Legislature(2009 - 2010)BELTZ 105 (TSBldg)
03/24/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB277 | |
| HB319 | |
| SB46 | |
| SB63 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 46 | TELECONFERENCED | |
| + | SB 63 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 277 | TELECONFERENCED | |
| += | HB 319 | TELECONFERENCED | |
SB 46-CHILD SUPPORT AWARDS
1:40:19 PM
CHAIR FRENCH announced the consideration of SB 46. [CSSB 46(HSS)
was before the committee.
DOROTHY SHOCKLEY, Staff to Senator Albert Kookesh, said CS for
SB 46 puts the Child Support Civil Rule 90.3 Guidelines into
statute. When the Alaska Supreme Court enacted the rule in 1987,
they admitted that it was substantive law that the Legislature
could replace at any time. SB 46 proposes to do that.
MS. SHOCKLEY explained that when a child support guideline is
set by court rule, the people who are affected don't have a
chance to speak to the individuals who have the power to make
changes. This has been a problem. The feedback that the sponsor
has received is that people don't mind paying child support, but
they don't agree with the formula the court has set. She related
that she encouraged constituents to write to the review
committee, but it made a disappointingly small difference. Just
one statewide-call-in hearing was held and people in rural
Alaska in particular weren't able to talk about their unique
situation to anyone who could make changes. Putting the rule
into statute is perhaps the only solution, she said.
1:44:00 PM
CHAIR FRENCH asked Mr. Wooliver to explain how it came to be
that child support orders are done through a court rule rather
than statute.
DOUG WOOLIVER, Administrative Attorney, Alaska Court System,
informed the committee that the state's child support guidelines
were adopted by the court shortly after the federal law passed
requiring states to have guidelines. Then Governor Cowper asked
the administrative director of the court if the court would be
willing to establish the child support guidelines because
neither the Legislature nor the governor wanted to do so.
Although it's not a typical role for the court, they did agree
and they've been doing it for the past 23 years.
MR. WOOLIVER explained that federal law requires a review of the
guidelines every four years. About two years prior to enacting
any changes, a committee is appointed and the court sends out a
letter asking for public comment on the guidelines. Posters are
put in all the court locations, notices are posted in 32
newspapers in the state, and the information is on the court's
website. Notices of the contemplated changes go out to all
attorneys in a number of venues and to child support services to
include in their mailings. The notice tells people who are
making and receiving child support payments that a change is
coming and it asks for input. This last year the court sent
34,000 notices to child support services to include in their
mailings.
After this process the comments are summarized and organized by
subject and distributed to the committee members who develop a
draft proposal. The draft proposal again goes out for comment
and a memo summarizing the rule goes out to many of the same
venues as before, including to legislators. Last time the court
received 80 comments from members of the public through that
process. He said there is one statewide teleconference, but it
hasn't been a successful venue. Last time just six people
participated.
The committee takes the comments into account and forwards a
recommendation to the five supreme court justices who have the
ultimate authority to form the rule.
1:48:18 PM
SENATOR WIELECHOWSKI asked how similar the current Rule 90.3 is
to the federal guidelines on child support.
MR. WOOLIVER offered to find the answer.
SENATOR WIELECHOWSKI asked if other states have their child
support rules in statute.
MR. WOOLIVER offered to find the answer.
CHAIR FRENCH asked if he had a feeling for how much of the
court's time is absorbed in child support matters because he
recalls that they are extremely time intensive.
1:49:58 PM
MR. WOOLIVER replied these matters take a great deal of the
court's time. He reminded the committee that several weeks ago
when he asked the Legislature for another superior court judge
in Anchorage, one reason he cited was unrepresented litigants in
family law cases. That category is child support. He said one
reason he asked for just one more judge is because the court
wants to add staff, part of whose job will be to help the judges
calculate child support payments. The judges do that now.
1:50:59 PM
JOHN MALLONEE, Director Child Support Services Division,
Department of Revenue (DOR) said he was available to answer
questions.
CHAIR FRENCH asked if he participates in the process that
results in modifications to Civil Rule 90.3 Child Support
Guidelines.
MR. MALLONEE replied the Child Support Services Division (CSSD)
works through Assistant Attorney General Stacy Steinberg when it
wants changes. She currently represents CSSD and has been a
member of the committee Mr. Wooliver described.
Responding to an earlier question about the federal law, he
explained that 45 CFR 302.56 basically states what the general
guidelines must consider. It's fairly open for interpretation by
the states other than that a review is required every four
years.
1:52:52 PM
CHAIR FRENCH asked Ms. Steinberg her perspective on the
administration's ability to get changes made in child support
guidelines.
STACY STEINBERG, Chief Assistant Attorney General, Section
Supervisor, Collections and Support Section, Civil Division,
Department of Law (DOL), explained that the attorneys in this
section represent CSSD whenever they have legal issues or when a
matter goes to court.
