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