughing) is looking at
setting up a definition of "good faith efforts" in the bill.
Therefore, each municipal government would have to meet that
standard in order to assert a defense. He thinks that is the fair
way to do it. The committee and legislature do not know what each
local government is doing or not doing. He said, "Mr. Smith you
can't warrant to this committee that every municipal government or
school district in the state is doing the right thing right now.
Can you?"
MR. SMITH replied naturally he cannot do that. But, by the same
token, even if a good faith standard is written out there would
still be a question of fact before a trial incurring defense costs
which takes public dollars - dollars that could be used to replace
municipal assistance and revenue sharing, for example.
Number 0907
REPRESENTATIVE ROKEBERG said in HB 82 there are other forms of
remediation. In regards to Mr. Smith's comments on municipal
assistance and revenue sharing being held up, he would be happy to
apply Amendment 6 to municipalities. It's up to the committee.
He's happy either way.
Number 0928
CHAIRMAN KOTT indicated the bill will be held over and hopefully
taken up again tomorrow [April 8, 1999].
Number 0943
CHAIRMAN KOTT called for a brief at-ease at 3:15 p.m. and called
the meeting back to order at 3:17 p.m.
HB 151 - REVOCATION OF MINOR DRIVER'S LICENSE
CHAIRMAN KOTT announced the next order of business is HB 151, "An
Act relating to revocation and reinstatement of the driver's
license of a person at least 14 but not yet 21 years of age."
CHAIRMAN KOTT tabled the bill to be heard the next day under "bills
previously heard/scheduled".
HB 108 - USE, REGULATION, AND OPERATION OF BOATS
CHAIRMAN KOTT announced the next order of business is HB 108, "An
Act relating to the use, operation, and regulation of boats;
establishing a uniform state waterway marking system; and providing
for an effective date."
CHAIRMAN KOTT called on Representative Bill Hudson, sponsor of the
bill.
Number 0998
REPRESENTATIVE BILL HUDSON, Alaska State Legislature, announced
that there is a committee substitute that needs to be adopted for
discussional purposes.
Number 1028
REPRESENTATIVE JAMES made a motion to adopt the committee
substitute for HB 108, 1-LS0445\N, Ford, 4/6/99, as a working
document. There being no objection, it was so moved.
Number 1048
REPRESENTATIVE HUDSON stated HB 108 would establish a comprehensive
boating safety program in Alaska. He has wanted the state for the
last six years to adopt its own boating safety program. Part of
the reason for the deaths is because the state does not have any
concerted effort to try to educate and develop a program to provide
for the safe operation of small boats in the state. Alaska is the
only state that doesn't have such a program. The bill would
transfer the responsibilities and regulatory authority over boat
safety equipment and other requirements from the United States
Coast Guard to the state of Alaska. The state would assume vessel
registration. It would be done by the Division of Motor Vehicles
[Department of Administration] using their current registration
systems. The bill would also authorize boat dealers to register
boats at the point-of-sale for convenience. The bill would also
mandate that boats in state waters be equipped with the
requirements currently required by the coast guard. The coast
guard has been in the lifesaving business for hundreds of years and
it has determined that there is a minimal set of equipment for
various kinds of boats that are most likely to prevent the loss of
life and the boat. He cited fire extinguishers, personal flotation
devices or life jackets, sound producing devices, backfire flame
protectors, ventilation, and visual distress signals as examples.
The bill would expand the current coast guard requirement to carry
those types of safety equipment on all waters within the state
adding some small streams and lakes that are not currently covered
by the coast guard. Even though there aren't that many, deaths do
occur in those waters. In addition, because the state does not
have its own safety program that complies with the federal Safe
Boating Act of 1971, the state is losing its share of the federal
marine fuel taxes that the people are paying. Currently, about
$500,000 is being collected and sent outside. By initiating a
safety program, that money would stay in the state along with about
$600,000 in program receipts annually. The goal is to concentrate
on boating safety education. The charges would be identical to
those required and assessed by the coast guard.
