Legislature(1993 - 1994)
04/08/1994 01:15 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 8, 1994
1:15 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice-Chair (1:40)
Rep. Pete Kott
Rep. Gail Phillips
Rep. Joe Green
Rep. Cliff Davidson
Rep. Jim Nordlund (1:45)
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HB 360: "An Act relating to civil liability for guest
passengers on an aircraft or watercraft; and
providing for an effective date."
HEARD AND MOVED OUT OF COMMITTEE AS AMENDED,
WITH INDIVIDUAL RECOMMENDATIONS AND ZERO
FISCAL NOTE.
HJR 60: Relating to an amendment to the Constitution
of the United States prohibiting federal
courts from ordering a state or a political
subdivision of a state to increase or impose
taxes.
HEARD AND MOVED OUT OF COMMITTEE
SB 321: "An Act relating to the taking of a legible
set of fingerprints when a person is
arrested, upon initial appearance or
arraignment, upon the conviction of the
person, and when the person is received at a
correctional facility, and providing that the
set of fingerprints shall be provided to the
Department of Public Safety; relating to
criminal and crime records and information;
requiring the reporting of information
concerning homicides and suspected homicides
to the Department of Public Safety for
analysis; requiring the Department of Public
Safety to participate in the Federal Bureau
of Investigation, Violent Criminals
Apprehension Program."
HEARD AND HELD
HB 362: "An Act relating to the statute of
limitations for actions brought upon a child
support judgment; and establishing the crime
of aiding the nonpayment of child support."
HEARD AND MOVED OUT OF COMMITTEE WITH
INDIVIDUAL RECOMMENDATIONS AND ZERO FISCAL
NOTE
WITNESS REGISTER
REP. CON BUNDE, Sponsor, HB 360
Alaska State Legislature
Room 112, State Capitol
Juneau, AK 99801-1182
Phone: 465-4843
POSITION STATEMENT: Testified in support of HB 360.
MIKE SCHNEIDER
Alaska Academy of Trial Lawyers
540 L Street, Suite 206
Anchorage, AK 99501
Phone: 258-4040
POSITION STATEMENT: Testified via teleconference from
Anchorage with analysis and
recommendations concerning of HB 360.
JOHN GEORGE, Lobbyist
National Association of Independent Insurers
9515 Moraine Way
Juneau, AK 99801
Phone: 789-0172
POSITION STATEMENT: Testified in regard to HB 360.
DEAN J. GUANELI, Chief
Legal Services Section
Assistant Attorney General
Criminal Division, Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Phone: 465-3428
POSITION STATEMENT: Testified in regard to HB 321.
REP. AL VEZEY, Sponsor, HJR 60
Alaska State Legislature
Room 102, State Capitol
Juneau, Alaska 99801-11182
Phone: 465-3719
POSITION STATEMENT: Testified in support of HJR 60.
DANIELLA LOPER, Committee Counsel
House Judiciary Committee
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99811
Telephone: 465-6841
POSITION STATEMENT: Testified regarding HJR 60 and HB 362
MARY GAY, Director
Child Support Enforcement Division
550 W. 7th Street, Suite 312
Anchorage, AK 99501-3556
Phone: 269-6800
POSITION STATEMENT: Testified in support of HB 362.
PHILLIP PETRIE, Operations Manager
Child Support Enforcement Division
550 W. 7th Street
Anchorage, AK 99501-3556
Phone: 269-6800
POSITION STATEMENT: Testified in support of HB 362.
PREVIOUS ACTION
BILL: HB 360
SHORT TITLE: AIRCRAFT/WATERCRAFT GUEST PASSENGER LAW
SPONSOR(S): REPRESENTATIVE(S) BUNDE
JRN-DATE JRN-PG ACTION
01/11/94 2032 (H) READ THE FIRST TIME/REFERRAL(S)
01/11/94 2032 (H) LABOR & COMMERCE, JUDICIARY
03/24/94 (H) L&C AT 03:00 PM CAPITOL 17
03/24/94 (H) MINUTE(L&C)
03/28/94 2994 (H) L&C RPT CS(L&C) 2DP 2NR
03/28/94 2994 (H) DP: PORTER, MULDER
03/28/94 2994 (H) NR: HUDSON, SITTON
03/28/94 2994 (H) -ZERO FISCAL NOTE (LAW)
3/28/94
04/08/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HJR 60
SHORT TITLE: AMEND US CONSTIT. TO LIMIT FED. COURTS
SPONSOR(S): STATE AFFAIRS
JRN-DATE JRN-PG ACTION
02/28/94 2550 (H) READ THE FIRST TIME/REFERRAL(S)
02/28/94 2550 (H) STATE AFFAIRS, JUDICIARY
03/08/94 (H) STA AT 08:00 AM CAPITOL 102
03/08/94 (H) MINUTE(STA)
03/09/94 2671 (H) STA RPT 6DP
03/09/94 2671 (H) DP:VEZEY,KOTT,SANDERS,G.DAVIS
03/09/94 2671 (H) DP:OLBERG, B.DAVIS
03/09/94 2671 (H) -ZERO FISCAL NOTE (GOV) 3/9/94
04/08/94 3215 (H) JUD RPT 3DP 3NR
04/08/94 3215 (H) DP: KOTT, JAMES, PORTER
04/08/94 3215 (H) NR: GREEN, NORDLUND, DAVIDSON
04/08/94 3215 (H) -PREVIOUS ZERO FISCAL NOTE
(GOV) 3/9/94
04/08/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: SB 321
SHORT TITLE: FINGERPRINTING AND CRIME RECORDS
SPONSOR(S): SENATOR(S)HALFORD,Phillips,Kerttula,Taylor,
Pearce,Donley,Leman,Little,Miller,Sharp
