Legislature(1997 - 1998)
04/23/1997 01:44 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 23, 1997
1:44 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Drue Pearce, Vice-chair
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
Senator Mike Miller
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 119(JUD)
"An Act raising the limit on small claims actions to $7,500;
amending Rule 9, Alaska Rules of Administration; and providing for
an effective date."
MOVED CSHB 119(JUD) FROM COMMITTEE WITH INDIVIDUAL
RECOMMENDATIONS.
SENATE CS FOR CS FOR HOUSE BILL NO. 30(L&C)
"An Act relating to civil liability for certain skating and cycling
activities; and providing for an effective date."
HEARD AND HELD
CS FOR HOUSE BILL NO. 6(FIN) am
"An Act relating to minors and amending laws relating to the
disclosure of information relating to certain minors."
HEARD AND HELD
CS FOR HOUSE CONCURRENT RESOLUTION NO. 4(JUD)
Relating to records generated and maintained by the Department of
Health and Social Services.
SCHEDULED BUT NOT HEARD
PREVIOUS SENATE COMMITTEE ACTION
HB 119 - No previous Senate committee action.
HB 30 - See Senate Labor & Commerce minutes dated 4/08/97.
HB 6 - No previous Senate committee action.
WITNESS REGISTER
Representative Mark Hodgins
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of HB 119
Representative Eldon Mulder
Alaska State Capitol
Juneau, Alaska 99081-1182
POSITION STATEMENT: Sponsor of HB 30
Kevin Ritchie
Executive Director
Alaska Municipal League
217 Second St., Suite 200
Juneau, AK 99801
POSITION STATEMENT: Supports HB 30
Kevin Smith
Joint Insurance Company
Alaska Municipal League
217 Second St., Suite 200
Juneau, AK 99801
POSITION STATEMENT: Supports HB 30
Connie Jones
Cultural & Recreational Services Director
Municipality of Anchorage
P.O. Box 196650
Anchorage, AK 99519-6650
POSITION STATEMENT: Supports HB 30
Colin Whiddon
1116 Baranof
Kodiak, AK 99615
POSITION STATEMENT: Supports HB 30
Ian Fulp
Parks & Recreation Director
City of Kodiak
P.O. Box 1397
Kodiak, AK 99615
POSITION STATEMENT: Supports HB 30
Richard Bittick
Parks & Recreation Division
City of Seward
P.O. Box 167
Seward, AK 99664
POSITION STATEMENT: Supports HB 30
Nancy Robb
Parks & Recreation Director
City of Valdez
P.O. Box 307
Valdez, AK 99686
POSITION STATEMENT: Supports HB 30
Laurie Whiddon
1116 Baranof
Kodiak, AK 99615
POSITION STATEMENT: Supports HB 30
Claudia Anderson
P.O. Box 310
Kodiak, AK 99615
POSITION STATEMENT: Supports HB 30
Chief Palmer
Kodiak Police Department
City of Kodiak
P.O. Box 1397
Kodiak, AK 99615
POSITION STATEMENT: Supports HB 30
Mel Perkins
9349 Turn St.
Juneau, Alaska 99801
POSITION STATEMENT: Opposed to HB 30
Jay Sonner
9360 Turn St.
Juneau, Alaska
POSITION STATEMENT: Supports HB 30
Representative Pete Kelly
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 6
Barbara Brink
Public Defender Agency
900 W 5th Ave #200
Anchorage, AK 99501
POSITION STATEMENT: Opposed to HB 6
Pam Karalunas
P.O. Box 73893
Fairbanks, AK 99707
POSITION STATEMENT: Expressed concerns about HB 6
C-Joe Dimatteo
3333 Denali St. #201
Anchorage, AK 99503
POSITION STATEMENT: Expressed concerns about HB 6
D. Bunti Reed
3725 Portage Blvd.
Juneau, AK 99081
POSITION STATEMENT: Opposed to HB 6
Laura Roen
9151 Parkwood Dr.
Juneau, AK 99801
POSITION STATEMENT: Opposed to HB 6
Mary Messner
P.O. Box 1069
Barrow, AK 99723
POSITION STATEMENT: Opposed to HB 6
Cecelia Davis
4853C Last Frontier Circle
Eielson Air Force Base, AK 99702
POSITION STATEMENT: Commented on HB 6
Lori Namyniuk
P.O. Box 190221
Anchorage, AK 99519
POSITION STATEMENT: Opposed to HB 6
Margo Knuth
Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on HB 6
Dr. Russell Hoffman
140 Kilbuk
Bethel, AK
POSITION STATEMENT: Commented on HB 6
Johy Cyr, President
NEA-Alaska
210 Second St.
Juneau, Alaska 99801
POSITION STATEMENT: Commented on HB 6
Diane Worley, Director
Division of Family & Youth Services
Dept. of Health and Social Services
P.O. Box 110630
Juneau, AK 99811-0630
POSITION STATEMENT: Commented on HB 6
Angela Salerno
National Association of Social Workers,
Alaska Chapter
POSITION STATEMENT: Opposed to HB 6
ACTION NARRATIVE
TAPE 97-29, SIDE A
Number 00
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:44 and announced the presence of Senators Pearce and
Parnell. He noted the teleconference sites participating in
today's hearing were Anchorage, Kodiak, Fairbanks, Petersburg,
Seward, Valdez and Wrangell. The first order of business was HB
119.
HB 119 INCREASE SMALL CLAIMS JURISDICTION
REPRESENTATIVE MARK HODGINS , sponsor of HB 119, explained the
measure raises the limit amount in small claims court from $5,000
(set in 1986) to $7,500 to reflect inflation, and will allow people
to use that court for more small claims. HB 119 maintains the $25
fee for claims of $1 to $2500 but raises the fee for claims from
$2500 to $7500 to $50.00. He urged committee members to support
the measure.
CHAIRMAN TAYLOR noted he supported the increase in 1986. There
were no other witnesses to testify on HB 119.
SENATOR PARNELL moved HB 119 from committee with individual
recommendations.
