HOUSE FINANCE COMMITTEE April 26, 1999 1:55 P.M. TAPE HFC 99 - 103, Side 1 TAPE HFC 99 - 103, Side 2 TAPE HFC 99 - 104, Side 1 CALL TO ORDER Co-Chair Therriault called the House Finance Committee meeting to order at 1:55 p.m. PRESENT Co-Chair Therriault Representative Foster Co-Chair Mulder Representative Grussendorf Vice Chair Bunde Representative Kohring Representative Austerman Representative Moses Representative J. Davies Representative Williams Representative G. Davis ALSO PRESENT Representative Fred Dyson; Darwin Peterson, Staff, Senator Torgerson; Anne Carpeneti, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law; Janet Seitz, Staff, Representative Rokeberg; George Utermohle, Legal Counsel, Legislative Affairs Agency TESTIFIED VIA TELECONFERENCE Dave Liebersbach, Director, Division of Emergency Services, Military and Veterans Affairs. SUMMARY HB 34 "An Act relating to the crime of misprision of a crime against a child." HB 34 was HELD in Committee for further consideration. HB 67 "An Act relating to release of certain persons alleged to have committed certain sexual offenses." CSHB 67 (JUD) was REPORTED out of Committee with a "do pass" recommendation and with and a fiscal impact note by the Department of Administration and a zero fiscal note by the Department of Corrections, published date 4/16/99. CSSB 101(FIN) am "An Act relating to disasters and to the disaster relief fund." SB 101 was HELD in Committee for further consideration. CS FOR SENATE BILL NO. 101(FIN) am "An Act relating to disasters and to the disaster relief fund." DARWIN PETERSON, STAFF, SENATOR TORGERSON read the sponsor statement in support of SB 101: The House Military and Veterans Affairs Committee Substitute for Committee Substitute for Senate Bill 101 clarifies the definition of a disaster by replacing vague terminology in statute with more specific language. This will direct the executive branch of government in identifying what constitutes a disaster prior to making a gubernatorial disaster declaration. In addition to amending the definition of disaster, HCS CS SB 101(MLV) makes a diversion from current law to the funding limits within the executive branch in reference to disaster emergencies. The governor is given broad authorization to expend up to $1,000,000 to prevent or minimize the effects of an event or a disaster within the state. If the governor feels that further expenditures from state funds are necessary in excess of $1,000,000 for a specific event, legislative authorization or a presidential declaration of disaster is required. Wildland fire disasters are exempt from this policy. Co-Chair Therriault asked if the sponsor had concerns with the HCS (STA) version. Mr. Peterson replied that they had concerns with language on page 2, section 3. He explained that there are two caps under current law, one at $500 thousand dollars and one at $1 million dollars. These were combined into one cap of $1 million dollars. He recommended that the two limitations remain separate. The caps would be under $500 thousand dollars for a broad variety of events and $1 million dollars for specifically for disasters. Seventy-five percent of disasters since 1978 have been under $500 thousand dollars. This would return to the current statutory limitation. Co-Chair Therriault noted that there is no cap on wildlife fires. Mr. Peterson also pointed to page 3, lines 4 - 6. He explained that under current law the Governor must notify the presiding officers if he wishes to spend more than a million dollars. The Senate language required the presiding officer to poll all members of the legislature and receive majority consent. He acknowledged that it could be difficult to contact all members during the interim. The sponsor recommends that the presiding officers contact a majority of members telephonically. There would still need majority consent. If 31 members agree that a special session is not necessary than the governor could go ahead with the disaster plan. Mr. Peterson referred to page 4, definition of disaster. The Senate wanted a more concise definition. "An event such as" may be objectionable due to its broad interpretation. Representative Foster observed that "including" was deleted from page 4, line 9. Mr. Peterson explained that the language was amended in the House Military and Veterans Affairs Committee. The intent was to broaden the definition and allow the governor to declare a disaster on any event that resulted in a disaster of $2 million dollars. The Senate definition was more specific. In the Senate version, the governor could spend up to $1 million dollars on disasters that were enumerated. The governor could spend up to $500 thousand dollars on disasters that were not enumerated such as a plane collision. If the governor want to spend more than $500 thousand dollars on a disaster that was not enumerated he would have to address the legislature. In response to a question by Representative Foster, Mr. Peterson noted that if there was a disaster such as a plane crash the governor could spend funds immediately. He estimated that further funding could be obtained within a few hours. Representative Foster recalled an emergency in his district. It took 14 calls and an hour and a half before he was able