JRN-DATE JRN-PG ACTION
02/14/94 2832 (S) READ THE FIRST TIME/REFERRAL(S)
02/14/94 2832 (S) JUD, FIN
03/02/94 (S) JUD AT 01:30 PM BELTZ ROOM 211
03/02/94 (S) MINUTE(JUD)
03/07/94 3087 (S) JUD RPT CS 4DP NEW TITLE
03/07/94 3088 (S) ZERO FNS TO SB & CS PUBLISHED
(DPS-2)
03/15/94 (S) FIN AT 08:30 AM SENATE FIN 518
03/15/94 (S) MINUTE(FIN)
03/16/94 3240 (S) FIN RPT CS 5DP 1NR NEW TITLE
03/16/94 3241 (S) PREVIOUS ZERO FNS APPLY (DPS-2)
03/16/94 (S) RLS AT 00:00 AM FAHRENKAMP
ROOM 203
03/16/94 (S) MINUTE(RLS)
03/16/94 (S) FIN AT 09:00 AM SENATE FIN 518
03/21/94 3293 (S) ZERO FISCAL NOTE PUBLISHED
(CORR)
03/22/94 3317 (S) RULES TO CALENDAR 4CAL 1NR
3/22/94
03/22/94 3319 (S) READ THE SECOND TIME
03/22/94 3320 (S) COSPONSOR(S): KERTTULA, TAYLOR,
PEARCE,
03/22/94 3320 (S) DONLEY, LEMAN, LITTLE, MILLER,
SHARP
03/22/94 3320 (S) FIN CS ADOPTED UNAN CONSENT
03/22/94 3320 (S) ADVANCED TO THIRD READING
UNAN CONSENT
03/22/94 3320 (S) READ THE THIRD TIME
CSSB 321(FIN)
03/22/94 3321 (S) PASSED Y20 N-
03/22/94 3324 (S) TRANSMITTED TO (H)
03/23/94 2924 (H) READ THE FIRST TIME/REFERRAL(S)
03/23/94 2924 (H) FINANCE
03/25/94 2980 (H) FIN REFERRAL WAIVED
03/25/94 2980 (H) JUD REFERRAL ADDED
03/28/94 (H) JUD AT 01:00 PM CAPITOL 120
04/08/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 362
SHORT TITLE: CHILD SUPPORT:CRIMINAL/CIVIL REMEDIES
SPONSOR(S): REPRESENTATIVE(S) MARTIN,B.Davis
JRN-DATE JRN-PG ACTION
01/11/94 2033 (H) READ THE FIRST TIME/REFERRAL(S)
01/11/94 2033 (H) HES, JUDICIARY
01/13/94 2056 (H) COSPONSOR(S): B. DAVIS
02/22/94 (H) HES AT 03:00 PM CAPITOL 106
02/22/94 (H) MINUTE(HES)
03/25/94 (H) HES AT 03:00 PM CAPITOL 106
03/25/94 (H) MINUTE(HES)
03/28/94 2994 (H) HES RPT CS(HES) NEW TITLE
4DP 3NR 2AM
03/28/94 2995 (H) DP: BUNDE, TOOHEY, B.DAVIS,
BRICE
03/28/94 2995 (H) NR: G.DAVIS, OLBERG, NICHOLIA
03/28/94 2995 (H) AM: KOTT, VEZEY
03/28/94 2995 (H) -ZERO FISCAL NOTE (REV) 3/28/94
04/08/94 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
The House Judiciary Standing Committee was called to order
at 1:30 p.m. on April 8, 1994. A quorum was present.
Chairman Brian Porter announced that the committee would
begin with HB 360.
TAPE 94-58, SIDE A
Number 000
Chairman Porter welcomed the sponsor of HB 360, Rep. Con
Bunde.
HB 360 - AIRCRAFT/WATERCRAFT GUEST PASSENGER LAW
Number 031
REP. CON BUNDE: "This bill concerns the liability and the
presumed shared liability in travelling in Alaska on both
light aircraft or by small boat, that limits the civil
liability that an owner or an operator of an aircraft or a
watercraft would have for injuries to passengers when these
aircraft or watercraft are not paid forms of transportation.
This limited liability does not, however, cover gross
negligence or reckless or intentional misconduct. It's
simply an attempt to encourage folks to be able to take
passengers along and share their recreational opportunities
without jeopardizing their entire estate over what could be
I guess called `Act of God' accidents. Though, certainly,
as I have indicated, it does not disallow recovery for gross
negligence or intentional misconduct."
Number 064
REP. JIM NORDLUND requested a definition of compensation in
this context; would it include, say, a token payment
contributed up front for gas?
REP. BUNDE replied that such a contribution would not be
compensation, that is, would not be paying for
transportation; rather, it would be sharing in expenses.
REP. NORDLUND wondered if a definition of a token payment
might be arrived at and concluded that would be up to the
court.
REP. BUNDE responded that, while he was not a lawyer, he
would interpret it as there being no profit involved.
REP. NORDLUND: "Okay."
CHAIRMAN PORTER: "And there might not be anyway...but no
intention of a profit." Chairman Porter invited the next
person to testify.
Number 094
MIKE SCHNEIDER, Alaska Academy of Trial Lawyers, testified
via teleconference in Anchorage with regard to HB 360.
"Looking at this bill, I think you have a clear choice
between attempting to encourage people to take passengers in
their vehicles for free versus encouraging people to operate
aircraft and watercraft safely, and I would encourage the
latter, not the former. I would discourage support for this
bill.
"The rest of my comments, though, are going to assume that
this bill is going to move forward, and they are going to be
directed to how I think this bill could be improved to
address concerns of the very constituency that I assume Rep.
Bunde is interested in dealing with. I happen to operate
watercraft very occasionally, and aircraft, regularly.