HB 30 CIVIL LIABILITY FOR SKATEBOARDING
REPRESENTATIVE ELDON MULDER , sponsor of HB 30, gave the following
overview. The measure was introduced at the request of the
Municipality of Anchorage (MOA), City and Borough of Juneau (CBJ)
and numerous other communities throughout the State: Fairbanks,
Sitka, Valdez, and Petersburg. These communities have indicated
interest in creating skating and cycling parks so that skaters and
cyclers will have a designated place to ride, rather than using
pedestrian areas. Municipalities are willing to develop areas
suitable for these activities if they can be insulated from
liability for claims arising from hazards inherent to those
activities. The intent of HB 30 is to encourage municipalities to
proceed with development of areas for outdoor recreation without
unnecessarily increasing their liability. HB 30 only applies to
municipal skating and cycling parks and is patterned after
legislation that passed three years ago which pertained to ski
areas. The protection from liability relates to inherent dangers
and risks associated with skating and cycling. Municipalities will
be required to post signs warning participants of the risks
involved and disclaiming liability.
Number 084
SENATOR ELLIS asked if there might be any possible unintended
consequences on liability if those activities occur outside of
designated areas.
REPRESENTATIVE MULDER did not believe so, but deferred to
representatives from the Alaska Municipal League.
CHAIRMAN TAYLOR stated HB 30 is based on an assumption of an
inherent risk of using the facility. He asked at what age the
discretion to make that assumption should occur.
REPRESENTATIVE MULDER answered the assumption goes to the fact that
there is an inherent risk in skateboarding, in-line skating, or
using a bicycle on these premises, and is within those activities
rather than the facility itself. Accidents are currently occurring
in public areas but there is no plethora or lawsuits because there
is no one to sue. The facilities will have to be challenging to
encourage youth to use these facilities, which poses a risk to
municipalities.
CHAIRMAN TAYLOR clarified he was asking at what age a child should
be considered capable of understanding the inherent risk involved:
age 5, 7, or at the age one can read a warning sign.
TIM SULLIVAN , staff to Representative Mulder, explained the bill is
not age-specific but does contain a provision related to
responsibility. He read subsection (B) on page 4, line 12:
(B) if the person does not have sufficient physical dexterity
or ability and knowledge to negotiate or use the facility
safely; in the case of a minor who uses a municipal skating or
cycling facility, the minor's parent or legal guardian is
responsible for determining whether the minor satisfies the
requirements of this paragraph;
Mr. Sullivan said he believes that language is consistent with the
direction the Legislature has taken over the past few years to make
parents more responsible for their children's activities.
Number 160
CHAIRMAN TAYLOR asked who would be responsible in a situation in
which a 14 year old, who is responsible for taking care of his 4
year old brother during the summer while the parents are working,
takes the 4 year old to the skateboard park where he is injured.
REPRESENTATIVE MULDER thought it would depend on how the injury
occurred. It could have occurred as the result of negligent
construction or while the child was an onlooker. He believed the
real question in that case is what the two children would be doing
if the facility was not there. If the assumption is that they
would both be skateboarding, they would be doing so on the street.
CHAIRMAN TAYLOR said that issue is related to whether or not the
Legislature needs to regulate laws that are currently on the books
that municipalities choose not to enforce. He asked at what point
does immunity from liability attach to the four year old. He
repeated that HB 30 is based on the assumption that skateboard and
cycling are inherently riskier than other activities.
REPRESENTATIVE MULDER answered the number of these types of
injuries that occur in the public today cannot be accounted for
because no parks have been built so there has been no "deep
pocket," but once a municipality officially sanctions a facility,
a "deep pocket" will be exposed. He added the only municipally-
sanctioned facility in Alaska that he is aware of is a very small
facility in Kodiak and recently a child was injured at the facility
and is suing the city.
Number 216
CHAIRMAN TAYLOR noted he has seen skateboard facilities in
California, Washington, Idaho, and Florida. He asked
Representative Mulder to cite another State that has passed an
immunity bill similar to HB 30.
REPRESENTATIVE MULDER deferred to representatives from the Alaska
Municipal League.
CHAIRMAN TAYLOR asked whether anyone requested information from
Legal Research about other states. REPRESENTATIVE MULDER replied
he did not.
CHAIRMAN TAYLOR said, if HB 30 is valid and municipalities need
immunity in order to have recreational equipment for children, the
Legislature needs to know how many children are injured when
playing football and diving in swimming pools, or when
participating in other activities on municipal lands. He
emphasized if there are cases where communities are suffering
serious legal challenges because of liability for recreational
activities, the Legislature should provide immunity for all of
those activities. He concluded there may not be a problem, since
communities do allow for recreational activities and cover the
risk. He expressed concern that HB 30 will allow municipalities to
turn their backs on injured children and asked that Representative
Mulder provide legal research on this issue.
Number 256
KEVIN RITCHIE , Executive Director of the Alaska Municipal League
(AML), and KEVIN SMITH , with AML's Joint Insurance Program, took
the witness stand. Mr. Ritchie explained that the Joint Insurance
Program is an insurance pool governed separately from the AML. He
stated HB 30 is a priority bill for the AML because it will allow
municipalities to provide an area for an activity which is
inherently dangerous and is occurring in places that municipalities
have outlawed, or are in the process of outlawing, because it is
dangerous to participants and others. Skateboarding has become a
tourism/business issue because it often occurs in downtown areas.
AML would like to channel these children into a supervised area.
Because the activities are currently occurring in illegal areas,
there is no liability issue when injuries occur but if parks are
created by municipalities, they will be assuming liability. HB 30
would provide the same type of immunity that is currently provided
for municipal ski areas.
CHAIRMAN TAYLOR referred to the repeated use of the term
"inherently dangerous" and asked Mr. Ritchie what the risks are.
MR. RITCHIE replied that Representative Mulder referred to a broken
arm. He noted an additional advantage to a designated park is that
protective gear can be required and limit the number and types of
injuries.
CHAIRMAN TAYLOR asked what specific injuries are known to exist
from this activity in skateboard parks.
MR. SMITH responded that skateboarding is done with great speed and
requires balance. The injuries are not limited to, but include,
broken bones, backs, necks, and brain stem and head injuries.