to reach anyone to respond. Representative Austerman concluded that the sponsor's concern is with the addition of "such as". He clarified that the sponsor prefers the Senate version. He ascertained that if the disaster was not defined the governor would have $500 thousand dollars. Representative Foster noted that a number of people would have to be contacted. Co-Chair Therriault pointed out that the governor would only need to contact further members if he wanted to spend more than $500 thousand dollars. Representative Grussendorf spoke in support of the House State Affairs Committee version. He stated that he would prefer to argue to the funding after the disaster. He did not want to see a delay on funding. Co-Chair Therriault pointed out that the $500 thousand dollar and $1 million dollar limitations exist in current law. In response to a question by Co-Chair Therriault, Mr. Peterson noted that the current disaster spending limits have not created problems. Representative J. Davies stated that page 2, lines 6 and 7 needed further clarification. "The governor may expend during a fiscal year not more than $1,000,000 of state funds per event to prevent, minimize, or respond to the effects of an event that occurs in the state..." He pointed out that if an event is prevented then it is not an event that occurred. He suggested that additional language is needed to clarify this provision. Representative J. Davies questioned the intent of language on page 3, line 17 - 20. (b) Notwithstanding any other provision of this chapter, if the declaration of a disaster emergency occurs while the legislature is in session or if a special session is held, actions taken by the governor under this chapter after the close of the session that are not ratified by law adopted during that session are void." He pointed out that action could be the result of a law previously adopted. He maintained that the language is over reaching and should be deleted. He suggested that any actions taken that are inconsistent with law adopted during the session should be void. Mr. Peterson stated that the language states that if the governor goes over the cap and the legislature disagrees, that any action taken by the governor would be void. Representative Austerman referred to the Bristol Bay economic disaster. Mr. Peterson replied that there is no place in the bill that specifically discusses economic disasters. The legislature discusses physical disaster. Representative Austerman questioned if "such as" could open the door to economic disasters. Mr. Peterson replied that it might be possible if an economic disaster was caused by an event "such as" the ones listed. Representative J. Davies suggested that it would be difficult to separate natural and economic disasters. Co- Chair Therriault referred to page 4, lines 2 - 4. He observed that "the occurrence or imminent threat of widespread or severe damage, injury, [OR] loss of life or property" could have an economic impact. He observed that a shortage of food could cause a loss of life and a shortage of fuel during winter months could cause a loss of property. He asked why the Senate added the language. Mr. Peterson explained that the Senate Finance Committee inserted the language in case a disaster resulted in a shortage of food, water or fuel. Co-Chair Therriault felt that the language was unnecessary. Representative Foster observed that the State Emergency Response Commission passed a resolution signed by Phillip Oates, Commissioner of Military and Veterans Affairs opposing SB 101 (copy on file). DAVE LIEBERSBACH, DIRECTOR, DIVISION OF EMERGENCY SERVICES, MILITARY AND VETERANS AFFAIRS testified via teleconference. He stated that the Department of Military and Veterans Affairs feels that the House State Affairs Committee version is workable. He referred to the resolution by the State Emergency Response Commission. Discussions with the State Emergency Response Commission indicated that they would not object to the current version. Representative Foster questioned if there is a federal definition for "disaster". Mr. Liebersbach clarified that there is a federal definition for "disaster". He explained that the Western Alaska Fisheries disaster was not included under the definition of a major disaster by the presidential declaration. The federal funds for the Western Alaska Fisheries disaster were obtained under a different route. In response to a question by Representative Foster, Mr. Liebersbach noted that the addition of "an event such as" on line 5, page 4 has broaden the legislation sufficiently to allow the support of the department. He pointed out that he did not want to try to delineate every possible disaster for the future. He stressed that there needs to be a broad enough interpretation to allow coverage. Representative Austerman noted that he requested a breakdown of the $60 million federal dollars appropriated through the Steven's Act. Co-Chair Therriault expressed concern with the addition of the language "an event such as". CAROL CARROLL, DIRECTOR, DIVISION OF SUPPORT SERVICES, DEPARTMENT OF NATURAL RESOURCES stated that the breakdown of federal funds is available and that she would provide it to members. Representative Grussendorf asked how long the statutory