Legislature(1993 - 1994)
03/28/1994 09:10 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE STATE AFFAIRS COMMITTEE March 28, 1994 9:10 a.m. MEMBERS PRESENT Senator Loren Leman, Chair Senator Mike Miller, Vice Chair Senator Robin Taylor Senator Jim Duncan MEMBERS ABSENT Senator Johnny Ellis COMMITTEE CALENDAR Alaska Public Offices Commission: Confirmation: James I. Adams HOUSE BILL NO. 421 "An Act authorizing grants for temporary housing assistance during emergencies and disasters." CS FOR HOUSE BILL NO. 49(FIN) am "An Act relating to absentee voting, to electronic transmission of absentee ballot applications, to delivery of ballots to absentee ballot applicants by electronic transmission, and enacting a definition of the term `state election' for purposes of absentee voting; and providing for an effective date." SENATE BILL NO. 302 "An Act relating to the establishment, modification, and enforcement of support orders and the determination of parentage in situations involving more than one state; amending Alaska Rule of Administration 9; amending Alaska Rule of Civil Procedure 82; and providing for an effective date." CS FOR SENATE BILL NO. 255(HES) "An Act establishing a comprehensive policy relating to human resource development in the state." CS FOR HOUSE JOINT RESOLUTION NO. 43(FIN) Proposing an amendment to the Constitution of the State of Alaska relating to the rights of crime victims. PREVIOUS SENATE COMMITTEE ACTION HB 421 - See State Affairs minutes dated 3/23/94. HB 49 - See State Affairs minutes dated 3/23/94. SB 302 - See State Affairs minutes dated 3/21/94, and 3/23/94. SB 255 - See Community & Regional Affairs minutes dated 1/25/94, 2/1/94, 2/3/94, 2/8/94, and 3/16/94 and State Affairs minutes dated 3/23/94. HJR 43 - See Judiciary minutes dated 11/16/93 and State Affairs minutes dated 3/9/94, 3/21/94, and 3/23/94. WITNESS REGISTER James I. Adams, Nominee Alaska Public Offices Commission P.O. Box 594, Nome, AK 99762¶443-3444 Tim Sullivan, Aide Representative Mulder State Capitol, Juneau, AK 99801-1182¶465-2647 POSITION STATEMENT: prime sponsor of HB 421 Joe Swanson, Director Division of Elections P.O. Box 110017, Juneau, AK 99811-0017¶465-4611 POSITION STATEMENT: in favor of HB 49 Portia Babcock, Aide Senate State Affairs Committee State Capitol, Juneau, AK 99801-1182¶465-4522 POSITION STATEMENT: testified on SB 302 Laraine Derr, Deputy Commissioner Treasury Department of Revenue P.O. Box 110400, Juneau, AK 99811-0400¶465-4880 POSITION STATEMENT: in favor of SB 302 Donna Page, Senior Hearing Officer Department of Revenue P.O. Box 110400, Juneau, AK 99811-0400¶465-2330 POSITION STATEMENT: in favor of SB 302 John Mallonee, Deputy Director Child Support Enforcement Division Department of Revenue 550 W. 7th, Suite 312, Anchorage, AK 99501-3556¶269-6800 POSITION STATEMENT: in favor of SB 302 Senator Dave Donley State Capitol, Juneau, AK 99801-1182¶465-3892 POSITION STATEMENT: testified on HJR 43 ACTION NARRATIVE TAPE 94-20, SIDE A Number 001 CHAIRMAN LEMAN calls the Senate State Affairs Committee to order at 9:10 a.m. The chairman notes the committee does not yet have a quorum, but will take testimony. CHAIRMAN LEMAN brings up the APOC nomination of James I. Adams as the first order of business. The chairman calls Mr. Adams to testify. Number 030 JAMES I. ADAMS, Nominee, Alaska Public Offices Commission (APOC), testifying from Nome, states he has worked for the Department of Transportation & Public Facilities and has worked as an engineer for 27 years. He is interested in serving on APOC in order to do something for the state. MR. ADAMS says that in his line of work he has dealt with contractors on both federally and state funded projects. He has gained experience in administering these projects. He hopes to uphold the laws of the state. Number 070 CHAIRMAN LEMAN asks Mr. Adams if he has had a chance to review the proposed APOC regulations for enforcing the new ethics law. Number 079 MR. ADAMS replies he received a five pound package in the mail last week, but has not had a chance to get into it, though he hopes to in the near future. Number 081 CHAIRMAN LEMAN expresses a concern that the legislative intent of the ethics law, which was to tighten up reporting, is being interpreted by APOC as a requirement to report sources and amounts s of income. The chairman says the intent was just to report sources and not amounts. He thinks that is very far reaching and will have a detrimental affect on recruitment of good people to become candidates for office. Chairman Leman believes requiring the reporting of sources and amounts of income is in