CHAIRMAN TAYLOR asked if the municipalities insured under the Joint
Insurance Program have risk management programs and are advised on
how to avoid certain risks. MR. SMITH answered that is correct.
CHAIRMAN TAYLOR asked how playground equipment is dealt with. MR.
SMITH answered it is inspected for entrapment hazards, for exposed
rivets, for adequate ground cover, etc.
CHAIRMAN TAYLOR asked why that is done. MR. SMITH said it is done
to make the playground safer. CHAIRMAN TAYLOR said it is also done
to prevent lawsuits and keep insurance rates from increasing. He
asked why there are fewer pieces of playground equipment on
playgrounds today. MR. SMITH replied that a lot of lawsuits over
the safety of playground equipment have been filed against
municipalities and safer equipment has been designed.
CHAIRMAN TAYLOR asked if Mr. Smith meant safer than something that
is inherently dangerous. MR. SMITH said yes, swinging is not as
inherently dangerous as skateboarding. CHAIRMAN TAYLOR asked if
some of the equipment that has been taken out of playgrounds is as
inherently dangerous as skateboarding. MR. SMITH replied some of
them probably were.
CHAIRMAN TAYLOR asked why HB 30 shouldn't be expanded to include
all of that equipment if we want to encourage activities that are
inherently risky. MR. SMITH said he was in favor of broadening the
immunity to any outdoor recreational activity. He noted in his
research, he found that municipalities have been sued in a number
of states for skateboarding activities. A number of states have a
broader statute and gives any property owner some limited liability
from injuries resulting from outdoor recreational activities.
Number 391
MR. RITCHIE pointed out the AML targeted skateboarding, cycling,
and in-line skating because they are becoming national sports and
have extensive safety guidelines and equipment. HB 30 does not
stop the evolution of safety in the sport, it will help it. If a
municipality designs a skateboard park that does not meet
appropriate safety standards, the municipality will be liable if an
injury results. Municipalities would be liable for negligence.
The type of inherent injury that hopefully will never happen can be
protected against, but not fully. Although the Joint Insurance
Program is a large program, one serious injury would have a
significant impact.
CHAIRMAN TAYLOR stated what AML wants is to be immune from
negligence. REPRESENTATIVE MULDER explained the bill maintains
that a community is liable if the design of the facility is found
to be faulty. CHAIRMAN TAYLOR noted the only requirement for a
municipality is posting a sign. MR. SMITH said municipalities
would also be responsible for maintaining the facility.
Number 425
MR. RITCHIE did not believe HB 30, or the law that covers ski
areas, creates what attorneys call a "bright line." It attempts to
add some definition and does not create a solid line as to what is
negligent and what is not.
REPRESENTATIVE MULDER pointed out that language on page 3, line 10,
prohibits a municipality from constructing a facility in a
negligent manner and recognizes that there is a safe way to build
and maintain these facilities. Language on page 5, lines 7-8,
specifies that a municipality is not immune from liability for
negligence. He repeated that is not the intention of HB 30.
CHAIRMAN TAYLOR asked how many cities the Joint Insurance Program
insures. MR. SMITH replied there are 113 participants, including
schools and municipalities. CHAIRMAN TAYLOR asked how much they
are charged for recreational coverage for skateboard parks now.
MR. SMITH said it is included in the general liability policy and
began July 1, 1996.
CHAIRMAN TAYLOR asked what claims have been filed. MR. SMITH said
one claim has been filed against Kodiak by the child who broke his
arm while in-line skating. The City of Kodiak had set up a
grinding rail about 18 inches off the ground with ramps on either
side.
CHAIRMAN TAYLOR inquired whether the family filed a claim with the
city, or a lawsuit. MR. SMITH said the family has only filed a
claim at this date.
CHAIRMAN TAYLOR stated only one claim has been filed so far this
year in 100 cities. MR. SMITH agreed but said the AML only began
offering coverage less than one year ago and it takes a while to
build a skateboard park. The injury in Kodiak occurred in the teen
center.
CHAIRMAN TAYLOR asked what the Joint Insurance Program charges the
cities for this increased risk. MR. SMITH said there was no
increase in premiums but the program requires a retrospective audit
at the end of the year and then premium adjustments are made. The
Joint Insurance Program board members are getting pressure from
municipal officials and businesses to deal with the problem of
skateboarding so they decided to provide coverage and to support HB
30.
Number 480
CHAIRMAN TAYLOR asked to what extent this issue was researched
before the board decided to provide coverage. MR. SMITH said he
did a lot of research, but found there is not a great deal of data
available. He found there is a great deal of paranoia within the
insurance industry about skateboarding and it was difficult to
determine a figure based on actuarial information.
CHAIRMAN TAYLOR asked whether Mr. Smith found any cases within the
last 15 years any place in the nation where someone actually sued
a skateboard park. MR. SMITH answered no, probably because there
are not a lot of skateboard parks because of the lack or expense of
liability insurance. In a general liability insurance program,
skateboarding is excluded. The Joint Insurance Program is a
totally different creature from a commercial insurance company. HB
30 was initially introduced to provide coverage to municipalities
where coverage was not available. Coverage is available at $10,000
to $25,000 on a stand alone basis for municipalities that are not
in the Joint Insurance Program pool.
CHAIRMAN TAYLOR asked where Mr. Smith got that information. MR.
SMITH answered he got it from Gallagher, Heffern Insurance in San
Francisco and explained the varying amount depends on deductibles
and is site specific.
Number 518
CHAIRMAN TAYLOR stated he is hearing conflicting information and
asked what the $25,000 premium is based on if no lawsuits have been
filed in the past 15 years. He questioned whether this whole
movement is being driven by the paranoia of the insurance
companies. MR. SMITH replied the premium he was quoted was based
on the market. CHAIRMAN TAYLOR said usually insurance rates are
based upon claims, rather than what the market will bear.
CHAIRMAN TAYLOR repeated his concern that HB 30 grants immunity for
something that no one can find a case on in the past 15 years and
questioned whether municipalities should be immunized from
liability for all recreational activities.
MR. RITCHIE informed the committee that he is an ex-officio member
of the Joint Insurance Program board and acknowledged that the
board did not review this issue scientifically, but rather as
municipal officials who were trying to help children.