MS. STEINBERG said she served on the most recent committee that
reviewed child support guidelines and at the time she brought
CSSD concerns to the committee's attention. The committee is
comprised of private attorneys and a judge who sits as chair and
the process the committee undertakes is extensive and time
consuming. During the last review CSSD didn't ask for any
specific changes but they did work with the committee to make
the court form more efficient for collecting child support.
1:55:01 PM
CHAIR FRENCH asked if the administration had taken a position on
the bill.
MS. STEINBERG deferred to Mr. Mallonee.
MR. MALLONEE replied, "We have no objection to the bill." They
simply use the guidelines to do the calculations to establish
child support orders and it wouldn't matter if it was in statute
or court rule.
SENATOR WIELECHOWSKI asked if CSSD gets involved in every four-
year review.
MR. MALLONEE said their only real involvement is through the DOL
section chief that represents CSSD.
SENATOR WIELECHOWSKI asked if he believes that the formula and
other calculations in the bill are fair.
MR. MALLONEE replied it would take an economic study to
determine whether or not the percentages are fair and equitable.
The last one was done when the rule was established originally.
MS. SHOCKLEY added that the idea was to adopt the same numbers
as Civil Rule 90.3 then after they're in statute the sponsor
would look at perhaps making changes.
SENATOR WIELECHOWSKI said he appreciates knowing that.
CHAIR FRENCH asked Ms. Steinberg if the new - and as yet not
adopted - CS addresses the concerns she outlined in a letter to
the sponsor.
MS. STEINBERG replied she understands that that a new CS was
drafted, but she hasn't seen it; she's still working from
version 26-LS0279\P.
CHAIR FRENCH said he'd wait until a subsequent hearing to adopt
the new CS to make sure that everyone was working from the same
document. Noting that one concern she spoke to was how medical
costs are to be divided, he asked if the problem doesn't exist
now if the numbers in the bill were simply lifted from the court
rule.
MS. STEINBERG said the bill initially mimicked Civil Rule 90.3
and the few legal changes that were needed were resolved. The
problem came about because of 2008 federal regulations that
required the addition of cash medical support and provisions to
define reasonableness and accessibility of health insurance.
Those aspects were added to version P but because they aren't in
rule 90.3 it wasn't clear how some of the uncovered medical
expenses would be handled and who would pay. She said the main
point of the letter was to ensure that the additions of cash
medical support will legally work in this new statute.
2:03:23 PM
SENATOR WIELECHOWSKI questioned how the judicial branch was able
to adopt substantive law if Civil Rule 90.3 is in fact
substantive.
MS. STEINBERG replied it is substantive in that it sets how
child support is established in each court case, but it is a
court rule that only applies to court. The constitutionality of
the rule has been challenged and the supreme court found it to
be constitutional. CSSD has a separate regulation that
specifically says it will follow Civil Rule 90.3.
2:04:42 PM
CHAIR FRENCH asked the drafting attorney why the
nonapplicability of two-thirds vote requirement is included in
the bill and how she came to that conclusion.
JEAN MISCHEL, Drafting Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, explained that her office
has construed this to be a substantive rule. Since the bill
isn't affecting judicial procedure, a two-thirds vote isn't
required.
SENATOR WIELECHOWSKI questioned how the Legislature can change a
court rule without a two-thirds vote.
MR. WOOLIVER explained that the supreme court adopts rules under
two provisions of the constitution. Article 4, Section 15, is
the rules of practice and procedure and Article 4, Section 1 is
the inherent authority of the court. Rule 90.3 says it is
adopted pursuant to the authority under Article 4, Section 1 and
is not subject to the super majority requirements that the rules
of practice and procedure would be subject to with respect to
legislative change. The rule itself says it is a substantive
rule and the Legislature can change it by a simple majority
vote.
CHAIR FRENCH mused about the separation of powers and the 2/3
vote requirement.
SENATOR WIELECHOWSKI commented that it's an interesting question
and the logic is somewhat circular.
2:07:27 PM
MS. MISCHEL clarified that the court adopts both procedural and
substantive rules and the substantive rules are within the
purview of both the judicial and legislative branches. As Mr.
Wooliver pointed out, the court told the Legislature it could
amend or adopt this rule without a 2/3 vote. "We're all in
agreement that this is not a procedural rule that the court
would have more control over," she said.
CHAIR FRENCH asked if there are other instances of the court
adopting substantive rules.
MS. MISCHEL said yes, but it would take time to point them out.
CHAIR FRENCH said he wouldn't move the bill before he heard from
the family law section and Mr. Kirk who has been supportive of
the bill.
CHAIR FRENCH announced that because this is a fairly significant
change, he would hold SB 46 for a future hearing.
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