02/27/2004 01:20 PM House JUD
| Audio | Topic |
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 27, 2004
1:20 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm (via teleconference)
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Pete Kott
COMMITTEE CALENDAR
HOUSE BILL NO. 367
"An Act relating to the licensing and regulation of sex-oriented
businesses and sex-oriented business entertainers; relating to
protection of the safety and health of and to education of young
persons who perform in adult entertainment establishments; and
providing for an effective date."
- MOVED CSHB 367(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 342
"An Act relating to driving while intoxicated; and providing for
an effective date."
- HEARD AND HELD
HOUSE BILL NO. 424
"An Act relating to review of regulations under the
Administrative Procedure Act by the Legislative Affairs Agency;
and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 514
"An Act relating to child support modification and enforcement,
to the establishment of paternity by the child support
enforcement agency, and to the crimes of criminal nonsupport and
aiding the nonpayment of child support; amending Rule 90.3,
Alaska Rules of Civil Procedure; and providing for an effective
date."
- MOVED CSHB 514(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 385
"An Act relating to awarding child custody; and providing for an
effective date."
- BILL HEARING POSTPONED
CONFIRMATION HEARINGS
Violent Crimes Compensation Board
David B. Ingraham, MD - Anchorage
- HEARING POSTPONED TO 3/3/04
Board of Governors of the Alaska Bar
Joseph N. Faulhaber - Fairbanks, Alaska
- HEARING POSTPONED
CENTRAL COUNCIL, TLINGIT & HAIDA INDIAN TRIBES OF ALASKA
(CCTHITA) - "BENEFITS AND CONTRIBUTIONS OF FEDERALLY RECOGNIZED
INDIAN TRIBES TO ALASKA"
- HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 367
SHORT TITLE: LICENSING SEX-ORIENTED BUSINESSES
SPONSOR(S): REPRESENTATIVE(S) MCGUIRE, GARA
01/12/04 (H) PREFILE RELEASED 1/9/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) L&C, JUD, FIN
01/30/04 (H) L&C AT 3:15 PM CAPITOL 17
01/30/04 (H) Heard & Held
01/30/04 (H) MINUTE(L&C)
02/02/04 (H) L&C AT 3:15 PM CAPITOL 17
02/02/04 (H) Moved CSHB 367(L&C) Out of Committee
02/02/04 (H) MINUTE(L&C)
02/05/04 (H) L&C RPT CS(L&C) NT 2DP 3NR 2AM
02/05/04 (H) DP: DAHLSTROM, ANDERSON; NR: CRAWFORD,
02/05/04 (H) LYNN, GATTO; AM: ROKEBERG, GUTTENBERG
02/09/04 (H) JUD AT 1:00 PM CAPITOL 120
02/09/04 (H) <Bill Hearing Postponed to 2/16/04>
02/16/04 (H) JUD AT 1:00 PM CAPITOL 120
02/16/04 (H) Heard & Held
02/16/04 (H) MINUTE(JUD)
02/23/04 (H) JUD AT 1:00 PM CAPITOL 120
02/23/04 (H) Scheduled But Not Heard
02/25/04 (H) JUD AT 1:00 PM CAPITOL 120
02/25/04 (H) Heard & Held
02/25/04 (H) MINUTE(JUD)
02/27/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 342
SHORT TITLE: INCREASE DRIVING UNDER INFLUENCE PENALTY
SPONSOR(S): REPRESENTATIVE(S) GATTO
01/12/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) JUD
02/02/04 (H) JUD AT 1:00 PM CAPITOL 120
02/02/04 (H) Heard & Held
02/02/04 (H) MINUTE(JUD)
02/04/04 (H) JUD AT 1:00 PM CAPITOL 120
02/04/04 (H) -- Meeting Canceled --
02/09/04 (H) JUD AT 1:00 PM CAPITOL 120
02/09/04 (H) <Bill Hearing Postponed>
02/20/04 (H) JUD AT 1:00 PM CAPITOL 120
02/20/04 (H) Heard & Held
02/20/04 (H) MINUTE(JUD)
02/27/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 424
SHORT TITLE: REGULATION REVIEW
SPONSOR(S): REPRESENTATIVE(S) HOLM
02/02/04 (H) READ THE FIRST TIME - REFERRALS
02/02/04 (H) ARR, JUD
02/02/04 (H) ARR REFERRAL REMOVED
02/25/04 (H) JUD AT 1:00 PM CAPITOL 120
02/25/04 (H) Scheduled But Not Heard
02/27/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 514
SHORT TITLE: CHILD SUPPORT ENFORCEMENT/CRIMES
SPONSOR(S): REPRESENTATIVE(S) KOTT
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD
02/23/04 (H) JUD AT 1:00 PM CAPITOL 120
02/23/04 (H) Heard & Held
02/23/04 (H) MINUTE(JUD)
02/27/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE CARL GATTO
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 342.
CODY RICE, Staff
to Representative Carl Gatto
Alaska State Legislature
Juneau, Alaska 99801
POSITION STATEMENT: Assisted with the presentation of HB 342,
Version H.
DUANE BANNOCK, Director
Division of Motor Vehicles (DMV)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 342.
VANESSA TONDINI, Staff
to Representative Lesil McGuire
House Judiciary Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided a comment during discussion of the
proposed amendments to HB 342.
BARBARA COTTING, Staff
to Representative Jim Holm
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 424 on behalf of the sponsor,
Representative Holm.
DAVID STANCLIFF, Staff
to Senator Gene Therriault
Joint Committee on Administrative Regulation Review
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As staff for the Joint Committee on
Administrative Regulation Review, discussed the need for
legislation such as HB 424.
JOHN MAIN, Staff
to Representative Pete Kott
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented changes to HB 514 on behalf of
Representative Pete Kott, sponsor.
SUE STANCLIFF
House Majority Office
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Explained aspects of HB 514 on behalf of
Representative Pete Kott, sponsor.
ACTION NARRATIVE
TAPE 04-27, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:20 p.m. Representatives
McGuire, Anderson, Ogg, Samuels, and Gara were present at the
call to order. Representatives Holm (via teleconference) and
Gruenberg arrived as the meeting was in progress.
HB 367 - LICENSING SEX-ORIENTED BUSINESSES
Number 0088
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 367, "An Act relating to the licensing and
regulation of sex-oriented businesses and sex-oriented business
entertainers; relating to protection of the safety and health of
and to education of young persons who perform in adult
entertainment establishments; and providing for an effective
date." [Before the committee was CSHB 367(L&C).]
Number 0280
REPRESENTATIVE ANDERSON moved to adopt the proposed committee
substitute (CS) for HB 367, Version 23-LS1394\W, Craver,
2/25/04, as a work draft. There being no objection, Version W
was before the committee.
Number 0280
CHAIR McGUIRE moved to adopt Amendment 1, which read [original
punctuation provided]:
Page 10, Line 10: INSERT - Sec.08.90.350. Municipal
regulation. A municipality may adopt and enforce an
ordinance that places prohibitions or restrictions on
adult-oriented entertainment that are additional to or
stricter than those required under this chapter.
REPRESENTATIVE SAMUELS objected. He proposed that Amendment 1
be amended to include boroughs as well as municipalities.
REPRESENTATIVE GARA offered that Amendment 1 could be changed by
adding "a local government's municipality or other local
government's subdivision." And asked if that would cover
everything.
REPRESENTATIVE SAMUELS recollected that the previous year the
legal definitions were explained to him and he thought that the
proposed amendment to Amendment 1 would be correct, but he
wasn't sure.
CHAIR McGUIRE suggested that the committee stick with the
original amendment, stating that she thought the other
Representatives were correct but she didn't want to broaden the
terms when the definition wasn't certain. She said that she
would seek an answer to the question and provide it before the
bill [is heard in] the House Finance Committee.
REPRESENTATIVE SAMUELS said he would agree to that, as long as
the issue was addressed. He shared that the only circumstance
that he could think this issue would effect was the Fairbanks
Northstar Borough and he wanted to make sure that they had the
same authority as every other municipality.
Number 0380
REPRESENTATIVE SAMUELS removed his objection with the
understanding that the issue would be addressed before HB 367
[is heard in the next] committee.
CHAIR McGUIRE asked if there were any further objections to
adopting Amendment 1. Hearing none, Amendment 1 was adopted.
Number 0418
REPRESENTATIVE GARA moved to adopt Amendment 2, [which would
replace the text of Version W, as amended, with the proposed CS
for HB 367, Version 23-LS1394\V, Craver, 2/23/04]. He explained
that the only substantive difference was that this version would
allow patrons to go to establishments that didn't serve alcohol
when they were 18 years old and older.
REPRESENTATIVE SAMUELS objected.
CHAIR McGUIRE stated that she has an issue with the bifurcated
age, wherein patrons can be 18 and dancers have to be 21, that
Representative Gara is proposing. She said she'd received
enough compelling evidence from former and current strippers,
police officers, and a neuropsychologist to lead her to believe
that the dangers that are present in these types of
establishments exist to both patron and stripper. So although
the greater harm is probably to the stripper, she is even more
concerned about both patrons and strippers now that she has
heard testimony relating to drugs, alcohol, and the intoxicated
people that come into these clubs. She stated that she felt
that the age requirement of 21 should be consistent for
everyone. She expressed that she didn't want people under the
age of 21 gambling, drinking, or going to these clubs. She
cited the Barnes v. Glen Theatre, Inc. court case, which ruled
that dancers and patrons in strip clubs are not protected by the
First Amendment.
Chair McGuire concluded by thanking Representative Gara for his
help in developing HB 367, and emphasized that the main purpose
of the bill is to protect young people from the types of ills
that have been exposed during the formation of HB 367.
REPRESENTATIVE ANDERSON said he agrees with Chair McGuire's
statements. He explained that during the House Labor and
Commerce Standing Committee hearings on HB 367, the arguments
for designating the minimum age at 21 to attend these clubs were
most compelling. He stated that the Covenant House, the
neuropsychologist, the Parent Teacher Association (PTA), and the
police officers shared a lot of information that guided the
development of the 21-year-old minimum age requirement.
REPRESENTATIVE ANDERSON shared his hope that this bill sets the
standard for the country when dealing with issues such as this.
He acknowledged that the bill may not be consistent with the
rest of the country, but it illustrates Alaska's different
perspective. He recognized the argument that HB 367 may not
hold up to a legal challenge, but he hoped that the courts would
see the intent of the bill and uphold the 21-year-old minimum.
He shared that he was trying to curb the use of drugs and
alcohol as well as young people's exposure to violence and other
crimes.
REPRESENTATIVE ANDERSON shared his respect for the owners of
these establishments. He clarified that [the legislature] is
not being punitive, but rather is looking at this issue from a
public policy prospective. He said that he feels that [the
legislature] is making the right decision. Representative
Anderson referred to a conversation that he'd had with the
Executive Director of the Anchorage Cabaret Hotel Restaurant &
Retailers Association (CHARR) where it was relayed to him that
the board is still debating the issue and hasn't formed an
official opinion.