Number 541
CHAIRMAN TAYL OR commented he was very impressed with the Joint
Insurance Program's willingness to provide coverage, because unless
someone has the courage to not follow the masses, we will be driven
over a cliff called "inherent immunity for everything." The board
took on that program for 100 cities and did not charge anything.
They decided to wait and find out what the real risks and costs are
and then assess members. If the costs become too high, then the
board will reassess whether it is worth being in the business of
providing coverage for inherently risky activities. He noted the
MOA refuses to build a skateboard park though it is self-insured.
Their best risk assessment showed it would cost a total of $2500
per year yet it is not willing to take on that risk and provide
insurance coverage.
MR. SMITH agreed that the MOA is self-insured, but explained that
the $2500 insurance premium probably includes a $1-$2 million self-
insured retention or deductible. Although AML's Joint Insurance
Program covers 100 cities it does not insure Juneau, Petersburg,
Ketchikan, Kenai, Anchorage, and many of those municipalities have
pavement and youth interested in skateboarding.
CHAIRMAN TAYLOR announced it is not his intention to move HB 30 at
this time. He asked for data on skateboard lawsuits in the United
States and information on how other states have dealt with the
issue of skateboard park liability.
Number 575
SENATOR PEARCE asked whether any injuries have occurred on streets
or sidewalks in Alaska from skateboards. MR. RITCHIE answered that
he was the city manager of Juneau when the downtown skateboard
ordinance was passed. That ordinance was passed because downtown
businesses were seriously concerned about near-misses. Many
elderly tourists were scared by the skateboard activity on
sidewalks. He offered to research actual injuries in Alaska and
nationwide.
TAPE 97-29, SIDE B
SENATOR PEARCE commented she had a child on a skateboard in the
street almost hit her recently. She agreed skateboarders need a
designated place to go. MR. RITCHIE said that is the crux of the
matter: skateboarders are putting themselves and others in danger.
Although CBJ has an ordinance against skateboarding downtown, it
does not have enough police to enforce the ordinance. In addition,
no one wants to turn an emerging sport into a criminal activity. He
repeated that any approved facility that is built will have to be
challenging enough to entice skateboarders off the streets.
MR. SMITH remarked he has been researching legal cases on
skateboard parks and although those cases are difficult to find, he
has found cases outside of Alaska involving serious injuries that
resulted from accidents between skateboarders and cyclists.
Number 565
CHAIRMAN TAYLOR emphasized that no one can back up this paranoid-
driven fear with numbers or cases and we cannot build facilities
because insurance companies have us scared to death. He noted
Senator Kelly witnessed a skateboarder skate head-on into a car in
front of him while driving up the hill to the Capitol building
several days ago. Fortunately the skateboarder bounced off and was
fine. Although this problem needs closure, the solution should not
be based on paranoia.
MR. SMITH said skateboarding is an activity that is largely driven
by one's own abilities and is very different from using playground
equipment.
CHAIRMAN TAYLOR began taking teleconference testimony.
CONNIE JONES , Director of Cultural and Recreational Services for
the MOA, testified. She noted MOA's attorney has done an extensive
West Law search on skateboarding cases of which she has 37. Most
of the cases do not concern skateboard parks and the history is
relatively short so it is unfair to compare it to other kinds of
recreational activities. Most of the cases involve street
skateboarding accidents. There is very strong support for a
skateboard park in Anchorage from the Youth Commission, Assembly,
the Chamber of Commerce, and the Downtown Anchorage Association.
Although the MOA is self-insured, it has a $2 million deductible.
MOA is concerned about a draw down on that because of the
possibility of high cost injuries such as neck injuries or
paralysis that can occur when skateboarders do not use protective
gear or act unsafely. MOA believes HB 30 delegates equal
responsibility to the MOA for building and maintaining an adequate
facility and to parents and participants for participating in an
inherently dangerous sport, one that involves being airborne over
concrete.
CHAIRMAN TAYLOR asked if MOA's risk management team calculated a
cost they would have to reserve each year to cover skateboarding
injuries. MS. JONES thought the extra cost would be about $60,000
for a separate policy, and no one would accept is as part of MOA's
self insurance.
CHAIRMAN TAYLOR noted the "no one" she is referring to is the
Anchorage Assembly and the risk management team is assuming the MOA
will be liable for so many injuries that the policy would cost
$60,000 per year. He asked her to request the MOA to put that in
writing to him.
MS. JONES explained the problem is that the data is incomplete, and
the risk manager is basing that figure on cases that have occurred
in street accidents. He is also speculating that when the MOA
invites people into a skateboard park made of hard surface cement,
injuries will occur when skateboarders attempt activities beyond
their skill level. She repeated the MOA will accept full
responsibility for all maintenance and construction.
Number 492
CHAIRMAN TAYLOR asked if the MOA currently insures other parks and
greenbelt areas where people play soccer, touch football and rugby,
and hockey rinks. MS. JONES replied that those activities are
covered under MOA's self-insurance and althouth those sports are
dangerous, the inherent danger of skateboarding is higher because
of the height at which these injuries could occur and the cement
floor.
CHAIRMAN TAYLOR again requested the MOA risk manager to send him an
estimate of the number of injuries that may occur and the number
for which the MOA may be liable. He asked why one would base the
injury level in skateboard parks on the number of skateboard
injuries on streets when the parks are properly built and
supervised. MS. JONES speculated that might be done because there
is not enough history. CHAIRMAN TAYLOR asked Ms. Jones to send him
copies of the cases involving skateboard parks.
Number 466
COLIN WHIDDON , a 15 year old from Kodiak, testified in support of
HB 30. The few areas in Kodiak that were available to
skateboarders are slowly becoming illegal, and skateboarders must
fend for themselves and are getting a bad reputation. Kodiak
skateboarders want a legal place to go to. By passing HB 30, the
city will be able to support skateboarders' efforts to get a skate
park.
CHAIRMAN TAYLOR asked Mr. Whiddon if he was aware of the
skateboarding accident that occurred in Kodiak. MR. WHIDDON said
he was not.
