Legislature(1997 - 1998)
05/07/1998 04:10 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE May 7, 1998 4:10 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Sean Parnell Senator Mike Miller Senator Johnny Ellis MEMBERS ABSENT Senator Drue Pearce, Vice-Chairman COMMITTEE CALENDAR CS FOR HOUSE BILL NO. 203(JUD) "An Act relating to actions for unlawful trade practices." - MOVED SCS CSHB 203(JUD) OUT OF COMMITTEE CS FOR HOUSE BILL NO. 122(JUD) "An Act relating to prisoner litigation, post-conviction relief, and sentence appeals; relating to violation of certain testing orders for those convicted of certain crimes; relating to probation and parole conditions and revocation of parole; amending Rule 10(e), Alaska Administrative Rules, Rule 502(b), Alaska Rules of Appellate Procedure, Rule 26, Alaska Rules of Civil Procedure, and Rules 32 and 35, Alaska Rules of Criminal Procedure." - MOVED CSHB 122(JUD) OUT OF COMMITTEE CS FOR HOUSE BILL NO. 383(JUD) "An Act relating to expected deaths that occur at home." - MOVED CSHB 383(JUD) OUT OF COMMITTEE CS FOR HOUSE BILL NO. 375(FIN) am(reengrossed) "An Act relating to children-in-need-of-aid matters and proceedings; relating to child abuse and neglect; relating to kidnapping and the crime of endangering the welfare of a child; relating to sentencing for certain crimes; relating to the state medical examiner and reviews of child fatalities; relating to modification of child support orders by the child support enforcement agency; relating to access to, confidentiality of, and release of certain information concerning children, child abuse and neglect, and child fatalities; authorizing the Department of Health and Social Services to enter into an interstate compact concerning adoption and medical assistance for certain children with special needs; relating to the review of cases involving certain children who are in the custody of the state; authorizing the establishment of multidisciplinary child protection teams and relating to their duties; relating to persons required to report suspected child abuse or neglect; relating to foster care and foster parents; relating to access to certain criminal justice information and licensure of certain child care facilities; amending Rule 218, Alaska Rules of Appellate Procedure; and amending Rules 3, 7, 10, 15, 18, 19, and 22, Alaska Child in Need of Aid Rules." - HEARD AND HELD SENATE BILL NO. 272 "An Act relating to children in need of aid matters and proceedings; relating to murder of children, criminally negligent homicide, kidnapping, criminal nonsupport, the crime of indecent exposure, and the crime of endangering the welfare of a child; relating to registration of certain sex offenders; relating to sentencing for certain crimes involving child victims; relating to the state medical examiner and reviews of child fatalities; relating to teacher certification and convictions of crimes involving child victims; relating to access, confidentiality, and release of certain information concerning the care of children, child abuse and neglect, and child fatalities; authorizing the Department of Health and Social Services to enter into an interstate compact concerning adoption and medical assistance for certain children with special needs; authorizing the establishment of a multidisciplinary child protection team to review reports of child abuse or neglect; relating to immunity from liability for certain state actions concerning matters involving child protection and fatality reviews and children in need of aid; relating to persons required to report suspected child abuse or neglect; relating to foster care placement and to payment for children in foster and other care and the waiver of certain foster care requirements; relating to the access to certain criminal justice information and licensure of certain child care facilities; amending Rule 218, Alaska Rules of Appellate Procedure; amending Rules 1, 3, 15, 18, and 19, Alaska Child in Need of Aid Rules; and providing for an effective date." - MOVED SB 272 OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION HB 203 - See Labor and Commerce Committee minutes dated 5/5/98. HB 122 - No previous action to record. HB 383 - No previous action to record. HB 375 - See Judiciary minutes dated 5/4/98. SB 272 - See HESS minutes dated 4/8/98 and Judiciary minutes dated 5/4/98. WITNESS REGISTER Mr. Daveed Schwartz, Assistant Attorney General Department of Law 1031 W. 4th Ave., Suite 200 Anchorage, AK 99501 POSITION STATEMENT: Supported HB 203. Ms. Peggy Mulligan