MINUTES SENATE FINANCE COMMITTEE March 16, 1999 9:01 AM TAPES SFC-99 # 56, Side A CALL TO ORDER Co-Chair John Torgerson convened the meeting at approximately 9:01 AM. PRESENT Senator John Torgerson, Senator Sean Parnell, Senator Randy Phillips, Senator Loren Leman, Senator Gary Wilken and Senator Al Adams were present when the meeting convened. Senator Dave Donley and Senator Lyda Green arrived shortly thereafter. Also Attending: Representative LISA MURKOWSKI; CATHERINE REARDON, Director, Division of Occupational Licensing, Department of Commerce and Economic Development; JUANITA HENSLEY, Administrator, Division of Motor Vehicles, Department of Administration; ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law; DARROLL HARGRAVES, Executive Director, Alaska Council of School Administrators. SUMMARY INFORMATION Co-Chair John Torgerson announced that the committee would recess for Conference Committee meeting scheduled for 9:45 AM and hopefully return at approximately 10:00 AM and resume the agenda. SB 5-MISPRISION OF FELONY The committee took testimony from the sponsor, and asked questions of the Department of Law. The bill moved from committee. SB 27-ACCESS TO DRIVING/SCHOOL RECORDS OF CHILD The committee took testimony from the sponsor, the Division of Motor Vehicles and the Alaska Council of School Administrators. Amendment #1 was moved for adoption. No objection was voiced. The committee recessed for conference committee before action was taken on the amendment. CS FOR SPONSOR SUBSTITUTE FOR SENATE BILL NO. 5(JUD) "An Act relating to the crime of misprision of felony." PAT CARTER, aid to Senator Drue Pearce testified. He told the committee this bill was drafted in response to an incident in Nevada where a seven-year old girl was raped and murdered in a casino rest room. A college student witnessed his friend committing the crime and he walked away and didn't report it. The witness was not punished because Nevada didn't have a Good Samaritan. He explained that a person would commit the crime of misprision if he or she witnessed a felony committed against another person and failed to immediately report it. The bill had gone through thorough discussion and alteration in the Senate Judiciary Committee. With the assistance of Senator Dave Donley, several changes were made. Initially it was too broad in language and was narrowed to only apply to the witness of the most heinous crimes, making the failure to do so a Class A misdemeanor. These would be: murder in the first and second degrees, kidnapping, arson in the first degree, sexual assault in the first degree and sexual assault of a child in the first degree. There was discussion about the word, "immediately" as applied to the timely reporting requirement. The bill was amended to read, "in a timely manner." There was also consideration given to a self-defense clause such as in a battered wife scenario. Language was inserted in Section B Paragraph 1 that addressed that situation by giving a reasonable but affirmative defense if the person reasonably believed that they would be put as substantial risk of physical injury by reporting the witness of the crime. Senator Randy Phillips wanted a reaction from the sponsor to an idea to delete "in a timely manner" and replaced with "within 48 hours" on page 1 line 11. He felt the language was too vague. Pat Carter offered Senator Dave Donley who participated in the discussion in the Senate Judiciary Committee. He gave an example of the consideration given for the case of a rape. There was a possibility of charging a rape victim for not reporting the rape by placing a time frame in the bill. There was discussion in the Senate Judiciary Committee on the placement of this particular language. Senator Dave Donley agreed that was the most persuasive example and said there could be others where a witness remained in the immediate danger of harm from the perpetrators within the 48-hour period. Senator Randy Phillips suggested a defense attorney could argue what the timely manner meant to his or her client. Pat Carter said that was why it was determined that it was better to leave it up to the discretion of the judge as it applied to individual cases. Senator Randy Phillips questioned whether that was wise. Senator Dave Donley responded that it would actually the trial of fact and would also be up to the jury. Since it was a subjective finding rather than strictly a matter of law, he doubted a judge would take that away from the jury. He felt there needed to be some flexibility when seeking to criminalize this type of action. This bill would criminalize what would otherwise be innocent behavior. What made a person culpable would be their failure to report a crime, not the commission of an actual crime. Senator Randy Phillips assumed other states had similar statutes. Pat Carter affirmed that some did. Senator Randy Phillips asked how they defined this portion relating to "timely manner". Pat Carter answered that this bill was drafted in the essence of other states. He did not know of another state that had an actual time constraint. Senator Lyda Green if there was a disincentive for someone who witnessed a heinous crime and without personal involvement, was scared to report. If they later