Under this bill I cannot, because nobody makes a market for
this kind of coverage. There is no nonfault based coverage
out there for anything except possibly medical expenses. I
can't protect my family, and I can't protect my guest
passengers, even if I want to, under this bill, if you pass
it the way it is.
"If you amend it such that I can be liable but only up to
the extent of available insurance coverage, then I still get
the immunity that Rep. Bunde is interested in. In other
words, I don't subject my entire estate or any part of my
estate to liability, I only subject my insurance carrier to
exposure to the extent of that which I contracted for and
paid a premium for. And then I can protect my family and my
friends at least up to some minimal limit. And at the same
time by this bill the balance of my estate will be
protected. So if you pass this bill the way it is, not only
are you discouraging people from being as careful as they
possibly can when operating dangerous vehicles, but you're
absolutely eliminating the ability of aircraft and
watercraft operators to go out and protect their passengers,
whom some of us would sure like to protect.
"My other concern is, I think people should appreciate that
this bill may be a trap for the unwary."
Number 174
MR. JOHN GEORGE, lobbyist, National Association of
Independent Insurers, testified regarding HB 360. Mr.
George said he felt Mr. Schneider offered "an interesting
idea, sort of a voluntary liability system...." He said he
did not foresee objections to such a system. Mr. George
discussed the overt and more subtle pressures on boat and
plane owners from people wishing to just come along, or
catch a ride... "And," Mr. George remarked, "you're just
crazy to take someone along if you don't have specific
insurance to cover that. Because in airplanes and boats,
the potential for a serious accident is always there.
Hypothermia and hitting the ground from 5,000 feet generally
are fairly serious events. And so, you just can't take the
chance. So you either have to go out and buy insurance -
and then the question is, how much do I buy? If I buy
$100,000 and they sue me for $500,000, I'm still $400,000 in
the hole."
MR. GEORGE concluded, "I think Mr. Schneider has an
interesting and innovative idea, and I think we would have
no objection to that concept... where, if you want to buy
the coverage, you certainly can, but if you fail to, or you
only buy, say, $25,000 worth, then that's the amount that
you're exposed to. So you can protect your passengers if
you deem that appropriate. If you don't, then tell them you
don't have any and they take their own risk."
REP. NORDLUND said he had prepared an amendment after
speaking the previous day with Mr. Schneider and was
prepared to pass it out when amendments were being
entertained.
REP. BUNDE: "I think Mike presents a reasonable alternative
to all-or-nothing, and I believe the amendment would
strengthen the bill."
CHAIRMAN PORTER: "If there are no further questions, let's
hear the amendment. For the purposes of identification
let's mark this Amendment #1."
Number 237
REP. NORDLUND: "Mr. Chairman, I move Amendment #1."
CHAIRMAN PORTER: "Amendment #1 has been moved.
Discussion?"
REP. NORDLUND presented his amendment, which imposed a limit
on the liability of private individuals with regard to
accidents that might occur on their planes or boats. If the
individual chose to buy insurance to cover guests or family
members he would not be liable for civil damages exceeding
the amount of insurance he had voluntarily purchased.
CHAIRMAN PORTER: "Mike, are you still on the line? I'm a
little confused. I thought that I heard you say that there
was not insurance available."
MR. SCHNEIDER explained that if HB 360 were to be passed as
is, without Rep. Nordlund's amendment, there would be no
appropriate insurance available to these boat or plane
owners, because with the exception of medical insurance,
coverage was fault-based. "But," he said, "with the
amendment, I could still go buy my identical policy that
gives me $200,000 a seat, inadequate though it may be; I
could provide my passengers with that much protection and my
estate would be immune from anything beyond that."
CHAIRMAN PORTER: "Any further discussion on Amendment #1?
Is there objection? Seeing none, Amendment #1 is adopted.
What is the wish of the committee?"
REP. JEANNETTE JAMES: "I would move that we pass out the
Labor and Commerce committee substitute, as amended, which
will then be the Judiciary CS, with zero fiscal note and
individual recommendations."
CHAIRMAN PORTER: "We have a motion to move, as amended, the
bill with individual recommendation and zero fiscal note.
Is there discussion? Objection? The bill is moved."
REP. BUNDE thanked the committee.
There was a brief discussion on how long it would take to
prepare the CS and transmit the bill to the next committee;
Chairman Porter assured Rep. Bunde this would be
accomplished as soon as possible.
Number 345
The next bill to have been considered was HJR 60; however,
the sponsor, Rep. Vezey, was not yet present to present his
testimony. The committee continued with SB 321.
CSSB 321 - FINGERPRINTING AND CRIME RECORDS
CHAIRMAN PORTER: "The next bill to be considered, and we'll
be considering this, not moving it, is CS for SB 321." Rep.
James asked if a similar bill had not already been passed.
Chairman Porter acknowledged this and recognized DEAN J.
GUANELI, DEPARTMENT OF LAW, to speak on SB 321 and its
origins, but first he presented some background himself.
CHAIRMAN PORTER: "Let me see if I can track why we're
hearing this bill, for the information of the committee.
Dean, if I am misspeaking, or this doesn't sound correct to
you, let me know. The bill that we heard had part of this
bill in it, and part of this bill was not in it. This bill
basically contains two sections: (1) addressing the
fingerprint part of the criminal records bill that we heard;
(2) participation by the state in a VICAP (Violent Criminals
Apprehension Program) program which I'm sure Dean will tell
us about. The portion that we are in effect rehearing was
deleted from the bill that we sent to the Senate for some
reason. Consequently, this bill with the new section and
the other bill as it now remains if both passed would meet
and surpass the goals of the original bill we have heard."
REP. NORDLUND: "It would surpass? It wouldn't be equal to
the original bill?"
