HOUSE FINANCE COMMITTEE February 22, 1995 1:40 P.M. TAPE HFC 95-28, Side 1, #145 - end. TAPE HFC 95-28, Side 2, #000 - 501. TAPE HFC 95-29, Side 1, #000 - end. TAPE HFC 95-29, Side 2, #000 - 400. CALL TO ORDER Co-Chair Mark Hanley called the House Finance Committee meeting to order at 1:40 p.m. PRESENT Co-Chair Hanley Representative Martin Co-Chair Foster Representative Mulder Representative Brown Representative Navarre Representative Grussendorf Representative Parnell Representative Kelly Representative Therriault Representative Kohring ALSO PRESENT Nancy Slagle, Director, Division of Budget Review, Office of the Management and Budget, Office of the Governor; Bob Cole, Director, Division of Administrative Services, Department of Corrections; Gary Hayden, Director, Alaska Marine Highway System, Department of Transportation and Public Facilities; Arthur H. Snowden, II, Administrative Director, Alaska Court System; Ron Lind, Director, Division of Administrative Services, Department of Transportation and Public Facilities; Bob Baratko, Director, Division of Administrative Services, Department of Revenue; Patty Swenson, Staff, Representative Bunde; Margot Knuth, Criminal Division, Department of Law; Jerry Luckhaupt, Legislative Legal Counsel, Legislative Affairs Agency; Mary Lou Burton, Statewide Budget Director, University of Alaska. SUMMARY HB 74 An Act relating to the assault of children by adults. CSHB 74 (FIN) was reported out of Committee with a "do pass" recommendation and with three zero fiscal notes by the Department of Law, Department of Corrections, and Department of Public Safety. 1 HB 137 An Act making supplemental appropriations for operating expenses of state government for fiscal year 1995; and providing for an effective date. HB 137 was HELD in Committee for further discussion. HB 178 "An Act making supplemental and special appropriations for the expenses of state government; making and amending capital and operating appropriations; and providing for an effective date. HB 178 was HELD in Committee for further discussion. HOUSE BILL NO. 137 "An Act making supplemental appropriations for operating expenses of state government for fiscal year 1995; and providing for an effective date." NANCY SLAGLE, DIRECTOR, DIVISION OF BUDGET REVIEW, OFFICE OF MANAGEMENT AND BUDGET, OFFICE OF THE GOVERNOR continued her review of HB 137. DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES RON LIND, DIRECTOR, DIVISION OF ADMINISTRATIVE SERVICES, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES explained that Sections 41 - 43 relate to the extreme snow falls experienced in the state of Alaska during FY 95. He stated that Section 41, Highways and Aviation Snow Removal was reduced to $2,170.0 million dollars. He added that Section 42, which funds maintenance and operations of statewide facilities for snow removal could be reduced to $49.8 thousand dollars. He observed due to heavy snow falls, Section 43, Anchorage International Airport needs to be increased to $350.0 thousand dollars. Mr. Lind observed that Sections 44 - 47 are related. He noted that the Department has received, in past years, between $1.0 and $1.5 million dollars in capital appropriation for emergency repairs to the aviation or highway system. He explained that no appropriation was made in FY 95 with the understanding that emergencies would be identified and selected items submitted to the Legislature. He briefly described projects listed in Sections 44 - 47. Mr. Lind explained that spring maintenance was identified as a problem area. Section 48 would appropriate $750.0 thousand dollars for spring maintenance. The funding would 2 be used for gravel resurfacing, leveling frost heaves with asphalt and pot hole patching. He added that approximately $150.0 thousand dollars will be allocated per district. In response to a question by Representative Martin, Mr. Lind clarified that there is some money for spring maintenance in the Department's budget. He stressed that the deferred maintenance amounts in the Department's capital budget was reduced in FY 95. He did not think that the supplemental appropriation would result in a reduction to their FY 96 budget. Representative Navarre spoke in support of Section 48. He emphasized that delayed maintenance will result in more costly repairs. Mr. Lind discussed Section 49. He noted that the Department owes $230.3 thousand to the Department of Law for litigation related to the Copper River Highway. He explained that the Department of Transportation and Public Facilities is billed by the Department of Law. He noted that most of the $2.0 million dollars paid to the Department of Law comes from federal funds. Representative Therriault observed that the amount is reflected in the Department of Law