opposition to the intent of the law. Number 113 CHAIRMAN LEMAN asks Mr. Adams if he is a registered professional civil engineer. MR. ADAMS responds he is not a registered engineer. CHAIRMAN LEMAN asks Mr. Adams if his position at DOT does not require registration. MR. ADAMS replies there are different job classes. In some job classes one can advance through the ranks. For those who did go to school and get the required paper, they are in another section. Number 127 CHAIRMAN LEMAN recalls that APOC is made up of four members from political parties and one member who is non-partisan. The chairman asks Mr. Adams which category he seeks to fill. MR. ADAMS says, as he understands it, the four main board members of the two parties just nominate someone who represents five. CHAIRMAN LEMAN asks Mr. Adams what party he is affiliated with. MR. ADAMS responds he likes to see who's running before he decides who to vote for. CHAIRMAN LEMAN asks Mr. Adams what his party registration is. MR. ADAMS replies he really hasn't, but he would probably lean democratic. Number 145 CHAIRMAN LEMAN thanks Mr. Adams and asks if there are any further questions. Hearing none, the chairman announces the committee will move to the next subject. Number 155 CHAIRMAN LEMAN calls a brief at ease. Number 156 CHAIRMAN LEMAN brings up HB 421 (GRANTS FOR HOUSING DURING DISASTER) as the next order of business before the Senate State Affairs Committee. The chairman calls a representative of the prime sponsor to testify. Number 159 TIM SULLIVAN, Aide to Representative Mulder, says HB 421 was introduced by the House Special Committee on Military & Veteran's Affairs at the request of the State Division of Emergency Services, Department of Military & Veteran's Affairs. Mr. Sullivan reads Representative Mulder's sponsor statement on HB 421. Number 179 CHAIRMAN LEMAN asks if anyone in the audience wishes to testify on HB 421. The chairman asks the pleasure of the committee. Number 188 SENATOR MILLER makes a motion to discharge HB 421 from the Senate State Affairs Committee with individual recommendations. Number 190 CHAIRMAN LEMAN, hearing no objection, orders HB 421 released from committee with individual recommendations. Number 191 CHAIRMAN LEMAN brings up HB 49 (ABSENTEE VOTING & USE OF FAX) as the next order of business before the Senate State Affairs committee. The chairman notes the existence of a committee substitute that incorporates some of the changes that were suggested at the last meeting. Number 198 JOE SWANSON, Director, Division of Elections says the change made in the committee substitute requires the division to make receipt of faxes received under HB 49. Number 202 SENATOR MILLER makes a motion to adopt SCS CSHB 49(STA) in lieu of CSHB 49(FIN) AM. Number 204 CHAIRMAN LEMAN, hearing no objection, notes the committee substitute has been adopted in lieu of CSHB 49(FIN) AM. The chairman asks if anyone in the audience wishes to testify, or if there is any discussion among committee members. Number 209 SENATOR MILLER makes a motion to discharge SCS CSHB 49(STA) from the Senate State Affairs Committee with individual recommendations. Number 211 CHAIRMAN LEMAN, hearing no objection, orders HB 49 released from committee with individual recommendations. Number 215 CHAIRMAN LEMAN brings up SB 302 (UNIFORM INTERSTATE FAMILY SUPPORT ACT) as the next order of business and asks that representatives from the Department of Revenue join the committee at the table. CHAIRMAN LEMAN announces the committee has a committee substitute that incorporates about four changes that the Alaska Family Support Group suggested. The chairman states it is his understanding that the Department of Revenue has no objection to the changes. Number 227 SENATOR MILLER makes a motion to adopt CSSB 302(STA) in lieu of the original bill. Number 229 CHAIRMAN LEMAN, hearing no objection, notes the committee substitute has been adopted in lieu of the original bill. The chairman asks Ms. Babcock to review the changes to SB 302. Number 239 PORTIA BABCOCK, Committee Aide, Senate State Affairs Committee asks the representatives of the Department of Revenue if they met with Mr. Kirk of the Alaska Family Support Group. LARAINE DERR, Deputy Commissioner, Department of Revenue says the department met with Mr. Kirk, but there is only one change the department agreed on with Mr. Kirk. The change was on page 13, line 17. The change involved non-disclosure of information in exceptional circumstances. Ms. Derr says Mr. Kirk suggested other changes, but the department did not agree with him that those changes needed to be made. DONNA