SENATE JUDICIARY COMMITTEE April 23, 1997 1:44 p.m. MEMBERS PRESENT Senator Robin Taylor, Chair Senator Drue Pearce, Vice-chair Senator Sean Parnell Senator Johnny Ellis MEMBERS ABSENT Senator Mike Miller COMMITTEE CALENDAR CS FOR HOUSE BILL NO. 119(JUD) "An Act raising the limit on small claims actions to $7,500; amending Rule 9, Alaska Rules of Administration; and providing for an effective date." MOVED CSHB 119(JUD) FROM COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS. SENATE CS FOR CS FOR HOUSE BILL NO. 30(L&C) "An Act relating to civil liability for certain skating and cycling activities; and providing for an effective date." HEARD AND HELD CS FOR HOUSE BILL NO. 6(FIN) am "An Act relating to minors and amending laws relating to the disclosure of information relating to certain minors." HEARD AND HELD CS FOR HOUSE CONCURRENT RESOLUTION NO. 4(JUD) Relating to records generated and maintained by the Department of Health and Social Services. SCHEDULED BUT NOT HEARD PREVIOUS SENATE COMMITTEE ACTION HB 119 - No previous Senate committee action. HB 30 - See Senate Labor & Commerce minutes dated 4/08/97. HB 6 - No previous Senate committee action. WITNESS REGISTER Representative Mark Hodgins Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of HB 119 Representative Eldon Mulder Alaska State Capitol Juneau, Alaska 99081-1182 POSITION STATEMENT: Sponsor of HB 30 Kevin Ritchie Executive Director Alaska Municipal League 217 Second St., Suite 200 Juneau, AK 99801 POSITION STATEMENT: Supports HB 30 Kevin Smith Joint Insurance Company Alaska Municipal League 217 Second St., Suite 200 Juneau, AK 99801 POSITION STATEMENT: Supports HB 30 Connie Jones Cultural & Recreational Services Director Municipality of Anchorage P.O. Box 196650 Anchorage, AK 99519-6650 POSITION STATEMENT: Supports HB 30 Colin Whiddon 1116 Baranof Kodiak, AK 99615 POSITION STATEMENT: Supports HB 30 Ian Fulp Parks & Recreation Director City of Kodiak P.O. Box 1397 Kodiak, AK 99615 POSITION STATEMENT: Supports HB 30 Richard Bittick Parks & Recreation Division City of Seward P.O. Box 167 Seward, AK 99664 POSITION STATEMENT: Supports HB 30 Nancy Robb Parks & Recreation Director City of Valdez P.O. Box 307 Valdez, AK 99686 POSITION STATEMENT: Supports HB 30 Laurie Whiddon 1116 Baranof Kodiak, AK 99615 POSITION STATEMENT: Supports HB 30 Claudia Anderson P.O. Box 310 Kodiak, AK 99615 POSITION STATEMENT: Supports HB 30 Chief Palmer Kodiak Police Department City of Kodiak P.O. Box 1397 Kodiak, AK 99615 POSITION STATEMENT: Supports HB 30 Mel Perkins 9349 Turn St. Juneau, Alaska 99801 POSITION STATEMENT: Opposed to HB 30 Jay Sonner 9360 Turn St. Juneau, Alaska POSITION STATEMENT: Supports HB 30 Representative Pete Kelly Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Sponsor of HB 6 Barbara Brink Public Defender Agency 900 W 5th Ave #200 Anchorage, AK 99501 POSITION STATEMENT: Opposed to HB 6 Pam Karalunas P.O. Box 73893 Fairbanks, AK 99707 POSITION STATEMENT: Expressed concerns about HB 6 C-Joe Dimatteo 3333 Denali St. #201 Anchorage, AK 99503 POSITION STATEMENT: Expressed concerns about HB 6 D. Bunti Reed 3725 Portage Blvd. Juneau, AK 99081 POSITION STATEMENT: Opposed to HB 6 Laura Roen 9151 Parkwood Dr. Juneau, AK 99801 POSITION STATEMENT: Opposed to HB 6 Mary Messner P.O. Box 1069 Barrow, AK 99723 POSITION STATEMENT: Opposed to HB 6 Cecelia Davis 4853C Last Frontier Circle Eielson Air Force Base, AK 99702 POSITION STATEMENT: Commented on HB 6 Lori Namyniuk P.O. Box 190221 Anchorage, AK 99519 POSITION STATEMENT: Opposed to HB 6 Margo Knuth Assistant Attorney General Department of Law P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Commented on HB 6 Dr. Russell Hoffman 140 Kilbuk Bethel, AK POSITION STATEMENT: Commented on HB 6 Johy Cyr, President NEA-Alaska 210 Second St. Juneau, Alaska 99801 POSITION STATEMENT: Commented on HB 6 Diane Worley, Director Division of Family & Youth Services Dept. of Health and Social Services P.O. Box 110630 Juneau, AK 99811-0630 POSITION STATEMENT: Commented on HB 6 Angela Salerno National Association of Social Workers, Alaska Chapter POSITION STATEMENT: Opposed to HB 6 ACTION NARRATIVE TAPE 97-29, SIDE A Number 00 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:44 and announced the presence of Senators Pearce and Parnell. He noted the teleconference sites participating in today's hearing were Anchorage, Kodiak, Fairbanks, Petersburg, Seward, Valdez and Wrangell. The first order of business was HB 119. HB 119 INCREASE SMALL CLAIMS JURISDICTION  REPRESENTATIVE MARK HODGINS , sponsor of HB 119, explained the measure raises the limit amount in small claims court from $5,000 (set in 1986) to $7,500 to reflect inflation, and will allow people to use that court for more small claims. HB 119 maintains the $25 fee for claims of $1 to $2500 but raises the fee for claims from $2500 to $7500 to $50.00. He urged committee members to support the measure. CHAIRMAN TAYLOR noted he supported the increase in 1986. There were no other witnesses to testify on HB 119. SENATOR PARNELL moved HB 119 from committee with individual recommendations. HB 30 CIVIL LIABILITY FOR SKATEBOARDING  REPRESENTATIVE ELDON MULDER , sponsor of HB 30, gave the following overview. The measure was introduced at the request of the Municipality of Anchorage (MOA), City and Borough of Juneau (CBJ) and numerous other communities throughout the State: Fairbanks, Sitka, Valdez, and Petersburg. These communities have indicated interest in creating skating and cycling parks so that skaters and cyclers will have a designated place to ride, rather than using pedestrian areas. Municipalities are willing to develop areas suitable for these activities if they can be insulated from liability for claims arising from hazards inherent to those activities. The intent of HB 30 is to encourage municipalities to proceed with development of areas for outdoor recreation without unnecessarily increasing their liability. HB 30 only applies to municipal skating and cycling parks and is patterned after legislation that passed three years ago which pertained to ski areas. The protection from liability relates to inherent dangers and risks associated with skating and cycling. Municipalities will be required to post signs warning participants of the risks involved and disclaiming liability. Number 084 SENATOR ELLIS asked if there might be any possible unintended consequences on liability if those activities occur outside of designated areas. REPRESENTATIVE MULDER did not believe so, but deferred to representatives from the Alaska Municipal League. CHAIRMAN TAYLOR stated HB 30 is based on an assumption of an inherent risk of using the facility. He asked at what age the discretion to make that assumption should occur. REPRESENTATIVE MULDER answered the assumption goes to the fact that there is an inherent risk in skateboarding, in-line skating, or using a bicycle on these premises, and is within those activities rather