CHAIRMAN PORTER: "It would be more than the bill that we
heard originally because within this is this participation
in the VICAP program which isn't in that other bill and
wasn't in that other bill. Was that fair?"
DEAN J. GUANELI, Chief, Legal Services Section, Assistant
Attorney General, testified regarding CS HB 321. He said,
"Almost. The bill that passed the House, I think it was
close to unanimously, if not unanimously, is working its way
through the Senate and it still is intact. The fingerprint
provision (is) in this bill, because of Senator Halford's
fear that the APSIN bill would not make it all the way
through the Senate, and it was his feeling, and I agree,
that kind of the linch pin of that whole program is the
mandatory fingerprinting provision. And so he said, `Well,
I'll throw that into this bill, as well, so that we can make
sure that if nothing else happens, at least the mandatory
fingerprinting provision will get through.'
"I believe that the House bill has a good chance of making
it through the Senate. And, if it does, then we will have
the fingerprinting provision in that, as well. But that's
the reason why you have it in here. The fingerprinting
provision was stripped out of the Senate's version of the
APSIN bill, which I think is still working its way through
the Senate. I know it's a little confusing, but that's the
situation.
"In any event, the other portion of this bill makes the
state law enforcement agencies a participant in what's known
as the VICAP program: it's the Violent Criminals
Apprehension Program in conjunction with the FBI. What that
does is, it collects information about solved and even
unsolved murders in states. The FBI compiles that
information and they keep track of serial killers in that
way. They've found it very helpful in tracking these people
as they move through the states and trying to put together
little pieces of investigations - an agency in one state
will do an investigation, an agency in another state will do
an investigation, and the FBI will sort of meld those
together, find out that there are similarities and try to
apprehend the person before he kills again. So, this
requires, then, the police agencies in Alaska to submit
reports to the FBI, and if the FBI says, `Yes, that's the
report we're interested in,' then some additional
information goes to the FBI that then can help us solve,
perhaps, some unsolved killings. That's what the second
part of the bill does. So I hope that that answers the
questions about this procedurally and substantively."
CHAIRMAN PORTER: "Is there anyone else that wishes to
testify on SB 321? Any other questions for Dean? Seeing
none, what is the wish of the committee?"
REP. JAMES: "I thought we don't want to do this."
CHAIRMAN PORTER: "I'm sorry, that's right. We're going to
hold the bill for right now. Are there any other questions
about the bill before we put it away?"
REP. CLIFF DAVIDSON: "Are we waiting for something on the
bill?"
CHAIRMAN PORTER: "Yes."
REP. DAVIDSON: "Politics?"
CHAIRMAN PORTER: "Politics."
REP. NORDLUND: "Somebody wants to kill the other bill in
the Senate, is basically what we're saying here, and this
one is hedging our bets; at least, providing for the
important part of the other bill."
CHAIRMAN PORTER: "Fair enough."
REP. NORDLUND: "You couldn't say that, but I can say that."
HJR 60 - AMEND US CONSTIT. TO LIMIT FED. COURTS
CHAIRMAN PORTER invited Rep. Vezey to present HJR 60.
Number 485
REP. AL VEZEY: (Background noises impair sound.) "HJR 60
is a response to a move that is being coordinated by the
representatives in Missouri to initiate a constitutional
amendment that would provide a ban on the federal courts
mandating that state and local governments impose taxes to
enforce court orders, and things of that nature. There are
two means of amending the United States Constitution, and
this is requesting that the Congress propose to the states
ratification of an amendment to the U.S. Constitution that
would prohibit the courts from imposing taxes upon political
subdivisions of the United States."
Number 501
REP. DAVIDSON: "Rep. Vezey, are there instances in Alaskan
state history where in fact a federal court has mandated
such a tax issue? Where are other examples of such --
Could you put some example language into our focus here so
that we can understand exactly where some of this has
occurred in the past?"
Number 512
REP. VEZEY: "In the State of Alaska the courts have never
ordered the state to impose a tax. The federal government
has mandated many, many things upon the State of Alaska
which have come out of the state's general revenues. We
have never been in a position of having to impose a tax to
fund those mandates."
REP. DAVIDSON: "So, may I ask you right there, at that
point --This would cover, any federal mandates that would
result in the necessity of the state coming up with more
revenue?"
Number 521
REP. VEZEY: "In my opinion the answer to that is yes.
You're talking a little gray area there. The federal
government says, do something, other states have told the
federal government we don't have the money, courts have
ordered the states to impose a property tax or a sales tax
or an income tax. States have been mandated to impose taxes
to carry out federal mandates."
Number 527
REP. DAVIDSON: "Examples of those?"
REP. VEZEY: "I don't have the specific cases. I happen to
know one of the biggest ones is in Kansas City, Missouri."
REP. NORDLUND: "Rep. Vezey, in the resolve it says that the
court basically can't order a political subdivision to
increase or impose taxes. I understand that there are
mandates that we are compelled to do that, as a result,
sometimes make us, or other states, increase taxes. But
that's not what the resolution says. I've never heard of a
situation where any court has ordered a state to impose a
tax."
REP. VEZEY: "They have."
REP. NORDLUND: "They have?"
REP. VEZEY: "That's why this initiative is from Missouri,
one of the most blatant cases occurred in Kansas City,
Missouri."
Number 530
REP. NORDLUND: "Now, how would that affect possible bond
ratings for the state? When we give our full faith and
credit to make payment on those bonds? The reason why those
bonds are guaranteed to the bondholders is that, if all else
fails, the state is willing to raise a tax to pay off
bondholders. And if we didn't have that, it would seem to
me, if we weren't compelled to do that, it seems to me that
it would make the cost of bonds go up and it would be -
(indiscernible - interrupted by Rep. Vezey.)