as interagency receipts. In response to a question by Co-Chair Hanley, Mr. Lind clarified that the appropriation would pay for attorney legal costs which were not asked for by the Department. He explained that the Department is unable to anticipate the exact expenditure. In response to a question by Representative Brown, Mr. Lind stated that the charge has been paid by the Department of Law. If the appropriation is not funded the accounting system would show that the Department of Law spent money that the Legislature appropriated with the assumption that they would be reimbursed, but for which they were not reimbursed. He noted that the Legislature can write off the revenue that the Department of Law did not receive. The effect on the General Fund would be the same. Representative Parnell asked how the Department of Law billed the Department of Transportation and Public Facilities. Mr. Lind explained that the Department of Law submits a billing by case number showing which attorneys spent how many hours working on a project. Mr. Lind explained that Section 50 also reimburses the Department of Law for state right-of-way litigation. Ms. Slagle noted that some of the costs may pay for outside counsel. 3 Mr. Lind discussed Section 51. This section pays personnel costs for two airport employees that were laid off when they were unable to pass certification by the Alaska Police Standards Council. The employees failed the vision portion on the test. The court ordered that you cannot demonstrate that an employee cannot do a job that they have been employed to do for 10 to 12 years. The employees were put back to work. Representative Mulder suggested that the settlement terms could be influenced by a preknowledge of the amount appropriated for settlement by the Legislature. GARY HAYDEN, DIRECTOR, ALASKA MARINE HIGHWAY SYSTEM, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES discussed Section 52. He noted that the Alaska Marine Highway System Fund is facing a $1.6 million dollar deficit for FY 95. He acknowledged that revenues sales were down approximately $400.0 thousand dollars. He added that the Leconte was brought into service in November and December. The decision to run the Leconte during November and December cost an additional $200.0 thousand dollars. He stressed that the Columbia has been laid up an addition 4 weeks in an attempt to reduce costs. He added that an attempt is being made to encourage ridership. He discussed factors contributing to a reduction in ridership. Co-Chair Foster questioned how much the Department of Transportation and Public Facilities pays to the Department of Labor. Mr. Lind responded that the Department of Transportation and Public Facilities pays very little for violations to the Department of Labor. DEPARTMENT OF COMMUNITY AND REGIONAL AFFAIRS Ms. Slagle explained that Section 53 would extend the lapse date for Rural Development Grants. The grants were part of the operating budget. Ms. Slagle noted that Section 54 funds the city of Egegik's first year organization grant. DEPARTMENT OF CORRECTIONS Ms. Slagle observed that Section 55 represents a fund source change for prison phones of $200.0 thousand dollars from general fund program receipts to general fund dollars. She explained that the system is not in place to track receipt of the funds from the prisoners. Ms. Slagle stated that Section 56 would pay $39.3 thousand 4 dollars to implement the transfer of the community jails from the Department of Public Safety. Ms. Slagle noted that Section 57 would fund $1,611.5 million dollars in contempt of court fines related to the Cleary settlement. Ms. Slagle explained that Section 58 pays $457.0 thousand dollars in legal personnel actions for pending decisions. UNIVERSITY OF ALASKA Ms. Slagle noted that Section 59 pays $130.0 thousand dollars for snow and ice removal at the Anchorage and Prince William Sound Campuses. MARY LOU BURTON, STATEWIDE BUDGET DIRECTOR, UNIVERSITY OF ALASKA noted that Section 68 funds $153.0 thousand dollars for the cost of removing the panels on the Butrovich Building. Section 69 is $1,326.0 million dollars for replacement of the panels. She explained that the University had planned to wait for the litigation settlement before replacing the panels. She stated that the University was informed that the panels needed to be taken off immediately because they were in danger of falling and causing injury. The panels were removed at a cost of $153.0 thousand dollars from the University's Risk Loss Prevention Fund. Section 68 would replace the funds used to remove the panels. She stated that the University would be willing to make the appropriation of Section 69 conditional to repay any amount to the general fund for any litigation proceeds. Ms. Burton