than the facility itself. Accidents are currently occurring in public areas but there is no plethora or lawsuits because there is no one to sue. The facilities will have to be challenging to encourage youth to use these facilities, which poses a risk to municipalities. CHAIRMAN TAYLOR clarified he was asking at what age a child should be considered capable of understanding the inherent risk involved: age 5, 7, or at the age one can read a warning sign. TIM SULLIVAN , staff to Representative Mulder, explained the bill is not age-specific but does contain a provision related to responsibility. He read subsection (B) on page 4, line 12: (B) if the person does not have sufficient physical dexterity or ability and knowledge to negotiate or use the facility safely; in the case of a minor who uses a municipal skating or cycling facility, the minor's parent or legal guardian is responsible for determining whether the minor satisfies the requirements of this paragraph; Mr. Sullivan said he believes that language is consistent with the direction the Legislature has taken over the past few years to make parents more responsible for their children's activities. Number 160 CHAIRMAN TAYLOR asked who would be responsible in a situation in which a 14 year old, who is responsible for taking care of his 4 year old brother during the summer while the parents are working, takes the 4 year old to the skateboard park where he is injured. REPRESENTATIVE MULDER thought it would depend on how the injury occurred. It could have occurred as the result of negligent construction or while the child was an onlooker. He believed the real question in that case is what the two children would be doing if the facility was not there. If the assumption is that they would both be skateboarding, they would be doing so on the street. CHAIRMAN TAYLOR said that issue is related to whether or not the Legislature needs to regulate laws that are currently on the books that municipalities choose not to enforce. He asked at what point does immunity from liability attach to the four year old. He repeated that HB 30 is based on the assumption that skateboard and cycling are inherently riskier than other activities. REPRESENTATIVE MULDER answered the number of these types of injuries that occur in the public today cannot be accounted for because no parks have been built so there has been no "deep pocket," but once a municipality officially sanctions a facility, a "deep pocket" will be exposed. He added the only municipally- sanctioned facility in Alaska that he is aware of is a very small facility in Kodiak and recently a child was injured at the facility and is suing the city. Number 216 CHAIRMAN TAYLOR noted he has seen skateboard facilities in California, Washington, Idaho, and Florida. He asked Representative Mulder to cite another State that has passed an immunity bill similar to HB 30. REPRESENTATIVE MULDER deferred to representatives from the Alaska Municipal League. CHAIRMAN TAYLOR asked whether anyone requested information from Legal Research about other states. REPRESENTATIVE MULDER replied he did not. CHAIRMAN TAYLOR said, if HB 30 is valid and municipalities need immunity in order to have recreational equipment for children, the Legislature needs to know how many children are injured when playing football and diving in swimming pools, or when participating in other activities on municipal lands. He emphasized if there are cases where communities are suffering serious legal challenges because of liability for recreational activities, the Legislature should provide immunity for all of those activities. He concluded there may not be a problem, since communities do allow for recreational activities and cover the risk. He expressed concern that HB 30 will allow municipalities to turn their backs on injured children and asked that Representative Mulder provide legal research on this issue. Number 256 KEVIN RITCHIE , Executive Director of the Alaska Municipal League (AML), and KEVIN SMITH , with AML's Joint Insurance Program, took the witness stand. Mr. Ritchie explained that the Joint Insurance Program is an insurance pool governed separately from the AML. He stated HB 30 is a priority bill for the AML because it will allow municipalities to provide an area for an activity which is inherently dangerous and is occurring in places that municipalities have outlawed, or are in the process of outlawing, because it is dangerous to participants and others. Skateboarding has become a tourism/business issue because it often occurs in downtown areas. AML would like to channel these children into a supervised area. Because the activities are currently occurring in illegal areas, there is no liability issue when injuries occur but if parks are created by municipalities, they will be assuming liability. HB 30 would provide the same type of immunity that is currently provided for municipal ski areas. CHAIRMAN TAYLOR referred to the repeated use of the term "inherently dangerous" and asked Mr. Ritchie what the risks are. MR. RITCHIE replied that Representative Mulder referred to a broken arm. He noted an additional advantage to a designated park is that protective gear can be required and limit the number and types of injuries. CHAIRMAN TAYLOR asked what specific injuries are known to exist from this activity in skateboard parks. MR. SMITH responded that skateboarding is done with great speed and requires balance. The injuries are not limited to, but include, broken bones, backs, necks, and brain stem and head injuries. CHAIRMAN TAYLOR asked if the municipalities insured under the Joint Insurance Program have risk management programs and are advised on how to avoid certain risks. MR. SMITH answered that is correct. CHAIRMAN TAYLOR asked how playground equipment is dealt with. MR. SMITH answered it is inspected for entrapment hazards, for exposed rivets, for adequate ground cover, etc. CHAIRMAN TAYLOR asked why that is done. MR. SMITH said it is done to make the playground safer. CHAIRMAN TAYLOR said it is also done to prevent lawsuits and keep insurance rates from increasing. He asked why there are fewer pieces of playground equipment on playgrounds today. MR. SMITH replied that a lot of lawsuits over the safety of playground equipment have been filed against municipalities and safer equipment has been designed. CHAIRMAN TAYLOR asked if Mr. Smith meant safer than something that is inherently dangerous. MR. SMITH said yes, swinging is not as inherently dangerous as skateboarding. CHAIRMAN TAYLOR asked if some of the equipment that has been taken out of playgrounds is as inherently dangerous as skateboarding. MR. SMITH replied some of them probably were. CHAIRMAN TAYLOR asked why HB 30 shouldn't be expanded to include all of that equipment if we want to encourage activities that are inherently risky. MR. SMITH said he was in favor of broadening the immunity to any outdoor recreational activity. He noted in his research, he