Alaska Association of Retired Persons (AARP) 1208 Second St. Douglas, AK 99824 Supported HB 203. POSITION STATEMENT: Supported HB 203. Ms. Marie Darlin National Association of Retired Federal Employees POSITION STATEMENT: Supported HB 203. Ms. Pam La Bolle Alaska State Chamber of Commerce 217 Second Street #201 Juneau, AK 99801 POSITION STATEMENT: Commented on HB 203. Ms. Anne Carpeneti, Assistant Attorney General Department of Law Criminal Division P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Supported HB 203. Mr. Elmer Lindstrom, Special Assistant Department of Health and Social Services P.O. Box 110601 Juneau, AK 99811-0601 POSITION STATEMENT: Supported HB 375. Ms. Susan Wibker, Assistant Attorney General Department of Law P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Supported HB 375 Mr. Stephen Wallace, Assistant Attorney General Department of Law Human Services Division 1031 W 4th Anchorage, AK 99701-4679 POSITION STATEMENT: Supported HB 375. Ms. Lisa Nelson, Assistant Attorney General Department of Law Human Services Division 1031 W 4th Anchorage, AK 99701 POSITION STATEMENT: Supported HB 375. Mr. Harry Niehaus Fairbanks, AK 99701 POSITION STATEMENT: Opposed HB 375. Mr. Walter Gauthier Guardians of Family Rights Homer, AK 99603 POSITION STATEMENT: Opposed HB 375. Ms. Marci Schmidt 2040 wasilla Fishhook Rd. Wasilla, AK 99687 POSITION STATEMENT: Opposed HB 375. Ms. Carol Palmer PO Box 2402 Palmer, AK 99645 POSITION STATEMENT: Opposed HB 375. Ms. Jane Burchard POSITION STATEMENT: Opposed HB 375. Mr. Scott Calder PO Box 75011 Fairbanks, AK 99707 POSITION STATEMENT: Opposed HB 375. ACTION NARRATIVE TAPE 98-54, SIDE A Number 001 CSHB 203(JUD) - ACTIONS FOR UNLAWFUL TRADE PRACTICES CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at approximately 4:10 p.m. and announced CSHB 203(JUD) to be up for consideration. REPRESENTATIVE DYSON said only two part-time people work in the Consumer Protection Division of the Attorney General's Office. This bill is an effort to privatize some portions of that office to allow consumers to protect themselves from fraud. HB 203 removes the $200 limit that made it virtually impractical to get legal assistance when going after an alledged perpetrator when one is a victim of fraud. It allows for the recovery of damages, reasonable costs, and some punitive damage. It also allows for injunctive relief, if there is a conviction, if the magistrate agrees. HB 203 also allows a person who is not a party to the fraud to seek the injunctive relief. REPRESENTATIVE DYSON added that frivolous lawsuits are dealt with too. REPRESENTATIVE DYSON said the Alaska State Chamber of Commerce does not oppose this. SENATOR ELLIS said he supported the bill as he represents a lot of senior citizens who have been victimized. REPRESENTATIVE DYSON said he wanted to put together a task force to act as a clearinghouse to help people get this kind of protection. Number 140 CHAIRMAN TAYLOR asked if the punitive damage section was different from last year's tort reform bill. REPRESENTATIVE DYSON said he thought it was identical. CHAIRMAN TAYLOR replied he thought it was different. SENATOR PARNELL asked CHAIRMAN TAYLOR if he wanted the language to mirror the past tort reform legislation. CHAIRMAN TAYLOR answered yes. REPRESENTATIVE DYSON said punitive damages would be awarded in addition to the actual damages going to the victim. The intention is to discourage people from looking for lawsuits to file. SENATOR PARNELL questioned why language was needed on page 2, lines 10-13, saying the Commissioner of Administration should simply account for that money. REPRESENTATIVE DYSON said that was put in by the House Judiciary Committee and it mirrored tort reform language that passed. CHAIRMAN TAYLOR noted that this bill was not limited to telemarketing frauds. Number 261 MR. DAVEED SCHWARTZ, Department of Law (DOL), said DOL supports HB 203 because it enhances a private litigant's ability to enforce consumer rights. He said encouraging private enforcement of consumer protection matters is particularly important at a time when State resources devoted to consumer protection are significantly less than in years passed. CHAIRMAN TAYLOR asked him if three times actual damages was per act or per cause. MR. SCHWARTZ replied that the language referred to each unlawful act. CHAIRMAN TAYLOR said it looks like this provision has to do with class actions and that one would literally be allowed to get three times the actual damages for each act. MR. SCHWARTZ responded there hasn't