decided to report, would they be punished? Pat Carter called it the guilty conscious factor. He couldn't answer, and said it would be the discretion of the court. Senator Loren Leman referred to other statutes regarding the hindering of prosecution of the second degree and asked how this bill would interact with that. Senator Al Adams noted there was a subcommittee that Co- Chair John Torgerson and Senator Dave Donley served on. He wanted to know if the subcommittee considered the impact of the legislation on the Department of Corrections, Department of Law and other agencies that might be financially impacted. Co-Chair John Torgerson said each department submitted indeterminate fiscal notes that explained their positions that they could not determine what the fiscal impact would be since there had never been a similar law for historical reference. ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law, came to the table at the request of the committee. Senator Sean Parnell referred to Section B, page 1 line 12: affirmative defense. It said it would be a affirmative defense "if the defendant did not report in a timely manner because the defendant reasonably believed that doing so would have exposed the defendant to a substantial risk of physical injury." He noted this bill applied to two different types of witnesses, an innocent bystander and a companion of the perpetrator. He was concerned that the language regarding the exposure of the defendant to physical injury could be used as a defense. If a perpetrator was harming a victim, he or she could just as easily harm the witness. That would be Senator Sean Parnell's defense if he were in that situation. He wanted to understand if the affirmative defense would gut the statute or if it had limits. Anne Carpeneti attempted to explain saying the defense was suggested by Senator Rick Halford who was concerned about cases like one in New York were a mother and small boy were killed before they could testify to witnessing a serious crime. Senator Rick Halford didn't want to require people in that position to expose themselves to harm if they were innocent of any wrongdoing. It was an affirmative defense so that a person raising it would have to prove by a preponderance of evidence that he or she had a reasonable belief that reporting it would subject him or her to substantial physical injury. Senator Sean Parnell asked if prosecutors could use this as leverage for dealing with accomplices. Anne hadn't thought about it but knew that in order to prove accomplice by ability there had to be guilty intent. Senator Sean Parnell pointed out that would not be required under this bill. Senator Loren Leman understood that there was an interaction with Section 780. He felt it was reasonable clear to him. Anne Carpeneti said that to prove the crime of hindering prosecution in the first or second degree there had to be some intent to hide or help the perpetrator. Her understanding of the misprision statute was that the witness just had to be at the crime fail to report it. It was not something that was criminalized in the past so this would be a new step. Senator Al Adams asked how the statute would define "witness". Anne Carpeneti replied that was a good question and that it should be defined. The best approach in her opinion, would have the definition as being present when the offence occurred where perhaps there would be the right to make a citizens arrest of the perpetrator. She also suggested the definition include seeing, hearing or otherwise be in the proximity where it would be happening in the witness' presence. Senator Al Adams asked where was the responsibility to assist and protect the person being harmed rather than just reporting it. He argued that if someone saw a rape being committed that person should go try to stop it. "Was this addressed elsewhere?" he wanted to know. Anne Carpeneti answered no, that there was no duty to prevent a crime that the witness did not participate in. Senator Al Adams wanted to know if other states had statutes stipulating a duty to assist if a person witnessed a crime in progress. Anne Carpeneti was unaware of any but offered to research the issue. She explained that misprision was an old fashioned legal term that had its roots in England but was never really adopted in the United States. She felt the intent of this legislation was just failure to report a crime. Co-Chair John Torgerson asked if the department supported the bill. Anne Carpeneti was grateful for the assistance they received from the sponsor. She felt that the legislation was good for very serious crimes such as murder, kidnapping and arson. Recess (approximately one minute). However, Anne Carpeneti had some reservations about the inclusion of sexual assault or sexual abuse. If a parent learned of abuse of their child, and chose to take other action rather than reporting the abuse to the authorities, she felt the parent should not be charged with a crime if that parent believed he or she was acting in the best interest of the child. Senator Dave Donley said Senator Loren Leman had asked him a question about the consistency of the punishments set out in the bill. Senator Dave Donley expressed to him that a lot of progress was made in