Legislature(1999 - 2000)
03/16/1999 09:01 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
MINUTES
SENATE FINANCE COMMITTEE
March 16, 1999
9:01 AM
TAPES
SFC-99 # 56, Side A
CALL TO ORDER
Co-Chair John Torgerson convened the meeting at
approximately 9:01 AM.
PRESENT
Senator John Torgerson, Senator Sean Parnell, Senator Randy
Phillips, Senator Loren Leman, Senator Gary Wilken and
Senator Al Adams were present when the meeting convened.
Senator Dave Donley and Senator Lyda Green arrived shortly
thereafter.
Also Attending:
Representative LISA MURKOWSKI; CATHERINE REARDON, Director,
Division of Occupational Licensing, Department of Commerce
and Economic Development; JUANITA HENSLEY, Administrator,
Division of Motor Vehicles, Department of Administration;
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law; DARROLL
HARGRAVES, Executive Director, Alaska Council of School
Administrators.
SUMMARY INFORMATION
Co-Chair John Torgerson announced that the committee would
recess for Conference Committee meeting scheduled for 9:45
AM and hopefully return at approximately 10:00 AM and
resume the agenda.
SB 5-MISPRISION OF FELONY
The committee took testimony from the sponsor, and asked
questions of the Department of Law. The bill moved from
committee.
SB 27-ACCESS TO DRIVING/SCHOOL RECORDS OF CHILD
The committee took testimony from the sponsor, the Division
of Motor Vehicles and the Alaska Council of School
Administrators. Amendment #1 was moved for adoption. No
objection was voiced. The committee recessed for
conference committee before action was taken on the
amendment.
CS FOR SPONSOR SUBSTITUTE FOR SENATE BILL NO. 5(JUD)
"An Act relating to the crime of misprision of
felony."
PAT CARTER, aid to Senator Drue Pearce testified. He told
the committee this bill was drafted in response to an
incident in Nevada where a seven-year old girl was raped
and murdered in a casino rest room. A college student
witnessed his friend committing the crime and he walked
away and didn't report it. The witness was not punished
because Nevada didn't have a Good Samaritan.
He explained that a person would commit the crime of
misprision if he or she witnessed a felony committed
against another person and failed to immediately report it.
The bill had gone through thorough discussion and
alteration in the Senate Judiciary Committee. With the
assistance of Senator Dave Donley, several changes were
made. Initially it was too broad in language and was
narrowed to only apply to the witness of the most heinous
crimes, making the failure to do so a Class A misdemeanor.
These would be: murder in the first and second degrees,
kidnapping, arson in the first degree, sexual assault in
the first degree and sexual assault of a child in the first
degree. There was discussion about the word, "immediately"
as applied to the timely reporting requirement. The bill
was amended to read, "in a timely manner." There was also
consideration given to a self-defense clause such as in a
battered wife scenario. Language was inserted in Section B
Paragraph 1 that addressed that situation by giving a
reasonable but affirmative defense if the person reasonably
believed that they would be put as substantial risk of
physical injury by reporting the witness of the crime.
Senator Randy Phillips wanted a reaction from the sponsor
to an idea to delete "in a timely manner" and replaced with
"within 48 hours" on page 1 line 11. He felt the language
was too vague. Pat Carter offered Senator Dave Donley who
participated in the discussion in the Senate Judiciary
Committee. He gave an example of the consideration given
for the case of a rape. There was a possibility of charging
a rape victim for not reporting the rape by placing a time
frame in the bill. There was discussion in the Senate
Judiciary Committee on the placement of this particular
language. Senator Dave Donley agreed that was the most
persuasive example and said there could be others where a
witness remained in the immediate danger of harm from the
perpetrators within the 48-hour period.
Senator Randy Phillips suggested a defense attorney could
argue what the timely manner meant to his or her client.
Pat Carter said that was why it was determined that it was
better to leave it up to the discretion of the judge as it
applied to individual cases. Senator Randy Phillips
questioned whether that was wise. Senator Dave Donley
responded that it would actually the trial of fact and
would also be up to the jury. Since it was a subjective
finding rather than strictly a matter of law, he doubted a
judge would take that away from the jury. He felt there
needed to be some flexibility when seeking to criminalize
this type of action. This bill would criminalize what
would otherwise be innocent behavior. What made a person
culpable would be their failure to report a crime, not the
commission of an actual crime.
