Legislature(1997 - 1998)
05/07/1998 04:10 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= 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.
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