found that municipalities have been sued in a number of states for skateboarding activities. A number of states have a broader statute and gives any property owner some limited liability from injuries resulting from outdoor recreational activities. Number 391 MR. RITCHIE pointed out the AML targeted skateboarding, cycling, and in-line skating because they are becoming national sports and have extensive safety guidelines and equipment. HB 30 does not stop the evolution of safety in the sport, it will help it. If a municipality designs a skateboard park that does not meet appropriate safety standards, the municipality will be liable if an injury results. Municipalities would be liable for negligence. The type of inherent injury that hopefully will never happen can be protected against, but not fully. Although the Joint Insurance Program is a large program, one serious injury would have a significant impact. CHAIRMAN TAYLOR stated what AML wants is to be immune from negligence. REPRESENTATIVE MULDER explained the bill maintains that a community is liable if the design of the facility is found to be faulty. CHAIRMAN TAYLOR noted the only requirement for a municipality is posting a sign. MR. SMITH said municipalities would also be responsible for maintaining the facility. Number 425 MR. RITCHIE did not believe HB 30, or the law that covers ski areas, creates what attorneys call a "bright line." It attempts to add some definition and does not create a solid line as to what is negligent and what is not. REPRESENTATIVE MULDER pointed out that language on page 3, line 10, prohibits a municipality from constructing a facility in a negligent manner and recognizes that there is a safe way to build and maintain these facilities. Language on page 5, lines 7-8, specifies that a municipality is not immune from liability for negligence. He repeated that is not the intention of HB 30. CHAIRMAN TAYLOR asked how many cities the Joint Insurance Program insures. MR. SMITH replied there are 113 participants, including schools and municipalities. CHAIRMAN TAYLOR asked how much they are charged for recreational coverage for skateboard parks now. MR. SMITH said it is included in the general liability policy and began July 1, 1996. CHAIRMAN TAYLOR asked what claims have been filed. MR. SMITH said one claim has been filed against Kodiak by the child who broke his arm while in-line skating. The City of Kodiak had set up a grinding rail about 18 inches off the ground with ramps on either side. CHAIRMAN TAYLOR inquired whether the family filed a claim with the city, or a lawsuit. MR. SMITH said the family has only filed a claim at this date. CHAIRMAN TAYLOR stated only one claim has been filed so far this year in 100 cities. MR. SMITH agreed but said the AML only began offering coverage less than one year ago and it takes a while to build a skateboard park. The injury in Kodiak occurred in the teen center. CHAIRMAN TAYLOR asked what the Joint Insurance Program charges the cities for this increased risk. MR. SMITH said there was no increase in premiums but the program requires a retrospective audit at the end of the year and then premium adjustments are made. The Joint Insurance Program board members are getting pressure from municipal officials and businesses to deal with the problem of skateboarding so they decided to provide coverage and to support HB 30. Number 480 CHAIRMAN TAYLOR asked to what extent this issue was researched before the board decided to provide coverage. MR. SMITH said he did a lot of research, but found there is not a great deal of data available. He found there is a great deal of paranoia within the insurance industry about skateboarding and it was difficult to determine a figure based on actuarial information. CHAIRMAN TAYLOR asked whether Mr. Smith found any cases within the last 15 years any place in the nation where someone actually sued a skateboard park. MR. SMITH answered no, probably because there are not a lot of skateboard parks because of the lack or expense of liability insurance. In a general liability insurance program, skateboarding is excluded. The Joint Insurance Program is a totally different creature from a commercial insurance company. HB 30 was initially introduced to provide coverage to municipalities where coverage was not available. Coverage is available at $10,000 to $25,000 on a stand alone basis for municipalities that are not in the Joint Insurance Program pool. CHAIRMAN TAYLOR asked where Mr. Smith got that information. MR. SMITH answered he got it from Gallagher, Heffern Insurance in San Francisco and explained the varying amount depends on deductibles and is site specific. Number 518 CHAIRMAN TAYLOR stated he is hearing conflicting information and asked what the $25,000 premium is based on if no lawsuits have been filed in the past 15 years. He questioned whether this whole movement is being driven by the paranoia of the insurance companies. MR. SMITH replied the premium he was quoted was based on the market. CHAIRMAN TAYLOR said usually insurance rates are based upon claims, rather than what the market will bear. CHAIRMAN TAYLOR repeated his concern that HB 30 grants immunity for something that no one can find a case on in the past 15 years and questioned whether municipalities should be immunized from liability for all recreational activities. MR. RITCHIE informed the committee that he is an ex-officio member of the Joint Insurance Program board and acknowledged that the board did not review this issue scientifically, but rather as municipal officials who were trying to help children. Number 541 CHAIRMAN TAYL OR commented he was very impressed with the Joint Insurance Program's willingness to provide coverage, because unless someone has the courage to not follow the masses, we will be driven over a cliff called "inherent immunity for everything." The board took on that program for 100 cities and did not charge anything. They decided to wait and find out what the real risks and costs are and then assess members. If the costs become too high, then the board will reassess whether it is worth being in the business of providing coverage for inherently risky activities. He noted the MOA refuses to build a skateboard park though it is self-insured. Their best risk assessment showed it would cost a total of $2500 per year yet it is not willing to take on that risk and provide insurance coverage. MR. SMITH agreed that the MOA is self-insured, but explained that the $2500 insurance premium probably includes a $1-$2 million self- insured retention or deductible. Although AML's Joint Insurance Program covers 100 cities it does not insure Juneau, Petersburg, Ketchikan, Kenai, Anchorage, and many of those municipalities have pavement and youth interested in skateboarding. CHAIRMAN TAYLOR announced it is not his intention to move HB 30 at this time. He asked for data on skateboard lawsuits in the United States and information on how other