limitation of $500 thousand dollars has been in placed. Ms. Carroll noted that the limitations have been in placed since the 1970's. Representative Grussendorf pointed out that the value of the funds has decreased. Co-Chair Therriault noted that the bill proposes one limitation. He questioned if there is a problem with the current statute. Ms. Carroll noted that $500 thousand dollars could be used to advert a disaster or an imminent event that might cause a disaster. Under an actual disaster the entire $1 million dollars would be available. The legislation allows $1 million dollars to be spent on a disaster or to divert a disaster. Vice-Chair Bunde noted that 75 percent of the disasters that have occur in the state of Alaska since 1978 have been under $500 thousand dollars. He questioned if it would be possible to spend more than $500 thousand dollars within the first few minutes. Ms. Carroll replied that it is difficult to tell. She noted that a lot of money could be spent within a few minutes for a major disaster, if out-of-state resources were used. She stressed that if the state is committed to expend funds that they will be expended. Representative Foster observed that under the House State Affairs version the Governor would have to contact 6 members. He questioned how the decision would be carried. He expressed concern that it could take time. He noted that there would be an executive committee making the decision. Co-Chair Therriault pointed out that the legislation requires that the Governor shall prepare and deliver to the Commissioner's Office and chairs of finance a financing plan describing the amount. Representative Foster expressed concern that a decision could be made not to have a special session without input from individual members. GEORGE UTERMOHLE, LEGAL COUNSEL, LEGISLATIVE AFFAIRS AGENCY responded to previous questions. He emphasized that the listing of events of a similar nature that are classified modifies an event "such as". He clarified that a riot would not be "an event such as" if it were not included in the list. Co-Chair Therriault asked if economic disasters would be swept in under the list of events "such as". Mr. Utermohle observed that disasters that have an economic affect could be included, but stated that a pure economic disaster as defined in, AS 44 would not be included under the language. Co-Chair Therriault asked why "an event such as" is needed. Representative Grussendorf suggested that a meteorite would not be included without the additional language. Mr. Utermohle noted that the issue is how tight the boundary would be drawn around disasters the governor could declare. Co-Chair Therriault pointed out that the governor would still be able to respond to an event that was not detailed, such as a meteorite, because some of the other events would occur. Vice-Chair Bunde stated that the language clarifies that the events would be natural in nature and exclude economic disasters. Mr. Utermohle agreed. (Tape Change, HFC 99 -103, Side 2) Co-Chair Therriault reiterated questions by Representative J. Davies regarding the need for language on page 3, line 17 - 20. Mr. Utermohle explained that the language is a modification of existing law. He noted that the language would void actions of the governor not sanctioned by the legislature. He stressed that "it is a function of how tight a rein the legislature wants to keep on the governor. The governor's authority to precede expires when the legislature adjourns if the governor's action was not ratified by the legislature. Under the legislation, a disaster appropriation could be cut off at any time by appropriate legislative action. In response to a question by Representative Foster, Mr. Utermohle explained that language on page 3, line 4 pertains to delivery of the governor's financing plan. He noted that the other members of the body have the ability to call themselves into special session. Co-Chair Therriault noted that the language on page 3, lines 4 - 6 allows the governor to expend money if the legislature decides not to go into a special session. Representative J. Davies referred to page 5, lines 5 - 8. Mr. Utermohle noted that the language carries forward existing language. He stated that the following language could be deleted from existing law in order to resolve Representative J. Davies' concerns. "The governor may expend during a fiscal year not more than $1,000,000 of state funds per event to prevent, minimize, or respond to the effects of an event that occurs in the state and that, in the determination of the governor, poses a direct and imminent threat." Vice-Chair Bunde questioned if the governor could declare a disaster on an event that occurs in Canada or another state. Mr. Utermohle noted that the language clarifies that the Governor is responding to events in the state of Alaska. Vice-Chair Bunde referred to page 3, lines 17 - 20. He questioned if the language is a pocket veto for the legislature. Mr. Utermohle stated that if the legislature does not ratify the governor's actions than his authority to operate ends. It compels the legislature to take action if the disaster is to be addressed. Representative J. Davies summarized that the legislature would have to ratify disaster expenditures