REP. VEZEY: "I fail to see how that question is germane to
this matter that is before us. The federal government has
never, to my knowledge, entered into a state dead issue.
It's the full faith and credit of the state of Alaska that
we bond on, not the full faith and credit of the United
States government."
Number 554
CHAIRMAN PORTER: "I think the jurisdiction for these cases
would be in state court."
REP. JAMES: "Well, I wanted to make a statement about this
resolution, because it certainly is something that I've been
very aware of for a long time. And that is the separation
of powers. And I know in other cases there have been a lot
of times, and not necessarily in federal courts, where I see
the courts making rules that really are interfering with the
other powers of the government. And I don't know how much
more clearly we need to put that in the constitution. I
would think that we would already have that protection. But
I know that it's not there, because federal courts seem to
be supreme."
REP. VEZEY: "Well, the Supreme Court of the United States
has said that the federal courts have the authority to do
this."
REP. JAMES: "So I really support this resolution, because
it does get to the heart of what I think is one of our
problems."
REP. NORDLUND: "But in this state we don't have a problem,
at least, we don't have a problem yet, in this state. I'm
not sure if Rep. James is talking about another situation,
but, at least in this state, no federal court has ordered us
to impose taxes."
REP. JAMES: "That is true. They haven't. And we want to
be sure they don't. And I think that we have an obligation
to our sister states, if one state is offended, I think it's
something that we could be subject to, that we have an
obligation to find some support for our sister states."
Number 579
REP. JOE GREEN: "What was the situation in Kansas City?"
REP. VEZEY: "It's been several years since I read that
case. I didn't read the case, just read the news around it,
but the federal court ordered the unified municipality of
Kansas City, Missouri, to impose a property tax to fund a
charter school system for the minority students in a certain
part of the city or a certain political subdivision of that
municipality, or something. The subject was, creating a
school for minority groups in what would typically be called
more of a ghetto area, to act as a magnet to draw other
people into it. It was a big social experiment. And the
city of Missouri was ordered to fund it."
Number 599
REP. GREEN: "This was not a contractual thing, this was a
civil rights issue that had come down from the feds?"
REP. VEZEY: "I don't remember. I didn't even read the
case. What authority the court used to do this, I don't
know. But it was a brought to the Supreme Court, and it was
upheld that the courts had the right to do that. It was
under the courts' general authority over civil rights, yes."
REP. GREEN: "That's what I was getting at. It wasn't
enforcement of any kind of any kind of a contract, then. It
was a mandate from the federal government - "
REP. VEZEY: "To enforce a federal policy."
CHAIRMAN PORTER: "I see no one else signed up to testify on
this bill. Is there anyone else that wishes to give
testimony on HJR 60?"
Number 610
REP. PETE KOTT: "I certainly support this measure. I don't
think we ought to wait on the sidelines and have some
negative action come about taking some form of preemptive
strike. I do have a question to the sponsor that was
probably overlooked during the first hearing on this in
State Affairs on the resolve clause. We're asking
legislators of all the states to join us to secure
ratification of the proposed amendment. And that's what's
going to happen. We're going to have to have an amendment
before the states. The question I guess I have, which I'm
not sure we really addressed in State Affairs, has there
been an amendment proposed by a member of Congress?
REP. VEZEY: "To my knowledge, the answer to that is no.
But that is not to say there hasn't been one buried in some
committee somewhere."
DANIELLA LOPER, Committee Counsel, said that she believed an
amendment had been drafted by one state which was asking
other states to follow suit.
REP. VEZEY: "Well, there are, I believe, 26 states have
already done this, is the information I have. The states
cannot propose amendments to the Constitution. Three-
quarters of the states can call for constitutional
convention, which current constitutional law implies there
will be no limit on the subject matter before the
convention; or a majority of Congress can propose for
ratification by, I believe, it's three-quarters of the
states, a constitutional amendment. And this is merely a
petition to Congress to ask Congress to propose for
ratification to the states, for a constitutional amendment."
MS. LOPER: "The two major areas that this bill looks at are
the funding of education and the funding of prisons."
CHAIRMAN PORTER: "This bill?"
MS. LOPER replied affirmatively.
REP. VEZEY: "I would characterize it as broader than that.
You could say that, but I would characterize it as broader."
Number 644
REP. DAVIDSON petitioned the committee to engage the
expertise of constitutional scholars before moving forward a
resolution which could potentially affect the Constitution
of the United States. Rep. Davidson expressed appreciation
for the intent of the resolution but encouraged committee
members to be more fully informed before acting on the
resolution. He asked if Rep. Vezey would be gathering any
further expertise to present a fuller picture of the
legislation.
Number 677
CHAIRMAN PORTER: "While I understand that this is no small
area of consideration, I think a general understanding, at
least on my part, has been obtained from listening to Rep.
Vezey explain what it is that we're asking to be done here,
is, as with 26 other states, we are asking the Congress to
initiate an amendment covering this subject that would then
be subject to a requirement of a three-quarters state
ratification. So this, our action today, is not going to
cause anything to happen tomorrow, believe me, and it is a
long process, and nothing would happen in any event in terms
of affecting the Constitution until the next phase, for this
state, which would be consideration of the ratification of
an actual proposed amendment. So this is just kind of
sending a letter to our delegation saying, hey, how about
considering this? I'm comfortable this is isn't going to
cause anything to happen that we're not in control of."
Number 691
REP. DAVIDSON: "I guess that's fine, I guess I'm
uncomfortable with it because of the lack of information
available."
CHAIRMAN PORTER: "Sure. Rep. Kott?"
Number 703
REP. KOTT: "I think you've pretty much clarified the intent
of the resolution. We're doing nothing more than asking
Congress to take some action to pass a proposal that would
amend the United States Constitution, and I think we all
know that it's pretty tough to amend the U.S. Constitution.