Number 0919
REPRESENTATIVE GARA commented that he appreciated the
disagreement. He stated that despite this particular
philosophical difference, he felt that the rest of the bill was
very strong. He explained that HB 367 started out a lot broader
and has been tightened up throughout the committee process. He
shared that he didn't like the idea of 18 and 19 year olds going
to strip clubs, but he also didn't like telling them that they
could not go. He said he felt that it was a situation where he
should bite his lip; he may disagree with the parents that would
allow their children go to places like this at that age, but he
doesn't feel that it is his place to tell them what to do. He
also shared his concern that by increasing the patronage age to
21, some of these establishments may lose a significant amount
of business. He said that he would rather see the patronage age
remain 18 years old and regulate the area of greatest evil,
which is the abuse that some of these young women who strip
undertake. He concluded by saying that he would support HB 367
with or without the adoption of Amendment 2.
Number 1001
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 2. Representatives Samuels,
Anderson, Ogg, and McGuire voted against it. Therefore,
Amendment 2 failed by a vote of 2-4.
CHAIR McGUIRE directed attention back to HB 367. She mentioned
a conversation that she and Representative Gara had wherein they
decided to put on the record the legal, scientific, and
community information that has been presented and reviewed
during the formation of HB 367. She highlighted the testimony
that had made the most significant impact for her. She referred
to the Anchorage Council PTA, stating that it was the PTA who
contacted both her and Representative Gara and got the
legislation started. She shared that the PTA was reacting to
teacher observations and talking to former and current strippers
who were living at Covenant House.
CHAIR McGUIRE said that these girls informed the PTA and other
various committees that they had been propositioned for
prostitution and drug use. She said that the girls felt that
they were worse off after the dancing experience. She referred
to the teachers who said that high-school girls who were
stripping, and high-school boys who were patronizing these
establishments were acting as a detraction in the school. She
shared that at the Anchorage caucus meeting they heard testimony
from high-school kids who were stripping. She said that they
made a point of having to hurry up and testify because it was
their "night time". She pointed out that the time they were
testifying was noon, a time when most high-school kids would be
in class, and said she found it interesting that these kids were
dancing through the night, sometimes until 5:00 a.m., and going
to school a little over an hour later. She said that she saw a
problem with that.
Number 1209
CHAIR McGUIRE referred to the resolution provided by the Alaska
State PTA and the Anchorage Council PTA at the Anchorage caucus.
She pointed out that there are over 3,400 students in Anchorage
alone, and some of these high-school kids are between the ages
of 18 and 20. She reminded the committee that the mandatory age
for starting school is 6 years old. She said that if a child
falls back a year, they could easily be 18 or 19 when they are
seniors in high school. Chair McGuire stated that she was 18
for half of her senior year. She pointed out that in the
resolution there are references to concern over unwanted
pregnancies and sexual assaults. She also mentioned that there
are a disproportionate number of calls to the police from these
establishments.
CHAIR McGUIRE, as a comparison between one of these businesses
and Chilkoot Charlie's, a well known, lively, alcohol-serving
establishment in the heart of Anchorage, she stated that there
is still more police involvement at a strip club than at
Chilkoot Charlie's. She asked the committee to stop and think
about that fact. She emphasized that the types of calls the
police get from these establishments include kidnapping, rape,
assault, and drug use. Chair McGuire then questioned how these
establishments compare with "Bernie's or Humpy's." She said
that she used Anchorage examples because that is where she
lives, and informed the committee that an Anchorage police
sergeant has informed her that those establishments make zero
calls relating to similar crimes.
CHAIR McGUIRE stated that strip clubs are unregulated, so there
is no mechanism for people in the community to enforce
verification of age. She added that until HB 367 gets, there is
no law that enforces any regulations for these establishments,
and so even something like failure to verify someone's age is
something that there are no consequences for.
Number 1354
CHAIR McGUIRE pointed out that in the aforementioned resolution,
many legal findings from various cities around the country were
cited in the section under "it is known that," She referred to
the "secondary harmful effect" evidence that was used to
illustrate the need for this legislation. She commented that
such evidence can be gathered from other communities as well.
She said that since Alaska is a newer state and Anchorage and
Fairbanks are relatively young towns, it strengthens their case
for this legislation by focusing on older, faster growing
communities and relating it to what may happen in Alaska if
these clubs go unregulated. She referred again to the "it is
known that," section of the resolution and used the example
given that all types of crimes, especially sex-related crimes,
occur with more frequency in neighborhoods where sex-oriented
businesses are located.
CHAIR McGUIRE cited studies conducted in Phoenix, Arizona;
Indianapolis, Indiana; and Austin, Texas. She referred to
testimony that other illegal activities are being performed at
these clubs in the parking lots or in the booths and cubicles.
She noted that these activities are also being performed in
Anchorage and Fairbanks. She relayed that in the resolution, it
says that it is known that there is increased drug activity
surrounding adult establishments. Chair McGuire also pointed
out that a 9th circuit case in Kitsap County, Washington has
shown that contact between dancers and patrons can transmit up
to 50 communicable diseases. She emphasized that regulating
time, place, and manner of sex-oriented businesses to advance
substantial governmental interest is the appropriate thing for a
community to do to curb the illegal activities and the harm that
can come about from them.
Number 1521
CHAIR McGUIRE moved onto the legal opinion prepared by Jeffrey
Friedman on February 16, 2004. She shared that Mr. Friedman's
opinion relates to the case, Mickens v. City of Kodiak, and
offered that even though that case is clearly relevant to what
HB 367 proposes, there are some notable differences. First, she
stated, the legislature has heard far more scientific testimony
about the ill effects of this type of entertainment. She
pointed out that a neuropsychologist has testified, as well as
have various counselors, identifying the various negative
effects stemming from these establishments. She also noted that
there has been a lot of personal testimony from dancers
recounting their personal experiences from working in these
businesses. Reading again from Mr. Friedman's legal opinion,
Chair McGuire stated that unlike the situation involved in
Mickens v. City of Kodiak, the legislature has heard testimony
illustrating the difficulty of enforcing health and safety laws.
CHAIR McGUIRE said that that is one of the biggest problems that
this bill addresses: there is no mechanism, currently, that
will help enforce the things that are happening in these
establishments. She also cited that there is difficulty
enforcing wage and hour laws. She stated that she'd heard a lot
of testimony relating to club owners having the dancers hired
under independent contractor status, something that is illegal.
She explained that in such situations, the dancers have to pay a
fee up front before they can dance at the establishment, and
this can lead to dancers turning to prostitution or dealing
drugs to make the extra money. She offered her understanding
that it is Mr. Friedman's opinion that the legislature is on the
right track by prohibiting dancers and patrons who are under the
age of 21 from going to or working at adult oriented businesses.
She also referred to a letter from Regina Manteufel dated
January 27, 2004, that cites many examples of illegal labor laws
and many other illegal activities that happen in or around strip
clubs.
Number 1769
CHAIR McGUIRE said that she was going to recap the testimony
received by Scott Swartzwelder, Ph.D., Clinical Professor of
Psychiatry and Behavioral Sciences, Duke University Medical
Center, and explained that Dr. Swartzwelder's particular
expertise is assessing brain development of young people until
their 20s. She first gave a little background about Dr.
Swartzwelder, how he had testified throughout the country on
many bills that are designed to raise the alcohol and/or smoking
limit to 21 years of age, and noted that many times, these types
of laws are controversial as well.
CHAIR McGUIRE said that Dr. Swartzwelder's illustrated how the
brain continues to develop until a person is into his/her 20s.
The particular areas that are developing are the frontal lobe,
an area that controls judgment and impulses. Therefore,
although people make decisions throughout their lives, when a
person is younger and his/her brain hasn't developed completely,
he/she is more likely to make irrational decisions. She used
examples such as drinking and driving, drug use, [committing
crimes to procure] quick cash, and [making inappropriate] sexual
advances, to illustrate Dr. Swartzwelder's points.
CHAIR McGUIRE praised the testimony given by Kara Nyquist,
Director of Advocacy at Covenant House in Anchorage, who shared
the things she had experienced first hand when trying to put
someone's life back together after they have started out in the
business of stripping.
Number 1914
REPRESENTATIVE GARA identified the things that made him feel
that HB 367 needed to be enacted. He referred to information
that he gathered at the Anchorage caucus where it was said that
many times dancers are subjected to wage violations and are too
intimidated to say anything about it. He reiterated that some
of these women have to pay the establishment for stage time and
do not receive a minimum wage. He also shared his concern that
the dancers have to give some of their tips to bouncers, stating
that if someone doesn't tip well they may not receive as
adequate a level of protection as he/she should, and opined that
that is a bad way to run that type of business. He also used
examples of testimony received wherein women have stated they
were propositioned by pimps and drug dealers to work for them
and make extra money. Representative Gara said that this isn't
the type of situation he would feel comfortable having an 18-,
19-, or 20-year-old working in. He made the point that he
didn't want this to be the first job opportunity that a young
girl has out of high school, adding that she may never leave it.
REPRESENTATIVE GARA acknowledged that there are some businesses
that are run cleanly, and stated that this is a case wherein a
portion of the businesses do a poor job and it effects everyone
else. He referenced a study that dealt with strip clubs in
Minneapolis, Minnesota, where it is similar to Anchorage and
Fairbanks and the women have to pay to work at the clubs. In
that study, 100 percent of the women reported physical abuse
while at work, 100 percent said that they had witnessed others
getting physically abused at work, 77 percent reported being
stalked, 100 percent reported that they had been propositioned
for prostitution, 94 percent had their breasts grabbed during
work, 60 percent had genitals exposed to them, 78 percent had
witnessed customers masturbating in front of them, 56 percent
were bitten by customers, 61 percent were spit upon, 39 percent
suffered bodily penetration while working, and many were
propositioned by pimps while at work. Representative Gara
reiterated that this isn't a job that he feels young women under
21 years of age should work in.
REPRESENTATIVE GARA said that although jobs like these can be
beneficial for certain young men and women, he is confident that
those people will be able to find stable, good jobs somewhere
else, and noted that when they turn 21 they will be able to once
again work in these establishments. He said that he has heard
of many cases of broken lives, where women work in places where
they are pressured and subjected to abuse and assault, and that
is what he concerned about. He said he supports HB 367 and
urged the committee to support it as well. He concluded his
testimony by commenting that initially the bill required dancers
to get licensed, but because of the feedback received, that
language has been removed, and now only the businesses need to
be licensed.
Number 2162
REPRESENTATIVE ANDERSON moved to report the proposed CS for HB
367, Version 23-LS1394\W, Craver, 2/25/04, as amended, out of
committee with individual recommendations and the accompanying
fiscal note. There being no objection, CSHB 367(JUD) was
reported out of the House Judiciary Standing Committee.
HB 342 - INCREASE DRIVING UNDER INFLUENCE PENALTY
Number 2181
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 342, "An Act relating to driving while
intoxicated; and providing for an effective date." [Before the
committee was the proposed committee substitute (CS) for HB 342,
Version 23-LS1292\D, Luckhaupt, 2/14/04, which was adopted as a
work draft on 2/20/04.]