PAGE, Senior Hearing Officer, Department of Revenue says the department didn't necessarily disagree with Mr. Kirk, but the change on page 13 was the only change the department felt had to be made. The department didn't have an opinion one way or the other on most of Mr. Kirk's concerns, because his concerns did not affect the agency. Number 256 MS. BABCOCK states the first change is on page 4, lines 24 and 25. it would add language stating a tribunal may dismiss a case for improper venue. The Department of Revenue has no position on that change. CHAIRMAN LEMAN asks Ms. Page if she can enlighten the committee as to the meaning of "improper venue." Number 280 MS. PAGE responds Mr. Kirk's concern was that this jurisdictional statement was very broad. Mr. Kirk wanted to agency to have the right to dismiss a case for improper venue. If no party of a support order lives in the state, the state does not really have any interest in the case. CHAIRMAN LEMAN asks if that change would do any disservice to the bill. MS. PAGE does not think it would. The act is intended to have the child support order in the state where someone involved in the order lives, so that it can be enforced. CHAIRMAN LEMAN asks if there is any discussion among committee members. Number 291 SENATOR TAYLOR says he is concerned about the use of the term "tribunal". It is being used to describe both an agency of the executive branch, and the court system. He thinks it is dangerous to recognize a state agency as a tribunal, and would hope that agency would not have the same powers and authorizations that a superior court would have. Number 300 MS. PAGE responds the bill was purposely written to include the administrative agency as a tribunal. The administrative agency as tribunal can only do what is already authorized by law. This would solve a problem by having the administrative agency operate under the same laws the court system operates under, insofar as having one child support order, one time, and one place. Right now, the agency is part of the problem. People move to Alaska, and Alaska starts a new support order, even though there may be an existing support order in their home state. You then find obligors having a child support order they're paying on in Alaska, and another state attaching their income tax return, because the other state does not know there is an existing child support order in Alaska. Number 325 CHAIRMAN LEMAN asks if there are any objections to this change. The chairman asks Ms. Babcock to move on to the second change. Number 327 MS. BABCOCK states the next change is on page 13, line 16, insert: "..upon a finding by the court." MR. MALLONEE notes the committee substitute does not say "...finding by the court", but "...finding by the tribunal". MS. BABCOCK says the original bill just stated "...upon a finding." She thinks the legislative drafter must have decided to use the term tribunal. The insertion was supposed to read, "...upon a finding by the court." Number 354 SENATOR TAYLOR says he continues to have a problem understanding how we can take the enforcement branch of government, which is often the initiating party (CSED), and call them a tribunal. Unless this is being mandated by federal law, he does not find that attractive thinking. Would anyone in the room like the legislature to do the same thing with the District Attorney's Office, or the Internal Revenue Service? Shall we give them the power of being a tribunal? CHAIRMAN LEMAN asks Senator Taylor if he is speaking in favor of an amendment. SENATOR TAYLOR thinks an amendment would be appropriate to at least designate the court. CHAIRMAN LEMAN asks if the department has any response to changing "...upon a finding by the tribunal.", to "...upon a finding by the court." Number 379 MR. MALLONEE states the department has no objection to that one change. In response to Senator Taylor's remarks, he says that where a tribunal is referred to in SB 302, it does specify that the tribunal has only those powers as otherwise dictated in statute. SENATOR TAYLOR says he is uncomfortable with the existing power CSED has to modify outstanding orders, based upon abilities to do things, as far as service requirements are concerned, that were significantly streamlined just for CSED. He does not think CSED should have but about half the authority they do. Judges should be involved in the process. CSED is there for one purpose: it's there to enforce support orders. It's not there to listen to people who have lost their job and have been out of work for four months. It's there to enforce support orders, and they will zealously do