Legislature(2003 - 2004)
03/17/2003 01:35 PM Senate JUD
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 17, 2003
1:35 p.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
Senator Scott Ogan, Vice Chair
COMMITTEE CALENDAR
Confirmation Hearing:
Violent Crimes Compensation Board - LeRoy Barker
CONFIRMATION ADVANCED
SENATE BILL NO. 2
"An Act relating to recovery of civil damages from the parents
or legal guardian of a minor; and providing for an effective
date."
HEARD AND HELD
SENATE BILL NO. 49
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
HEARD AND HELD
HOUSE BILL NO. 68
"An Act relating to the office of victims' rights."
MOVED CSHB 68(JUD) OUT OF COMMITTEE
PREVIOUS ACTION
Confirmation Hearing: Violent Crimes Compensation Board
See Senate Judiciary minutes dated 3/5/03.
SB 2 - See Health Education and Social Services minutes dated
2/24/03.
SB 49 - See State Affairs minutes dated 2/20/03.
HB 68 - See Community and Regional Affairs minutes dated
2/26/03.
WITNESS REGISTER
Mr. LeRoy J. Barker
1400 W. Benson Boulevard, Suite 315
Anchorage, AK 99503
POSITION STATEMENT: Conferee, Violent Crimes Compensation Board
Mr. Wes Keller
Staff for Senator Fred Dyson
Room 121, State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 2
Ms. Joanne Gibbens
Program Administrator,
Division of Family and Youth Services
P.O. Box 110630
Juneau, AK 99811-0630
POSITION STATEMENT: Answered questions on SB 2.
Mr. Tim Steele
Vice President and Legislative Chair,
Anchorage School Board
P.O. Box 196650
Anchorage, AK 99519
POSITION STATEMENT: Supports SB 2
Ms. Pam Findley
Revisor of Statutes,
Legislative Legal and Research Services,
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 49
Representative Ralph Samuels
Room 412, State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor HB 68
ACTION NARRATIVE
TAPE 03-8, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 1:35 p.m. Present were Senators
French, Therriault and Chair Seekins. Senator Ellis arrived at
1:42 p.m.
The first order of business to come before the committee was SB
2.
SB 2-PARENT LIABILITY FOR DAMAGE BY CHILD
CHAIR SEEKINS invited Mr. Wes Keller to introduce SB 2. He
explained that a blank committee substitute (CS) was in members'
packets. There was no objection stated and work draft SB 2
version \I was before the committee as the working document.
MR. KELLER, staff for Senator Fred Dyson, testified that the
core purpose of SB 2 is to remove the $10 thousand limit on the
amount that can be recovered from parents when a minor child
intentionally destroys property or commits vandalism. The
Alaska Association of School Boards and the Anchorage School
District support SB 2. The legislation was introduced as a
result of damage that occurred in Anchorage that was less than
$1 million, but considerably more than $10 thousand.
During hearings on the House version of this bill, and during
the previous Senate hearing, there was discussion that raised
the question of whether it was more appropriate to raise the
limit rather than eliminate it. The sponsor wants to remove the
limit completely so when damage occurs the minor can be held
liable for the actual cost of the damage. If the state removes
responsibility from the parents, and then if the state does not
take the responsibility for the damage, the cost gets passed to
the victim. That is not appropriate nor is it appropriate for
the state to assume that kind of parental responsibility.
MR. KELLER assured the committee that this does not mean that if
there is $1 million in damage done that $1 million has to be
collected. The judge may consider mitigating circumstances and
the situation could be worked out in court. There are laws
involving bankruptcy protection so a parent wouldn't be ruined
because of a child's actions.
MR. KELLER explained the CS before the committee came about due
to an inconsistency in the law. Section 13.26.070 states the
guardian of a minor is not liable for the action of the child.
Yet, legal guardians are held responsible for the actions of a
minor in Section 34.50.020. The intent of the CS is to remove
the legal guardian language to make the two laws consistent.
This is consistent with how the Division of Family and Youth
Services (DFYS) is doing business and page 25 of the Alaska
Foster Parent Handbook explains that the state carries liability
insurance to cover foster parents if a foster child causes
damage.
MR. KELLER said an additional amendment is being suggested
because several Senators noted that the child is left harmless.
They asked about recovery from the child's permanent fund or
other assets. The Department of Law determined that if damage
is done, there is no protection of the child's assets.