Number 2200
REPRESENTATIVE CARL GATTO, Alaska State Legislature, sponsor of
HB 342, indicated that his staff was available for questions as
well.
Number 2232
REPRESENTATIVE SAMUELS moved to adopt the proposed CS for HB
342, Version 23-LS1292\H, Luckhaupt, 2/23/04, as the work draft.
Number 2240
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
He asked whether Version H allows certification of ignition
interlock devices to be done by the commissioner of the
Department of Administration (DOA) as well as by the
commissioner of the Department of Corrections (DOC).
REPRESENTATIVE OGG relayed that the language in question is
located on page 2, [lines 19-20].
Number 2269
CODY RICE, Staff to Representative Carl Gatto, Alaska State
Legislature, sponsor, confirmed that either the commissioner of
the DOC or the commissioner of the DOA could certify ignition
interlock devices.
REPRESENTATIVE GRUENBERG said he would not object to the
adoption of Version H as long as the phrase, "or by the
commissioner of administration" is not included in Version H and
is instead offered for inclusion as a separate amendment.
CHAIR McGUIRE suggested instead that the committee adopt Version
H as the work draft and then consider an amendment to delete the
aforementioned phrase.
REPRESENTATIVE GRUENBERG said he would prefer to have the phrase
deleted from Version H before it is adopted as a work draft.
REPRESENTATIVE ANDERSON offered his belief that the phrase ought
to be included because the commissioner of the DOA oversees the
Division of Motor Vehicles (DMV).
REPRESENTATIVE GRUENBERG relayed, however, that when the issue
of ignition interlock devices was first brought forth, it took
years to resolve the problem of whether it would be the
Department of Public Safety or the DOA that would have purview
over ignition interlock devices. He elaborated:
The Hickel Administration wanted, by executive order,
to change it from [the Department of] Corrections, as
in the law, to [the Department of] Public Safety.
These two departments fought for years. It held up
the administration of this whole ignition interlock
law for years, and I had to threaten to sue. So I
would ask ... the maker of the motion ... to please
just not make that part of [Version H], let's talk
about that as a separate amendment, and I will
withdraw my objection, then, to [Version] H, but I
would like that [language] ... offered as a separate
amendment.
CHAIR McGUIRE indicated that she is not sure how they could
procedurally go about adopting only portions of proposed CS as a
work draft.
Number 2369
REPRESENTATIVE OGG called the question.
Number 2375
A roll call vote was taken. Representative Anderson, Ogg,
Samuels, and McGuire voted in favor of adopting Version H as the
work draft. Representative Gruenberg voted against it.
Therefore, Version H was before the committee by a vote of 4-1.
TAPE 04-27, SIDE B
Number 2360
[The end of the roll call vote concluded on Side B.]
CHAIR McGUIRE relayed that a forthcoming amendment addressing
Representative Gruenberg's concern would be labeled Amendment 1.
She then asked for an explanation of Version H.
MR. RICE said that Section 1 of Version H clarifies that the
period of time during which one must use an ignition interlock
device cannot run concurrently with the period of time during
which one's driver's license is revoked. Language on page 2,
lines 21-23 clarifies that the term, "motor vehicle" does not
include snow machines, boats, planes, or anything not designed
for a road system. "Essentially, this only applies to
automobiles," he added. These changes, along with the change
pointed out by Representative Gruenberg regarding the
commissioner of the DOA, are the significant changes encompassed
in Version H. In response to a question, he confirmed that the
language, "or sentence" is now included in Section 1 of the
bill.
Number 2263
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to
delete, "or by the commissioner of administration" from page 2,
line 20. Speaking to Amendment 1, he said:
As I mentioned at our last hearing, I'm the author of
the current ignition interlock law. ... The current
law requires the commissioner of [the Department of
Corrections] to administer the ignition interlock
certification program. It turns out that this became
an extremely contentious issue, and took literally
years to resolve, after I was even out of the
legislature, because neither the Department of
Corrections nor the Department of Public Safety really
wanted to do it and each wanted the other to do it.
It was kind of an unusual program, and they just
didn't want to do it. And the two departments fought
for at least a year, if not more, about this.
And finally they left it with the commissioner of [the
Department of Corrections], but literally it ...
wasn't resolved until I, in private practice, had to
threaten a lawsuit. And if you put this other
language in, I am most concerned that this will cause
a similar problem and terrifically delay the continued
implementation of this law. This is an extremely
important change, and I urge you not to object to my
deletion. If the administration comes before this
legislature with its ducks in a row and says, for some
reason, "We feel a need to change it, and everybody's
agreed to it," then I will listen, but please don't
put it in here; this is going to have a serious
adverse effect.
REPRESENTATIVE GATTO said, "We have addressed it."
MR. RICE added,
We've been in contact with the administration and with
Duane Bannock of the DMV. ... It's my understanding
that the DMV ... and the administration have been
working with us pretty closely on this. ... I can't
speak for them, but I think that they're comfortable
in dealing with us on this issue.
Number 2142
DUANE BANNOCK, Director, Division of Motor Vehicles (DMV),
Department of Administration (DOA), said that the DMV is willing
and, to a limited extent, able to assist with a relatively
seamless [transition], at least from a verification standpoint,
so that "this" can take place. He went on to say:
In the research that I've done in the last few days
regarding interlock devices, what I would expect the
DMV to do is not go out and touch the car to verify
that it is in there. However, in reviewing a couple
of very large companies that this is what their
business is, they issue a certificate that will have
the model number, the serial number, of that
particular unit. And so, potentially, with a
distributor in Alaska, when that car or that
automobile goes to that station, because that person
is a certified ignition interlock device installer,
they issue a certificate of compliance - or their
invoice, or repair order, or whatever the word is. We
at the Division of Motor vehicles then view that
document, record that document as part of the
requirement for issuing, now, either the limited
license or the new, reinstated driver's license.
REPRESENTATIVE GRUENBERG said that both last year and this year
he has been in touch with the commissioner of the Department of
Corrections and his staff, and they have had extensive
discussions regarding the ignition interlock program. The DOC
is quite involved with that program and have been, now, for a
number of years; the DOC has not mentioned to him, he remarked,
anything about wanting to change the current system. "Have you
totally coordinated this with them?" he asked of Mr. Bannock,
adding that he would like to hear from the DOC on this issue.
"Is this something that you both have agreed that your
department will take over from them?" he also asked.
MR. BANNOCK replied, "No, I certainly have not, and I would not
want to imply that I have spoken with anyone at [the] Department
of Corrections about that."
REPRESENTATIVE GRUENBERG remarked to the committee, then, that
keeping the aforementioned language in the bill constitutes a
serious change, and that he would like to have full testimony on
this issue from the DOC because the current wording could result
in the two departments fighting with each other and could
totally bollix up the program. He offered his hope that
Amendment 1 would be adopted.
Number 2039
REPRESENTATIVE ANDERSON offered his belief that the DMV would be
able to handle applications for ignition interlocks in a more
expeditious manner and it would therefore be important to have
both departments involved.
REPRESENTATIVE GRUENBERG responded:
"This is not what we're talking about. ... We're
talking about the department having a program to
certify which type of ignition interlock devices can
be installed, and it's a certification statewide, not
on a case-by-case basis. And it's a very technical
kind of a thing, and it is not just the kind of thing
you're talking about. And I would urge, before we
take any steps like this, there should be full
testimony from both departments. It's a good bill, I
don't want to see it held up on this kind of [issue].
This isn't the place to do it, if we're going to make
a change, we shouldn't just do it in an ad hoc manner.
REPRESENTATIVE OGG noted that there is a difference between
verification, which is what Mr. Bannock was referring to, and
certifying what the device is. He opined that it should not
take two departments to certify what a device is.
CHAIR McGUIRE agreed with Representative Ogg that verification
and certification were two separate issues.
REPRESENTATIVE SAMUELS said he is tending to agree with
Representatives Ogg and Gruenberg. He remarked that the two
departments might not be so inclined to work in a cooperative
manner during future administrations, particularly if a new
manufacturer starts producing the devices - it could then become
a question of departmental political power influencing a
commerce issue. He indicated agreement that certification
should not be under the purview of two departments.
REPRESENTATIVE ANDERSON removed his objection.
Number 1891
CHAIR McGUIRE asked whether there were any further objections to
Amendment 1. There being none, Amendment 1 was adopted.
Number 1873
REPRESENTATIVE ANDERSON made a motion to adopt Amendment 2,
labeled 23-LS1292\D.1, Luckhaupt, 2/21/04, which read:
Page 1, line 1:
Delete all material and insert:
""An Act relating to driving while under the
influence and to the issuance of limited drivers'
licenses; and providing for an effective date.""
Page 1, following line 2:
Insert a new bill section to read:
"* Section 1. AS 28.15.201(d) is amended to read:
(d) A court revoking a driver's license,
privilege to drive, or privilege to obtain a license
under AS 28.15.181(c), or the department when revoking
a driver's license, privilege to drive, or privilege
to obtain a license under AS 28.15.165(c), may grant
limited license privileges [FOR THE FINAL 60 DAYS
DURING WHICH THE LICENSE IS REVOKED] if
(1) the revocation was for a misdemeanor
conviction under AS 28.35.030(a) and not for a
violation of AS 28.35.032;
(2) the person has not been previously
convicted or, if the person has been previously
convicted, the court or the department requires the
person to use an ignition interlock device as
described in AS 12.55.102 during the period of the
limited license; in this paragraph, "previously
convicted" has the meaning given in AS 28.35.030 and
also includes convictions based on laws presuming that
the person was under the influence of intoxicating
liquor if there was 0.08 percent or more by weight of
alcohol in the person's blood;
(3) the court or the department determines
that the person's ability to earn a livelihood would
be severely impaired without a limited license;
(4) the court or the department determines
that a limitation under (a) of this section can be
placed on the license that will enable the person to
earn a livelihood without excessive danger to the
public; and
(5) the court or the department determines
that the person is enrolled in and is in compliance
with, or has successfully completed the alcoholism
screening, evaluation, referral, and program
requirements of the Department of Health and Social
Services under AS 28.35.030(h)."
Page 1, line 3:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Number 1835
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE ANDERSON noted that because Amendment 2 was
drafted to apply to Version D, it should become Conceptual
Amendment 2 for the purpose of applying to Version H. He said
Conceptual Amendment 2 will delete the requirement that only
during the final 60 days of a license-revocation period may a
misdemeanant DUI (driving under the influence) offender be
granted a limited driver's license. He said that from comments
he's received from constituents, he believes that the current
law hinders one's ability to work and remain employed.
Therefore, Conceptual Amendment 2 would allow the granting of a
limited driver's license anytime during the revocation period as
long as the misdemeanant offender has no prior convictions - or,
if there is a prior conviction, the court or the department will
require the offender to use an ignition interlock device in
conjunction with the limited driver's license - and also meets
other current statutory criteria.