been a lot of litigation under 531(A) and that section is not limited to class actions. It could be an individual's action. CHAIRMAN TAYLOR noted that is current law. MR. SCHWARTZ said the willfulness requirement would be eliminated under the proposed change. Number 336 MS. PEGGY MULLIGAN, Capital City Task Force, AARP, noted the committee already received its position paper in support of HB 203 which goes a long way in helping Alaskans to fight fraud. HB 203 may also act as a deterrent to unlawful practices because it allows people to take these cases to court. MS. MARIE DARLIN, NARFP, supported Ms. Mulligan's comments regarding HB 203. Number 367 SENATOR PARNELL moved to delete the section on page 2, lines 10-13, that requires the Commissioner of Administration to separately account for the money and for the Legislature to direct the money. There were no objections therefore Amendment #1 passed. SENATOR PARNELL said Section 45.50.531 (Rule 82) might be taking a step backward in terms of awarding fees and costs compared to current law. MS. PAM LABOLLE, Alaska State Chamber of Commerce, said it had a problem in House Judiciary because Rule 82 was not applicable. The prevailing plaintiff gets attorney fees, the prevailing defendant must pay his/her own. The inclusion of Rule 82 was an attempt to fix that but it's possible that it doesn't totally fix the problem. Number 441 REPRESENTATIVE DYSON said that provision was and attempt to help the "little guy" who was going up against multiple attorneys on retainer and was afraid he would lose and have to pay court costs. CHAIRMAN TAYLOR said he thought the attorney fee section was a direct modification of Rule 82. MS. LABOLLE explained the Chamber's intent was to protect mom and pop organizations. SENATOR PARNELL said he thought it was a step backwards, because the court may award the prevailing party all or a portion of the fees. Number 528 SENATOR PARNELL moved to pass CSHB 203(JUD) from committee with individual recommendations. There were no objections and it was so ordered. CSHB 122(JUD) - PRISONERS: LITIGATION & DEBTS CHAIRMAN TAYLOR announced HB 122 to be up for consideration. MS. ANNE CARPENETI, Department of Law, said HB 122 has two basic themes relating to laws that were passed in 1995 regarding prisoner litigation. These laws limit frivolous lawsuits and require 20 percent of a prisoner's jail account for a filing fee, a system that has worked fairly well. HB 122 adds to the information prisoners must submit when they apply for an exemption from a filing fee to include money in accounts outside the prison and expands the definition of litigation against the State to specifically include particular forms of appellate litigation. It also addresses the DNA testing bill making it easier for the State to introduce DNA profile evidence in a prosecution. It also set up a DNA bank in the Department of Public Safety but it did not provide any enforcement procedures to get people to submit to DNA testing and prisoners are refusing to submit samples. HB 122 provides enforcement mechanisms to get those samples: it is a required condition of parole and probation; and it requires the court to order a convicted felon to submit a sample for the DNA bank as a part of sentencing. Cheek swabs are normally used, so it's not an intrusive procedure. DNA evidence has been helpful in solving crimes. SENATOR ELLIS asked if the DNA collection was strictly prospective. MS. CARPENETI said it applies to people who convicted of certain crimes after the passage date. SENATOR ELLIS asked if there is a plan to collect evidence that might exonerate people who may have been wrongly convicted. He said this is very important if the death penalty is reinstated in Alaska. MS. CARPENETI answered this bill does not address that issue and she wasn't aware of any plans in that area. It applies to people who convicted of a crime after 1995. SENATOR ELLIS asked if this kind of measure had been challenged and upheld through the federal courts. MS. CARPENETI said she would find that out for him. SENATOR PARNELL added that hundreds of samples had been collected to date and asked how widespread the problem is. MS. CARPENETI replied that some people are cooperating, but it is a significant enough problem. They were unable to get it ordered in a case last September and were getting less cooperation as a result. TAPE 98-54, SIDE B Number 579 SENATOR PARNELL moved to pass CSHB 122(Jud) from committee with individual recommendations. There were no objections and it was so