CHAIRMAN KOTT indicated that Charles Hosack from the Division of
Motor Vehicles [Department of Administration] and Robert Nauheim
from the Department of Law are available for technical or legal
questions.
Number 1421
JIM STRATTON, Director, Central Office, Division of Parks and
Outdoor Recreation, Department of Natural Resources, testified via
teleconference from Anchorage. He declared that the department
supports the bill and the committee substitute.
Number 1449
CHAIRMAN KOTT asked Mr. Stratton whether he is responsible for
publishing the booklet entitled, "Alaska Boater's Handbook".
MR. STRATTON replied yes.
CHAIRMAN KOTT asked Mr. Stratton how often is it published.
MR. STRATTON replied it has been published once.
CHAIRMAN KOTT asked Mr. Stratton how often he anticipates it will
be published.
MR. STRATTON replied the goal is to publish it once a year to allow
for updates. The goal is to also give it away for free.
CHAIRMAN KOTT asked Mr. Stratton how much did it cost to publish it
and how many were published.
MR. STRATTON replied about 42,000 were published. It cost less
than 50 cents each. In total, it cost about $20,000 to $21,000.
Number 1515
REPRESENTATIVE MURKOWSKI referred to a booklet entitled, "Boating
Safety Dollars at Work", and noted that there isn't a section on
Alaska. She asked Mr. Stratton whether it's correct to say that
none of the money came from federal dollars.
MR. STRATTON replied that is correct. Alaska does not have a
federally recognized boating safety program, therefore, it doesn't
have any federal dollars to put into it. The money came from the
state budget.
Number 1554
MIKE FOLKERTS, Member, Alaska Boating Safety Advisory Council,
testified via teleconference from Anchorage. He declared his
support of the bill.
Number 1579
JEFFERY JOHNSON testified via teleconference from Anchorage. He
has been working with the Division of Parks and Outdoor Recreation
for 18 years. He has been a coastal field park ranger and has seen
his share of tragedies. In 1997, almost one-third of the
fatalities in the state were in or adjacent to state park units.
He also has a great deal of personal interest in boating safety.
Number 1618
SUE HARGIS, Boating Safety Coordinator, Seventeenth Coast Guard
District, United States Coast Guard, Department of Defense,
testified in Juneau. The responsibility and opportunity for the
states to manage their own boating safety program was first passed
to them in 1958. The mechanism to fund those programs was passed
in 1971 with the federal Boating Safety Act. It formed the
mechanism that takes the boating fuel tax monies and distributes
them to the states. The monies from Alaska get distributed to all
the other states. All the other states and territories have
implemented boating safety programs, except for Alaska. The last
state to take a program on was New Hampshire in 1988. The program
started out with a $35 million appropriation from the federal
treasury through the Highway Trust Fund as an annual appropriation.
It is now at $55 million as a permanent appropriation. For fiscal
year 1999 through 2003 $59 million through $71 million have been
appropriated. The monies have been steadily increasing due in part
to an organization called the National Association of State Boating
Law Administrators, a coalition that fights for boating laws. In
response to why Alaska should do this, 50 percent of the fatalities
that happen in the state are in areas where there is no coast guard
presence; 30 percent of the fatalities happen on non-navigable
waterways where the coast guard absolutely doesn't have a presence,
and where there are not any safety equipment requirements. Between
1989 and 1998, 266 Alaskans lost their lives in noncommercial
boating accidents compared to 225 commercial fatalities. The
program works. In 1971, there were 29 fatalities per 100,000 boats
nationally. Now, there are under seven. Alaska is not following
that trend, however. On behalf of the admiral, she expressed the
coast guard's support of the state taking on such a program. How
that is done is up to the legislature, however. In response to the
non-motorized registration issue, the coast guard does not have a
formal position on that. It would provide more funding for the
state match. The coast guard requires registration of vessels
equipped with motorized propulsion, although 30 percent of the
fatalities are in non-motorized vessels. It is important to
include some type of minimum length requirement to exclude all the
Fred Meyer and K-Mart rafts. The state right now already meets the
match requirements in good faith because it is working towards a
program. The Governor established an office of boating safety in
July within the Department of Natural Resources. She noted it is
a reimbursement program. The money is trickled in as the office
spends money that which matches the requirements. In response to
the boating safety council issue, it is not part of the federal
requirements. The federal requirements are a lead agency, some
kind of law enforcement, and education. The state already has
those requirements. The state would have to take on mirroring the
safety equipment requirements, registering boats, and reporting of
accidents. The council has been asked for by the voters, and
several states have a council of some kind. She suggested limiting
the number of meetings, for example, otherwise it can provide
valuable user input.