REPRESENTATIVE ANDERSON, in response to questions, said that it
is his intent to remove the stipulation that a limited driver's
license can only be granted during the final 60 days of a
revocation period. The provision in Conceptual Amendment 2
pertaining to those that have prior convictions is intended to
address those who apparently have a recurring problem with
drinking and driving.
REPRESENTATIVE GRUENBERG asked Representative Anderson whether
he wanted the stipulation regarding the use of an ignition
interlock to apply only to those offenders with prior
convictions, or would he be willing to extend that stipulation
to possibly apply in other situations as well. For example, in
cases where the limited driver's license would be used for
purposes other than earning a livelihood, such as if the person
were someone else's primary caregiver or had a health problem
that could require a visit to the hospital. He opined that the
judge and the department should have the discretion to grant a
limited driver's license for compelling cases.
Number 1407
REPRESENTATIVE GRUENBERG offered a [conceptual] amendment to
Conceptual Amendment 2, to insert, "or that there are other
compelling circumstances that require the issuance of a limited
license" into AS 28.15.201(d)(3) and (4), which are included as
part of Conceptual Amendment 2. In response to a question,
Representative Gruenberg said that his [conceptual] amendment to
Conceptual Amendment 2 would only apply in very unusual
circumstances that "require" the use of a limited license.
CHAIR McGUIRE remarked that she did not like the word "require".
REPRESENTATIVE GRUENBERG said he wanted the entity granting the
limited driver's license to know that it has to be convinced
that there is "really something unusual."
REPRESENTATIVE OGG opined that use of the word, "circumstances"
could open things wide up. He suggested that more time should
be taken in order to draft this proposed conceptual amendment
narrowly, remarking that as currently proposed, judges would
have to determine exactly what is meant by "compelling
circumstances." He offered his belief that that term needs to
be clarified.
REPRESENTATIVE GRUENBERG said that what he means by "compelling
circumstances" are those wherein a life would be in danger or
wherein there are serious health problems. He opined that
judges will make good decisions on this issue, noting that
judges make decisions regarding "compelling circumstances" all
the time.
REPRESENTATIVE ANDERSON noted that there would also still be the
caveat that the offender not be a danger to the public, and
offered his belief that judges would still take that into
account when determining whether a circumstance was compelling
enough.
Number 1132
CHAIR McGUIRE asked whether there were any objections to the
[conceptual] amendment to Conceptual Amendment 2.
Number 1119
REPRESENTATIVE OGG objected. He said:
I still think the barn door is wide open, and we've
only heard a couple of circumstances: life is in
danger. And that might be like when? [It's just] one
particular circumstance. Health in the family, or a
health circumstance - I think you can narrow it. My
concern is that ... we're revoking a person's license
because they were drinking and driving, and it's
supposed to be a punishment. And we're making an
exception here for somebody who wants to go to work.
that's an exception. And this is a privilege, and
when you open this door up, it lessens the punishment,
and I think you need to be fairly particular. [But]
if you want to be very broad, then I guess that's a
direction you want to go, [but] I'm not interested in
becoming very broad in this area.
REPRESENTATIVE GARA offered that if they must choose between
using limiting words or listing specific circumstances for when
a limited license would be granted, he would be comfortable with
using limiting words as long as they are limiting enough. He
predicted that if they only provided an exception for those
specific circumstances that Representative Gruenberg could come
up with in a given amount of time, some circumstance that the
committee might want included as an exception could get left
out. He said he agrees with Representative Ogg, though, in that
he is uncomfortable with just using the word "compelling".
Representative Gara said to Representative Gruenberg, "I wonder
if you could think of a limiting word that might move you closer
to Representative Ogg."
REPRESENTATIVE GRUENBERG replied: "That's why I said, 'that
require', not just, 'that allow'. ... The circumstances have got
to be sufficiently compelling that they require it."
REPRESENTATIVE GARA asked, "It has to be something that is also
not ordinary, right?"
REPRESENTATIVE GRUENBERG replied:
Well, it could be ordinary in the sense that as we
age, there may [be] more and more seniors who require
that their kid be able to take them to the hospital or
the doctor appointment or something like that. So, it
doesn't have to be extraordinary in that sense. The
point is that it's compelling.
Number 0956
CHAIR McGUIRE said that although she understands what
Representative Gruenberg is trying to get at and supports the
general idea, she would prefer the language to be more specific
and so would oppose it at this time with the caveat that if more
specific language is brought forth to the House floor, she would
support making the change then.
REPRESENTATIVE GRUENBERG remarked:
I'm trying to ratchet it down, but I think we have to
give the judge the ability to deal with it in an
individual-fact situation. I don't think it can be
crafted any more than, "compelling circumstances that
require the issuance of a license", and we have to
leave it to the judicial officer. We're dealing with
superior court and district court judges here.
CHAIR McGUIRE relayed that she is reminded of exemptions to the
permanent fund dividend (PFD) absence requirement, and the
debate on the House floor last year regarding caring for others
who are ill. She said she recalled that in that situation they
needed to be specific because, otherwise, if one just says, "to
care for other people's health because it's compelling", there
could be all kinds of people being cared for and all kinds of
people qualifying for the exemption. She indicated that a
concern is that what might be compelling to one person may not
be compelling to another.
REPRESENTATIVE GRUENBERG remarked, "It would have to be
compelling to the judge." He said he would be willing to accept
alternative language.
Number 0861
REPRESENTATIVE OGG called the question.
CHAIR McGUIRE indicated that the question would be called after
Representative Gara had a chance to speak.
REPRESENTATIVE GARA suggested that they might limit it by
extending the additional use of the interlock device to health
and safety reasons, but not just any health and safety reasons.
"I think if you did, 'important health and safety reasons', that
might satisfy ... everybody's concern," he added.
REPRESENTATIVE GRUENBERG said "That would be satisfactory,
sure."
CHAIR McGUIRE asked Representative Gruenberg whether he would be
withdrawing the current [conceptual] amendment to Conceptual
Amendment 2 and offering a new one.
REPRESENTATIVE GRUENBERG replied: "No. What I want to say is,
'compelling health or safety cases'."
REPRESENTATIVE OGG said he would not be removing his objection,
and again called the question.
REPRESENTATIVE GRUENBERG clarified that the language change
created by the [conceptual] amendment to Conceptual Amendment 2
would involve the words, "compelling health or safety reasons".
Number 0814
A roll call vote was taken. Representatives Gruenberg,
Anderson, Gara, and McGuire voted in favor of the [conceptual]
amendment to Conceptual Amendment 2. Representatives Ogg and
Samuels voted against it. Therefore, the [conceptual] amendment
to Conceptual Amendment 2 was adopted by a vote of 4-2.
REPRESENTATIVE GRUENBERG asked whether members would like the
title of the bill, which would be amended by Conceptual
Amendment 2, to also say, "also relating to ignition interlock
devices".
Number 0781
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature, noted
that the title has been changed in Version H; thus, she
remarked, she is assuming that in conforming Conceptual
Amendment 2, as amended, to Version H, [the proper language
would be included].
CHAIR McGUIRE commented that the committee probably should make
a specific change to the title to include language regarding
ignition interlock devices, so that future amendments to the
bill don't involve removing the ignition interlock requirement
for limited licenses.
REPRESENTATIVE GRUENBERG suggested that this second amendment to
Conceptual Amendment 2 would result in the title reading in
part, "influence, ignition interlock devices, and to the
issuance".
REPRESENTATIVE ANDERSON said he would accept the second
amendment to Conceptual Amendment 2.
Number 0691
CHAIR McGUIRE asked whether there were any objections to the
second amendment to Conceptual Amendment 2, as amended. There
being none, the second amendment to Conceptual Amendment 2, as
amended, was adopted.
REPRESENTATIVE GARA turned attention to the portion of
Conceptual Amendment 2, as amended, that pertains to proposed AS
28.15.201(d)(2). He said he is not in favor of relaxing the
license revocation period, adding that the current proposed
language change to [paragraph] (2) appears to let someone get
his/her license returned earlier on a first DUI conviction
without having to use an ignition interlock device. He went on
to say:
I don't know why we would do that. If we're going to
require that you have to use an interlock device to
get your license back early for a second conviction, I
think you should do it for a first conviction. And
the language seems to read to me ... that if it's only
your first [DUI] conviction, you can get your license
back early without the use of an interlock device.
REPRESENTATIVE ANDERSON said, "I don't think it would do that."
CHAIR McGUIRE indicated that she could understand Representative
Gara's point, and suggested that they delete from Conceptual
Amendment 2, as amended, the words, "the person has not been
previously convicted or, if the person has been previously
convicted,". Thus the language in proposed AS 28.15.201(d)(2)
would start with, "the court or the department requires the
person to use an interlock device". She asked whether doing
such would solve the problem.
REPRESENTATIVE GARA said he did not think it would, adding that
since Conceptual Amendment 2, as amended, is relying on existing
statutory language, such a change to Conceptual Amendment 2
would take out some of that existing statutory language. He
said he is a little uncomfortable doing that because he thinks
it is there for a reason for some other purpose. He suggested
that the drafter needs to work on finding a different approach.
The committee took an at-ease from 2:49 p.m. to 2:50 p.m.
Number 0536
REPRESENTATIVE ANDERSON relayed that during the at-ease, he and
Representative Gara spoke with the drafter. In an effort to
clarify, Representative Anderson said that currently, if one is
a first time misdemeanant DUI offender, one can apply for a
limited license and does not need an interlock device; however,
if a DUI offender has a prior conviction, currently he/she
cannot get a limited license. So, in order to achieve his goal,
he relayed, the drafter has suggested altering the portion of
Conceptual Amendment 2, as amended, pertaining to AS
28.15.201(d)(2) to read, "the court or the department requires
the person to use an ignition interlock device as described in
AS 12.55.102 during the period of the limited license;".
REPRESENTATIVE ANDERSON explained that if such a change is made,
regardless of whether someone is a first time offender or has
one or more prior convictions, he/she can go through an
application process with the court or the department for a
limited license. Approval of that application would then be
based on the applicant successfully meeting the criteria set
forth in AS 28.15.201(d)(1)-(5), and which includes, among other
things, the installation of an ignition interlock device. In
conclusion he remarked that such a change would enhance the
safety aspect [of the bill].
REPRESENTATIVE GRUENBERG remarked that it may take some time to
"ramp up" the ignition interlock program, "since there's nobody
who does this now." Therefore, if Conceptual Amendment 2, as
amended, is changed in the aforementioned fashion, he opined,
the committee will have to adopt a forthcoming amendment to
Version H that reads [original punctuation provided]:
Page 5, line 30:
Delete "July 1, 2004"
Insert "January 1, 2005"
REPRESENTATIVE GRUENBERG remarked, however, that the other
alternative is to "keep the 'or' in so that you know that there
some places that they just can't do it or some people, frankly,
may choose not to do it." But if Conceptual Amendment 2, as
amended, is altered as suggested by Representative Anderson,
Representative Gruenberg opined, then the committee also ought
to adopt not only what he termed a delayed effective date but
another forthcoming amendment to Version H that reads [original
punctuation provided]:
Page 1, line 12, following "28.15.181(c).":
Insert "The court may not order or require the use of
an ignition interlock device unless a provider for the
device is located within 100 miles of the defendant's
residence or domicile."