the Senate Judiciary Committee to address the specific concern of hindering prosecution punishments. The crime of hindering prosecution in the second degree was listed as a Class B Misdemeanor, while the crime of misprision under this bill would be a Class A Misdemeanor. Senator Dave Donley explained that the hindering prosecution in the second-degree charge was applied to incidences where a misdemeanor crime was committed, the crime of misprision would only be applied to cases where a serious, unclassified felony was committed and witnessed. He wondered if the Department of Law wanted to comment on the relationship to the penalties for hindering prosecution. Anne Carpeneti responded that the department had suggested that the provision in the original bill for the punishment of a Class C Felony did not fit with the scheme of the other statutes. Hindering prosecution in the first degree, which meant aiding or abetting in some way a felony was more serious conduct than simply witnessing and not reporting a crime. Senator Loren Leman offered a motion to move CS SS SB 5 (JUD) from committee with accompanying indeterminate fiscal notes. Without objection, it was so ordered. CS FOR SENATE BILL NO. 27(HES) "An Act relating to school records and driver license records of certain children." Senator Loren Leman testified to this bill, which he sponsored. It came about after he heard from a mother who suspected her minor daughter was driving with a suspended license. When she tried to find out from the Division of Motor Vehicles, she was told that the privacy protection in the law prevented them from releasing that information to her without written permission from the child. Senator Loren Leman believed parents ought to have the right to access to this information. He then explained that as the bill progressed, his office learned that state law did not require a school to guarantee access of parents to their child's school records. He noted that it was common for some school districts to provide that information, there was no requirement in state law. Therefore, this requirement was added to the bill. The Health, Education and Social Services Committee made changes to the bill and Senator Loren Leman requested the Division of Motor Vehicles to comment on those to clarify the intent of the committee. The first change eliminated the five-dollar fee for parents who requested the child's drivers license record. Currently, there was no fee charged to law enforcement and Senator Gary Wilken offered an amendment in HESS to do the same for parents. The second change allowed the DMV and schools to refuse to release the minor child's address if they believed it could jeopardize the child's health and safety. Senator Loren Leman shared that the issue raised by DMV was whether an insurance company could claim they were the guardians of the child and avoid paying the fee. That would jeopardize the finances of the division since they currently processed many requests from insurance, which generated substantial program receipts. The intent was to not let someone other than the parent or guardian to obtain records at no charge. Senator Lyda Green had understood that there were federal requirements that school records be provided to a parent or guardian upon request and wondered why this portion of the bill was necessary. Senator Loren Leman believed that was correct and this bill would make state law consistent. Senator Lyda Green asked if the state failed to follow through with this bill, would federal funds be withheld. Senator Al Adams shared Senator Lyda Green's feelings that Section 1 was unnecessary. The federal Family Education and Privacy Rights applied to the academic records and excluded health and counseling records, which he felt was a private matter. He said that parents shouldn't be guaranteed access to records such as birth control counseling. In order to adopt this state law, the same exclusions that were in the federal law must also be made. Senator Lyda Green asked why the school records were included in the bill. Senator Loren Leman repeated his explanation that while drafting the driving records access bill, they asked the Legal Services Division if there was a statute granting parental access for school records and was told there was none. This provision would allow non- custodial parents as well as custodial parents to have access. JUANITA HENSLEY, Administrator, Division of Motor Vehicles, Department of Administration testified. She said the department understood Senator Loren Leman's desire for parent's to have access to their child's driving records. She said parents currently could get a copy of the record with written release from the minor child. She spoke to the division's concerns to make sure this would be strictly related to a parent walking into the DMV wanting a copy of their minor child's driver's records. She wanted to ensure that this would not spill over into insurance companies because they had a request for a family's records for the purpose of writing a group policy. There was a $5 charge for every copy of driver's records unless it is from law enforcement or for judicial records. Also state and federal employers, under the Commercial Vehicle Safety Act were