Typically, going after a child's assets isn't done because the
revenue per year is small compared to legal costs. Amendment
\I.1 would require the victim to get a judgment on the child
before seeking the assets of the parent.
SENATOR FRENCH asked how much liability insurance the state
carries for foster parents.
MS. JOANNE GIBBENS, Division of Family and Youth Services,
program administrator didn't know, but offered to get the
information. She said she did know that the state indemnifies
foster parents against any physical harm a child might do to
another individual.
SENATOR FRENCH said, "But you don't know the amount, it could be
$5 thousand it could be $1 million."
MS. GIBBENS agreed.
SENATOR FRENCH said he wanted to be crystal clear on the
amendment because there were markings on it. He pointed out
that the CS before the committee is \I version and not \I.1
version. He referred to Section 34.50.020 where subsection (d)
contained handwriting. He asked if this exempts legal guardians
or adoptive parents from liability.
MR. KELLER explained the un-amended Section 3 is meant to
address adoptive parents that are receiving a state subsidy for
adopting a hard to place child. The goal is to hold adoptive
parents harmless when an older child is adopted.
The amendment adds a new Section 2, and allows recovery of
damages only after the person bringing a civil action has first
obtained a judgment against the child's assets.
CHAIR SEEKINS asked if there was a motion on the amendment.
SENATOR FRENCH asked if the amendment was \I.1.
CHAIR SEEKINS said that was correct.
SENATOR THERRIAULT asked if the prime sponsor of the bill
brought the amendment to the committee.
MR. KELLER said that was correct.
SENATOR THERRIAULT asked if it clarifies that people can't go
after the assets of the legal guardians until a judgment on the
child is attained.
MR. KELLER clarified it is actually the assets of the parents.
The intent of the amendment is to put the child's assets on the
line first.
SENATOR FRENCH asked if the original bill and the CS exempt
legal guardians.
MR. KELLER said the original language that exists in law exempts
legal guardians.
SENATOR FRENCH asked whether the CS maintains that exemption.
MR. KELLER said yes. The terminology on legal guardians is
being removed because it is confusing in both laws before the
committee.
SENATOR FRENCH asked him to explain it from the beginning.
MR. KELLER referred to the handout containing Sec. 13.26.070 and
Sec. 34.50.020. He said Sec. 13.26.070 says the guardian is not
liable to third persons, by reason of the parental relationship,
for the acts of the ward or the acts of the child. Current Sec
34.50.020 language allows recovery of damages from the legal
guardian. The CS goes way beyond the purpose of the bill, which
is to get rid of the cap on the liability. The CS fixes this
section of law to reflect both what the department is doing and
what is reflected in other parts of the law.
SENATOR FRENCH asked if the reform is to keep foster parents
liable or not liable.
MR. KELLER answered not liable.
SENATOR FRENCH reiterated that foster parents are not liable for
the damage of their charges.
MR. KELLER said that is correct.
CHAIR SEEKINS read from page 2, line 19, (B). "The adoptive
parents of an unemancipated minor if the adoptive parents are
receiving financial assistance from the state as a result of
that adoption." He asked if children suffering from fetal
alcohol syndrome (FAS) are normally adopted under this
provision.
MS. GIBBENS answered yes. There are federal guidelines for what
constitutes a special needs child for the purposes of adoption
and being eligible for an adoption subsidy. Because fetal
alcohol syndrome children have a lot of complicated medical and
or behavioral issues, they would qualify as a child that would
be eligible for a subsidy.
SENATOR THERRIAULT said this bill is an attempt to get these two
sections of statutes to jive. He said he worked on the
legislation when the cap was raised from $2 thousand to $10
thousand and was trying to refresh his memory on the things that
were brought up at that time.
He asked whether he would be exempt if his sister was
incapacitated or had died and he was acting in the capacity of
legal guardian for his nephew, but hadn't gone through the
adoption process and wasn't paid by the state.
MR. KELLER replied, as he understood it, Senator Therriault
would be exempt if he has the legal position of being guardian
of the child. The legal guardian of the child, guardian ad
litem or foster parent would be held harmless.
CHAIR SEEKINS added Sec. 13.26.070 exempts Senator Therriault as
a legal guardian. This section is kind of a Revisor's bill and
would remove blame from a legal guardian. A legal guardian
would not be responsible, only the blood parent would be
responsible.
SENATOR THERRIAULT asked if Sec. 13.26.070 is applicable in all
guardianship relationships or was that a specific section of
statute that dealt with state foster parent situations.