that, if they've got to go out and take your income tax, take your permanent fund, take 50% of whatever you're earning, even though you're current on your support, and then apologize later. Those are the calls Senator Taylor receives from constituents. Number 400 SENATOR DUNCAN asks if SB 302 has been referred to Judiciary. CHAIRMAN LEMAN responds SB 302 is going to the Judiciary Committee. SENATOR DUNCAN tells Senator Taylor to relax. SENATOR TAYLOR says he is just concerned with the tendency to empower an agency over the court system. Number 405 SENATOR MILLER makes an amendment to page 13, line 16, to substitute the word "court" for the word "tribunal". Number 407 CHAIRMAN LEMAN asks if everyone understands that amendment, and if there is any objection to the amendment. Hearing none, the chairman notes that the amendment has been adopted. The chairman asks Ms. Babcock to review the third change. Number 411 MS. BABCOCK states the next change is on page 13, line 22, eliminate subsection (b), leaving (a) and (c). CHAIRMAN LEMAN asks if someone from the Department of Revenue could explain what that change would do. Number 417 MS. PAGE replies this change affects the superior court, and the department does not have a position on the change one way or the other. It would allow the court to assess fees against an obligor. Mr. Kirk's objection was that subsection (b) didn't allow the assessment of fees against an obligee (the custodial parent). Number 423 CHAIRMAN LEMAN summarizes that by deleting subsection (b), the playing field would be leveled. Number 425 MS. PAGE adds that the court currently only assesses fees in child support cases, as a rule, when they feel one side or the other has not been cooperative and is acting in bad faith. CHAIRMAN LEMAN asks Ms. Page that, by deleting subsection (b), the legislature would not be changing existing policy. MS. PAGE responds that is correct. CHAIRMAN LEMAN asks if there is any objection to that change. Hearing none, the chairman notes the change has been adopted. The chairman asks Ms. Babcock to review the fourth change for the committee. Number 430 MS. BABCOCK states the fourth change is on page 21, line 1, adding language, "...except to the extent that a party was reasonably unable to respond." CHAIRMAN LEMAN asks if the department has any comment on that change. Number 446 MR. MALLONEE says the only thing that bothers him about that change is it would leave CSED wide open to a number of discussions over long periods of time about what is "...reasonably unable to respond." Number 449 CHAIRMAN LEMAN asks what the current CSED guidelines are regarding that subject. Number 452 MR. MALLONEE replies that at this time, it is a simple matter of responding to a notice within the allowable given time frame for that particular notice. He thinks there needs to be language giving the department indication as to what is reasonable. That type of subjective language makes it very difficult for interpretation. What Mr. Mallonee considers reasonable may not be considered reasonable by another person. He thinks it is going to be time consuming for CSED to figure out what the definition of reasonable might be. He thinks reasons for not responding in a timely manner should be quantified in the bill. Number 461 CHAIRMAN LEMAN asks Mr. Mallonee if there is currently discretion on the part of CSED to waive time requirements for responding to notices if a person has good reason for not responding within the allowable time period. Number 464 MR. MALLONEE responds CSED regularly re-hears cases when a person does not respond in a timely manner. MS. PAGE adds that hearing officers will make adjustments if justice requires it. However, not all cases reach the formal hearing level. MR. MALLONEE points out that all cases have the right and the opportunity for a formal hearing. Number 475 SENATOR TAYLOR comments he is concerned with the language on page 20, line 30, "...precludes further contest of the order...." He thinks that language would preclude any appeals. MS. PAGE agrees, saying if it came to her as an appeals officer, she would have to follow the statute. Ms. Page affirms that is not the case today. SENATOR TAYLOR says that it then is a major change. Number 494 CHAIRMAN LEMAN asks why having this language in SB 302 is necessary. The chairman asks if it is part of UIFSA. Number 495 MR. MALLONEE replies the whole bill came out of the standard UIFSA legislation put out by the Uniform Law Commissioners. He thinks that language is intended to require timely contestation of support orders. Why wasn't the order contested within the time