states have dealt with the issue of skateboard park liability. Number 575 SENATOR PEARCE asked whether any injuries have occurred on streets or sidewalks in Alaska from skateboards. MR. RITCHIE answered that he was the city manager of Juneau when the downtown skateboard ordinance was passed. That ordinance was passed because downtown businesses were seriously concerned about near-misses. Many elderly tourists were scared by the skateboard activity on sidewalks. He offered to research actual injuries in Alaska and nationwide. TAPE 97-29, SIDE B SENATOR PEARCE commented she had a child on a skateboard in the street almost hit her recently. She agreed skateboarders need a designated place to go. MR. RITCHIE said that is the crux of the matter: skateboarders are putting themselves and others in danger. Although CBJ has an ordinance against skateboarding downtown, it does not have enough police to enforce the ordinance. In addition, no one wants to turn an emerging sport into a criminal activity. He repeated that any approved facility that is built will have to be challenging enough to entice skateboarders off the streets. MR. SMITH remarked he has been researching legal cases on skateboard parks and although those cases are difficult to find, he has found cases outside of Alaska involving serious injuries that resulted from accidents between skateboarders and cyclists. Number 565 CHAIRMAN TAYLOR emphasized that no one can back up this paranoid- driven fear with numbers or cases and we cannot build facilities because insurance companies have us scared to death. He noted Senator Kelly witnessed a skateboarder skate head-on into a car in front of him while driving up the hill to the Capitol building several days ago. Fortunately the skateboarder bounced off and was fine. Although this problem needs closure, the solution should not be based on paranoia. MR. SMITH said skateboarding is an activity that is largely driven by one's own abilities and is very different from using playground equipment. CHAIRMAN TAYLOR began taking teleconference testimony. CONNIE JONES , Director of Cultural and Recreational Services for the MOA, testified. She noted MOA's attorney has done an extensive West Law search on skateboarding cases of which she has 37. Most of the cases do not concern skateboard parks and the history is relatively short so it is unfair to compare it to other kinds of recreational activities. Most of the cases involve street skateboarding accidents. There is very strong support for a skateboard park in Anchorage from the Youth Commission, Assembly, the Chamber of Commerce, and the Downtown Anchorage Association. Although the MOA is self-insured, it has a $2 million deductible. MOA is concerned about a draw down on that because of the possibility of high cost injuries such as neck injuries or paralysis that can occur when skateboarders do not use protective gear or act unsafely. MOA believes HB 30 delegates equal responsibility to the MOA for building and maintaining an adequate facility and to parents and participants for participating in an inherently dangerous sport, one that involves being airborne over concrete. CHAIRMAN TAYLOR asked if MOA's risk management team calculated a cost they would have to reserve each year to cover skateboarding injuries. MS. JONES thought the extra cost would be about $60,000 for a separate policy, and no one would accept is as part of MOA's self insurance. CHAIRMAN TAYLOR noted the "no one" she is referring to is the Anchorage Assembly and the risk management team is assuming the MOA will be liable for so many injuries that the policy would cost $60,000 per year. He asked her to request the MOA to put that in writing to him. MS. JONES explained the problem is that the data is incomplete, and the risk manager is basing that figure on cases that have occurred in street accidents. He is also speculating that when the MOA invites people into a skateboard park made of hard surface cement, injuries will occur when skateboarders attempt activities beyond their skill level. She repeated the MOA will accept full responsibility for all maintenance and construction. Number 492 CHAIRMAN TAYLOR asked if the MOA currently insures other parks and greenbelt areas where people play soccer, touch football and rugby, and hockey rinks. MS. JONES replied that those activities are covered under MOA's self-insurance and althouth those sports are dangerous, the inherent danger of skateboarding is higher because of the height at which these injuries could occur and the cement floor. CHAIRMAN TAYLOR again requested the MOA risk manager to send him an estimate of the number of injuries that may occur and the number for which the MOA may be liable. He asked why one would base the injury level in skateboard parks on the number of skateboard injuries on streets when the parks are properly built and supervised. MS. JONES speculated that might be done because there is not enough history. CHAIRMAN TAYLOR asked Ms. Jones to send him copies of the cases involving skateboard parks. Number 466 COLIN WHIDDON , a 15 year old from Kodiak, testified in support of HB 30. The few areas in Kodiak that were available to skateboarders are slowly becoming illegal, and skateboarders must fend for themselves and are getting a bad reputation. Kodiak skateboarders want a legal place to go to. By passing HB 30, the city will be able to support skateboarders' efforts to get a skate park. CHAIRMAN TAYLOR asked Mr. Whiddon if he was aware of the skateboarding accident that occurred in Kodiak. MR. WHIDDON said he was not. MR. IAN FULP , Kodiak Parks and Recreation Director, discussed two aspects of skateboarding that make it inherently dangerous. The first is that skateboarders do acrobatic stunts while airborne over a hard surface. The second is that in order to improve, skateboarders must expose themselves to greater danger to learn new tricks. He described the accident that occurred in Kodiak. A grinding bar is bolted about 18 inches off the ground with mats on either side. The children would in-line skate on it then jump off. The city felt it was fairly safe because the skaters could not go very fast and because there were mats on either side. One boy fell forward onto the bar, put his forearm out to block his fall and broke both bones. Mr. Fulp expressed concern that because the grinding bar has a history of one accident, if another occurs, the city could be considered negligent for not removing it. CHAIRMAN TAYLOR asked Mr. Fulp at what age he thought children should be held accountable for their injuries. MR. FULP said he has never seen a four-year old on a skateboard and that the possibility is not very realistic. He thought that scenario could be compared to a four year old walking onto a baseball field during a game and that people would move that child off the field. CHAIRMAN TAYLOR stated he is concerned about the age level a child should be considered to have sufficient