explained that the appropriation needs to made in the supplemental in order to allow work to proceed this summer. If the panels are not replaced further deterioration may occur. Litigation is being pursued against the contractor, manufacturer and the architect. The University has recovered $1.0 million dollars in insurance. (Tape Change, HFC 95-28, Side 2) Representative Navarre questioned the University's motivation to pursue the case if the state prepays the cost of replacement. Ms. Burton assured him that the University will pursue litigation to recover costs. ALASKA COURT SYSTEM ARTHUR H. SNOWDEN, II, ADMINISTRATIVE DIRECTOR, ALASKA COURT SYSTEM stated that Section 60 will support trial costs associated with the North Slope Royalty Case. 5 Mr. Snowden noted that Section 61 will pay $51.7 thousand dollars for retroactive magistrate pay based on a reclassification. He observed that Section 61 is a one time cost. In response to a question by Representative Parnell, Mr Snowden clarified that the North Slope Royalty case will go to trial in April. STATEWIDE Ms. Slagle explained that Section 62 pays miscellaneous claims and stale-dated warrants that cannot be paid without an appropriation for the lapsed funds. She stressed that misplaced bills or improperly billed claims result in funds lapsing. CAPITAL SUPPLEMENTAL REQUESTS Ms. Slagle stated that Section 63 appropriates to Alaska Housing Finance Corporation (AHFC) $258.0 thousand dollars for low income weatherization after Kobuk River flooding. Ms. Slagle noted that Section 64 appropriates $1.8 million dollars to AHFC for the supplemental housing program. BOB BARATKO, DIRECTOR, DIVISION OF ADMINISTRATIVE SERVICES, DEPARTMENT OF REVENUE explained that Section 64 is an underestimate of the Program's need. He noted that another $6.6 million dollars was identified by HUD. The $1.8 million dollar appropriation will make the federal match. Ms. Slagle observed that Section 63 can be reduced to $149.1 thousand dollars. Ms. Slagle noted that Sections 65 - 67 are capital projects in the Department of Public Safety. She briefly review the projects. Section 65 appropriates $41.6 thousand dollars for the Civil Air Patrol hangar roof at Merrill Field. Section 66 appropriates $100.0 thousand dollars for the city of Homer jail upgrade to code compliance. She observed that the appropriation is needed to assure life and safety. Co-Chair Hanley expressed concern that the state will not be reimbursed. He noted that the state is negotiating contracts that will upgrade the amounts paid to communities. He observed that some communities will receive an additional capital appropriation. Representative Parnell noted that many of the community jails suffer from building code violations. 6 HB 138 was HELD in Committee for further discussion. (Tape Change, HFC 95-29, Side 1) HOUSE BILL NO. 74 "An Act relating to the assault of children by adults." PATTY SWENSON, STAFF, REPRESENTATIVE BUNDE testified on behalf of HB 74. She stated that HB 74 was introduced in response to an attack on a 14 year old newspaper boy in Anchorage. She observed that Sean Jensen was attacked by three adults at 5:30 a.m. while he attempted to deliver a newspaper. The three adults were intoxicated. They knocked out his permanent front teeth, caused neck injuries and ran him over with a snow machine. The adults are only charged with a misdemeanor. If Sean had been 10 years old or younger a felony charge would have been possible. If he had been an adult a felony charge would also have been possible. Ms. Swenson observed that Section 2 provides the prosecutor with flexibility to charge a defendant with a misdemeanor if the defendant reasonably believes the victim was 16 years of age or older. Representative Kohring asked why the limit was set at 16 years of age. Ms. Swenson stated that the sponsor felt that 16 year old children begin to look like adults and at that point you could not reasonable say that two adults were not having a fight. Representative Brown asked how "medical treatment" on page 2, line 5 would be interpreted. She stressed that "medical treatment" should be defined. She hypothesized that children could be injured playing sports. MARGOT KNUTH, CRIMINAL DIVISION, DEPARTMENT OF LAW stressed that AS 11.81.900 defines "physical injury" to mean a "physical pain or an impairment of physical condition". She stated that the intent of the legislation is to make it a more serious circumstance than a simple physical injury which could be pain. She acknowledged that medical treatment could still be a relatively minor matter. Ms. Knuth noted that AS 11.41.220 (a) was amended to state: "A person commits the crime of assault in the third degree if that person (1) recklessly... (C) while being 18 years of