Number 0329
REPRESENTATIVE GRUENBERG said that the committee should adopt
what he referred to as the "100 mile" amendment because there
will be some places in the state, even after the delayed
effective date, that won't have access to ignition interlock
installation services.
REPRESENTATIVE ANDERSON, turning back to his suggested change to
Conceptual Amendment 2, as amended, said:
I think we can keep what we have; what this is saying
is, if you have multiple DUIs, you have to apply and
you have to have an ignition device, and ... if we
don't remove it, I don't think it requires the first
time DUI offender to have an ignition device.
REPRESENTATIVE GRUENBERG concurred.
CHAIR McGUIRE noted that the amendment regarding the effective
date would apply to the entire bill, not just to the provisions
of Conceptual Amendment 2, as amended.
REPRESENTATIVE SAMUELS sought confirmation that this third
amendment to Conceptual Amendment 2, as amended, would involve
having proposed AS 28.15.201(d)(2) read, "the court or the
department requires the person to use an ignition interlock
device as described in AS 12.55.102 during the period of the
limited license;"
REPRESENTATIVE ANDERSON said, "Correct."
REPRESENTATIVE GRUENBERG offered his understanding, though, that
Representative Anderson does not support this third amendment to
Conceptual Amendment 2.
REPRESENTATIVE ANDERSON replied, "Well, I think at this stage I
would support it because then it requires that anyone with a DUI
conviction, whether one or more, that applies for a temporary
license has to have an ignition interlock device." He added
that although that was not what he was intending to begin with,
it's "great."
Number 0200
REPRESENTATIVE SAMUELS moved to adopt the third amendment to
Conceptual Amendment 2, as amended.
REPRESENTATIVE GARA indicated, however, that adoption of the
third amendment to Conceptual Amendment 2, as amended, will
render a part of the bill senseless. He elaborated:
Representative Anderson's amendment is a good one I
think. But in places where there is no interlock
device available, what we're now doing is changing a
process whereby today somebody with no prior
convictions can get [a limited license], and changing
it so that if they live in a place where there's no
interlock devices available, they can't get [a limited
license]. And in that sense, we're actually knocking
a whole bunch of people off of the ...
CHAIR McGUIRE interjected and made mention of the forthcoming
amendment that Representative Gruenberg had referred to as the
"100 mile" amendment. She noted that this forthcoming amendment
would apply to the entire bill, including Conceptual Amendment
2, as amended, should it be adopted.
REPRESENTATIVE GARA remarked, however, that he did not think
that that forthcoming amendment fully satisfies the concern,
adding that he thought the committee could create something that
would do so. He opined that if Conceptual Amendment 2, as
amended, is amended this third time and then adopted into the
bill along with the "100 mile" amendment, it will make it so
that those who live more than 100 miles from an interlock device
provider can get a limited license even if they have prior
convictions.
CHAIR McGUIRE disagreed.
TAPE 04-28, SIDE A
Number 0001
REPRESENTATIVE GARA, in an effort to clarify, said:
This is still the gap in the thing that we're doing.
Currently, we don't want you to have a limited license
if you have prior convictions. ... We're now changing
the law and we're getting rid of this prior conviction
requirement. We're now saying, even if you have prior
convictions you can get a limited license, ... you can
apply for it. Now we're saying, even if you have
prior convictions and no interlock [device] is
available in your area, you can get a limited license.
... We are making it easier to for you to get a
limited license, if you have prior convictions, in
those areas where an interlock device is not
available.
CHAIR McGUIRE said, "That's true."
REPRESENTATIVE GARA remarked, "I don't think we want to do that;
... I don't think anybody intended to do that, and ... some work
has to be put into the language of the bill if we're not going
to do that."
REPRESENTATIVE ANDERSON said he was not sure what to do.
The committee took an at-ease from 3:07 p.m. to 3:10 p.m.
CHAIR McGUIRE announced that HB 342 would be held over for the
purpose of allowing Representatives Anderson and Gatto to work
on language that would address the issues raised, one of which
being that they did not want repeat offenders getting [limited]
driver's licenses without an interlock. She noted that at the
bill's next hearing the committee would address other
forthcoming amendments as well. [Version H of HB 342, along
with a pending motion regarding a third amendment to Conceptual
Amendment 2, as amended, was held over.]
HB 424 - REGULATION REVIEW
Number 0206
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 424, "An Act relating to review of regulations
under the Administrative Procedure Act by the Legislative
Affairs Agency; and providing for an effective date." [Members'
packets contained a proposed committee substitute (CS) for HB
424, Version 23-LS0732\I, Cook, 2/20/04]
CHAIR McGUIRE informed the committee that a [new] CS for HB 424
is forthcoming.
Number 0262
BARBARA COTTING, Staff to Representative Jim Holm, Alaska State
Legislature, sponsor, characterized HB 424 as a work in
progress. However, the intention is to place the concept before
the committee today for review. She relayed that the sponsor
does not want the committee to consider CSHB 424, Version 23-
LS0732\I, Cook, 2/20/04, because the sponsor hopes to have a new
CS and fiscal note for the committee's consideration early next
week.
MS. COTTING predicted that the committee would agree that common
complaints from constituents are about regulations. House Bill
424 is one piece in solving the regulations puzzle, she
explained, adding that the bill authorizes a formal of review of
regulations by Legislative Legal and Research Services. She
referred to a document in committee packets entitled "Steps in
the Regulation Adoption Process," and explained that this review
would come after the Department of Law opens the file [step 4]
but before the agency publishes and distributes public notice,
additional notice information, and regulations [step 5]. Under
the current statute, only the attorney general formally reviews
regulations. She pointed out that the attorney general's review
comes late in the process, when public comment has already been
closed, and after the review, the regulations are transmitted
for the lieutenant governor's office and, at this point, the
regulations are rarely changed. Under HB 424, the legislative
attorneys who actually draft the legislation that authorizes the
regulations would formally review those regulations promulgated
from the legislation that the agency drafted.
MS. COTTING relayed Representative Holm's sentiment that HB 424
should have a positive effect on Alaska's economy because the
regulations will reflect a more cooperative effort between the
administrative and legislative branches of government. The hope
is that with this process, a more stable business environment
will be created, perhaps even allowing the public to trust the
government more than it does now.
Number 0503
DAVID STANCLIFF, Staff to Senator Gene Therriault, Joint
Committee on Administrative Regulation Review, Alaska State
Legislature, informed the committee that one of his tasks this
year is to make government work better and find ways in which to
work cooperatively with the administration towards that goal.
He informed the committee that from the 1960s to the 1970s, the
number of bills introduced peaked at about 1,700. In the early
1990s, the number of bills introduced decreased to about 900 or
so with approximately 300 bills becoming law. However, the
situation with regulations is quite unlike that because there
are some 40,000 regulations now. He pointed out that
regulations have grown on an exponential curve. He highlighted
that promulgating regulations creates increases in costs
throughout government. Moreover, it's problematic for policy
makers to find out the costs associated with a regulation that
is promulgated. If one were to take the growth of regulations
to a point 20 years in the future, it would make today's fiscal
problems look tame, he predicted, and said that at some point,
regulation growth has so advanced that the legislature's ability
to deal with it is severely encumbered.
MR. STANCLIFF opined that the Alaska State Constitution blesses
the executive branch with a great deal of power. Furthermore,
the legislature has delegated law-making power to the executive
branch through "rule writing." There are two types of rules:
those based on legislation, and those based on policy. "The
executive [branch] is free because the legislature has granted
the authority to actually draft laws in the form of rules," he
pointed out.
Number 0731
MR. STANCLIFF said that the legislature and the executive branch
have another unique relationship in that the executive branch is
very involved in the legislative process and many in the
executive branch have free access to the legislative branch of
government. However, the contrary isn't the case when one
reviews what the legislature is able to do with regulations, Mr.
Stancliff noted, adding that at one time, there was a statute
that provided the legislature with the ability to annul
regulations, but that statute was found to be unconstitutional.
Furthermore, two ballot measures that would've allowed
legislative involvement [in the regulations process] have failed
to pass.
MR. STANCLIFF pointed out that throughout the country, the
history of administrative law is such that two troublesome areas
are having to be addressed, and one such area is being addressed
via this legislation. Several states have decided that perhaps
there should be more of a partnership between the executive and
legislative branches when dealing with regulations. For
example, the legislative legal staff in Minnesota draft the
regulations with the executive branch. However, the
aforementioned ability will not be provided in Alaska unless the
constitution is changed. Alaska has the ability, though, as
does Colorado, to peak over the shoulder of the executive branch
and offer an opinion when it looks as if what the legislature
intended isn't happening. When the aforementioned nonbinding
review occurs, those who write the regulations realize there is
a higher bar and thus they write the regulations more carefully.
MR. STANCLIFF said that although he didn't discuss the Alaska
Public Offices Commission regulations that are now being
reviewed at various levels within the legislature, he
characterized it as a timely issue in highlighting the need for
[the executive and legislative branches] to work in a more
cooperative role. Although some have suggested that legislative
staff could [review the regulations], he opined instead that
Legislative Legal and Research Services staff need [to review
the regulations] in order to obtain a quality of review similar
to what the attorney general performs. The Legislative Legal
and Research Services staff are intimately familiar with the
intent and nuances through every committee meeting and every
vote, he posited, because these folks are constantly in contact.
He added that whenever the drafters have a problem with regard
to how a proposed statute might dovetail with existing law, the
[legislature] often invites them to discuss it with the attorney
general in order to determine how to cooperatively draft better
legislation.
MR. STANCLIFF added, therefore, that the [legislature] would
like to receive the same deference in order to minimize public
conflict and mistakes, and ensure that the regulations which
pass through the public comment period look the same when they
are eventually put in place. Mr. Stancliff said that in
conversations with the Department of Law, he'd discovered that
somewhere around 25 percent of the regulations are sent back
after going through the public process, which he interpreted to
mean that the regulation that was finally adopted doesn't
exactly match the regulation on which the public commented.
However, he clarified that he isn't suggesting that all of those
were major problems, because some are technical and grammatical
corrections. Still, there are some that are troubling, which he
believes will be the case with the APOC regulations. "The goal,
here, is to work out of the 'Reg Review Committee,' both sides
of the legislature; [the] Department of Law is working very
cooperatively with us right now on this issue," he said.
Number 1081
MR. STANCLIFF turned to the issue of cost. He suggested that
the cost for a poorly written regulation is millions of dollars.
Unfortunately, an entity impacted by [a poorly written
regulation] cannot obtain resolution until the administrative
process is exhausted. He informed the committee that he is
tracking cases that have been open for 20 years. Therefore, a
small investment by the legislature in a cooperative regulatory
review process could result in huge returns in the private
sector and reductions through efficiency in the government
sector. Furthermore, he expressed hope that this would be part
of a package brought forth to the public illustrating that the
legislature wants government to work better.