MR. KELLER said it is a clumsily placed section of law under
children and adults with disabilities. The pure straight
language of the bill looks like there is an obvious conflict.
The Department of Health and Social Services (HESS) referred
them to the section and they presumed that foster parents and
legal guardians were not liable. He checked a court rule that
found guardians ad litem are not held responsible. He said that
was not a very good answer. He didn't think that section of
law, Sec. 13.26.070, would be a problem in court. As far as
DFYS knew, it had not been tested
CHAIR SEEKINS told Senator Therriault they could request an
opinion from the Department of Law and hold another hearing.
SENATOR THERRIAULT said he was trying to figure out the policy
call. The state has children in foster homes and wants to place
them in a good setting. The state wants loving adults to take
those children and doesn't want those adults to have the risk of
taking in a troubled teen that might break out the neighbor's
window and place the adult's assets at risk.
SENATOR THERRIAULT then posed a scenario in which he took his
nephew under guardianship for most of his life and let him
completely run amuck. He was acting as a parent in every sense
of the word and asked if he should be completely exempt because
he is not the parent. Some discussions on that type of scenario
occurred when this legislation was dealt with in the past. He
said he was trying to figure out the sensible policy call.
1:55 pm
SENATOR FRENCH understood there is an insurance policy that
covers foster parents. If an individual takes in this troubled
youth and he or she goes next door and breaks out the neighbor's
windows then the individual's assets are not at risk because of
the insurance policy. He asked if the insurance policy no
longer applies if the individual subsequently adopts that foster
child.
MR. KELLER said, as he understands this legislation, the answer
is yes. If a child is adopted, the parental responsibility is
taken over completely. The adoptive parent assumes the
liability for the actions of the adopted child unless it is a
subsidized adoption, which would be an adoption of somebody that
is hard to place.
SENATOR FRENCH asked if that is addressed in the proposed
legislation or is that the way the current law reads. He read
that Sec. 34.50.020 subsection (a), does not authorize recovery
of damages from the adoptive parents of an unemancipated minor
if the adoptive parents are receiving financial assistance from
the state as a result of the adoption. He asked if that was the
section.
MR. KELLER said yes, that is the section; it is a new subsection
and that is our wording.
SENATOR FRENCH asked if this would cover any adoption where the
parents are getting public funds. For example, food stamps or
ATAP (Alaska Temporary Assistance Program) or anything else like
that.
MR. KELLER answered that was not the intent.
SENATOR FRENCH noted the intent is to hold harmless only those
people who adopted and are getting financial assistance as a
result of the adoption. He questioned why that is a special
category.
MR. KELLER said it is a special category because they do not
want to discourage loving adults from taking on difficult to
place children. The intent is to hold those adults harmless.
CHAIR SEEKINS said it is not uncommon for an FAS child to reach
puberty and to develop aberrant behavior. It might be very
difficult for the child to tell right from wrong. Someone might
be discouraged from trying to help that child if they had to
assume that kind of liability. He said he could understand why
that provision might be there.
SENATOR THERRIAULT questioned whether this bill provides access
to a state insurance policy for a state placement legal
guardianship where the child does damage.
MR. KELLER said he did not know. He thought the policy might be
directed just at foster parents. He said it is addressed in the
foster parent handbook, but he did not know how broad that
policy is.
CHAIR SEEKINS asked Ms. Gibbens if she knew the answer.
MS. GIBBENS said she understands there is access to a state
insurance policy, but she would verify that. Sec. 34.50.020 (b)
currently holds foster parents harmless for any damage a child
causes. The indemnification that the state provides for foster
parents is for any personal injury that a foster child might do
to another individual. It might not cover any potential
property damage. However, according to regulation, the
department does pay foster parents up to $5 thousand for any
damage that a child may cause.
CHAIR SEEKINS asked if that would be paid to the foster parents
or to anyone.
MS. GIBBENS gave and example where the child went next door and
broke a window. The division would give funds to that foster
parent to help pay for the window repair. She said she did not
believe there was any relationship there in terms of legal
guardian. She thought it was just for foster parents but would
get that clarified from risk management.
CHAIR SEEKINS referred to the case Senator Therriault talked
about where he took over as the legal guardian of his nephew.
If the nephew was a rascal, Senator Therriault might not be so
inclined to be the guardian. Unless there was some exemption on
Senator Therriault's behalf, the nephew might end up in the
state foster care program. He said he could see why the state
might try to keep that child in the family rather than make the
child a ward of the state.