In each congressional session there are over 1,000
proposals. But none of them make it out of one house or the
other. They just kind of die in Congress. And I think when
you look at the ones that have made it out, it does take a
very lengthy period of time; the average time span for a
constitutional amendment to be ratified is three and a half
years. It can take as long as seven years, which is
generally the considered time limitation; once the seven
years runs to the end there then the amendment basically
dies, and that's what happened with the last one dealing
with the Equal Rights Amendment. Just to understand the
intent of it, I think you can recognize that there is
potential violation with the Separation of Powers Act, and
certainly with the concept of Federalism. And the courts,
perhaps, have gone way overboard since Madison's days in
1801. How do you overturn a court decision? This is one of
the ways."
REP. DAVIDSON: "Well, my feeling is still, even a
constitutional journey starts with the first step, and if
this is the first step, but it's the wrong step, then I'm
uncomfortable with it." Rep. Davidson reiterated his
request for more factual testimony from a legal expert,
particularly on constitutional law.
CHAIRMAN PORTER: "Any further discussion?"
Number 720
REP. JAMES: "I'd move this resolution out of the committee
with individual recommendations and zero fiscal note, as
attached."
CHAIRMAN PORTER: "We have a motion to move. Is there
objection?"
REP. DAVIDSON presented objection.
REP. NORDLUND: "I'd like to comment that I do support the
intent of the resolution. I don't think any of us would
want to get into a situation where we would have the court
system taking over legislative powers of taxation. But I
kind of think that it's a little bit of a Chicken Little
situation here, frankly. Is there really that much of a
problem? I don't think so. And I'm concerned that it might
just be an opportunity to take shots at the federal court.
And maybe they deserve it in some cases, but -- I support
the resolution, but I just, frankly, don't think there's
probably that much need for it."
REP. DAVIDSON: "I think, in addition, we heard the comment
that the courts have gone overboard. Perhaps so, in some
areas. But maybe not in others. It's one of these
debatable kinds of things. So, I would maintain my
objection at this point until we have more information.
And, again, I appreciate the intent here."
REP. JAMES: "Just one comment that I would have, on that
point. That is, that I believe very strongly in a
government of the people. And I believe that the power of
taxation is the power of the people, either by their own
vote or by the vote of those people who they've authorized
to vote for them. And that would be their local people that
have opted to let them charge taxes. And I don't think
anyone else has the right to do that. And so that's why I
support this resolution."
Number 750
CHAIRMAN PORTER: "Objection is maintained. May we have a
roll call vote please?"
A roll call vote was taken by the committee.
Representatives Green, Kott, Nordlund, James, Phillips and
Porter voted "Yea"; Representative Davidson voted "Nay".
HJR 60 was therefore moved out of committee.
HB 362 - CHILD SUPPORT:CRIMINAL/CIVIL REMEDIES
CHAIRMAN PORTER introduced discussion of HB 362, welcoming
first Phillip Petrie.
Number 765
PHILLIP PETRIE, Operations Manager, Child Support
Enforcement Division, introduced himself and MARY GAY,
Director, Child Support Enforcement Division, both of whom
were present to testify with regard to HB 362.
MARY GAY, Director, Child Support Enforcement Division,
presented testimony in support of HB 362. "The Child
Support Enforcement Division supports and requests that you
pass CS HB 362 because this legislation would allow the
division to overcome recent court decisions regarding the
statute of limitations in child support cases. The current
statute of limitations is ten years. Without this
legislation it would require that the division send several
thousand cases to law to obtain judgments on the cases in
order to protect the arrears for the children and for the
state of Alaska. Also, the other section of the legislation
concerning the aiding and abetting in the nonpayment of
child support; this is one of the areas that is most
difficult to collect on. And it's because of the
intentional transfer of assets to avoid the payment of child
support."
Number 778
REP. JAMES: "I feel very strongly about people who do
fraudulent things to get out of any kind of an obligation.
I feel very strongly about that. On the flip side of that,
though, I have a lot of sympathy for some child support
cases where a second family is put in jeopardy to protect
the first family. Not that I think people should walk away
from their obligation, but I've seen some efforts by the
Child Support Enforcement, not only in this state but in
other states, that I believe have - because the law is on
their side, they don't take anything into consideration.
Now, I understand what this is, Phil, and maybe you can
answer for me; is this to hold a second person liable for
giving someone else the freedom to do that? Say, for
instance, is this if someone were married a second time, and
he put all of his assets in his second wife's name? And
then he doesn't work someplace, so he doesn't have to pay
child support? Is that the kind of thing that was
happening?"
MR. PETRIE: "You're absolutely correct."
REP. JAMES: "Does this, then, does this affect anyone else
who wouldn't be doing that, in a negative way?"
Number 800
MR. PETRIE: "No, ma'am, it does not. It is specifically
designed to affect those individuals - and it's not just
someone who would marry someone, but friends and relatives;
that is, we have demonstrated cases that we're preparing now
for court, where someone either forms corporations,
businesses or transfers all their assets. There has to be
(1) a support order in place prior, because they have to
know that they have an obligation to pay; and (2) they have
to intentionally do it. And that's exactly what it's
designed to do. And there are many instances of transfers
of fishing permits to brothers and other relatives, and then
that person fishes, and the money still goes to the obligor,
but technically, we can't hold the brother responsible for
the payments.
"The same way with forming a corporation or a company.
Current spouses in one particular case formed a major
trucking company driving these long haul double-trailer
trucks for construction and gravel. They do not have CDLs
or commercial drivers licenses. The business makes money.
It has contracts. But when you send a withholding order to
the business they say that their husbands are not employed.
Obviously, the husbands are doing the driving and they are
doing the maintenance on the vehicles. That's the type of
case we're looking for."