Senator Randy Phillips assumed other states had similar
statutes. Pat Carter affirmed that some did. Senator
Randy Phillips asked how they defined this portion relating
to "timely manner". Pat Carter answered that this bill was
drafted in the essence of other states. He did not know of
another state that had an actual time constraint.
Senator Lyda Green if there was a disincentive for someone
who witnessed a heinous crime and without personal
involvement, was scared to report. If they later decided
to report, would they be punished? Pat Carter called it the
guilty conscious factor. He couldn't answer, and said it
would be the discretion of the court.
Senator Loren Leman referred to other statutes regarding
the hindering of prosecution of the second degree and asked
how this bill would interact with that.
Senator Al Adams noted there was a subcommittee that Co-
Chair John Torgerson and Senator Dave Donley served on. He
wanted to know if the subcommittee considered the impact of
the legislation on the Department of Corrections,
Department of Law and other agencies that might be
financially impacted. Co-Chair John Torgerson said each
department submitted indeterminate fiscal notes that
explained their positions that they could not determine
what the fiscal impact would be since there had never been
a similar law for historical reference.
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, came to the
table at the request of the committee. Senator Sean Parnell
referred to Section B, page 1 line 12: affirmative defense.
It said it would be a affirmative defense "if the defendant
did not report in a timely manner because the defendant
reasonably believed that doing so would have exposed the
defendant to a substantial risk of physical injury." He
noted this bill applied to two different types of
witnesses, an innocent bystander and a companion of the
perpetrator. He was concerned that the language regarding
the exposure of the defendant to physical injury could be
used as a defense. If a perpetrator was harming a victim,
he or she could just as easily harm the witness. That
would be Senator Sean Parnell's defense if he were in that
situation. He wanted to understand if the affirmative
defense would gut the statute or if it had limits.
Anne Carpeneti attempted to explain saying the defense was
suggested by Senator Rick Halford who was concerned about
cases like one in New York were a mother and small boy were
killed before they could testify to witnessing a serious
crime. Senator Rick Halford didn't want to require people
in that position to expose themselves to harm if they were
innocent of any wrongdoing. It was an affirmative defense
so that a person raising it would have to prove by a
preponderance of evidence that he or she had a reasonable
belief that reporting it would subject him or her to
substantial physical injury.
Senator Sean Parnell asked if prosecutors could use this as
leverage for dealing with accomplices. Anne hadn't thought
about it but knew that in order to prove accomplice by
ability there had to be guilty intent. Senator Sean Parnell
pointed out that would not be required under this bill.
Senator Loren Leman understood that there was an
interaction with Section 780. He felt it was reasonable
clear to him. Anne Carpeneti said that to prove the crime
of hindering prosecution in the first or second degree
there had to be some intent to hide or help the
perpetrator. Her understanding of the misprision statute
was that the witness just had to be at the crime fail to
report it. It was not something that was criminalized in
the past so this would be a new step.
Senator Al Adams asked how the statute would define
"witness". Anne Carpeneti replied that was a good question
and that it should be defined. The best approach in her
opinion, would have the definition as being present when
the offence occurred where perhaps there would be the right
to make a citizens arrest of the perpetrator. She also
suggested the definition include seeing, hearing or
otherwise be in the proximity where it would be happening
in the witness' presence.
Senator Al Adams asked where was the responsibility to
assist and protect the person being harmed rather than just
reporting it. He argued that if someone saw a rape being
committed that person should go try to stop it. "Was this
addressed elsewhere?" he wanted to know. Anne Carpeneti
answered no, that there was no duty to prevent a crime that
the witness did not participate in. Senator Al Adams
wanted to know if other states had statutes stipulating a
duty to assist if a person witnessed a crime in progress.
Anne Carpeneti was unaware of any but offered to research
the issue. She explained that misprision was an old
fashioned legal term that had its roots in England but was
never really adopted in the United States. She felt the
intent of this legislation was just failure to report a
crime.
Co-Chair John Torgerson asked if the department supported
the bill. Anne Carpeneti was grateful for the assistance
they received from the sponsor. She felt that the
legislation was good for very serious crimes such as
murder, kidnapping and arson.
Recess (approximately one minute).