SENATOR THERRIAULT said he could understand that, but you don't
really care if you are the person whose house was burned down,
car was stolen or cat was killed.
2:02 pm
CHAIR SEEKINS said that is a concern that probably should be
addressed as they look to see where the risk and reward is. An
individual could say the child is not his child and exercise no
restraint on the activities of the minor, which is not good for
society either.
SENATOR ELLIS asked the Chair for his plan for the bill.
CHAIR SEEKINS said the committee would hear the bill a second
time after receiving some clarification from DFYS.
MR. TIM STEELE, Vice President and Legislative Chair of the
Anchorage School Board, testified in support of SB 2. He didn't
believe the board would have any problems with the proposed
amendment, but he would take it back for them to review.
Damage recovery is one of the Anchorage School Board's
priorities. The school district is in need of financial help
due to vandalism and they support this legislation as a
deterrent. The Anchorage School Board is self-insured after the
first $1 million and they typically budget about $250 thousand
annually to clean up, replace and repair damage.
MR. STEELE explained the Anchorage School District suffered from
a number of high profile cases in a little over a year. They
went over the $1 million limit and have been unable to collect.
The parents and children assumed the liability in one case at
Chugiak Elementary School where there was significant damage.
They performed community service and accepted responsibility.
On the other side of the coin, there was significant damage at
the maintenance yard south of town. Vandals got into the yard,
took a tractor and ran it into machinery and buildings. The
tractor was destroyed and there was significant damage to
buildings. They also broke all the windows out of all of the
vehicles.
MR. STEELE reported 64 buses in Eagle River had their brake
lines cut today. That liability is not the Anchorage School
District's because they are contractor buses. There might have
been some very significant liability had the brake lines not
been completely severed. As it was, the brake failures occurred
while in the yard rather than on the road. There was no bus
transportation in the Eagle River area this morning and parents
had to get their children to school as best they could.
MR. STEELE concluded there is a lot of ancillary cost with
vandalism. The Anchorage School Board feels SB 2 would help
them seek restitution and would also provide a deterrent. There
is a lot of cost for the Anchorage Municipality and for police
enforcement. There is a lot of cost for parents in this bus
case where they had to take extra effort and time to get their
kids to school. The Anchorage School Board does not want to see
the good kids of Anchorage have to subsidize those very few that
don't accept responsibility. They are in favor of the
legislation and hope the Judiciary Committee moves the bill.
CHAIR SEEKINS asked Mr. Keller to have the proposed amendment
incorporated into the \I version CS and the committee would
address it at a future meeting.
SB 2 was held in committee.
SB 49-2003 REVISOR'S BILL
MS. PAM FINDLEY, Revisor of Statutes with the Legislative Legal
and Research Services, informed committee members SB 49 is a
clean up bill where the policies were determined by earlier
Legislatures, but the wording was not right for one reason or
another or where names of boards changed. She noted this bill
should not affect policy and a sectional analysis was provided.
SENATOR ELLIS said he appreciated her good work, professionalism
and attention to detail in keeping the Legislature out of
trouble. He said if Senator Halford and others were here, they
would ask if there is anything even bordering on policy or
substantive impact.
MS. FINDLEY answered no. She directed everyone's attention to
Section 27, page 10 where the explanation goes on for several
pages. Two amendments happened the same year to the same
section. This involved loans and there is a limit on these
loans. The amendments were put together in the same statute and
they don't work together very well. SB 49 attempts to keep the
two acts separate. She was told what is in the Revisor's bill
is the way the department has been executing the law so there
should not be any change on the ground. This is the most
substantive because it does involve two amendments. She feels
comfortable the policy choice was made because in one of those
subsections it is clear that another one is being accepted. The
whole explanation must be read to understand it because it is
complicated. That is the only section she wrestled with and
came to the conclusion the Legislature's policy was clear enough
for her to put that in this bill.
SENATOR THERRIAULT read the bottom of page 5 on the sectional
analysis. This section amends to make it clear that the two
$300,000 caps operate separately. If the Legislature disagrees
with my interpretation, this section could be removed. He asked
if Chair Seekins intended to move the bill at this time.
CHAIR SEEKINS replied he wanted the bill introduced and then
allow time to go through it in more detail, work out any
questions and bring the bill back at a second hearing to
finalize it.
SENATOR THERRIAULT noted he would like to get a complete
understanding before it is moved from committee.
MS. FINDLEY confirmed it is complicated.