discretion to be accountable if an injury occurs. MR. FULP answered HB 30 should apply to any child on a skateboard. CHAIRMAN TAYLOR asked Mr. Fulp if he thought there should be a different standard for other recreational activities provided in communities. MR. FULP said very much so because the other activities are not inherently dangerous. Number 325 RICHARD BITTICK , the assistant director of the City of Seward Parks and Recreation Department, testified in support of HB 30. The City of Seward is trying to provide a safer environment for skateboarding and cycling which are currently occurring on city streets. He believes skateboarders take on a greater inherent risk when skateboarding on the streets rather than in a park. CHAIRMAN TAYLOR asked Mr. Bittick if he is aware that Seward has full coverage under the AML's Joint Insurance Program to build a skateboard park now. MR. BITTICK said Seward is in the process of building a park. CHAIRMAN TAYLOR encouraged completion of that project because after it is in existence for several years, the risk factor will become more apparent. He asked if the City of Seward wants HB 30 passed so that none of the skateboarders can be compensated for injuries that might occur at the park. MR. BITTICK explained the city has set aside an area for skateboarders, but is concerned about liability when skateboarders do not follow the rules and get injured. CHAIRMAN TAYLOR repeated he is not aware of any skateboarder who has actually sued a municipality and that the City of Seward is fully insured today. He urged the city to build a park. MR. BITTICK responded the City of Seward is trying to provide a safe facility without putting its neck on the chopping block at the same time. Skateboarding and cycling differs in that it is being done in the middle of the street. Other sports are not. NANCY ROBB , the Parks and Recreation Director in Valdez, informed the committee that Washington State has been working on similar legislation and offered to provide additional information on that legislation to any interested parties. CHAIRMAN TAYLOR asked her to also provide information on the other highest risk recreational activities for children in Valdez. MS. ROBB answered it used to be skiing but the City of Valdez no longer operates the ski area. Number 208 LAURIE WHIDDON , a mother of three skateboarders, testified in support of HB 30 because there are a large number of children in Kodiak who are not interested in sports other than skateboarding. Skateboarders need a safe and legal place to practice their sport; the downtown area is off-limits, as are most paved parking lots. The only locations available at this time are the school parking lot and tennis courts. The City has been discouraged from providing a safe place to skate because of the liability issue. HB 30 would remove a major hurdle in its efforts to provide another recreational outlet. CHAIRMAN TAYLOR asked Ms. Whiddon if she was aware that Kodiak has had full insurance coverage for a skateboard park through the Joint Insurance Program since July 1, 1996. CLAUDIA ANDERSON , the mother of a skateboarder, testified that her son's interest in skateboarding has caused him to have many unnecessary confrontations with authorities. The city has not built a park, and suggested that parents build a private facility but Kodiak's population base is too small. She urged the committee to support HB 30 so the Kodiak City Council will build a park. Number 130 JOHN PALMER , Kodiak Chief of Police, testified that the ordinance to prohibit skateboarding in downtown Kodiak was the result of run- in incidences with pedestrian traffic and building damage. The police department enforces that ordinance which puts a drain on its resources and promotes an adversarial relationship with the teenagers which is counterproductive to the police department's goal. Although Kodiak may already be insured for a skate park, there is no assurance that the Joint Insurance Program may decide to stop the coverage in the future, or raise the premium substantially. CHAIRMAN TAYLOR reiterated his comments about the need to build parks now and determine what the liability is in five years. MEL PERKINS , a local Juneau business owner, expressed concern about the lack of control and responsibility that will occur if HB 30 passes. The CBJ skateboard park will be located next to his businesses. He stated CBJ staff initially told him the skateboard park would be supervised but he heard during the CBJ Assembly meeting that if HB 30 passes, no supervision will be necessary if warning signs are posted. If there is no supervision of the premises, it is possible that nefarious activities will occur. In addition, if no restrooms are available on the premises, the youth will use the facilities in local businesses. He stressed the need for the CBJ to maintain and take responsibility for for the skateboard park if it builds it. TAPE 97-30, SIDE A CHAIRMAN TAYLOR commented his primary concern is that HB 30 contains no requirement for supervision. JAY SONNER informed committee members he has been one of the local students working on the CBJ skateboard park and is available to answer questions. CHAIRMAN TAYLOR asked if the construction of the Juneau skateboard park is dependent on the passage of HB 30. MR. SONNER said passage of HB 30 will greatly improve the chance of getting a skateboard park, otherwise it will be very hard to get insurance coverage. CHAIRMAN TAYLOR encouraged Mr. Sonner to get information from the CBJ on the cost of insurance and use it to inform the residents of Juneau. MR. SONNER said that currently there are skate gyms and get togethers once a month in the summer time and about 200 youth participate. There being no further testimony, the committee took up HB 6. HB 6 RELEASE OF INFORMATION ABOUT MINORS  REPRESENTATIVE PETE KELLY, sponsor of HB 6, stated currently there exists a veil of secrecy around juvenile crime. Current laws allow juveniles to commit violent criminal acts, safe in the knowledge that their names will be kept confidential by the authorities. That public policy does not provide protection to the public. Several recent cases in Fairbanks illustrate the need for disclosure. In one case a man was killed during a daytime robbery by a teen. The newspaper reported that the names of the two juveniles who were with the murderer would not be released. Since then, the juveniles were waived into adult court and their names were released, but that does not often happen. A second example involved David Knutsen who shot a State Trooper three times. He was involved in numerous burglaries. HB 6 has been reworked through the committee process and is a bill that will protect, and give a second chance, to those juveniles who do not pose a threat to public safety, but does allow the public to know the names of juveniles who are committing serious crimes for the second time. SENATOR PEARCE asked Representative Kelly