under $1 million dollars. Mr. Utermohle clarified that expenditures after the end of the session or special session would not be authorized. Expenditures during the legislative session would be authorized under the governor's authority. The language speaks to a declared disaster as opposed to an event. An event is not necessarily a disaster. SB 101 was HELD in Committee for further consideration. HOUSE BILL NO. 34 "An Act relating to the crime of misprision of a crime against a child." REPRESENTATIVE FRED DYSON, SPONSOR explained that the legislation was the result of a case that occurred in Nevada. A seven-year-old child was molested and killed in a casino restroom. A friend of the perpetrator observed the act. He later gave the perpetrator a ride back to California. The person observing did not act to assist the minor during the assault and murder. Representative Dyson noted that since this crime eight states have made it a misdemeanor to refuse to go to the aid to a child who is actively being assaulted. He noted that laws to assist were very common in American and English common law over a 130 years ago. The duty to assist did not survive when states moved to statute law. He noted that professional mariners are required to go to the aid of a vessel in need of assistance. Police and military personnel also have a duty to assist those in distress. The legislation would make it a class A misdemeanor to refuse to assist a minor. He observed that it is a positive offense if a person does not help the child because they are afraid for their own life or safety. He noted that fiscal notes are indeterminate because it is unclear how many cases would be prosecuted. He estimated that there would only be one or two cases in a decade. He stressed that a culture's values are reflected in its law. He observed that under current statute a person could sell tickets to an assault of a child with impunity. Representative J. Davies spoke in support of the legislation. He asked why it is limited to children. Representative Dyson noted that the Senate version of the legislation was not restricted to children. He stated that the concept of the duty to assist is not common to our statute law. He observed that legislation pertaining to those viewed as incompetent, such as children under the age of majority would be easier to defended. He stated that an argument could be made to extend the law to developmental disabled or profoundly handicapped adults. He stated that he would support an expansion of the legislation. Vice-Chair Bunde clarified that "child" would be defined as anyone under 18 years of age. He asked how serious crimes committed by a child would be addressed. Representative Dyson noted that the bill does not speak to anticipated crimes. He referenced page 1, line 8: "Witnesses what the person knows or reasonably should know is (A) the murder or attempted murder of a child by another; (B) The kidnapping or attempted kidnapping of a child by another; (C) The sexual penetration or attempted sexual penetration by another." Representative Dyson stated that "a crime is about to happen" could be added after "reasonably should know". Co-Chair Therriault stressed that consideration should be given to the possible fiscal impact. Representative Grussendorf questioned the effect the legislation would have on witnesses. He noted that a person who did not respond during the event could be penalized if they come forth as a witness after the fact. He expressed concern a person may view something but not be sure of what is happening at the time of the event. Representative Dyson acknowledged the difficulty of knowing if a child is being kidnapped or is just acting up to their parents. He noted that the legislation addresses what a person "knows" or "reasonably should know." He observed that not being certain of a confusing situation is a positive defense. He added that exceptions are made for those fearing injury: "did not report in a timely manner because the defendant reasonably believed that doing so would have exposed the defendant or others to a substantial risk of physical injury." He observed that people are afraid of involvement in domestic violence cases. He stressed that prosecutors would grant witnesses immunity from prosecution in order to allow testimony against perpetrators. Representative Kohring spoke in support of the legislation and questioned if the penalty should be a felony instead of a misdemeanor. Representative Dyson stated that the penalty was a felony in the original legislation. He explained that the legislation asks that people assist in instances that would be class E felonies. He explained that if the penalty for failing to assist were a felony that the perpetrator and the person who failed to assist could be charged the same. ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW acknowledged that no one would disagree that people have a moral obligation to help a child. She stressed that the problem occurs when it is made a crime. She emphasized that the legislation pertains to a person that simply witnesses a crime. She observed that it is already against the law to help a perpetrator during or after a crime. The legislation only addresses a person who witnesses an offense. She acknowledged that the person should go to the aid of the child. The concern is that if a person witnesses a crime and does not report it in a timely manner that they would be lost as a witness. She noted that witnesses would be locked into their previous testimony, for fear that they will be charged if they change their story and tell the truth. Failure to assist was a crime in common law, but fell into disuse due to problems. She suggested that the legislation begin with the most serious crimes, murder, kidnapping and perhaps attempted murder. She stressed that the broader the bill the greater the problems in relationship to witnesses. She noted that the difference between felony and misdemeanor assaults could be subtle. The difference involves the mental state of the perpetrator in relationship to intent, recklessness or criminal negligence. She recommended that felonious assault be deleted and the legislation be limited to murder, kidnapping and perhaps sexual assault in the first degree. Representative Grussendorf observed that the state of Minnesota has a similar law. He asked if other states have broader laws. Ms. Carpeneti did not know. Vice-Chair Bunde questioned if the person that witnessed the Nevada crime could have been prosecuted in Alaska since he aided the escape of the perpetrator. Ms. Carpeneti stated that Alaska law states prohibits a person from aiding and helping a person escape with intent. She felt that it would have been possible to investigate the charge if it the crime had occurred in Alaska. She noted aiding a criminal is a class A felony in Alaska. Vice-Chair Bunde asked if Representative Dyson would be willing to drop the assault charge. Representative Dyson stated that he would be willing to drop assault if it were necessary to advance the bill, but that it would not be his choice. Ms. Carpeneti explained that a class A felony has a penalty of one year imprisonment and a $500 thousand dollar fine. In response to comments by Representative Foster, Ms. Carpeneti reiterated that the legislation allows an affirmative defense of fear. Representative Dyson gave examples of similar legislation enacted by other states. He noted that Massachusetts has also included armed robbery. Representative J. Davies questioned if there would be a way to further delineate assaults. He observed that "assaults punishable as a felony" is a high standard. He suggested that the language could read "an assault such as armed robbery." Representative Dyson explained that felonious assaults include a deadly weapon. He noted that the definition of a deadly weapon is subject to interpretation. Co-Chair Therriault stressed that the general public would not know the level of the offense under the law. Ms. Carpeneti acknowledged that felony is a legal term. Representative Dyson pointed out that there is no penalty for reporting lower level assaults. In response to a question by Vice-Chair Bunde, Representative Dyson explained that molestation and abuse were not added in order to clarify the legislation. The intent is that a child in grave danger receives assistance. Vice-Chair Bunde stressed that the legislation needs to be clearly defined. Representative J. Davies suggested that "punishable as a felony" be deleted and "an assault that would inflict severe physical harm" be inserted. Ms. Carpeneti stated that the language would improve the legislation. She recommended that the legislation be restricted to murder, kidnapping and sexual assault in the first degree. She added that assault in the first degree could be added. She pointed out that there is no penalty for a person who reports every time they see a child in need. Representative J. Davies expressed concern that the use of "felony" would provide a loophole. Representative Dyson stressed that the legislation pertains to children being assaulted by an adult. Co-Chair Therriault pointed out that the legislation includes children up to the age of 18. Representative Grussendorf noted that the adult could be one or two years older than the victim. Ms. Carpeneti explained that first degree sexual assault is usually sexual penetration without consent. Ms. Carpeneti recommended that sexual penetration without consent could be used to limit the legislation to sexual assault in the first degree. Representative Grussendorf asked if the age of consent would affect the legislation. Ms. Carpeneti clarified that it would not impact the legislation. The main issue is the consent. Representative J. Davies asked that the legislation be held for 24 hours to allow an amendment. Representative Dyson supported his request. HB 34 was HELD in Committee for further consideration. (Tape Change, HFC 99 - 104, Side 1) HOUSE BILL NO. 67 "An Act relating to release of certain persons alleged to have committed certain sexual offenses." JANET SEITZ, STAFF, REPRESENTATIVE ROKEBERG spoke in support of the legislation. She read from the sponsor statement. She noted that the legislation was proposed to strengthen protection for sexually abused victims. This bill adds a new section (release in sexual abuse and sexual assault cases) that mandates the court to consider safety of the alleged victim in the following cases: sexual assault [first degree to third