CHAIR SEEKINS announced that the Judiciary Committee is not
going to move legislation out in the first hearing unless it is
something relatively minor.
SB 49 was held in committee.
CSHB 68(JUD)-OFFICE OF VICTIMS' RIGHTS: INCLUDE MUNIS
SENATOR THERRIAULT made a motion to adopt CSHB 68 (JUD) as the
working document. There being no objection, the motion carried.
REPRESENTATIVE RALPH SAMUELS, bill sponsor, explained CSHB
68(JUD) is a clarification of the language of the 22nd
Legislature in the creation of the Office of Victims' Rights
(OVR). The OVR was created in an effort to give victims of
crime an independent voice in the criminal justice system.
Essentially the OVR is an ombudsman; they have the power to
collect data and issue reports to the appropriate body.
A situation arose because of the tragic shooting of former
Commissioner Glenn Godfrey and his wife Patti in Anchorage. A
war of words and attorneys ensued over whether or not the OVR
had jurisdiction within a municipality. The municipality said
the OVR had no jurisdiction because the word municipality was
not specifically in the statute. That was despite the fact that
55 percent of the people live in the municipality and therefore
55 percent of the crime victims are in the municipality. The
OVR office is located within the Municipality of Anchorage.
This bill merely adds the word municipality. The Anchorage
Assembly has passed an ordinance that agrees with this
legislation and the Mayor of Anchorage has also agreed.
"Everybody has kissed and made up now and the bill is moving
forward."
SENATOR ELLIS asked if Mr. Branchflower requested the
legislation.
REPRESENTATIVE SAMUELS replied Mayor Wuerch requested it and it
was his city attorney who made the ruling that created the
conflict.
2:15 pm
SENATOR THERRIAULT asked if there was anything at the time of
the original act that talked about OVR being specifically for
the state entities or just the opposite.
REPRESENTATIVE SAMUELS said there was no specific discussion for
state entities. He said when he read through the minutes of the
various hearings and talked to Senator Halford, the sponsor, it
was obvious the intent was to include municipalities. Without
the Anchorage Police Department (APD) and the Fairbanks Police
Department being included, up to 80 percent of the victims of
crime are excluded. According to the sponsor, it was an
oversight.
SENATOR FRENCH added this would also clear up a potential
conflict if APD investigated a case and forwarded it to the
State District Attorneys' Office where APD is then an arm of the
state agency. Those little disputes are frequent. If the
municipal prosecutor handles the case APD is a municipal
organization. One investigation would be in the hands of OVR
and one would not. He said this is a good idea.
REPRESENTATIVE SAMUELS said that's true; particularly with the
municipal prosecutor's office rather than APD, but this would
include both cases.
SENATOR THERRIAULT asked about the difference between the
original bill and the CS. He asked if it was just the change in
the title.
REPRESENTATIVE SAMUELS answered yes.
SENATOR ELLIS said it was always clear to him and the people who
worked on this legislation, supported Senator Halford and voted
for it that the intent was to cover everyone. He disagreed with
the Anchorage Municipal Attorney, Mr. Greene, on many occasions
and this opinion was laughable. He added he was pleased this
was being corrected.
CHAIR SEEKINS observed this is a fairly simple thing to
accomplish the intent of the original legislation.
SENATOR THERRIAULT moved CSHB 68(JUD) from committee with
individual recommendations and attached fiscal note. There
being no objection, the motion carried.
CONFIRMATION HEARING
CHAIR SEEKINS asked if Mr. Barker was on line. He informed
committee members the Governor appointed Mr. Barker to the
Violent Crimes Compensation Board and his personal record was
available to committee members. He asked Mr. Barker to share
why he would like to take this appointment.
MR. LEROY BARKER testified he spent several years as a
prosecutor and was interested in the criminal justice field.
This is one way to serve those people he served as a prosecutor.
SENATOR THERRIAULT moved that Mr. LeRoy Barker's name be
advanced to the full Senate for consideration. There being no
objection the motion carried.
SENATOR ELLIS asked if Chair Seekins had made any progress on
bringing Ms. Shirley McCoy back before the committee.
CHAIR SEEKINS responded they checked with the House to see if
there was a time when they could have a joint meeting and
determined she would be called in individually.
MR. BRIAN HOVE, staff to the Judiciary Committee, predicted she
would come before the committee within the next 30 days.
There being no further business to come before the committee,
Chair Seekins adjourned the meeting at 2:23 pm.
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