to explain how the disclosure provision will work. REPRESENTATIVE KELLY referred to a diagram illustrating a two prong system. When a juvenile is arrested, he/she would go through a preliminary investigation and then if he/she admits guilt, an informal adjustment would occur with the outcome being restitution and rehabilitation or placement. If DHSS believes the juvenile to be dangerous, or if the juvenile resists, the juvenile will be sent to petition also to provide for juveniles who are released against the wishes of DHSS before they are adjudicated. There can be a long time period between release and adjudication when they are free to continue their activities. Also, DHSS feared adjudication would cause a logjam of petitions because of the chance that the case would be thrown out of court. As a compromise, a process was established in which DHSS can petition the court to prohibit name disclosure based on one of two factors: that the case is an isolated incident; or that the juvenile does not pose any further danger to the public. Representative Kelly added that he believes the fiscal note for the bill is legitimate. SENATOR PARNELL asked Representative Kelly if he believes HB 6 will be cost effective. REPRESENTATATIVE KELLY said he does and added that this issue is extremely high profile and he has received a lot of support on HB 6. SENATOR PARNELL asked Representative Kelly if he believes HB 6 will have any deterrent value. REPRESENTATIVE KELLY said he did not; HB 6 is strictly to enhance public safety. Number 223 BARBARA BRINK , the current Acting Director of the Alaska Public Defender Agency, made the following comments. The debate between the public's need to know and juvenile confidentiality is not a new one. Courts and Legislatures have struggled with it for years. Chief Justice Rehnquist addressed this issue in 1978 in Smith v. Daly Publishing and wrote an opinion in favor of confidentiality as follows: It is a hallmark of our juvenile justice system in the United States that virtually from its inception from at end of the last century, proceedings have been conducted outside of the public's full gaze and that youth brought before the juvenile courts have been shielded from publicity. This insistence on confidentiality is born of a tender concern for the welfare of the child, to hide his youthful errors and bury them in the graveyard of the forgotten past. The prohibition of publication of a juvenile's name is designed to protect the young person from the stigma of his misconduct and is rooted in the principle that the court concern with juvenile affairs serves as a rehabilitative and protective agency of the state. Publication of the names of juvenile offenders may seriously impair the rehabilitative goals of the juvenile justice system and handicap the youth's prospect for adjustments to society and acceptance by the public. This exposure brings undue embarassment to the families of youth offenders and may cause the juvenile to lose employment opportunities or provide the hard core delinquent with the kind of attention he seeks thereby encouraging him to commit further anti-social acts. The resultant widespread dissemination of a juvenile offender's name therefore may [indisc.] beneficient and rehabilitative purposes of the juvenile court system. MS. BRINK pointed out that no other state provides for public disclosure of this kind of informal and adjustment information. These are the kinds of juvenile offenders who have a good chance at rehabilitation. Juveniles who get adjusted are prepared to accept responsibility and make restitution. Those juveniles will be stigmatized and branded. Names will be disclosed prior to adjudication, so these juveniles will be tried in the court of public opinion. PAM KARALUNAS , representing the Arctic Alliance for People, interim Executive Director for the Resource Center for Parents and Children, and Big Brothers and Sisters, and as the parent of a juvenile offender, testified. Although she shares the frustrations of many people in the community about how juvenile crime is mishandled, she does not believe HB 6 will correct the situation. She expressed concern that HB 6 contains no age limit, that informal adjustments will be published, and that name disclosure occurs before the juvenile is proven guilty. Number 300 BETH GAMBRELL expressed concern that children make mistakes, and should be allowed to, except when firearms are involved. She does not believe publishing the names of those involved in informal adjustment is appropriate. Name disclosure should not occur prior to a court decision, due to the negative effects of placing a label on a child because the label could become a self-fulfilling prophecy. C-JOE DIMATTEO , with the Alaska Council on Prevention of Alcohol and Drug Abuse and a member of the Governor's Council on Youth and Justice, echoed the previous witnesses' concerns. He asked the committee to consider including an age limit and to prevent names from being submitted until after adjudication. Many public comments made to the Governor's Council support those changes. D. BUNTI REED , a parent of a child with a traumatic brain injury and a secondary diagnosis of a mental illness, noted about 20 other parents who were attending the Children's Mental Health Convention attempted to testify today but had to leave. She agreed with Judge Rehnquist's opinion and is concerned with words contained in HB 6 such as "alleged" and "informal" because it will allow children and parents to be labelled. Many children in the juvenile system are identified as having a mental illness in their first infraction with the law. Although the intent of HB 6 is to protect communities, she does not agree the bill will do that, and sees it as a gross violation of parents and chidlren in Alaska. CHAIRMAN TAYLOR asked Ms. Reed who the people were that left. MS. REED provided some of the names. LAURA ROREM , a parent of two children who have suffered from brain disorders, one with mental illness and the other with fetal alcohol syndrome, and a member of the Alaska Mental Health Board, made the following comments. Brain disorders are no-fault diseases that affect behavior, thinking processes, mood, judgment, reason and decision to name only a few. They are caused by bio-chemical and/or abnormalities in the brain. Weakness of will and bad parenting are not to blame. These problems are not caused by problems in living, bad environment, abuse or neglect. These diseases are grossly misunderstood and treatment for them is sporadic, haphazard, difficult to access, and blame-oriented. Children and adults with brain disorders are good people but their brains are diseased. They are often incapable of making the distinction between right and wrong and are unable to understand consequences. Often, early intervention is not available and services are not provided until after a child commits a crime. Instead, the child and family will be