However, Anne Carpeneti had some reservations about the
inclusion of sexual assault or sexual abuse. If a parent
learned of abuse of their child, and chose to take other
action rather than reporting the abuse to the authorities,
she felt the parent should not be charged with a crime if
that parent believed he or she was acting in the best
interest of the child.
Senator Dave Donley said Senator Loren Leman had asked him
a question about the consistency of the punishments set out
in the bill. Senator Dave Donley expressed to him that a
lot of progress was made in the Senate Judiciary Committee
to address the specific concern of hindering prosecution
punishments. The crime of hindering prosecution in the
second degree was listed as a Class B Misdemeanor, while
the crime of misprision under this bill would be a Class A
Misdemeanor. Senator Dave Donley explained that the
hindering prosecution in the second-degree charge was
applied to incidences where a misdemeanor crime was
committed, the crime of misprision would only be applied to
cases where a serious, unclassified felony was committed
and witnessed. He wondered if the Department of Law wanted
to comment on the relationship to the penalties for
hindering prosecution.
Anne Carpeneti responded that the department had suggested
that the provision in the original bill for the punishment
of a Class C Felony did not fit with the scheme of the
other statutes. Hindering prosecution in the first degree,
which meant aiding or abetting in some way a felony was
more serious conduct than simply witnessing and not
reporting a crime.
Senator Loren Leman offered a motion to move CS SS SB 5
(JUD) from committee with accompanying indeterminate fiscal
notes. Without objection, it was so ordered.
CS FOR SENATE BILL NO. 27(HES)
"An Act relating to school records and driver license
records of certain children."
Senator Loren Leman testified to this bill, which he
sponsored. It came about after he heard from a mother who
suspected her minor daughter was driving with a suspended
license. When she tried to find out from the Division of
Motor Vehicles, she was told that the privacy protection in
the law prevented them from releasing that information to
her without written permission from the child. Senator
Loren Leman believed parents ought to have the right to
access to this information.
He then explained that as the bill progressed, his office
learned that state law did not require a school to
guarantee access of parents to their child's school
records. He noted that it was common for some school
districts to provide that information, there was no
requirement in state law. Therefore, this requirement was
added to the bill.
The Health, Education and Social Services Committee made
changes to the bill and Senator Loren Leman requested the
Division of Motor Vehicles to comment on those to clarify
the intent of the committee.
The first change eliminated the five-dollar fee for parents
who requested the child's drivers license record.
Currently, there was no fee charged to law enforcement and
Senator Gary Wilken offered an amendment in HESS to do the
same for parents.
The second change allowed the DMV and schools to refuse to
release the minor child's address if they believed it could
jeopardize the child's health and safety.
Senator Loren Leman shared that the issue raised by DMV was
whether an insurance company could claim they were the
guardians of the child and avoid paying the fee. That
would jeopardize the finances of the division since they
currently processed many requests from insurance, which
generated substantial program receipts. The intent was to
not let someone other than the parent or guardian to obtain
records at no charge.
Senator Lyda Green had understood that there were federal
requirements that school records be provided to a parent or
guardian upon request and wondered why this portion of the
bill was necessary. Senator Loren Leman believed that was
correct and this bill would make state law consistent.
Senator Lyda Green asked if the state failed to follow
through with this bill, would federal funds be withheld.
Senator Al Adams shared Senator Lyda Green's feelings that
Section 1 was unnecessary. The federal Family Education and
Privacy Rights applied to the academic records and excluded
health and counseling records, which he felt was a private
matter. He said that parents shouldn't be guaranteed access
to records such as birth control counseling. In order to
adopt this state law, the same exclusions that were in the
federal law must also be made.
Senator Lyda Green asked why the school records were
included in the bill. Senator Loren Leman repeated his
explanation that while drafting the driving records access
bill, they asked the Legal Services Division if there was a
statute granting parental access for school records and was
told there was none. This provision would allow non-
custodial parents as well as custodial parents to have
access.
JUANITA HENSLEY, Administrator, Division of Motor Vehicles,
Department of Administration testified. She said the
department understood Senator Loren Leman's desire for
parent's to have access to their child's driving records.
She said parents currently could get a copy of the record
with written release from the minor child.
She spoke to the division's concerns to make sure this
would be strictly related to a parent walking into the DMV
wanting a copy of their minor child's driver's records. She
wanted to ensure that this would not spill over into
insurance companies because they had a request for a
family's records for the purpose of writing a group policy.