MR. IAN FULP , Kodiak Parks and Recreation Director, discussed two
aspects of skateboarding that make it inherently dangerous. The
first is that skateboarders do acrobatic stunts while airborne over
a hard surface. The second is that in order to improve,
skateboarders must expose themselves to greater danger to learn new
tricks. He described the accident that occurred in Kodiak. A
grinding bar is bolted about 18 inches off the ground with mats on
either side. The children would in-line skate on it then jump off.
The city felt it was fairly safe because the skaters could not go
very fast and because there were mats on either side. One boy fell
forward onto the bar, put his forearm out to block his fall and
broke both bones. Mr. Fulp expressed concern that because the
grinding bar has a history of one accident, if another occurs, the
city could be considered negligent for not removing it.
CHAIRMAN TAYLOR asked Mr. Fulp at what age he thought children
should be held accountable for their injuries. MR. FULP said he
has never seen a four-year old on a skateboard and that the
possibility is not very realistic. He thought that scenario could
be compared to a four year old walking onto a baseball field during
a game and that people would move that child off the field.
CHAIRMAN TAYLOR stated he is concerned about the age level a child
should be considered to have sufficient discretion to be
accountable if an injury occurs. MR. FULP answered HB 30 should
apply to any child on a skateboard.
CHAIRMAN TAYLOR asked Mr. Fulp if he thought there should be a
different standard for other recreational activities provided in
communities. MR. FULP said very much so because the other
activities are not inherently dangerous.
Number 325
RICHARD BITTICK , the assistant director of the City of Seward Parks
and Recreation Department, testified in support of HB 30. The City
of Seward is trying to provide a safer environment for
skateboarding and cycling which are currently occurring on city
streets. He believes skateboarders take on a greater inherent risk
when skateboarding on the streets rather than in a park.
CHAIRMAN TAYLOR asked Mr. Bittick if he is aware that Seward has
full coverage under the AML's Joint Insurance Program to build a
skateboard park now. MR. BITTICK said Seward is in the process of
building a park. CHAIRMAN TAYLOR encouraged completion of that
project because after it is in existence for several years, the
risk factor will become more apparent. He asked if the City of
Seward wants HB 30 passed so that none of the skateboarders can be
compensated for injuries that might occur at the park.
MR. BITTICK explained the city has set aside an area for
skateboarders, but is concerned about liability when skateboarders
do not follow the rules and get injured. CHAIRMAN TAYLOR repeated
he is not aware of any skateboarder who has actually sued a
municipality and that the City of Seward is fully insured today.
He urged the city to build a park.
MR. BITTICK responded the City of Seward is trying to provide a
safe facility without putting its neck on the chopping block at the
same time. Skateboarding and cycling differs in that it is being
done in the middle of the street. Other sports are not.
NANCY ROBB , the Parks and Recreation Director in Valdez, informed
the committee that Washington State has been working on similar
legislation and offered to provide additional information on that
legislation to any interested parties. CHAIRMAN TAYLOR asked her
to also provide information on the other highest risk recreational
activities for children in Valdez. MS. ROBB answered it used to be
skiing but the City of Valdez no longer operates the ski area.
Number 208
LAURIE WHIDDON , a mother of three skateboarders, testified in
support of HB 30 because there are a large number of children in
Kodiak who are not interested in sports other than skateboarding.
Skateboarders need a safe and legal place to practice their sport;
the downtown area is off-limits, as are most paved parking lots.
The only locations available at this time are the school parking
lot and tennis courts. The City has been discouraged from
providing a safe place to skate because of the liability issue. HB
30 would remove a major hurdle in its efforts to provide another
recreational outlet.
CHAIRMAN TAYLOR asked Ms. Whiddon if she was aware that Kodiak has
had full insurance coverage for a skateboard park through the Joint
Insurance Program since July 1, 1996.
CLAUDIA ANDERSON , the mother of a skateboarder, testified that her
son's interest in skateboarding has caused him to have many
unnecessary confrontations with authorities. The city has not
built a park, and suggested that parents build a private facility
but Kodiak's population base is too small. She urged the committee
to support HB 30 so the Kodiak City Council will build a park.
Number 130
JOHN PALMER , Kodiak Chief of Police, testified that the ordinance
to prohibit skateboarding in downtown Kodiak was the result of run-
in incidences with pedestrian traffic and building damage. The
police department enforces that ordinance which puts a drain on its
resources and promotes an adversarial relationship with the
teenagers which is counterproductive to the police department's
goal. Although Kodiak may already be insured for a skate park,
there is no assurance that the Joint Insurance Program may decide
to stop the coverage in the future, or raise the premium
substantially.
CHAIRMAN TAYLOR reiterated his comments about the need to build
parks now and determine what the liability is in five years.
MEL PERKINS , a local Juneau business owner, expressed concern about
the lack of control and responsibility that will occur if HB 30
passes. The CBJ skateboard park will be located next to his
businesses. He stated CBJ staff initially told him the skateboard
park would be supervised but he heard during the CBJ Assembly
meeting that if HB 30 passes, no supervision will be necessary if
warning signs are posted. If there is no supervision of the
premises, it is possible that nefarious activities will occur. In
addition, if no restrooms are available on the premises, the youth
will use the facilities in local businesses. He stressed the need
for the CBJ to maintain and take responsibility for for the
skateboard park if it builds it.
TAPE 97-30, SIDE A
CHAIRMAN TAYLOR commented his primary concern is that HB 30
contains no requirement for supervision.
JAY SONNER informed committee members he has been one of the local
students working on the CBJ skateboard park and is available to
answer questions.
CHAIRMAN TAYLOR asked if the construction of the Juneau skateboard
park is dependent on the passage of HB 30. MR. SONNER said
passage of HB 30 will greatly improve the chance of getting a
skateboard park, otherwise it will be very hard to get insurance
coverage.
CHAIRMAN TAYLOR encouraged Mr. Sonner to get information from the
CBJ on the cost of insurance and use it to inform the residents of
Juneau.
MR. SONNER said that currently there are skate gyms and get
togethers once a month in the summer time and about 200 youth
participate.
There being no further testimony, the committee took up HB 6.