Number 1904
REPRESENTATIVE KERTTULA said she has had a lot of contact regarding
the inclusion of non-motorized vessels. She asked Ms. Hargis, if
the length was increased from 10 feet to 20 feet in terms of
registration, would that take them out of the safety portion of the
program as well.
MS. HARGIS replied that would essentially exclude almost all
non-motorized vessels from registration, but not from the safety
requirements. She reiterated one-third of the fatalities are due
to non-motorized crafts.
Number 1961
REPRESENTATIVE CROFT asked Ms. Hargis whether there is about
$600,000 now in program receipts through licensing fees.
MS. HARGIS replied, right, through boat registration revenues.
Right now, those revenues are paid to the coast guard which in turn
hands them off to the federal treasury. The coast guard here in
Alaska doesn't even get to keep them. The state would see roughly
that $600,000 and another $500,000 from the Boating Safety Federal
Grant Fund.
Number 1993
REPRESENTATIVE CROFT asked Ms. Hargis how much it would cost if the
state wanted to keep the same level of safety efforts as the coast
guard. In other words, is the money that the state would receive
enough to run a program?
MS. HARGIS replied the state would get roughly $1 million to run a
boating safety program which is a lot of money. Right now, the
state doesn't get any money to run one. The coast guard is not
stepping back, except that it would not be registering boats
anymore.
REPRESENTATIVE CROFT asked Ms. Hargis whether that includes
monitoring as well.
MS. HARGIS replied that money would also go to law enforcement, but
right now the bill says that 75 percent would go to education.
Number 2038
REPRESENTATIVE CROFT wondered what level of effort the state would
have to step up.
REPRESENTATIVE HUDSON said the state would take over registering
boats, currently managed by the coast guard, would undertake a
statewide boating safety education commitment, and would manage the
program to ensure that all crafts in the state meet the
requirements and are registered.
Number 2086
REPRESENTATIVE CROFT asked Ms. Hargis how much it costs to run a
registration program.
MS. HARGIS replied the estimate from the Division of Motor Vehicles
[Department of Administration] is roughly $300,000. It would be a
cost-positive situation. The state's efforts for education and law
enforcement currently pass the coast guard's test. The state also
has a designated lead agency. There are no more requirements that
the state would have to take on to get funding. The coast guards
is hoping the money would be spent on education. It is part of the
match to get the federal dollars rolling towards the state.
Number 2134
REPRESENTATIVE HUDSON noted that there would be a net gain of about
$600,000 for new programs and enhancement of the public's
awareness.
Number 2144
REPRESENTATIVE CROFT questioned whether those funds would come from
a different source.
REPRESENTATIVE HUDSON replied there would be a new source of funds
to pay for many of the things that the state currently does.
Number 2165
REPRESENTATIVE KERTTULA asked whether the non-motorized
registration fee was reduced to $10 for three years from $24.
REPRESENTATIVE HUDSON replied yes as a direct response and
recognition of the non-motorized kyakers out of Seward and
Anchorage. They were concerned about paying the same amount as
those who have big boats.