period allowed? SENATOR TAYLOR states he can answer that question. The obligor has to go hire an attorney, he's already behind, CSED is already taking every dime he has, he's trying to support a new family, and he's been out of work for a while. Then CSED says, "Why didn't he assert the support order?" Because the obligor is not given free counsel, though the obligee is given free counsel. Senator Taylor comments he would not have so much problem supporting SB 302 if there was any kind of balance to the process. Dealing with CSED is like dealing with the IRS. Number 520 MS. PAGE points out that the language Senator Taylor is referring to applies to a child support order from another state. This simply gives Alaska the right to enforce an order from another state. Number 529 SENATOR TAYLOR says he understands that, and wants to give an example of why he does not think that is good language. A prosecutor in Oregon decided to zealously prosecute non-paying obligors in child support cases. This prosecutor decided to prosecute those cases which would fall under felony violations. As a district court judge, Senator Taylor says he received a 50,000$ felony warrant on a Wrangell resident. Why? Because this man has not paid support for his five children for seven years. This man happened to live across the street from Senator Taylor, and his five kids had been living with him that whole period of time. This man's ex-wife had been lying to the welfare people. Would this language preclude this man from coming forward to contest the child support claim? MS. PAGE responds that the obligor would always have the opportunity to respond, as long as they act in a timely manner. SENATOR TAYLOR comments that is assuming the obligor gets his mail. Number 546 CHAIRMAN LEMAN suggests to Senator Taylor that he either offer an amendment at this time, or work on the language when it gets to the Judiciary Committee. The chairman makes a motion to delete "...except to the extent that a party is reasonably unable to respond." The chairman asks if there is any objection to that amendment. Hearing none, he notes the language has been deleted. The chairman asks if there is any more discussion on SB 302. Number 559 SENATOR MILLER makes a motion to discharge SB 302 from the Senate State Affairs Committee with individual recommendations. SENATOR TAYLOR objects to that motion, and says he thinks the work should be done in the State Affairs Committee. Number 561 CHAIRMAN LEMAN, hearing the objection, states last time Senator Taylor offered to work on an amendment, he failed to do so. The chairman says he would be happy to discuss an amendment if Senator Taylor cares to offer one. CHAIRMAN LEMAN asks for a show of hands on whether to discharge SB 302 from the State Affairs Committee. The motion carries three to one, and so SB 302 is discharged from the Senate State Affairs Committee. Number 379 CHAIRMAN LEMAN calls a brief at ease. Number 591 CHAIRMAN LEMAN brings up SB 255 (STATE POLICY ON HUMAN RESOURCE DEVELOPMT) as the next order of business before the Senate State Affairs Committee. The chairman explains that the committee substitute incorporates language to encourage people to start their own businesses, as well as training to work for someone else. TAPE 94-20, SIDE B Number 596 SENATOR MILLER makes a motion to adopt CSSB 255(STA) in lieu of the original bill. SENATOR DUNCAN and SENATOR TAYLOR ask the chairman to explain the bill. Number 588 CHAIRMAN LEMAN replies that on page 1, line 9, the language, "...and business community" was inserted. The same term was inserted on page 2, line 10. Subsection (d) was also clarified and shortened. CHAIRMAN LEMAN asks if there is any objection to the adoption of the cs. Hearing none, the chairman notes that the cs has been adopted. CHAIRMAN LEMAN asks the pleasure of the committee Number 567 SENATOR MILLER makes a motion to discharge SB 255 from the Senate State Affairs Committee with individual recommendations. SENATOR TAYLOR objects, and asks what SB 255 will accomplish. Number 564 CHAIRMAN LEMAN says he has come to the same conclusion as Senator Taylor and is not sure the bill will do very much. SENATOR TAYLOR withdraws his objection. Number 554 CHAIRMAN LEMAN, hearing no further objection, orders SB 255 released from committee with individual recommendations. Number 551 CHAIRMAN LEMAN brings up HJR 43 (RIGHTS OF CRIME VICTIMS) as the next order of business before the Senate State Affairs Committee. The chairman notes the existence of a committee substitute. Number 544 SENATOR MILLER makes a motion to adopt SCS CSHJR 43(STA) in lieu of