degree], Sexual abuse of a minor [first degree to third degree], incest, unlawful exploitation of a minor, and indecent exposure in the first degree. The bill permits the judge to impose additional conditions on a person charged or convicted of these crimes concerning no contact with alleged victim, residing in a place where there is no likelihood of coming in contact with the victim, and taking medication as prescribe. Currently a victim is usually notified of a bail hearing but inquiry by the judicial officer as to if such notification has been made is not statutorily required. This was where the system broke down in my constituent's case. The bill indicates that before a person who is charged or convicted of one of these crimes is released that the judicial officer is required to ask about the notice of the victim or victim's representative. The judicial officer is also to inquire if the victim or victim's representative is in court and wishes to comment. This legislation stems from a situation faced by one of my constituents this past year. This person's young child was sexually abused. The parent was not notified of the bail hearing and the predator, who changed his plea at the last minute, was released back into the community [and is still out in the community awaiting sentencing which has now been scheduled for May] with minimal supervision despite the District Attorney's request for 24-hour supervision. As might be expected, the victim's parent was outraged that the criminal who abused a young child was again in the community without any supervision. I agreed with the parent's concerns and introduced this legislation. Ms. Seitz explained that the perpetrator was in violation of the three-mile limit within the victim's home. The legislation gives the judicial system a way to assure that the victim's concerns are addressed. Ms. Seitz explained that the original legislation mandated 24-hour close supervision and additional notice to the victim. Discussions with the Department of Law and the Alaska Court System indicated that there could be constitutional concerns with the mandates. The Department of Law suggested language in section 1. This method is used by the Alaska Court System in domestic violence cases. The legislation was referred to the House Judiciary and Finance Committees. Representative Grussendorf pointed out that the judge currently has this authority. The legislation directs the Court to act. Representative J. Davies questioned the statutory references Ms. Seitz noted statutes reference by the legislation: 11.41.410 Sexual Assault in the First Degree 11.41.420 Sexual Assault in the Second Degree 11.41.425 Sexual Assault in the Third Degree 11.41.434 Sexual Abuse of a Minor in the First Degree 11.41.435 Sexual Abuse of a Minor in the Second Degree 11.41.438 Sexual Abuse of a Minor in the Third Degree 11.41.450 Incest 11.41.455 Unlawful Exploitation of a Minor 11.41.458 Indecent Exposure in the First Degree Vice-Chair Bunde expressed concern with page 2, lines 10 - 12. Ms. Seitz stated that the intent is that some effort be made to notify the victim. She observed that reasonable effort language came from the Department of Law. Ms. Carpeneti explained that "reasonable effort" was added because defendants are entitled to a bail hearing within a certain period of time. She observed that problems occur when the witness is unavailable. Some hearings cannot be delayed. She noted that bail hearings can occur within a couple of hours. Vice-Chair Bunde asked if "reasonable effort" is legally defensible. Ms. Carpeneti stated that it would be legally defensible. She observed that trials allow more time to subpoena witnesses. The problem occurs more often in terms of hearings that are set at the last minute such as a bail hearing. Defendants have a right to appear before a judge within 24 hours to argue the terms of their bail. Representative J. Davies asked if victims receive notice that there is a possibility of a bail hearing within 24 hours. Ms. Carpenenti did not know the answer to the question. Vice-Chair Bunde asked for a guess on how many cases would be involved. Ms. Carpeneti stated that the Department of Law did not submit a fiscal note. She observed that the Department of Corrections could encounter costs associated with transportation of prisoners. Other costs could involve delayed hearings. Representative G. Davis questioned if victim's rights groups have been active in assisting in notification. Ms. Carpeneti did not know if victim's rights groups would have time to receive notice. Representative G. Davis thought that some groups have members in the court on an on-going basis. Ms. Seitz noted that the House Judiciary Committee adopted the fiscal note that was submitted to the original version of the legislation. Vice-Chair Bunde MOVED to report CSHB 67 (JUD) out of Committee with the accompanying updated fiscal notes. There being NO OBJECTION, it was so ordered. CSHB 67 (JUD) was REPORTED out of Committee with a "do pass" recommendation and with and a fiscal impact note by the Department of Administration and a zero fiscal note by the Department of Corrections, published date 4/16/99. ADJOURNMENT The meeting adjourned at 3:50 p.m. House Finance Committee 14 4/26/99