ostracized and publically humiliated, and HB 6 will bring punishment rather than treatment and will violate one's right to privacy. Number 464 SENATOR PEARCE commented that she has a lot of sympathy for the parents of mentally ill children but noted the crimes listed in HB 6 involve deadly weapons, arson, burglary, child pornography, promoting prostition, and misconduct involving a controlled substance. She questioned whether there is a linkage between mental illness in youth and those types of crimes. MARY MESSNER , a Public Health Nurse in Barrow, stated she works with families and children with special needs. Many of those children have neuro-biological disorders. Forty to seventy percent of the children in the juvenile justice system nationwide are not diagnosed with mental health problems early enough. Children with neuro-biological disorders are most often not diagnosed at all, and when they are diagnosed the disorders are complex, evolving, and often co-exist with other disorders. Public disclosure of the names of juveniles and their families is wrong. If the Senate wishes to address juvenile crime, she suggested considering a bill for mandatory mental health evaluation by a child and adolescent psychiatrist of all juveniles who enter the juvenile justice at any point and for juveniles entering substance abuse treatment, where 70 percent are shown to have treatable neuro-biological disorders. Number 450 CHAIRMAN TAYLOR asked Ms. Messner to address Senator Pearce's question about the delineation of serious crimes in HB 6 and their link to mental illness. D. BUNTI REED addressed Senator Pearce's question as follows. The cognitive disability of her son causes him to respond toward aggressive behavior of other students more violently than other youngsters of his age. Last week she was called into school because her son attempted to assault another student with a bookbag. The police were also called and considered her son's action to be classifiable as assault with a weapon. Her son is mentally retarded and mentally ill. She felt the embarassment to his siblings of an arrest in the family is almost criminal itself. SENATOR PEARCE asked if the other students and parents of those students in the classroom with Ms. Reed's son are aware of the disorder and that provocations that may seem normal to them to be more difficult for her son. MS. REED responded that the immediate classroom members are aware but other students are not. Because of his disability, he is fairly comical and due to adolescent impetuosity, he is teased and baited frequently. Number 479 KENNETH DAVIS testified in opposition to HB 6. He is the parent of four children; two are severely emotionally disabled; one with fetal alcohol syndrome, psychotic brain disorder, seizure disorder, learning disabled, attention deficit and hyperactive disorder, and is an acting sex offender. If HB 6 is passed, the effectiveness of his son's treatment will cease. As an active sex offender who is receiving treatment, his son is required to live in specialized foster care. Publishing the names of the offender, his family, and the specialized foster family who are acting guardians, will have a negative effect. He questioned how many foster families would be willing to accept a high risk child if they must suffer harassment and ridicule from friends and neighbors after name disclosure. CECELIA DAVIS stated that as parents, it is their duty and obligation to the community to protect it against their son which is why he is in a specialized program. But, she is also the parent of both a victim and an offender and is stuck in several positions. Often when the name of the offender is disclosed, the victim's identity becomes known. The victim can be devastated because of the ridicule. She informed the committee that her son's mental disabilities are the result of his natural mother's misuse of alcohol. As a victim of sexual abuse herself, she feels obligated as a parent to protect society and educate others so that they can help. She cautioned that if HB 6 passes, as currently written, it will be devastating to children with mental disabilities and to victims. REPRESENTATIVE KELLY clarified that a provision on page 4 prohibits the names of foster families from being disclosed unless they have the child on a permanent or long term basis. In addition, some of the examples given previously would fall under the Children in Need of Aid provisions, and their names would not be disclosed. LORI NAMYNIUK , President of the Substance Abuse Directors Association of Alaska, testified in opposition to HB 6 because of the breaching of confidentiality at the petition stage and because the bill contains no age limit. There is no research that indicates that action of this type will decrease juvenile deliquency. Rather than adopting a punitive approach, the Legislature needs to look for solutions. The projected $1.2 million cost of HB 6 could be used for intervention activities. Number 547 MARGOT KNUTH , Assistant Attorney General and representative of the Governor's Council on Juvenile Justice, testified. At a conference of the Council held last year, the most divisive issue discussed was the issue of disclosure of the names of juvenile offenders. The Conference ultimately recommended that some disclosure of juvenile names is necessary to protect the public; of those juveniles at least 15 years of age who committed a felony offense against a person, or a second burglary offense. SB 69 was introduced by the Governor and sets the age limit at 16. The single largest provider of mental health care in the State of Alaska is the Department of Corrections. There are more mentally ill people housed by the Department of Corrections than in all other mental health facilities. The Governor's Conference recommendation bill differs from HB 6 is that it only follows the cases that DHSS has identified as the serious offenders that need to fall within the court's jurisdiction. A serious concern expressed at the Conference was that disclosing the name of the offender often identifies the victim inadvertently, especially in sexual offenses among family members. Yet, name disclosure to protect others makes drawing the line a difficult policy issue. She acknowledged and appreciates Representative Kelly's effort to work very hard to accommodate the Council's concerns and noted the HB 6 has been tailored to include only very serious crimes and contains an escape provision where the court can be petitioned to prevent name disclosure. TAPE 97-30, SIDE B DR. RUSSELL HOFFMAN of Bethel stated that he has been practicing medicine in Alaska since 1973 and specializes in psychiatry and forensic psychiatry. He advises the Court System about the reasons for people's behavior and designs treatment programs for offenders. He noted he travelled to Juneau at his own expense because he feels strongly about the complex issue of disclosure. He noted the bill specifies in five