CSHJR 43(FIN). Number 542 CHAIRMAN LEMAN, hearing no objection, states the cs has been adopted in lieu of CSHJR 43(FIN). The chairman notes the presence of Eric Musser from the office of Representative Porter, the prime sponsor of HJR 43. The chairman invites Senator Donley to testify. Number 524 SENATOR DONLEY expresses concern that it would not be wise to pass victim's rights as a constitutional amendment. This is a totally new area of the law. With new developments in the law, there is frequently a lot of litigation and a lot of judicial time being spent interpreting these developments. Senator Donley thinks it is best to develop a baseline of statutory laws before passing a constitutional amendment. The caveat added by the house on page 2, line 9, is simply not sufficient to prevent judicial expansion of the intent of the constitutional amendment. SENATOR DONLEY says the senate version of this constitutional amendment has much stronger language deferring to the statutory direction from the legislature. Senator Donley thinks HJR 43 would open a huge legal can of worms. Number 474 CHAIRMAN LEMAN asks Senator Donley if he prefers the language in SJR 2 to the language in HJR 43. SENATOR DONLEY replies he prefers SJR 2. He prefers specifications that victims and rights be defined in statute. There is no provision in HJR 43 defining "victim" by the legislature. Senator Donley asks who is a victim and to whom should we extend these rights. HJR 43 does not defer that decision to the legislature in any way, shape, or form. SENATOR DONLEY asks that the legislature be deferred to in defining "victim" and "victim's rights", and that the legislature have the ability to do so by statute. Number 440 CHAIRMAN LEMAN asks if there could possible be an adverse affect if the legislature does not provide for those rights. SENATOR DONLEY responds that is a danger. But by establishing victim's rights in the constitution, a baseline would be created. By having language deferring to the legislature in defining these terms, the courts could look to existing statutes as the baseline. Number 421 SENATOR TAYLOR comments he is curious about the resolution addressing penal administration. He is trying to think of a situation where a victim could actually be a perpetrator. CHAIRMAN LEMAN asks Senator Donley if he has any objection to incorporating section 1. SENATOR DONLEY says he has no opposition to that. CHAIRMAN LEMAN and SENATOR DONLEY discuss the differences between SJR 2 and HJR 43. There are differences in the drafting style. Number 385 CHAIRMAN LEMAN states that HJR 43 says victims are entitled to seek k restitution, while SJR 2 says victims are entitled to restitution. The Senate State Affairs Committee deleted the word "seek" in its' committee substitute. The chairman thanks Senator Donley for his comments. Number 370 SENATOR TAYLOR expresses concern that what the legislature is trying to do with these resolutions, should have been common sense treatment by the enforcement arm of government. Senator Taylor states his dissatisfaction with the District Attorney's Office in particular. He says what the committee is really talking about is making police and district attorney's act nicer toward victims. Number 360 SENATOR DONLEY asks why "...the right to information about the conviction, judgement, sentence, disposition, imprisonment, criminal record, and release...." is not included in HJR 43. CHAIRMAN LEMAN says he spoke to Representative Porter, and his conclusion was that information is available in conjunction with the other rights, and that it would be redundant to include that language. Number 348 SENATOR TAYLOR says there is a problem with the district attorney's office not believing people were victimized. CHAIRMAN LEMAN says just the assertion by someone that they are a victim, does not make them a victim. SENATOR TAYLOR states he believes strongly in restitutional sentences. However there can be problems. Senator Taylor relates an incident to illustrate potential problems. Number 305 CHAIRMAN LEMAN appreciates Senator Taylor's comments, and says we need to make sure there is fairness in the system. The chairman asks if anyone else wishes to testify on HJR 43. Hearing none, the chairman asks the pleasure of the committee. Number 290 SENATOR MILLER makes a motion to discharge HJR 43 from the Senate State Affairs Committee with individual recommendations. Number 280 CHAIRMAN LEMAN, hearing no objection, orders HJR 43 released from committee with individual recommendations. Number 275 CHAIRMAN LEMAN adjourns the Senate State Affairs Committee meeting at 10:28 a.m.