required to have a copy of an employee's driver's records and were therefore exempt from the fee. Co-Chair John Torgerson asked if it was her concern because the language was unclear. Juanita affirmed and said it could be interpreted by the insurance industry as an exemption for them when they requested records on behalf of a parent for the purpose of writing an insurance policy. She commented that the requests for driver's records for purposes other than law enforcement, insurance companies and state and federal employees were only five to ten per year. She anticipated this would have no fiscal impact on the division. However, if insurance companies were exempted from the fees, the fiscal impact would be substantial. Co-Chair John Torgerson had trouble understanding why the language wasn't clear. He didn't see where the insurance companies would have grounds to argue they didn't have to pay the fee. Juanita Hensley responded that she just wanted to clarify the issue and make sure it was on the record. Senator Gary Wilken referred to proposed Amendment #1 and asked if the language on page 2 line 2 eased the division's concern. Juanita said it was still vague because the parent was still requesting the child's driving record through the insurance company. Senator Gary Wilken said he thought it seemed very clear to him that it would apply to the parent or guardian. Juanita Hensley argued that the parent was still requesting the child's driver's records but through the insurance company. Co-Chair John Torgerson disagreed with the argument. Senator Gary Wilken stated that the intent was to make sure a parent could be exempted from the fee so long as state agencies were not charged. Senator Al Adams asked for clarification if it was the intent to charge parents for the records. Juanita said there would be no charge and since there were so few requests, this would not impact the division's revenues. Recess 9:36AM / 9:37AM DARROLL HARGRAVES, Executive Director, Alaska Council of School Administrators, spoke to the parental requests. He testified that from practical experience, it had never been a problem and that the parent's request always prevailed. Most school districts had a policy covering the matter. More importantly, he stressed the federal Family Educational and Privacy Rights Act set forth the statutes that school districts followed. Therefore, he thought most of the concerns were covered with that statute. SB 27 was not a problem according to Darroll Hargraves, but he did want to bring the federal statute to the attention of the committee. He concurred that parents should have the right to access school and driving records of their miner children. Co-Chair John Torgerson requested Darrell Hargraves read the proposed Amendment #1 and to stand by to comment on those changes. Senator Gary Wilken moved for adoption of Amendment #1. Co-Chair John Torgerson explained that it would make it mandatory to release information to a school district about a miner's alleged commission of an offense that was punishable as a felony or involvement with a deadly weapon if that miner was transferring to the school district. He explained that this amendment was a result of requests from principals in his district with concerns about students expelled from a school for commission of a serious crime who could then enroll in another school district without a requirement the new school district be notified of the circumstances. Senator Lyda Green asked if there was a provision where confidentiality covered a student who committed this serious of a crime. She supported the transfer of the information to the school, but wanted to prevent the information from reaching non-relevant school staff. She wanted to shield the information from reaching everyone at the school. Co-Chair John Torgerson was unsure and thought there probably was some privacy protection. His intention was to let the school know so they could determine whether or not to let the child enroll in the school. He noted that if a child was convicted the information would be public. Darroll Hargraves said that would present a problem because sometimes volunteers opened the mail. However, it was important that information about crimes committed by certain students be given to the school. If the intent was to notify a receiving school that a child has been found guilty of a heinous crime, that was to be commended, he added. Senator Gary Wilken said his wife had been on the school board and it was a problem of communication between law enforcement and the school districts that was worked out the district level. He suggested the committee look at the language dictating how public safety must communicate with the district to ensure confidentiality. He thought it was with the superintendent of schools and that was were the shield of confidentiality was protected. He supported the amendment. Co-Chair John Torgerson ordered the bill and the amendment held in committee. Recess 9:43 AM / 10:13 AM for Conference Committee meeting. ADJOURNED Senator Torgerson adjourned the meeting at 10:13 AM announcing that the committee would resume the remainder of this meeting's agenda at the next meeting scheduled for 9:00 AM, March 17, 1999. SFC-99 (11) 03/16/99