ordered. HB 383 -EXPECTED DEATHS THAT OCCUR AT HOME CHAIRMAN TAYLOR announced HB 383 to be up for consideration. REPRESENTATIVE GARY DAVIS, sponsor, said when a person is terminally ill and at home and has a relatively short life expectancy, various home health services are available. Currently, a lot of these services believe that when a death occurs, they are required to call the police department to investigate the death, an invasive procedure to the family. Police confiscate medications, view and photograph the body, etc. HB 383 puts a plan in place and creates an "expected death form" to be signed by the attending physician and the terminally ill person. The signed form is filed with the local police department or whatever agency is in charge of that area and negates the need for police notification at the time of death. SENATOR ELLIS asked if this would preclude the ability of police to determine if an assisted suicide took place. REPRESENTATIVE DAVIS said objections from the "hemlock society" have been expressed. He said home health service professionals have the same training and ethics code as hospital staff. He thought that would not be an issue because of the professional nature of the people in charge. SENATOR ELLIS said statistically an assisted suicide is more likely to happen at a private residence rather than a licensed health care facility. REPRESENTATIVE DAVIS said assisted suicide only happens with the complete cooperation of everyone involved and he didn't see that type of cooperation coming from a home health care professional. SENATOR ELLIS said he would support the legislation because he doesn't have that concern. REPRESENTATIVE DAVIS said he has conferred with medical examiners and Department of Public Safety officials. The legislation allows communities with such a concern to pass a local ordinance. MR. ELMER LINDSTROM, Department of Health and Social Services (DHSS), said the policy of responding to all deaths originally came from the Office of the Coroner which no longer exists. It was never a statutory requirement. He added that the State Medical Examiner has no problem with this bill. SENATOR PARNELL moved to pass HB 383 from committee with individual recommendations. There were no objections and it was so ordered. CSHB 375(FIN) am - CRIMES AGAINST CHILDREN/FOSTER CARE CHAIRMAN TAYLOR announced HB 375 to be up for consideration. MS. SUSAN WIBKER, Assistant Attorney General, explained some changes to the bill. The first change begins on page 18 and goes through page 19, line 14, and concerns the definition of "mental injury." The Committee wanted to specifically address children witnessing physical assault. The definition of physical assault is very broad and would cover many things other than battering. It was the intent of the committee to limit this to violent crimes against people. They also talked about repeated incidents. She said the version that came out of the House is much broader than the House wanted; it cites crimes contained in AS 11.41 such as custodial interference, robbery, and things beyond the scope of the committee's stated intent. The work draft is what they think the committee wanted. MS. LISA TORKELSON, staff to Representative Dyson, explained the two changes to HB 375 are the mental injury modification and the list of reports the Department would provide showing what constitutes harm. CHAIRMAN TAYLOR asked Ms. Torkelson if she thought it came closer to the intent of both the Judiciary and Finance Committees to limit mental injury to certain specific exposures. MS. TORKELSON replied yes. SENATOR ELLIS moved to adopt the Q/Lauterback/5/7/98 version as the working document. There were no objections and it was so ordered. MR. STEPHEN WALLACE, Assistant Attorney General, said he didn't have anything meaningful to add after Ms. Whitaker's testimony and he supported the bill. Ms. LISA NELSON also supported HB 375. Number 256 MR. HARRY NIEHAUS commented that they were rushing this bill. Most of this language is not required by federal law. Legislative Audit in 1998 made it clear that DFYS has purposely diverted funds appropriated by the legislature for social workers to protect children so their cronies could have sufficient money for their retirement programs. He suggested they read the legislative audit report before going further. He said the State would not lose its Title 4 funds for non-compliance. MR. WALTER GAUTHIER, Guardians of Family Rights, referred the Committee to the Alaska Senate Family Law Review Task Force Report, 1990-1991. It