age or older (i) causes physical injury to a child under 10 years of age and the injury reasonably requires medical treatment." She asserted that there is no difference 7 between the statute and the amendment except that the age is being changed from 10 to under 16 years of age. She questioned if "intentionally" was deleted by a drafting oversight. She stressed that the law will assume that "recklessly" applies. She advised that if the intent is to provide a broad interpretation then AS 11.41.220 (a)(1)(C) should be amended by deleting "10" and inserting "16". She stated that if the intent is to differentiate children under 10 from those over 10 then "intentionally" could be added for cases involving children over the age of 10. Ms. Swenson pointed out that "intentionally" would not cover adults who injure a child while intoxicated. Ms. Knuth agreed that statutes would allow intoxication as a defense for intentional acts. She noted that intoxication would not be a defense to acting recklessly. She reiterated that the standard for the legislation as written would be "reckless" for children under and over the age of 10. Ms. Swenson recalled that the drafter indicated that the legislation as written would identify two different mental states. She noted that the House Judiciary Committee opposed the addition of "intentionally". Representative Brown questioned how a person would be charged if a 17 year old child was injured. Ms. Knuth answered that the charge would be assault in the fourth degree, a class A misdemeanor, punishable up to one year in prison. If a dangerous instrument were used or serious physical injury was caused a felony charge could be made. Ms. Swenson noted that even though the newspaper boy was run over by a snow machine a felony charge was not possible since the injury did not occur as a result of the snow machine. Injuries were caused by the adults striking the child with their fists. Ms. Knuth noted that AS 11.81.610 states that: "If a provision of law defining an offense does not prescribe a culpable mental state, culpable mental state that must be proved with respect to (1) conduct is `knowingly ; and (2) a circumstance or a result is `recklessly.'" Representative Brown asked if Ms. Knuth foresaw an impact on sports or other activities that young people play with older teenagers. Ms. Knuth agreed that district attorneys would not want to charge cases involving sport injuries as felonies. She acknowledged that sport injuries would technically fall under this provision of law. She reiterated problems with "intentionally" in regards to intoxication as a defense. 8 Representative Brown noted that the accompanying fiscal notes are zero. She suggested that there will be some fiscal impact as a result of the legislation. In response to a question by Representative Kohring, Ms. Knuth observed that the maximum penalty for third degree assault is five years imprisonment. A class A misdemeanor is a maximum one year imprisonment. She stated that she would not expect more than 90 days to be imposed for a first offense class A misdemeanor. Representative Mulder MOVED to report HB 74 out of Committee with individual recommendations and with the accompanying fiscal notes. Representative Brown OBJECTED. She suggested that AS 11.41.220 (a)(1)(C) should be amended to delete "10" and insert "16". Ms. Swenson stressed that the fiscal note is zero because there are no statistics available between misdemeanors and felonies. She understood that there will not be enough cases under the legislation to result in a fiscal impact. Representative Brown emphasized that even one case would have a fiscal impact. JERRY LUCKHAUPT, LEGISLATIVE LEGAL COUNSEL, LEGISLATIVE AFFAIRS AGENCY explained that the legislation was drafted with the intention of providing a stair-step approach. He stated that he was operating under the assumption that if the conduct itself is the cause of the physical injury then a "knowing" mental state would be read into the statute. He acknowledged that other interpretations could result in "reckless" as the implied standard. He suggested that "knowingly" could be added if the Committee supports a stair-stepped approach. He observed that "knowingly" is a higher mental state and requires a greater burden of proof on the prosecution. Ms. Swenson stated that the sponsor's intent was to provide a stair-stepped approach. Representative Parnell clarified that "reckless" requires a lesser burden of proof than "knowingly". Mr. Luckhaupt observed that a reckless standard is kin to a gross negligent standard in civil context. He explained that the risk is perceived by the defendant and the disregard of risk is viewed as a gross deviation from what a reasonable person would do in the circumstances. Mr. Luckhaupt