CHAIR McGUIRE mentioned that as the former chair of the Joint
Committee on Administrative Regulation Review, she struggled
with ways in which to address the same problem Mr. Stancliff has
discussed. From the hearings on the legislation that she
introduced, she recalled that [a cooperative approach to
regulations] raises the level in drafting. The goal is to have
legislators think more thoroughly when proposing legislation
because frequently [the legislature] has failed to be as clear
as it can when drafting. Furthermore, because of the weight
given to the executive branch, there are few mechanisms [for
correction] that can be used. Moreover, the A.L.I.V.E.
Voluntary case made it clear that presentment to the governor is
required. Chair McGuire relayed that she likes this proposal
better than a sunset approach.
Number 1297
REPRESENTATIVE GRUENBERG requested the name of the case or cases
that specified that the legislature can't, via statute, change a
regulation.
CHAIR McGUIRE specified that it's the A.L.I.V.E. Voluntary case.
REPRESENTATIVE GARA expressed concern with the approach that
someone can be appointed from Legislative Legal and Research
Services to relate the intent of legislation during the
regulation drafting process. He said he knows what his intent
is when working on legislation and, hopefully, the legislature
has been clear enough that the courts can determine the intent
with the legislation.
MS. COTTING informed the committee that the forthcoming CS
allows the legislative attorney to approach the sponsor of the
legislation and discuss its intent.
MR. STANCLIFF acknowledged that it could be difficult to
interpret the intent of 60 people who voted for a measure for 60
different reasons. However, the Legislative Legal and Research
Services staff are capable of at least sounding an alarm, at
which point the leadership in the House and Senate will be
notified to ask if there should be review. He specified that
the Legislative Legal and Research Services staff aren't being
asked to make the final absolute judgment in such situations.
Hopefully, he concluded, the forthcoming CS will meet the
concerns [expressed by Representative Gara].
REPRESENTATIVE SAMUELS said he tended to agree.
CHAIR McGUIRE indicated that HB 424 would be held over.
The committee took an at-ease from 3:25 p.m. to 4:00 p.m.
HB 514 - CHILD SUPPORT ENFORCEMENT/CRIMES
Number 1485
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 514, "An Act relating to child support
modification and enforcement, to the establishment of paternity
by the child support enforcement agency, and to the crimes of
criminal nonsupport and aiding the nonpayment of child support;
amending Rule 90.3, Alaska Rules of Civil Procedure; and
providing for an effective date." [Before the committee was the
proposed committee substitute (CS) for HB 514, Version 23-
LS1639\I, Mischel, 2/21/04, which was adopted as a work draft
and amended on 2/23/04.]
Number 1560
REPRESENTATIVE SAMUELS moved to adopt proposed CS for HB 514,
Version 23-LS1639\S, Mischel, 2/26/04, as the work draft. There
being no objection, Version S was before the committee.
Number 1569
JOHN MAIN, Staff to Representative Pete Kott, Alaska State
Legislature, sponsor, presented, on behalf of Representative
Kott, the changes proposed in Version S. He pointed out that in
Section 1, line 9, the word "knowingly" has been placed before
"fails." In Section 3, starting on line 17, a whole new
subsection has been added regarding the definitions of "child",
"child support", and "lawful excuse".
CHAIR McGUIRE stated that committee members have all received a
letter from the attorney general's office regarding the term,
"without lawful excuse."
REPRESENTATIVE GRUENBERG opined that that letter does not seem
to track the definition as the committee previously discussed
it.
REPRESENTATIVE GARA said he worked with Representative Kott's
office to make sure that [a person] wouldn't get thrown into
jail unless the failure to pay was knowingly done and was an
amount that was affordable. This issue is addressed in the
definition of "without lawful excuse." Representative Gara said
Representative Gruenberg is also correct in that there were many
things that could be considered a lawful excuse. He noted that
[the bill] only addressed one definition and suggested adding
the wording, "and lawful excuse includes".
MR. MAIN, continuing with his presentation, pointed out that in
Section 5, line 17 says, "and unreasonably". He relayed that
Section 7 is a new section which says, "in this section, 'child'
and 'child support' have the meaning given in AS 11.51.120."
REPRESENTATIVE GRUENBERG asked Mr. Main to go over the sections
from Version I that were eliminated in Version S.
MR. MAIN said he would also discuss the deletions. He continued
to explain that Section 9, lines 24-25, is a new section that
was worked on in conjunction with the Department of Revenue
(DOR). In Version I, AS 47.07 was eliminated, but has been
added back into Version S, he said.
Number 1784
MR. MAIN continued to explain the changes to Version S. Section
10 (f) - which, in Version I, used to be [Section 9] (f) - now
says in part, "Peace officer powers granted by the agency under
this subsection may be exercised for protection in the line of
duty". Additionally, the phrases, "at some time" and "approved
by the commissioner of public safety" have been removed from
proposed AS 25.27.020(f)(1). He noted that in Section 10,
proposed [subsection] (g) contains all new language that was
requested by [the Department of Law (DOL)].
MR. MAIN referred to Section 1 of Version I and indicated that
subsection (a)(2) was deleted and the concept embodied in it is
now covered under Section 3 [of Version S].
MR. MAIN said the amendment to Version I offered by
Representative Ogg pertaining to, "without lawful excuse" has
been incorporated into Version S. He went on to remark that
when a misdemeanor is filed, the Child Support Enforcement
Division (CSED) can only charge for conduct that covers the
preceding five years. With a felony, the CSED can charge for
conduct that covers the previous ten years.
Number 1929
REPRESENTATIVE GRUENBERG asked if there is a 10-year statute of
limitation for [criminal non-support] and, if so, where in
statute that might be located.
MR. MAIN replied he did not have that information.
REPRESENTATIVE GRUENBERG said he would like to [be provided]
that information.
MR. MAIN said that child support, by its nature, spans an 18-
year commitment and is a continuing offense as opposed to a one-
time event such as a robbery. In Taylor v. State, [failure to
pay child support] became one continuous charge if a person
failed to pay over a period of time. He opined that it is
appropriate for the conduct charge to reach back 10 years
because criminal non-support is theft, even though the CSED does
not call it that. It has always been viewed as a domestic
issue, but it can be argued that a theft has occurred. He gave
an example of someone stealing $500 from a store and being
charged with a felony; however, current law allows a
noncustodial parent to steal thousands, and sometimes tens-of-
thousands, of dollars from his or her child and it is only
considered a misdemeanor.
MR. MAIN offered an example wherein the CSED filed against a
noncustodial parent with one child who was 18 years old and
another child who was 16 years old and emancipated, with the
emancipation having occurred six years ago. At the trial, the
defense argued that for the 16-year-old who was emancipated over
five years ago, the charges should be dismissed. A judge
dismissed the charge from the second child because the conduct
occurred outside the statute of limitations of five years. Had
there been a felony statute in place, the conduct would not have
been dismissed because the second child would have been
emancipated within the 10-year period. In that case, he
continued, the CSED proceeded to trial on only one child who was
currently 18 years old. The noncustodial parent, in that case,
was $55,736 in arrears. He noted that currently, if the
noncustodial parent can avoid paying child support for five
years past emancipation of his or her children, or five years
past the children's age of majority, the noncustodial parent
cannot be criminally charged no matter what the arrears or
conduct is and regardless of what the child support order
contains, whether it be for support for college, or for special-
needs children.
MR. MAIN explained that when it comes to probation of a felony,
versus probation for a misdemeanor, the success that the CSED
has had in convicted noncustodial parents making regular
payments is due to the fact that there is jail time waiting in
the wings if they stop paying. After conviction or plea, a
court can order informal probation for a term of up to ten years
and suspended jail time for a year. For a Class C felony, the
amount of formal probation is ten years, and the amount of
suspended jail time is five years. Misdemeanor convictions
receive informal probation, whereas felony probations are
formal, he explained. With felony probation, the defendant is
assigned a probation officer with the Department of Corrections
(DOC). The probation officer monitors compliance with the court
order to stay employed, to make monthly child support payments,
and follow the terms of probation ordered by the judge.
Number 2096
MR. MAIN said that the current situation with a misdemeanor
conviction requires that CSED investigators and assistant
district attorneys serve the function of a parole officer. They
are the ones who track compliance. When a defendant stops
working and paying, or drops out, the CSED and the assistant
district attorney file a petition to revoke probation, which
involves a separate case that requires a report by a CSED
investigator, a court filing, an arraignment, and a judicial
hearing. When a petition to revoke probation is adjudicated,
the CSED can request that the court impose those parts of the
criminal judgment that are suspended, unfulfilled, or unordered
by the court. For example, if the court orders 365 days in jail
with 360 suspended, the defendant would have served five days at
the time of conviction; then, at a petition to revoke probation
hearing, the CSED can ask that a portion of the remaining 360
days be imposed.
MR. MAIN said that the CSED can also ask the court to enforce
the criminal order that the noncustodial parents be employed.
In misdemeanors, it is common for the courts to re-assign the
defendant on the first petition to revoke probation. In a
criminal non-support context, the court is likely to tell a
defendant to get a job and start paying, and the defense
attorney is going to drag out the petition to revoke probation
by receiving continuances until the client is employed again.
When the case is adjudicated and the client is working and
paying again, the court is hesitant to incarcerate a
noncustodial parent.
Number 2176
MR. MAIN said that even if the court remands the defendant for
some of the suspended jail time, it is going to be assigned in
small allotments; in other words in 10-day, or 20-day
allotments. Because the CSED has no other tools, it has been
very successful in getting misdemeanor probation for 5 to 10
years. It's the only hook it has, at this point, and it's not a
very effective one. Ideally, a misdemeanor charge would mean
that a defendant is placed on probation for 3 to 5 years, and
the CSED would file one, maybe two petitions to revoke
probation, but no more, and after the second one, would be able
to file a felony [charge]. Or, when the conduct is appropriate,
the CSED would file a felony charge. Again, with a felony
conviction, there is a probation officer assigned to monitor the
noncustodial parent's compliance with employment, monthly
payments, and other conditions. The courts view a felony
petition to revoke probation very differently. For felony
probation, the felony officer files a petition, and the period
of suspended jail can be up to 5 years, and it is more likely
that the court will impose jail time. For a felony, by the
second petition to revoke probation, the argument will be much
stronger that the amount of jail time will be months, instead of
days. He said that this is appropriate for some of the conduct
that the CSED sees.
MR. MAIN said that with a misdemeanor charge, not all defendants
are treated the same. He gave an example of one person who had
a monthly obligation of $250, one child, arrears of $5,000, and
was employed seasonally. Another noncustodial parent had a
monthly obligation of $700, four children, two marriages,
arrears of $69,000, and was employed as a doctor or lawyer or
whose contracting business was transferred into another name.
Both of those examples had to be charged the same - with a
misdemeanor.
MR. MAIN requested that Sue Stancliff address the issue of
arming investigators.