HB 6 RELEASE OF INFORMATION ABOUT MINORS
REPRESENTATIVE PETE KELLY, sponsor of HB 6, stated currently there
exists a veil of secrecy around juvenile crime. Current laws allow
juveniles to commit violent criminal acts, safe in the knowledge
that their names will be kept confidential by the authorities.
That public policy does not provide protection to the public.
Several recent cases in Fairbanks illustrate the need for
disclosure. In one case a man was killed during a daytime robbery
by a teen. The newspaper reported that the names of the two
juveniles who were with the murderer would not be released. Since
then, the juveniles were waived into adult court and their names
were released, but that does not often happen. A second example
involved David Knutsen who shot a State Trooper three times. He
was involved in numerous burglaries. HB 6 has been reworked
through the committee process and is a bill that will protect, and
give a second chance, to those juveniles who do not pose a threat
to public safety, but does allow the public to know the names of
juveniles who are committing serious crimes for the second time.
SENATOR PEARCE asked Representative Kelly to explain how the
disclosure provision will work.
REPRESENTATIVE KELLY referred to a diagram illustrating a two prong
system. When a juvenile is arrested, he/she would go through a
preliminary investigation and then if he/she admits guilt, an
informal adjustment would occur with the outcome being restitution
and rehabilitation or placement. If DHSS believes the juvenile to
be dangerous, or if the juvenile resists, the juvenile will be sent
to petition also to provide for juveniles who are released against
the wishes of DHSS before they are adjudicated. There can be a
long time period between release and adjudication when they are
free to continue their activities. Also, DHSS feared adjudication
would cause a logjam of petitions because of the chance that the
case would be thrown out of court. As a compromise, a process was
established in which DHSS can petition the court to prohibit name
disclosure based on one of two factors: that the case is an
isolated incident; or that the juvenile does not pose any further
danger to the public. Representative Kelly added that he believes
the fiscal note for the bill is legitimate.
SENATOR PARNELL asked Representative Kelly if he believes HB 6 will
be cost effective. REPRESENTATATIVE KELLY said he does and added
that this issue is extremely high profile and he has received a lot
of support on HB 6.
SENATOR PARNELL asked Representative Kelly if he believes HB 6 will
have any deterrent value. REPRESENTATIVE KELLY said he did not; HB
6 is strictly to enhance public safety.
Number 223
BARBARA BRINK , the current Acting Director of the Alaska Public
Defender Agency, made the following comments. The debate between
the public's need to know and juvenile confidentiality is not a new
one. Courts and Legislatures have struggled with it for years.
Chief Justice Rehnquist addressed this issue in 1978 in Smith v.
Daly Publishing and wrote an opinion in favor of confidentiality as
follows:
It is a hallmark of our juvenile justice system in the United
States that virtually from its inception from at end of the
last century, proceedings have been conducted outside of the
public's full gaze and that youth brought before the juvenile
courts have been shielded from publicity. This insistence on
confidentiality is born of a tender concern for the welfare of
the child, to hide his youthful errors and bury them in the
graveyard of the forgotten past. The prohibition of
publication of a juvenile's name is designed to protect the
young person from the stigma of his misconduct and is rooted
in the principle that the court concern with juvenile affairs
serves as a rehabilitative and protective agency of the state.
Publication of the names of juvenile offenders may seriously
impair the rehabilitative goals of the juvenile justice system
and handicap the youth's prospect for adjustments to society
and acceptance by the public. This exposure brings undue
embarassment to the families of youth offenders and may cause
the juvenile to lose employment opportunities or provide the
hard core delinquent with the kind of attention he seeks
thereby encouraging him to commit further anti-social acts.
The resultant widespread dissemination of a juvenile
offender's name therefore may [indisc.] beneficient and
rehabilitative purposes of the juvenile court system.
MS. BRINK pointed out that no other state provides for public
disclosure of this kind of informal and adjustment information.
These are the kinds of juvenile offenders who have a good chance at
rehabilitation. Juveniles who get adjusted are prepared to accept
responsibility and make restitution. Those juveniles will be
stigmatized and branded. Names will be disclosed prior to
adjudication, so these juveniles will be tried in the court of
public opinion.
PAM KARALUNAS , representing the Arctic Alliance for People, interim
Executive Director for the Resource Center for Parents and
Children, and Big Brothers and Sisters, and as the parent of a
juvenile offender, testified. Although she shares the frustrations
of many people in the community about how juvenile crime is
mishandled, she does not believe HB 6 will correct the situation.
She expressed concern that HB 6 contains no age limit, that
informal adjustments will be published, and that name disclosure
occurs before the juvenile is proven guilty.
Number 300
BETH GAMBRELL expressed concern that children make mistakes, and
should be allowed to, except when firearms are involved. She does
not believe publishing the names of those involved in informal
adjustment is appropriate. Name disclosure should not occur prior
to a court decision, due to the negative effects of placing a label
on a child because the label could become a self-fulfilling
prophecy.
C-JOE DIMATTEO , with the Alaska Council on Prevention of Alcohol
and Drug Abuse and a member of the Governor's Council on Youth and
Justice, echoed the previous witnesses' concerns. He asked the
committee to consider including an age limit and to prevent names
from being submitted until after adjudication. Many public
comments made to the Governor's Council support those changes.
D. BUNTI REED , a parent of a child with a traumatic brain injury
and a secondary diagnosis of a mental illness, noted about 20 other
parents who were attending the Children's Mental Health Convention
attempted to testify today but had to leave. She agreed with Judge
Rehnquist's opinion and is concerned with words contained in HB 6
such as "alleged" and "informal" because it will allow children and
parents to be labelled. Many children in the juvenile system are
identified as having a mental illness in their first infraction
with the law. Although the intent of HB 6 is to protect
communities, she does not agree the bill will do that, and sees it
as a gross violation of parents and chidlren in Alaska.
CHAIRMAN TAYLOR asked Ms. Reed who the people were that left. MS.
REED provided some of the names.