REP. JAMES: "Mr. Chairman, if I might follow up just on
that issue. My next question is: That's fraud, no matter
who they owe the money to. Why should we just do this for
child support? Isn't there already a provision in the law
when there's fraud and there's a debt? And there's a
judgement? That you can find these people guilty of fraud?"
Number 816
MR. PETRIE: "There are general provisions for defrauding
anyone, but you have to usually show that you have a
contract; you have to show that you have something to build
(a case around), and that there's an action under the law.
The AGs tell us that we don't have that clearly, in the
current statutes in the law, and that child support -- I
don't know of any other area where someone has had a
judgement, say, because they've owed something to a private
person, and then they started a new business that that
private person has charged them with fraud. We've run this
particular legislation by the Attorney General's office that
we work with in Anchorage, and they feel it is a valuable
asset because of the nature of how people transfer those
assets. Probably the only other place that I would know
that something like this takes place regularly is in the
drug industry, and they have the asset seizure and the
forfeiture provisions of the federal statute. You don't
have anything similar, and I'm not asking for anything
similar, in state statute. But it's a laundering of money
and assets."
Number 829
REP. JAMES: "I guess that what it generally does in all
other issues, it becomes a matter of economics, as to
whether or not it is worth taking that to court to find out
whether or not they're fraudulent and that sort of thing.
And I'm wondering about the economics in this. Is this
going to close the gap of the amount of money that it's
going to cost to do that so that it will be financially
feasible to do this? Or is this opening up something that's
just going to spend more money to get less?"
Number 837
MR. PETRIE: "It narrows the ability to litigate and to
avoid the allegation that they did that. Currently, we
could take them to court, and we could fight for years to
try to get the money under the general fraud statute, but
this particularly sets out standards. It says, if you do
this, and you know this, then this is the statute we can
charge you under. And it would make it clear, and we
believe would cut costs, and it would substantially increase
collections."
Number 844
REP. JAMES: "I am concerned any time that we take the
rights away from someone without having due process for
them. In other words, it could be assumed that maybe
they're doing this, and maybe there's some legal reason why
they're not? Is that ever a case?"
MS. GAY: "They have to have due process, because it will go
through court."
MR. PETRIE: "It's a criminal charge, so they have the due
process in court. And if it's a felony, it would go before
a grand jury; if it's a misdemeanor, it would be brought
before the court. So that the due process issue is clearly
there for them to argue that it was an innocent
misrepresentation, or they didn't know."
Number 850
MS. GAY: "Also, in most cases, if you started to bring the
action, people, if they realized the penalty involved, would
probably come to a settlement, and we wouldn't have to have
the expense. And I also believe that this legislation, when
one or two cases occur, will send a message to society:
That this type of activity is going to be met with penalty.
And they will refrain from doing so."
REP. JAMES: "I like that position."
Number 860
CHAIRMAN PORTER: "I might add that you might want to look
at and perhaps even track it down in the Senate and support
the Uniform Fraudulent Transfers Act. It came through this
committee, and as a matter of fact it was sponsored by this
committee. It would cover assets that were transferred in
order to evade your obligation also. Which will give you
the right to go after them even though that boat was
transferred to the brother. It has a reasonable standard
for establishing that that was the cause of the transfer."
Number 866
REP. JAMES: "I remember that bill going through here, and
that was one of the things I was talking about in the first
place. Because I'd like to have the law be tight enough
that it's not just child support, but it's all these other
areas that would preclude people from doing these fraudulent
transfers. That was my first point."
MR. PETRIE: "I admit, Mr. Chairman, and Rep. James, I was
unaware that that bill was moving through the House."
CHAIRMAN PORTER: "It's out of the House."
MS. LOPER: "It's in Senate Labor & Commerce, and - " (Side
A of tape ends abruptly.)
TAPE 94-58, SIDE B
Number 000
(Text at beginning of Side B cut off.)
CHAIRMAN PORTER: "...evidence to support that this was a
transfer to get out of this obligation is in the action of
the transfer itself; in other words, if there were not
adequate compensation passed, or received, or any of those
kinds of considerations that made it a dubious market value
transfer, then the burden shifts to him to prove that he
wasn't doing it in order to get out of that obligation."
Number 023
REP. NORDLUND: "I definitely support the bill, but I would
note that it creates a new class of crime, some of which is
a Class B, Class A, and even a Class C; Class A and B
misdemeanors and Class C felony, and I don't see any fiscal
note here from the Department of Corrections. If there's
any utility in this I assume that there are people that it
would actually be enforced upon, and that there would be an
impact on the Department of Corrections, and there should be
a fiscal note here."
Number 040
MR. PETRIE: "Our experience, at least, in the last five to
six years, is that we're not getting incarceration, and even
in criminal nonsupport cases, that our primary aim is to
recover the money, and not to incarcerate people, and we
wouldn't use this against people that don't have the assets
to pay. If there is any incarceration, it's been for very
short periods of time, and usually within that short period
of time they come up with the money or a substantial part of
the money. Most recently, in 1992, two men spent four days
in jail over a weekend until they could come up with the
money, $10,000 and $10,400 each, (before each) could come
out. And it was a matter of arranging the financing. I
don't anticipate realistically that even under the Class A
felony that any judge in the state would sentence someone to
a period of incarceration. It also tracks with current
federal legislation called the Family Support Recovery Act,
which makes it a felony not to pay child support in the
amount of $5,000, a federal felony. One of the things that
that did, it said states have to exhaust all remedies first,
and this would keep us out of going into the federal court
quite as quickly. First offense is a federal misdemeanor.
"But this really, as Mary Gay stated, places pressure on
someone that has the assets, to come up with the money to
pay the child support. It's within the realm of possibility
that a judge could sentence someone, but it's highly
doubtful. And in all the cases that I've dealt with in the
past three years, one sentence was 120 days; they suspended
110; he never served ten days; we sent it back, and the
judge imposed the ten days. So. It really is not a real
burden, I don't believe, on the Department of Corrections.