Number 2275
SUE STANCLIFF, House Majority Office, Alaska State Legislature,
explained, on behalf of the sponsor, Representative Pete Kott,
that Section 10 gives CSED investigators the power of police
officers when enforcing child support laws. She went on to say:
The Department of Public Safety has commissioned CSED
investigators for 20 years. The commissions were
granted because [the] CSED had access to National
Crime Information Centers (NCIC). Their database from
the FBI was to locate noncustodial parents and assist
law enforcement agencies in parental kidnapping cases.
The FBI recognized [the] CSED as a law enforcement
agency when it granted access to the NCIC database.
The State of Alaska, under previous statute,
recognized [the] CSED as a criminal justice agency and
allowed the agency access to Alaska Public Safety
Information Network, which we all know as the APSIN.
Currently, CSED investigators hold a limited special
"Peace Officer Alaska State Trooper Without Weapon
Commission" to perform [the CSED's] criminal
investigation duties. These commissions grant them
the ability to do search warrants, testify at grand
jury, and issue criminal non-support citations. [The]
CSED has interior protection for its employees due to
the dangers experienced there, past and present. The
customer service center in Anchorage has bulletproof
glass now and Kevlar walls. I believe we probably all
recall recent articles in the paper that brought that
about. [The] CSED investigators were issued
bulletproof vests because of an incident that occurred
in 1995 where individuals brandished firearms.
MS. STANCLIFF said that in the past, CSED investigators have
requested assistance from the state troopers, and that Mr. Main,
former director of [the] CSED, would be able to give the example
because he'd had "first-hand experience."
TAPE 04-28, SIDE B
Number 2393
MR. MAIN explained that the situation was one in which an
individual had advised [division personnel] as well as FBI
personnel that he carried a firearm. Therefore, the Alaska
State Troopers were called for assistance. The dispatcher
simply turned around and called that investigator's division
office and forwarded the request for assistance back to the
CSED. Mr. Main specified that the CSED has requested assistance
from the Department of Public Safety (DPS), the Alaska State
Troopers, as well as the Anchorage Police Department (APD) on
more than one occasion, and in those instances, the
aforementioned entities have called the CSED directly to request
that the division assist its own people, or have given the CSED
its own phone number, thereby referring the CSED to itself.
REPRESENTATIVE SAMUELS offered his recollection that the
commissioner of the Department of Public Safety, William
Tandeske, had expressed concerns about whether the training CSED
investigators receive includes "shoot, no shoot" scenarios.
Representative Samuels directed attention to page 5, line 5, of
Version S and asked if that language includes all the deadly
force training or only refers to technical accuracy with a
firearm.
MS. STANCLIFF pointed out that [in order for an investigator to
carry a firearm the investigator must] complete a peace officer
training academy program as well as meet annual firearm
certification requirements. Ms. Stancliff mentioned that
although she knew the firearm certification requirements are
quite rigorous, she didn't know what they were exactly. She
characterized the peace officer training academy program as a
firm foundation. She highlighted that one must meet the annual
firearm certification requirements, emphasizing that it is an
annual certification . Ms. Stancliff said she assumes that the
annual firearm certification requirements would include when to
shoot and when not to shoot.
REPRESENTATIVE SAMUELS clarified that he was asking if the
annual firearm certification requirements included the judgment
portion, which is the most important portion of the training.
CHAIR McGUIRE interjected that she believes regulations will
have to be drafted regarding the requirements.
Number 2226
REPRESENTATIVE GRUENBERG expressed concern about dangerous
situations in which the CSED requested assistance and the
division wasn't given immediate assistance by law enforcement.
There should be no reason for that to occur, he opined. Just
because the CSED wasn't given the help it needed, Representative
Gruenberg said he didn't believe that it follows that the CSED
should be armed. He said he believes the solution is for the
CSED to obtain the help and assistance necessary from law
enforcement, and suggested perhaps including an intent section
or attaching a letter of intent specifying that [law
enforcement] should provide the CSED with all necessary
assistance as quickly as possible. There is no reason, he
stressed, that CSED staff should endanger themselves on a
nonsupport matter.
CHAIR McGUIRE announced that she supports "it." She pointed out
that the Alcohol Beverage Control Board investigators carry
firearms and yet those who are entering hostile situations in
which they are asking to take away significant assets from
enraged parents don't carry firearms. Chair McGuire indicated
agreement with Representative Samuels that the training should
include shooting judgment. She specified that everyone at the
CSED doesn't need to carry a firearm and what's being discussed
here is allowing the investigators to carry a firearm. She
requested that Mr. Main walk through some of the scenarios, and
noted that 33 states have made failure to pay child support
beyond certain years or levels, a felony. She asked if other
states authorize investigators in divisions equivalent to the
CSED to carry a firearm.
MR. MAIN answered that California's district attorney
investigators who perform family support for criminal purposes
are considered post-certified or police-standard certified and
carry firearms. Louisiana gives its child support enforcement
investigators the authority to carry a firearm. Oregon has a
law, although it doesn't arm its child support investigators.
Number 2034
MR. MAIN, in response to a question, explained that the
investigators currently working at the CSED have many years of
experience in law enforcement, including investigations. The
investigators of the CSED do surveillance, following an
individual to work in order to show that that individual has the
ability to pay. Sometimes CSED investigators interview
individuals at the Department of Revenue office building or in
the field. Some of these individuals have [been charged with or
been convicted of] violent crimes. Furthermore, [CSED
investigators] are called upon to respond when the CSED has a
threat at the CSED office, and this has occurred more than once
at the Anchorage facility.
MR. MAIN recalled that approximately a year ago, the CSED
received a threat from an individual who said he was coming to
the office. When that individual entered the building, the
current director of the CSED called the investigators, not the
Anchorage Police Department or the Alaska State Troopers. All
past directors of the CSED have responded in such a manner and
expected the investigators to protect the CSED. However, he
noted that he didn't respond in that manner because the
investigators aren't armed.
REPRESENTATIVE GRUENBERG asked if providing protection for the
agency is part of the job description.
MR. MAIN specified that the CSED's investigator position
description specifies that instigators are to respond to any
emergency situation, including threats.
REPRESENTATIVE GRUENBERG said that changes his thinking and thus
he said [CSED investigators] need the ability to protect the
agency. On a different issue, he suggested Mr. Main should
follow-up with regard to what the legislature can do to make
sure that [CSED investigators] have the protection necessary in
the field.
Number 1861
REPRESENTATIVE OGG posed a situation in which an investigator
gathers all the information he/she needs and confronts the
individual. In such a situation, who performs the arrest of the
individual, he asked.
MR. MAIN answered that arrests would be left for the Anchorage
Police Department or the Alaska State Troopers to perform. It's
not in the job description of CSED investigators to arrest
individuals. For misdemeanors, individuals are given a summons
or a citation instructing them to come to court. Sometimes the
U.S. Marshals have had to arrest individuals in cases involving
federal [jurisdiction].
REPRESENTATIVE OGG remarked that when the individuals have
committed felonies, these individuals are different characters
under the law. He pointed out that [law enforcement] can use
extreme force and sometimes deadly force when apprehending a
felon who is escaping. [Under this legislation, those who have
failed to pay child support] will now fall into [the felony
category]. Representative Ogg posed a situation under this
proposed statute in which [an individual who has failed to pay
child support] is determined to be a felon and that individual
takes off. He questioned what an armed investigator would do.
MR. MAIN answered that the investigator would allow the
individual to flee. He explained that the reason the
legislation specifies that [peace officers powers granted by the
agency may be exercised] is for protection in the line of duty.
"There is no reason ... for them to shoot anyone unless it's for
the protection of themselves or others," he specified. Mr. Main
emphasized that the investigators currently with the agency have
been trained extensively throughout the years and these
investigators, even if armed, know that they have no reason to
shoot a fleeing felon.
CHAIR McGUIRE highlighted that peace officer powers come with
all the obligations those powers carry. She said she assumes
that there would also be a policy crafted with regard to
granting peace officer powers.
Number 1689
CHAIR McGUIRE recalled that last year this committee heard
Representative Croft's legislation that allows anyone in the
state to carry a concealed weapon so long as the individual
isn't a felon. Chair McGuire remarked that it's the committee's
obligation to remember that legislation as well as keep policies
commiserate. For example, it seem ironic if the [policy] is
that any man or woman over the age of 18 who isn't a convicted
felon can carry a weapon, while a person who, as part of his or
her job description, is required to be the source of protection
for a department cannot.
REPRESENTATIVE GRUENBERG characterized Chair McGuire's comments
as very persuasive. He asked if the CSED office in Anchorage
employs any security measures, such as the screening that is
done at the court building.
MR. MAIN relayed that the CSED office in Anchorage is being
reviewed extensively with regard to providing security for the
entire building [the Atwood building]. This review is occurring
[partly] because the governor's office and the lieutenant
governor's office are located in that building as well. One of
the options that has been reviewed is something similar to [the
screening] that occurs at court buildings.
REPRESENTATIVE GARA turned attention to page 5 [line 4] and
asked if the investigators have to complete and pass a peace
officer training academy program.
MR. MAIN confirmed that the intent is for the investigators to
successfully complete a peace officer training academy program.
REPRESENTATIVE OGG drew attention to page 4, Section 10, and the
language specifying that peace officer powers may be used for
protection in the line of duty. Representative Ogg said that
the language is permissive, although it isn't limiting.
Therefore, when [an investigator] has the full range of police
officer powers, it would seem that [the investigators] would
have the ability and in fact have a duty to arrest a fleeing
felon.
CHAIR McGUIRE asked if there was any objection to altering the
language [on page 5, line 1] to read as follows: "exercised for
protection only in the line of duty."
MR. MAIN said he saw no problem with such a change.
Number 1422
REPRESENTATIVE OGG clarified that he didn't want to limit the
powers but merely wanted to be clear on the intent.
MR. MAIN noted that even the Anchorage Police Department won't
go after fleeing felons. In fact, there are policies in place
that specify when a chase is discontinued.
REPRESENTATIVE OGG expressed the need to be clear with regard to
whether the legislation only speaks to limiting CSED
investigators to protection only in the line of duty or whether
the broader power desired.
MR. MAIN clarified that the goal is to protect these [CSED
investigators], but not give them the broad power that would
[require] them to make arrests.
REPRESENTATIVE GRUENBERG pointed out that this also includes
protection of the office. He explained that he now supports
arming [CSED investigators] because, although [investigators]
can wait for the police to arrive when [in the field], [a CSED
investigator] can't wait for the police when an enraged obligor
arrives at the CSED office.
CHAIR McGUIRE remarked that she believes that [the language] is
clear enough, especially because if "we try to micromanage it
too much, we run into problems."
Number 1282
REPRESENTATIVE GARA moved that the committee adopt Amendment 1,
a handwritten amendment, which read [original punctuation
provided]:
Insert at p.2 line 25
after "efforts"
"and also includes any lawful excuse that is
otherwise provided by law."
CHAIR McGUIRE objected.
REPRESENTATIVE GARA explained that [this legislation] creates a
felony and a misdemeanor for those who don't pay child support.