There was a $5 charge for every copy of driver's records
unless it is from law enforcement or for judicial records.
Also state and federal employers, under the Commercial
Vehicle Safety Act were required to have a copy of an
employee's driver's records and were therefore exempt from
the fee.
Co-Chair John Torgerson asked if it was her concern because
the language was unclear. Juanita affirmed and said it
could be interpreted by the insurance industry as an
exemption for them when they requested records on behalf of
a parent for the purpose of writing an insurance policy.
She commented that the requests for driver's records for
purposes other than law enforcement, insurance companies
and state and federal employees were only five to ten per
year. She anticipated this would have no fiscal impact on
the division. However, if insurance companies were
exempted from the fees, the fiscal impact would be
substantial.
Co-Chair John Torgerson had trouble understanding why the
language wasn't clear. He didn't see where the insurance
companies would have grounds to argue they didn't have to
pay the fee. Juanita Hensley responded that she just wanted
to clarify the issue and make sure it was on the record.
Senator Gary Wilken referred to proposed Amendment #1 and
asked if the language on page 2 line 2 eased the division's
concern. Juanita said it was still vague because the parent
was still requesting the child's driving record through the
insurance company. Senator Gary Wilken said he thought it
seemed very clear to him that it would apply to the parent
or guardian. Juanita Hensley argued that the parent was
still requesting the child's driver's records but through
the insurance company.
Co-Chair John Torgerson disagreed with the argument.
Senator Gary Wilken stated that the intent was to make sure
a parent could be exempted from the fee so long as state
agencies were not charged.
Senator Al Adams asked for clarification if it was the
intent to charge parents for the records. Juanita said
there would be no charge and since there were so few
requests, this would not impact the division's revenues.
Recess 9:36AM / 9:37AM
DARROLL HARGRAVES, Executive Director, Alaska Council of
School Administrators, spoke to the parental requests. He
testified that from practical experience, it had never been
a problem and that the parent's request always prevailed.
Most school districts had a policy covering the matter.
More importantly, he stressed the federal Family
Educational and Privacy Rights Act set forth the statutes
that school districts followed. Therefore, he thought most
of the concerns were covered with that statute. SB 27 was
not a problem according to Darroll Hargraves, but he did
want to bring the federal statute to the attention of the
committee. He concurred that parents should have the right
to access school and driving records of their miner
children.
Co-Chair John Torgerson requested Darrell Hargraves read
the proposed Amendment #1 and to stand by to comment on
those changes.
Senator Gary Wilken moved for adoption of Amendment #1.
Co-Chair John Torgerson explained that it would make it
mandatory to release information to a school district about
a miner's alleged commission of an offense that was
punishable as a felony or involvement with a deadly weapon
if that miner was transferring to the school district.
He explained that this amendment was a result of requests
from principals in his district with concerns about
students expelled from a school for commission of a serious
crime who could then enroll in another school district
without a requirement the new school district be notified
of the circumstances.
Senator Lyda Green asked if there was a provision where
confidentiality covered a student who committed this
serious of a crime. She supported the transfer of the
information to the school, but wanted to prevent the
information from reaching non-relevant school staff. She
wanted to shield the information from reaching everyone at
the school. Co-Chair John Torgerson was unsure and thought
there probably was some privacy protection. His intention
was to let the school know so they could determine whether
or not to let the child enroll in the school. He noted that
if a child was convicted the information would be public.
Darroll Hargraves said that would present a problem because
sometimes volunteers opened the mail. However, it was
important that information about crimes committed by
certain students be given to the school. If the intent was
to notify a receiving school that a child has been found
guilty of a heinous crime, that was to be commended, he
added.
Senator Gary Wilken said his wife had been on the school
board and it was a problem of communication between law
enforcement and the school districts that was worked out
the district level. He suggested the committee look at the
language dictating how public safety must communicate with
the district to ensure confidentiality. He thought it was
with the superintendent of schools and that was were the
shield of confidentiality was protected. He supported the
amendment.
Co-Chair John Torgerson ordered the bill and the amendment
held in committee.
Recess 9:43 AM / 10:13 AM for Conference Committee meeting.
ADJOURNED
Senator Torgerson adjourned the meeting at 10:13 AM
announcing that the committee would resume the remainder of
this meeting's agenda at the next meeting scheduled for
9:00 AM, March 17, 1999.
SFC-99 (11) 03/16/99
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