You're probably looking at maybe 10 to 20 of these cases
prosecuted a year, and we're hoping that the deterrent value
will even not necessitate that."
Number 091
REP. NORDLUND: "I just want to point out though, that we're
talking about the person who aids in the nonpayment of child
support, not the person who actually didn't pay the support,
who could be put in jail here, so if you were talking about
the individual who actually was supposed to be making the
child support payments, obviously it would be counter-
productive if they were in jail, because they wouldn't even
have the opportunity to make money to pay the child support.
This applies to folks who aid - not the obligors
themselves."
Number 114
MS. GAY: "The person that aids in doing something like that
does it for a benefit, for them, usually. For themselves,
or for the person who is close to them. I believe that this
legislation is like drunk-driving laws. We have very stiff
drunk-driving laws these days, and it does deter individuals
from driving while intoxicated. And I should hope that
this legislation would do the same thing; deter individuals
from taking part in activities like this. And that obligors
would pay their child support."
REP. NORDLUND: "I am completely in support of the intent of
the bill."
Number 130
REP. KOTT: "I am going to air my same concerns as I did in
an earlier committee. Basically, in conjunction with what
Rep. Nordlund has already brought out. And that is, under
this provision here, aiding and abetting, we have a Class C
felony situation that's there, even though the crime for
nonpayment of support is a Class A misdemeanor. So we have
placed a higher degree or a higher penalty if you're aiding
and abetting. And a situation that comes to mind to me
would be, somebody comes knocking on the door, a woman
answers the door, there's some questions about where her
husband's at or what he's doing, and (the person at the
door) identifies himself, and she is reluctant to give him
the information. Her husband has an ex-wife and some
children that he's supposed to be supporting. They are
compelling her to provide the information, even though, if
this were in court - now, the court wouldn't have a wife
testify against her husband. Yet this is more of an
administrative matter, and we're allowing it to occur here,
with a potential penalty of it being a felony, and losing
all the rights associated with felony activities."
Number 155
MR. PETRIE: "I believe the courts do require a wife to
testify if that wife is also engaged in a criminal act with
the husband. I'm sure, maybe someone from the Department of
Law can clarify, but I've been in law enforcement 28 years,
and there are instances --it's true that a wife can't be
compelled to testify about a husband's criminal act, but if
that wife is involved in criminal activity, then she can be.
But it's not even a compelling thing in this nature. We
build a case by going back and researching property records,
researching business records, researching bank account
records, and we can identify a trail of transfers of when
someone transfers the assets. You can clearly show that
they owe child support because they have a court
administrative order and the obligation. It's not as simple
as just going up and knocking on the door and asking where
your husband is. We have to build a case that the grand
jury in a felony case would accept, or that the courts would
accept or that the courts would accept even in a misdemeanor
case, to show that we can prove the intentional and willful
acts of that individual. And I do believe a wife or any
relative could be held under those circumstances, to come in
and testify or provide the information, if they are a part
of the criminal enterprise. I'm loosely terming it, but
it's a term that you use, it's a criminal enterprise, when
someone gets together to evade a law. So, I don't believe
that's a real concern, and I think that the AG's office
would have brought it to our attention at the time, because
they clearly understand that we're talking about current
spouses, friends and relatives when we proposed this
legislation or when this legislation was drafted."
Number 194
REP. KOTT: "I would be a little bit concerned whether or
not they would in fact be guilty by association, or would be
a party to the criminal act, until such time as they failed
to provide the information. Are they innocent until proven
guilty or are they guilty by association to the husband, who
has failed to render payment?"
Number 202
MR. PETRIE: "No, it's not guilty by association. It
they're operating a business, and the business is making
money, and we send a withholding order to the business that
says, we understand that John Jones, your husband, works for
your business and they send us back what we call an answer
to inquiries, that by statute is supposed to be truthful,
and they sign, and it's notarized, and they say, John Jones
doesn't work for me, never has worked for me, yet we can
prove through circumstances that that's his only means of
support; for instance, the people with the CDLs and the
trucks, it's not comprehensible, that these particular
people -- We can show that the husbands are the ones that
are driving the trucks, maintaining the trucks, yet the
business and all of the bank records and in this particular
case the husbands are even signing the wife's names to
checks, that are going through the business accounts. So,
that's the kind of effort that you have to put into to prove
this case. I believe the court would just...dismiss a case
if we brought it to it on a basis of association merely
because someone was married to an obligor that owed child
support."
Number 227
MS. GAY: "Rep. Kott, I'd also like to mention that the
division has many court actions, and a limited amount of
funds for the Department of Law, and that we do not
frivolously bring suits. We make sure that everything is
covered before we initiate an action, and only in the most
severe cases do we initiate that action."
Number 238
REP. NORDLUND: "I just wanted to make one other comment
that mitigates against my concern that there not being a
fiscal note here from Corrections, and that is that to the
extent the Child Support Enforcement Division is able to
collect payments, will have a direct impact on the payments
we make for AFDC and other forms of welfare payments." Rep.
Nordlund further observed that it would be difficult to
predict the effect, but an effect there would be.
CHAIRMAN PORTER: "That's quite true. We're always
conscious of things that might cost money but we never take
any money away from those agencies that we've saved a little
for, so...with that in mind, what is the wish of the
committee?"
REP. NORDLUND: "I would move that we pass out HB 362 with
individual recommendations and a zero fiscal note."
CHAIRMAN PORTER: "Is there discussion? Is there objection?
Seeing none, the bill is moved. Thank you."
ADJOURNMENT
The House Judiciary Standing Committee adjourned at 2:30
p.m.
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