The language in the statute specifies that if one doesn't pay
child support and has no lawful reason for not paying, then that
individual goes to jail. Therefore, the focus is with regard to
whether the individual has a lawful excuse for not paying child
support. Upon review of the cases, it seems that the failure to
pay has to be knowing [there is child support to pay] and
failure to pay an amount that the individual can pay. The
drafters placed most of the language dealing with the
aforementioned in the definition of a lawful excuse, he noted.
CHAIR McGUIRE specified that this language can be found on page
2, line 23 of Version S. She then pointed out that the
annotations for AS 11.51.120 specifies the following: "The
Alaska Court of Appeals interpreted 'without lawful excuse' to
mean that the state is required to establish, as an element of
criminal nonsupport under this section, that the accused had the
financial ability to pay the support - that is, that the accused
either actually had funds available for payment of support or
that he could have obtained such funds through reasonable
efforts."
REPRESENTATIVE GARA said that the previously referenced standard
is a good standard to put in the law. However, he pointed out
that now it would say that that is the only lawful excuse and
thus he asked if there are other lawful excuses. To be
cautious, he said he was thinking of adding language "or any
other lawful excuse".
MR. MAIN specified that the major lawful excuse would be that an
individual can't afford to pay the child support. He informed
the committee that of the $300 million in [child support] debt,
approximately 70 percent of those obligors make less than
$10,000 a year. In further response to Representative Gara, Mr.
Main informed the committee that after the investigators closely
scrutinize each case with regard to meeting the [lawful excuse]
criteria, each case is further scrutinized by the district
attorney assigned to the case. Mr. Main acknowledged that each
child support enforcement case is surrounded by different
circumstances and thus the issue becomes whether the individual
has the ability to pay or not.
REPRESENTATIVE GARA asked if Mr. Main would have any difficulty
with defining "lawful excuse" as specified in Amendment 1.
MR. MAIN replied that he has no problem with that, although he
said he didn't know what other lawful excuses there would be.
REPRESENTATIVE GRUENBERG pointed out that technically, someone
could have the ability to pay but legally have the money tied up
in a bankruptcy, injunction, or sequestration.
CHAIR McGUIRE interjected, "Or a piece of property they don't
want to sell."
REPRESENTATIVE GRUENBERG specified that not wanting to sell
isn't enough because an individual can be ordered to sell it.
Representative Gruenberg clarified that he is referring to
something that legally prevents the individual from [paying].
Number 0902
REPRESENTATIVE GRUENBERG then turned to the annotation to [AS
11.51.120] and suggested that this [proposed] statute not define
"lawful excuse" because the courts [have already done so].
Frankly, it would be simpler, he remarked. Furthermore, he said
he didn't believe "child support" needs to be defined because
it's an instance of tautology.
REPRESENTATIVE GARA disagreed and explained that "lawful excuse"
does need to be defined. In Alaska, the statute doesn't list
reasons why one might justifiably not pay child support.
Furthermore, the supreme court hasn't provided any guidance on
this. Other states have taken the approach the court of appeals
did [with Taylor v. State] by inferring that the legislature
meant, "unless you have no ability to pay," while others have
not inferred in that requirement. Representative Gara commented
that he liked the court of appeals rule and questioned why one
wouldn't include it in the law. He noted that New Mexico and
Tennessee follow a similar rule.
REPRESENTATIVE GRUENBERG said that he believes Amendment 1 would
be helpful otherwise the [courts] might say the [definition
specified in the legislation] is the only definition. However,
he pointed out that the number of reported decisions in criminal
cases in Alaska that reach the Alaska Supreme Court is miniscule
and usually involve procedural issues of a constitutional
nature. As a practical matter, a decision from the court of
appeals in Alaska is the court of highest appeal. Therefore,
Representative Gruenberg said he felt comfortable with the
[Taylor v. State] decision.
Number 0636
CHAIR McGUIRE expressed concern with regard to Amendment 1. She
said she didn't really know what the proposed language really
means. Furthermore, she said she didn't want to provide too
many excuses. She turned to the memorandum from the Department
of Law dated February 26, 2004, and offered the following: in
the Taylor case, the defendant argued that the language "without
lawful excuse" was impermissibly vague and, because of that, the
defendant charged that he didn't have sufficient notice of the
"precise conduct that [the] criminal nonsupport statute
purported to prohibit." She relayed that the memorandum said
the following: "The court found that: 'the statute, as
construed, affords adequate notice of the conduct it prohibits,
so that reasonable people need not guess at its meaning.'"
Chair McGuire said that although she is concerned with regard to
going beyond that, she did believe there is merit in including
it in statute.
REPRESENTATIVE GARA withdrew Amendment 1.
Number 0493
REPRESENTATIVE GRUENBERG moved that the committee adopt
Amendment 2, to delete from page 2, line 22, the language: "(2)
'child support' means support for a child;".
MR. MAIN, in response, explained that the Department of Revenue
felt that there was another way to address [the definition of
child support] but Legislative Legal and Research Services felt
that the language specified is how it should be addressed.
CHAIR McGUIRE announced that she supported leaving in [the
definition of child support].
Number 0414
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 2. Representatives Ogg, Samuels,
and McGuire voted against it. Therefore, Amendment 2 failed by
a vote of 2-3.
Number 0353
REPRESENTATIVE GRUENBERG moved that the committee adopt
Amendment 3, which read [original punctuation provided]:
Page 4 following line 9: Insert new bill section to
read:
*Sec.8 AS 12.55.139 is amended to read:
Penalties for criminal nonsupport In addition to other
penalties imposed for the offense of criminal
nonsupport under AS 11.51.120, the court may suspend,
restrict, or revoke, for the period during which the
arrearage continues to exist [FOR A PERIOD NOT TO
EXCEED SIX MONTHS], a recreational license as defined
in AS 09.50.020(c), if the defendant is a natural
person.
Renumber bill sections and bill section references
accordingly.
Number 0319
CHAIR McGUIRE objected for discussion purposes.
REPRESENTATIVE GRUENBERG explained that Amendment 3 would
increase the penalty under [AS 11.51].120. Furthermore, it
would increase the period that a recreational license can be
revoked. Currently, a recreational license can be suspended for
six months, which really isn't effective for a misdemeanor.
Amendment 3 will allow the court to "suspend, restrict, or
revoke, for the period during which the arrearage continues" and
thus put some teeth into this [penalty], he opined.
CHAIR McGUIRE removed her objection. There being no other
objection, Amendment 3 was adopted.
Number 0171
REPRESENTATIVE GRUENBERG moved that the committee adopt
Amendment 4, which read [original punctuation provided]:
Page 3 following line 10: Insert a new section to
read:
"(c) In addition to the provisions of (a) and (b)
of this section, aiding the nonpayment of child
support in the first degree is punishable by loss or
restriction of a recreational license as provided in
AS 12.55.139.
Page 4 following line 9: Insert new bill sections to
read:
*Sec. 8. AS 11.51.122 is amended to add a new
subsection to read:
(f) In addition to the provisions of (a)-(e) of this
section, aiding the nonpayment of child support in the
second degree is punishable by loss or restriction of
a recreational license as provided in AS 12.55.139.
*Sec. 9 AS 12.55.139 is amended by adding a new
subsection to read:
(b) In addition to other penalties imposed for the
offense of aiding the nonpayment of child support in
the first degree under AS 11.51.121 and for the
offense of aiding the nonpayment of child support in
the second degree under AS 11.51.122, the court may
suspend, restrict, or revoke, for a period not to
exceed one year, a recreational license as defined in
AS 09.50.020(c), if the defendant is a natural person.
Renumber bill sections and bill section references
accordingly.
Number 0168
CHAIR McGUIRE objected for purposes of discussion.
REPRESENTATIVE GRUENBERG explained that Amendment 4 references
Amendment 3 and allows the loss or restriction of a recreational
license.
CHAIR McGUIRE removed her objection. There being no other
objection, Amendment 4 was adopted.
Number 0125
REPRESENTATIVE GRUENBERG moved that the committee adopt
[Conceptual] Amendment 5, which read [original punctuation
provided]:
Page 3 following line 10: Insert a new subsection to
read:
"(c) In addition to the provisions of (a) and (b)
of this section, aiding the nonpayment of child
support in the first degree is punishable by loss or
restriction of a business license as provided in AS
12.55. 139.
Page 4 following line 9: Insert new bill sections to
read:
*Sec. 8. AS 11.51.122 is amended to add a new
subsection to read:
(f) In addition to the provisions of (a)-(e) of this
section, aiding the nonpayment of child support in the
second degree is punishable by loss or restriction of
a business license as provided in AS 12.55.139.
*Sec. 9. AS 12.55.139 is amended by adding a new
subsection to read:
(b) In addition to other penalties imposed for the
offense of aiding the nonpayment of child support in
the first degree under AS 11.51.121 and for the
offense of aiding the nonpayment of child support in
the second degree under AS 11.51.122, the court may
suspend, restrict, or revoke, for a period not to
exceed one year, a business license issued under AS
43.70.
Renumber bill sections and bill section references
accordingly.
Number 0070
CHAIR McGUIRE objected for purposes of discussion.
REPRESENTATIVE GRUENBERG explained that [Conceptual] Amendment 5
states that for aiding and abetting [the nonpayment of child
support], an individual can lose his or her business license.
This would also put some teeth into [the penalties for
nonpayment of child support], he opined.
TAPE 04-29, SIDE A
Number 0001
REPRESENTATIVE GRUENBERG, in response to Representative Samuels,
said that aiding and abetting is a statutorily-defined basic
crime.
REPRESENTATIVE SAMUELS surmised, "You're paying them under the
table for the reason of getting away from child support
payments."
CHAIR McGUIRE said, "And, there is the mental intent of
'knowingly', correct?"
REPRESENTATIVE SAMUELS replied, "Absolutely."
REPRESENTATIVE GARA said he felt it was too harsh to remove the
business license, and going to jail was enough of a sanction.
REPRESENTATIVE OGG said there seemed to be "typos" in that both
amendments 4 and 5 reference the same subsections.
REPRESENTATIVE GRUENBERG offered his amendment as conceptual.
He said his intent is to deter criminal conduct and to enforce
compliance with the child support law. Having [Conceptual
Amendment 5] as a potential sanction for businesses may be far
more effective than anything else, he opined. He said he wanted
the court be able to suspend a business owner's license, but
suspend that portion of the sentence, if the defendant is
compliant.
REPRESENTATIVE SAMUELS agreed with Representative Gara because
of the potential harm to the employees of a suspended business.
CHAIR McGUIRE asked if there was any further discussion. She
maintained her objection [to Conceptual Amendment 5].
Number 0325
A roll call vote was taken. Representative Gruenberg voted in
favor of Conceptual Amendment 5. Representatives Ogg, Samuels,
Gara, and McGuire voted against it. Therefore, Conceptual
Amendment 5 failed by a vote of 1-4.
Number 0377
REPRESENTATIVE SAMUELS moved to report the proposed CS for HB
514, Version 23-LS1639\S, Mischel, 2/26/04, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 514(JUD) was
reported from House Judiciary Standing Committee.
ADJOURNMENT
Number 0382
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:20 p.m.
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