LAURA ROREM , a parent of two children who have suffered from brain
disorders, one with mental illness and the other with fetal alcohol
syndrome, and a member of the Alaska Mental Health Board, made the
following comments. Brain disorders are no-fault diseases that
affect behavior, thinking processes, mood, judgment, reason and
decision to name only a few. They are caused by bio-chemical
and/or abnormalities in the brain. Weakness of will and bad
parenting are not to blame. These problems are not caused by
problems in living, bad environment, abuse or neglect. These
diseases are grossly misunderstood and treatment for them is
sporadic, haphazard, difficult to access, and blame-oriented.
Children and adults with brain disorders are good people but their
brains are diseased. They are often incapable of making the
distinction between right and wrong and are unable to understand
consequences. Often, early intervention is not available and
services are not provided until after a child commits a crime.
Instead, the child and family will be ostracized and publically
humiliated, and HB 6 will bring punishment rather than treatment
and will violate one's right to privacy.
Number 464
SENATOR PEARCE commented that she has a lot of sympathy for the
parents of mentally ill children but noted the crimes listed in HB
6 involve deadly weapons, arson, burglary, child pornography,
promoting prostition, and misconduct involving a controlled
substance. She questioned whether there is a linkage between
mental illness in youth and those types of crimes.
MARY MESSNER , a Public Health Nurse in Barrow, stated she works
with families and children with special needs. Many of those
children have neuro-biological disorders. Forty to seventy percent
of the children in the juvenile justice system nationwide are not
diagnosed with mental health problems early enough. Children with
neuro-biological disorders are most often not diagnosed at all, and
when they are diagnosed the disorders are complex, evolving, and
often co-exist with other disorders. Public disclosure of the
names of juveniles and their families is wrong. If the Senate
wishes to address juvenile crime, she suggested considering a bill
for mandatory mental health evaluation by a child and adolescent
psychiatrist of all juveniles who enter the juvenile justice at any
point and for juveniles entering substance abuse treatment, where
70 percent are shown to have treatable neuro-biological disorders.
Number 450
CHAIRMAN TAYLOR asked Ms. Messner to address Senator Pearce's
question about the delineation of serious crimes in HB 6 and their
link to mental illness.
D. BUNTI REED addressed Senator Pearce's question as follows. The
cognitive disability of her son causes him to respond toward
aggressive behavior of other students more violently than other
youngsters of his age. Last week she was called into school
because her son attempted to assault another student with a
bookbag. The police were also called and considered her son's
action to be classifiable as assault with a weapon. Her son is
mentally retarded and mentally ill. She felt the embarassment to
his siblings of an arrest in the family is almost criminal itself.
SENATOR PEARCE asked if the other students and parents of those
students in the classroom with Ms. Reed's son are aware of the
disorder and that provocations that may seem normal to them to be
more difficult for her son.
MS. REED responded that the immediate classroom members are aware
but other students are not. Because of his disability, he is
fairly comical and due to adolescent impetuosity, he is teased and
baited frequently.
Number 479
KENNETH DAVIS testified in opposition to HB 6. He is the parent of
four children; two are severely emotionally disabled; one with
fetal alcohol syndrome, psychotic brain disorder, seizure disorder,
learning disabled, attention deficit and hyperactive disorder, and
is an acting sex offender. If HB 6 is passed, the effectiveness of
his son's treatment will cease. As an active sex offender who is
receiving treatment, his son is required to live in specialized
foster care. Publishing the names of the offender, his family, and
the specialized foster family who are acting guardians, will have
a negative effect. He questioned how many foster families would be
willing to accept a high risk child if they must suffer harassment
and ridicule from friends and neighbors after name disclosure.
CECELIA DAVIS stated that as parents, it is their duty and
obligation to the community to protect it against their son which
is why he is in a specialized program. But, she is also the parent
of both a victim and an offender and is stuck in several positions.
Often when the name of the offender is disclosed, the victim's
identity becomes known. The victim can be devastated because of
the ridicule. She informed the committee that her son's mental
disabilities are the result of his natural mother's misuse of
alcohol. As a victim of sexual abuse herself, she feels obligated
as a parent to protect society and educate others so that they can
help. She cautioned that if HB 6 passes, as currently written, it
will be devastating to children with mental disabilities and to
victims.
REPRESENTATIVE KELLY clarified that a provision on page 4 prohibits
the names of foster families from being disclosed unless they have
the child on a permanent or long term basis. In addition, some of
the examples given previously would fall under the Children in Need
of Aid provisions, and their names would not be disclosed.
LORI NAMYNIUK , President of the Substance Abuse Directors
Association of Alaska, testified in opposition to HB 6 because of
the breaching of confidentiality at the petition stage and because
the bill contains no age limit. There is no research that
indicates that action of this type will decrease juvenile
deliquency. Rather than adopting a punitive approach, the
Legislature needs to look for solutions. The projected $1.2
million cost of HB 6 could be used for intervention activities.
Number 547
MARGOT KNUTH , Assistant Attorney General and representative of the
Governor's Council on Juvenile Justice, testified. At a conference
of the Council held last year, the most divisive issue discussed
was the issue of disclosure of the names of juvenile offenders.
The Conference ultimately recommended that some disclosure of
juvenile names is necessary to protect the public; of those
juveniles at least 15 years of age who committed a felony offense
against a person, or a second burglary offense. SB 69 was
introduced by the Governor and sets the age limit at 16. The
single largest provider of mental health care in the State of
Alaska is the Department of Corrections. There are more mentally
ill people housed by the Department of Corrections than in all
other mental health facilities. The Governor's Conference
recommendation bill differs from HB 6 is that it only follows the
cases that DHSS has identified as the serious offenders that need
to fall within the court's jurisdiction. A serious concern
expressed at the Conference was that disclosing the name of the
offender often identifies the victim inadvertently, especially in
sexual offenses among family members. Yet, name disclosure to
protect others makes drawing the line a difficult policy issue.
She acknowledged and appreciates Representative Kelly's effort to
work very hard to accommodate the Council's concerns and noted the
HB 6 has been tailored to include only very serious crimes and
contains an escape provision where the court can be petitioned to
prevent name disclosure.
TAPE 97-30, SIDE B
DR. RUSSELL HOFFMAN of Bethel stated that he has been practicing
medicine in Alaska since 1973 and specializes in psychiatry and
forensic psychiatry. He advises the Court System about the reasons
for people's behavior and designs treatment programs for offenders.