Number 2235
MARK JOHNSON, Chief, Community Health and Emergency Medical
Services, Division of Public Health, Department of Health and
Social Services, testified in Juneau. The department supports the
bill. Drowning is a public health problem. A combination of
safety organizations and federal laws have significantly decreased
the deaths for commercial fishing. There have also been some
efforts from Native organizations that have impacted boating safety
as well. The department believes that by bringing these additional
funds into the state for safety purposes those trends will
continue. Unfortunately, there haven't been similar trends in the
recreational categories. In addition, the department monitors
costs associated with near drownings, for example, and other types
of injuries. He noted that rescues are very expensive and to the
extend that legislation like this can help prevent those types of
things is a savings.
Number 2366
CHAIRMAN KOTT referred to page 4, line 20, of the bill, and asked
why the reporting requirements have been increased from $100 to
$500.
MS. HARGIS said $500 is the federal reporting requirement. Alaska
was well below that requirement at $100.
Number 2421
CHAIRMAN KOTT asked Ms. Hargis whether it is part of the reporting
triad she mentioned earlier or could the state deal with it at the
$100 level.
MS. HARGIS replied the state could do it at the $100 level. It
would mean that the state would have a more stringent requirement
than the coast guard. It is up to the state to decide, however.
CHAIRMAN KOTT questioned whether the state could go to a less
strict requirement of $1,000, for example.
TAPE 99-23, SIDE B
Number 0001
CHAIRMAN KOTT asked Ms. Hargis whether there is a penalty for not
reporting an accident.
MS. HARGIS replied there is a penalty section in the bill [page 9,
line 4]. It is a class A misdemeanor.
REPRESENTATIVE HUDSON noted that the bill would require the courts
to establish a bail schedule.
Number 0070
CHAIRMAN KOTT asked Juanita Hensley [Administrator, Division of
Motor Vehicles, Department of Administration] whether a class A
misdemeanor is consistent with penalties for the failure to report
vehicular accidents.
REPRESENTATIVE HUDSON noted that the penalty is restricted to $500.
The bill reads, "...and may be fined up to $500."
CHAIRMAN KOTT noted the bill says the penalty for everything,
except that which is contained in (b) [Section 11], would be up to
$1,000 plus 6 to 12 months in jail. He is trying to draw some
comparisons between the requirements for excess damage to an
automobile in excess of $500 and what the bill would do.
Number 0119
JUANITA HENSLEY, Administrator, Director's Office, Division of
Motor Vehicles, Department of Administration, noted that if a
person fails to file a report and is charged for the failure to
file a report through the district attorney's office it is a class
A misdemeanor. The division doesn't pursue someone for the failure
to report an accident, however.
Number 0146
CHAIRMAN KOTT asked Ms. Hensley whether a person needs to file an
accident report if there is $8,000 worth of damage, for example,
and is that person subject to...
MS. HENSLEY responded it is a requirement for a person to file an
accident report. The police will report an accident, if it is
police investigated and there is more than $500 worth of damage.
If two people are involved in an accident that didn't involve the
police, the division doesn't have any way of knowing about it,
unless one of the parties files a report. They may file an
insurance claim or choose to settle it on their own.
Number 0205
CHAIRMAN KOTT asked Ms. Hensley, if there is no injury between two
parties and one party sends in a report, what would happen to the
other party.
MS. HENSLEY replied there is only a requirement for one of the
parties to file an accident report. The division uses the report
that is filed to make a determination of who is liable. A notice
is sent to both parties for proof of insurance, and if they are not
insured they lose their drivers' license.
Number 0242
CHAIRMAN KOTT questioned whether there are two reports that have to
be submitted: proof of insurance and a regular accident/crash
report.
MS. HENSLEY noted that in many cases both parties file their own
reports. If there is conflicting information, the courts make a
decision.
REPRESENTATIVE HUDSON noted both parties probably file a report for
insurances purposes.
Number 0275
REPRESENTATIVE KERTTULA asked whether or not registering a boat
would be a misdemeanor. It looks like the exceptions in (b)
[Section 11] exclude boat registration.