different places that the release of information about the victim will be prohibited which illustrates that the release of information can be a hurtful process. He discussed a recent tragic event in the Bethel school system and how the gossip and rumors about people periperally involved was extremely harmful to those people and their families. He noted the ripple effect of those rumors on other community members. He explained that is an extreme example of how HB 6 could play out in a small community. The issue of disclosure is a very important one for those who try to treat children and turn a negative situation into a positive one. He stated in the past 4 1/2 hours he has received over 100 signatures from the Bethel community in opposition to HB 6. JOHN CYR , President of NEA-Alaska, stated that one thing of paramount importance to NEA's members is the ability to know the kinds of students they work with on a daily basis. NEA's primary concern is with the stage at which the offender's name is released. NEA prefers that the name be released after adjudication when the juvenile has been convicted. In his experience, he knows of juveniles who have been accused of very serious crimes erroneously. Had those juveniles' names been released, serious consequences would have occurred. One of NEA's primary functions is to keep students in school and needs to develop alternative programs, especially to deal with violence. NEA also believes there is a critical need for juvenile detention centers to provide adequate help for these offenders. DIANE WORLEY , Director of the Division of Family and Youth Services, DHSS, stated that DHSS has worked very closely with Representative Kelly and understands the direction he is taking with HB 6, but is concerned with how far the bill goes. HB 6 conflicts with DHSS' goal of working with families and children, and to protect children and to rehabilitate where possible. DHSS is concerned about striking the necessary balance to protect communities from juveniles, who have committed serious crimes or are repeat offenders, but believes HB 6 is too broad and covers all ages, and does not take into account mitigating circumstances. DHSS does support some level of disclosure but does not believe HB 6 establishes the appropriate balance. Number 465 SENATOR PARNELL asked what specific changes need to be made to HB 6 to get support from the Administration. MS. WORLEY answered that she is speaking only for DHSS and not for the Governor's Children's Cabinet. SENATOR PARNELL asked Ms. Worley to clarify her statement. MS. WORLEY said DHSS is part of the Children's Cabinet and has worked closely with it on HB 6 but DHSS' perspective is slightly different because it works with these juveniles on a daily basis. She clarified that because of the direct impact HB 6 will have on DHSS, it has more specific concerns than other departments. SENATOR PARNELL asked if DHSS' specific concerns are age and mental health. MS. WORLEY replied yes, and a third issue is informal adjustment because that is the key to the work DHSS does with juveniles; with those who admit to a crime and are willing to work with DHSS and their families on rehabilitation. SENATOR PARNELL asked Ms. Worley if she thinks disclosure should only occur when juveniles are on the yellow track. MS. WORLEY said that is correct. CHAIRMAN TAYLOR summarized Ms. Worley's preference as age 16, yellow-track, upon conviction. ANGELA SALERNO , Executive Director of the National Association of Social Workers, pointed out that confidentiality of juvenile records was part of a larger reform measure which began early in the Century and established juvenile courts to accommodate the disability of youth. HB 6 would be changing that in a fundamental and critical way and creates a radical and untested measure. Although we are all concerned about juvenile crime, we should not act out of desperation. The purpose of HB 6 is to protect ourselves but is illusory and will make us less safe because we will be forcing children further down the road toward crime. Number 398 CHAIRMAN TAYLOR asked Ms. Salerno when "we" decided that non- publication of the names of juveniles was an attribute of the juvenile justice system. MS. SALERNO said she did not have the date in Alaska, but the practice was established when the first juvenile court was created in Illinois at the turn of the Century. CHAIRMAN TAYLOR commented on the schizophrenic logic we have taken toward the responsibilities we allow juveniles to have, and those that we do not. MS. SALERNO emphasised that DHSS' charge is to work with those juveniles who might be rehabilitated. Those children often suffer the disabiilty of lack of parental control. CHAIRMAN TAYLOR said that sometimes parents do everything they can for a child yet the child chooses to be delinquent. MS. SALERNO agreed. MR. CYR commented he believes that adults are absolutely responsible for their children, but questioned at what point the system should take over when a child gets in trouble. He expressed concern that we may be acting prematurely when children can be saved or have been misidentified. CHAIRMAN TAYLOR noted many legislators are concerned that several years ago, in attempt to keep names anonymous, foster parents were not given information about the young people being placed in their homes and the foster parents suffered major consequences because of it. Number 347 REPRESENTATIVE KELLY addressed comments made by previous witnesses. The informal adjustment process allows DHSS to decide whether the child can be rehabilitated. He agrees with that provision and adopted the Children's Cabinet amendment which provides for disclosure for a second offense. A provision for formal adjudication was included in the original bill, but DHSS requested that be changed to petition to prevent a logjam. When he agreed to petition, DHSS argued the need to change to informal adjudication. At that point he included an amendment from the Lieutenant Governor's Office which allows DHSS to petition against disclosure. At this point in time, DHSS is still pushing for informal adjudication. He stated DHSS wants the parents or foster parents of the defendant to be able to petition the court. He believes, as well as the Court System, that system will not work because every attorney who represents one of these juveniles will be guilty of malpractice for not petitioning the Court. DFYS is not currently able to disclose that a party who was arrested is innocent. HB 6 would allow DFYS and the Court to release the names of those who are found innocent. Regarding the two-track system, REPRESENTATIVE KELLY said he has met everyone's objections except DFYS' because it is opposed to any disclosure whatsoever. HB 6 contains escape hatches and only applies to offenders who commit very serious crimes for a second time. CHAIRMAN TAYLOR announced HB 6 would be heard again on Friday, April 25, and adjourned the meeting at 4:00 p.m.