concludes that all agency staff must be accountable for their actions which hasn't been done. The agencies must work to improve public relations and a lot of money has been spent on that. The Division of Family and Youth Services seems to be in a state of crisis and always will be. Mr. GAUTHIER remarked that twice as many social workers graduate from the University of Alaska as in all other professions combined. He noted the bill has no fiscal note. He said Guardians of Family Rights would support this bill if all interviews with minors would be video or audio taped, because the child protection agencies believe it is alright to lie about what went on during interviews if it's in the best interests of the child, an extremely subjective opinion. MR. GAUTHIER said that as a result of the Domestic Violence Act of 1996, the CINA court caseload has jumped 25 percent in one year and 65 percent in Anchorage. Accusations of abuse have become an even more potent weapon in divorce and custody arguments. The Alaska Judicial Council report was funded with $90,000 of federal money and required input from the public, but it only contained input from professionals who were paid by the system. MR. GAUTHIER said this constitutes fraud against the federal grant that was awarded. He noted that child abuse is a business which generates $1 billion per year in Alaska through grants to non-profits, reimbursements, and private foundation grants. MR. GAUTHIER said he was saddened that overwhelming public testimony against this bill can be heard and yet it moves right along in the process. Referring to page 35, Section 34(e), he said that courts should be given a copy of testimony without permission of the parents, because they would not get permission from parents who would be put in the position of defending themselves in a civil trial where they have no rights anyway - not having access to court files for documentation so they know what to refute. MS. MARCI SCHMIDT said she is testifying as a parent. She said she is very disillusioned by the democratic system. She felt this bill is simply not in compliance with federal law. It contains no clear definition of kinship care, no reference to the federal Parent Locator Service, and yet it still gives the illusion that it allows foster parents to obtain information while it only allows them to sit outside the court room if DHSS so chooses. Part of the intent of the federal grant was to allow foster parents to have access to medical records and court proceedings to better promote the care of the children they were given. She expressed concern that Section 51, regarding placement of a blood or marriage relative, has problems because it only allows adoption for blood relations. TAPE 98-55, SIDE A Number 001 SB 272 - CRIMES AGAINST CHILDREN/FOSTER CARE MS. SCHMIDT suggested deleting the word "blood" and also noted in Section 62, lines 10 and 11, she didn't really want a social worker acting like a police officer. She is alarmed about a multi-team task force, because it is totally wasteful if the determinations are not admissible in a court or civil proceeding. The immunities provisions do not require accountability for someone who uses his/her job in a manner detrimental to children. Number 68 MS. CAROL PALMER said she opposed HB 375, but she supports intervention in real cases of child abuse where clear, convincing evidence exists. She said this bill requires no accountability for social workers and provides for no recourse for parents who are falsely accused by DFYS. She wanted safeguards in place for innocent parents at the time of the initial investigation by DFYS. MS. JANE BURCHARD, Fairbanks, opposed HB 375. She is a parent who was falsely accused and believes the Legislature should mandate videotaped interviews. MR. SCOTT CALDER supported Mr. Gauthier's testimony. He would like to have someone with Mr. Gauthier's knowledge have equal time to testify as Ms. Wibker who works for the State. He is a parent who has been blocked by the court process. He thought they should put this off until next year so an open examination of DFYS can take place. CHAIRMAN TAYLOR said the changes to the legislation are not related to what Mr. Calder was talking about, but it does add a provision requiring DFYS to report these instances to the legislature and that information would be public. SENATOR MILLER moved to pass SB 272 from committee with individual recommendations. There were no objections and it was so ordered. CHAIRMAN TAYLOR adjourned the meeting at 6:10 p.m.