Number 0300
MS. HENSLEY said the failure to register a boat would be a class A
misdemeanor under this section. She noted that AS 05.25.010 is
safety requirements, AS 05.25.020 is the use of boats with water
skis and surfboards, and AS 05.25.060 is prohibited operations,
which are included in the exceptions in (b).
Number 0328
REPRESENTATIVE CROFT noted that AS 05.25.060 (2) and (3) are
violations while the failure to register a boat is a misdemeanor.
He likes the distinction, but it seems that the failure to register
a boat is more like a violation.
MS. HENSLEY commented that is probably patterned after Title 28,
failure to register a car, which is a class A misdemeanor. She
noted that the failure to register a snowmobile is a violation.
REPRESENTATIVE CROFT said, by including kyaks, it becomes a
question of how much should the state wax for the failure to
register a kyak.
REPRESENTATIVE HUDSON said these are good points that need to be
discussed with the drafter of the bill.
REPRESENTATIVE HUDSON said it seems that reckless endangerment and
things of that nature ought to be a higher penalty than the failure
to register a boat.
Number 0401
CHAIRMAN KOTT referred to the establishment of the Alaska Boating
Safety Council and said it seems that is heading in the wrong
direction of establishing another bureaucracy. He asked whether it
is essential; and, if it is, may be some of its responsibilities
should be detailed.
Number 0424
REPRESENTATIVE HUDSON replied this bill has been discussed with
boating organizations and associations which have expressed concern
of conferring too much power to the commissioner of the Department
of Natural Resources and the director of the Division of Parks and
Outdoor Recreation absent some type of user involvement. The way
it is crafted now is considerate of both the department and users.
It sets up the appointed members to the council and no money would
be given other than travel and per diem expenses. He said the
legislature might want to specify or limit its meeting frequency or
limit its activity. He reiterated, if the bill passes, all of the
expenses for this operation would be paid for with the fees that
the state would receive. It wouldn't require new general fund
monies. The council would be a guiding force of reaching the
public for education.
Number 0525
CHAIRMAN KOTT asked Representative Hudson whether there was any
discussion on how many times a year it should meet.
REPRESENTATIVE HUDSON replied it was discussed and, in general,
most felt that twice a year was good. He suspects that the council
would be involved in working on the boating safety pamphlet and
education proposals.
Number 0574
CHAIRMAN KOTT referred to Section 5, "Owner's civil liability." He
asked where does the liability stop when the owner of a boat rents
his boat to another person, for example.
Number 0599
ROBERT NAUHEIM, Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law, testified via
teleconference from Anchorage. As far as he can see from the text,
there are only housekeeping changes in Section 5. It doesn't seem
to substantively change operator liability.
Number 0656
CHAIRMAN KOTT closed the meeting to public testimony and asked
Representative Hudson to incorporate the changes discussed today,
especially the issue brought up by Representative Kerttula.
REPRESENTATIVE HUDSON asked Chairman Kott whether he wants him to
look at a meeting-frequency on the council's activity to be put in
statute, or under the aegis of the commissioner.
CHAIRMAN KOTT replied he wants to see it in statute.
REPRESENTATIVE HUDSON asked Chairman Kott whether two meetings
sound reasonable.
CHAIRMAN KOTT replied may be it should say a minimum of two, or a
maximum of four, or quarterly as necessary based on the general
theme of those in the boating safety industry.
REPRESENTATIVE HUDSON said, in conclusion, that he has built a very
good network so far. It is a balanced network between the
motorized and non-motorized boats. In all of the years that he has
been involved in boating safety, the area of damage was in the
non-motorized areas, such as kyakers. They begin to believe that
they are one with the water. He thinks it is good to have an
equitable sharing of the cost that needs to be recovered. So far,
none of the testimony has indicated a problem with the reduced fare
for the non-motorized boats. They are eager to get involved with
the safety aspects of the bill, and they have said that small
details should not kill the bill.
CHAIRMAN KOTT indicated that the bill will be held over for further
consideration.
ADJOURNMENT
Number 0788
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 4:10 p.m.
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