He noted he travelled to Juneau at his own expense because he feels
strongly about the complex issue of disclosure. He noted the bill
specifies in five different places that the release of information
about the victim will be prohibited which illustrates that the
release of information can be a hurtful process. He discussed a
recent tragic event in the Bethel school system and how the gossip
and rumors about people periperally involved was extremely harmful
to those people and their families. He noted the ripple effect of
those rumors on other community members. He explained that is an
extreme example of how HB 6 could play out in a small community.
The issue of disclosure is a very important one for those who try
to treat children and turn a negative situation into a positive
one. He stated in the past 4 1/2 hours he has received over 100
signatures from the Bethel community in opposition to HB 6.
JOHN CYR , President of NEA-Alaska, stated that one thing of
paramount importance to NEA's members is the ability to know the
kinds of students they work with on a daily basis. NEA's primary
concern is with the stage at which the offender's name is released.
NEA prefers that the name be released after adjudication when the
juvenile has been convicted. In his experience, he knows of
juveniles who have been accused of very serious crimes erroneously.
Had those juveniles' names been released, serious consequences
would have occurred. One of NEA's primary functions is to keep
students in school and needs to develop alternative programs,
especially to deal with violence. NEA also believes there is a
critical need for juvenile detention centers to provide adequate
help for these offenders.
DIANE WORLEY , Director of the Division of Family and Youth
Services, DHSS, stated that DHSS has worked very closely with
Representative Kelly and understands the direction he is taking
with HB 6, but is concerned with how far the bill goes. HB 6
conflicts with DHSS' goal of working with families and children,
and to protect children and to rehabilitate where possible. DHSS
is concerned about striking the necessary balance to protect
communities from juveniles, who have committed serious crimes or
are repeat offenders, but believes HB 6 is too broad and covers all
ages, and does not take into account mitigating circumstances.
DHSS does support some level of disclosure but does not believe HB
6 establishes the appropriate balance.
Number 465
SENATOR PARNELL asked what specific changes need to be made to HB
6 to get support from the Administration.
MS. WORLEY answered that she is speaking only for DHSS and not for
the Governor's Children's Cabinet.
SENATOR PARNELL asked Ms. Worley to clarify her statement.
MS. WORLEY said DHSS is part of the Children's Cabinet and has
worked closely with it on HB 6 but DHSS' perspective is slightly
different because it works with these juveniles on a daily basis.
She clarified that because of the direct impact HB 6 will have on
DHSS, it has more specific concerns than other departments.
SENATOR PARNELL asked if DHSS' specific concerns are age and mental
health. MS. WORLEY replied yes, and a third issue is informal
adjustment because that is the key to the work DHSS does with
juveniles; with those who admit to a crime and are willing to work
with DHSS and their families on rehabilitation.
SENATOR PARNELL asked Ms. Worley if she thinks disclosure should
only occur when juveniles are on the yellow track. MS. WORLEY said
that is correct.
CHAIRMAN TAYLOR summarized Ms. Worley's preference as age 16,
yellow-track, upon conviction.
ANGELA SALERNO , Executive Director of the National Association of
Social Workers, pointed out that confidentiality of juvenile
records was part of a larger reform measure which began early in
the Century and established juvenile courts to accommodate the
disability of youth. HB 6 would be changing that in a fundamental
and critical way and creates a radical and untested measure.
Although we are all concerned about juvenile crime, we should not
act out of desperation. The purpose of HB 6 is to protect
ourselves but is illusory and will make us less safe because we
will be forcing children further down the road toward crime.
Number 398
CHAIRMAN TAYLOR asked Ms. Salerno when "we" decided that non-
publication of the names of juveniles was an attribute of the
juvenile justice system. MS. SALERNO said she did not have the
date in Alaska, but the practice was established when the first
juvenile court was created in Illinois at the turn of the Century.
CHAIRMAN TAYLOR commented on the schizophrenic logic we have taken
toward the responsibilities we allow juveniles to have, and those
that we do not.
MS. SALERNO emphasised that DHSS' charge is to work with those
juveniles who might be rehabilitated. Those children often suffer
the disabiilty of lack of parental control.
CHAIRMAN TAYLOR said that sometimes parents do everything they can
for a child yet the child chooses to be delinquent. MS. SALERNO
agreed.
MR. CYR commented he believes that adults are absolutely
responsible for their children, but questioned at what point the
system should take over when a child gets in trouble. He expressed
concern that we may be acting prematurely when children can be
saved or have been misidentified.
CHAIRMAN TAYLOR noted many legislators are concerned that several
years ago, in attempt to keep names anonymous, foster parents were
not given information about the young people being placed in their
homes and the foster parents suffered major consequences because of
it.
Number 347
REPRESENTATIVE KELLY addressed comments made by previous witnesses.
The informal adjustment process allows DHSS to decide whether the
child can be rehabilitated. He agrees with that provision and
adopted the Children's Cabinet amendment which provides for
disclosure for a second offense. A provision for formal
adjudication was included in the original bill, but DHSS requested
that be changed to petition to prevent a logjam. When he agreed to
petition, DHSS argued the need to change to informal adjudication.
At that point he included an amendment from the Lieutenant
Governor's Office which allows DHSS to petition against disclosure.
At this point in time, DHSS is still pushing for informal
adjudication. He stated DHSS wants the parents or foster parents
of the defendant to be able to petition the court. He believes, as
well as the Court System, that system will not work because every
attorney who represents one of these juveniles will be guilty of
malpractice for not petitioning the Court. DFYS is not currently
able to disclose that a party who was arrested is innocent. HB 6
would allow DFYS and the Court to release the names of those who
are found innocent.
Regarding the two-track system, REPRESENTATIVE KELLY said he has
met everyone's objections except DFYS' because it is opposed to any
disclosure whatsoever. HB 6 contains escape hatches and only
applies to offenders who commit very serious crimes for a second
time.
CHAIRMAN TAYLOR announced HB 6 would be heard again on Friday,
April 25, and adjourned the meeting at 4:00 p.m.
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