explained that "knowing" is the awareness of the act you are doing a the time. It is not intentional to cause harm, but it is intentional to do the act. 9 Co-Chair Hanley reiterated reasons for a stair-stepped approach. Representative Therriault MOVED to add "knowingly" on page 2, line 3. Mr. Luckhaupt reiterated that "knowingly" would add a higher mental state. The prosecutor will have to prove that the defendant intended to do the act that results in harm. He discussed the reasoning behind a reckless mental state for abuse of children under 10. Representative Brown reiterated concern that injuries as the result of organized sports would fall under the legislation's sanction. Representative Mulder echoed concerns that 18 year old high school students may be involved in injuries to other high school students who are 16 years old. Mr. Luckhaupt observed that the District Attorney will decide if charges are filled in each circumstance. He noted that the knowing mental state would be more difficult to prove. Representative Brown clarified that intoxication does not operate as an offense to general intent crimes such as "knowing". Mr. Luckhaupt pointed out that section two of the legislation was inserted to allow the defense that the person reasonably thought the minor was 16 years of age or over. Representative Therriault WITHDREW his motion to amend HB 74 by adding "knowingly" on page 2, line 3. Representative Mulder WITHDREW his motion to move HB 74 from Committee. Therriault MOVED to add "knowingly" on page 2, line 3. Representative Martin spoke in support of a "reckless" mental state. A roll call vote was taken on the MOTION to add "knowingly" on page 2, line 3. IN FAVOR: Brown, Grussendorf, Navarre, Kelly, Kohring, Mulder, Foster, Hanley OPPOSED: Martin Representative Parnell was absent from the vote. The MOTION FAILED (9-1). Representative Brown argued that ordinary activities where 10 individuals choose to play sports and take physical risks where they might injure someone, even knowingly, should not be a crime. (Tape Change, HFC 95-29, Side 2) Representative Grussendorf recognized that injuries occur in organized sports. Mr. Luckhaupt acknowledged that individuals participating in organized sports have been prosecuted for assault in cases where serious bodily injury was inflicted on another player. He restated that the prosecutor must decide if charges are warranted. He insinuated that "knowingly" would make it more difficult to prosecute the case where an elbow is thrown in a pick-up basketball game. He acknowledged that an affirmative defense could be added to the legislation to allow the defense that the injury occurred while engaged in the normal acts of a game. In response to a question by Representative Kelly, Mr. Luckhaupt reiterated that in case of an intentional act, the prosecution would have to show that the defendant had the specific intention to cause physical injury which requires medical treatment. He observed the difficulty of proof in most circumstances. Representative Therriault pointed out that a jury must also be convinced of the defendants guilt. Representative Mulder felt confident that the incidental aggressive behavior on basketball courts or other sporting events are protected by the "knowing" standard. Representative Mulder MOVED to report CSHB 74 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. Representative Kelly OBJECTED. Mr. Luckhaupt estimated that charges would not be filed in a normal sport situation unless there is some conduct outside the bonds of reason. Representative Kelly WITHDREW his objection. Representative Brown continued to have concerns that the "knowing" standard is not proper for the creation of a felony crime. Co-Chair Hanley spoke in support of the legislation as amended. He suggested that the legislation would adequately protect normal sport circumstances. Mr. Luckhaupt stressed that the legislation takes the middle ground between adoption of a "reckless" and "intentional" mental state. He pointed out that there is no requirement for prosecutors to file felony charges against everybody that meets the circumstance. Representative Grussendorf observed that some organized sport participants actually try to inflict injuries to their 11 opponentes within the rules of the game. A roll call vote was taken on the MOTION to move CSHB 74 (FIN) out of Committee. IN FAVOR: Grussendorf, Navarre, Kelly, Kohring, Martin, Mulder, Parnell, Foster, Hanley OPPOSED: Brown, Foster The MOTION FAILED (2-9). CSHB 74 (FIN) was reported out of Committee with a "do pass" recommendation and with three zero fiscal notes by the Department of Law, Department of Corrections, and Department of Public Safety. ADJOURNMENT The meeting adjourned at 4:00 p.m. 12