Legislature(1995 - 1996)
03/12/1996 03:03 PM House HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 474 - VIOLATIONS OF MUNICIPAL ORDINANCES & REGS Number 1004 CO-CHAIR TOOHEY, Sponsor, said it is known that the juvenile justice system has had some great problems for a long time. Too often young offenders are finding there is no meaningful consequences for their delinquent behavior. This is particularly true for those who commit minor offenses since the justice system is already overwhelmed with serious offenders. Knowing this, juvenile offenders have become increasingly dangerous and blatant regarding their offenses since they know the overloaded system can do very little to them. House Bill 474 would allow municipalities to respond to less serious juvenile behavior by expanding its jurisdiction to include the ability to subject juvenile offenders to civil infractions and/or misdemeanors. This would allow the juvenile justice system to focus on the more serious criminal activity, while assuring that juvenile offenders of less serious offenses receive more immediate consequences for their action. This bill is supported by the Municipality of Anchorage and the Anchorage Chamber of Commerce. She noted there were three zero fiscal notes and announced that Mary Hughes from the Municipality of Anchorage was available on teleconference to address the bill, Jack Chenoweth, Division of Legal Services, was available to answer questions, Deputy Chief Duane Udland from the Anchorage Police Department and Bob Bailey from the Anchorage Chamber of Commerce were also on teleconference to testify. Number 1114 DUANE UDLAND, Deputy Chief, Anchorage Police Department, testified he believed HB 474 would help the Anchorage Police Department address juvenile problems early on. It deals with minor infractions that kids commit that currently are not being handled by the juvenile justice system. The sooner kids are dealt with and know there are consequences for their actions, the better off the community will be. He said he normally testifies before the legislature requesting that legislation not be passed that has an impact on the community as an unfunded mandate; however, in this particular case, he is testifying that the Municipality of Anchorage is willing to help relieve some of the burden on the state as far as juvenile prosecution is concerned. There have been a number of concerns expressed about this bill in both the Senate and House as to who should be in control of juveniles, the cities or the state. He said if the state was able to handle all these cases, they wouldn't be asking for jurisdiction to prosecute these minor offenses, but the fact is the state does not have the resources. Those resources seem to be more limited as time goes on, particularly as the system gets overcrowded with more serious offenders. It is their intent to set up a hearing officer concept with a maximum fine of $300, with the child going before the hearing officer with the parents and the issue is dealt with at the local level as opposed to being sent to juvenile intake, where historically, juvenile intake has not dealt with it because of their workload. He said that concern had been expressed about the record keeping and that records would get lost because cities would be doing one thing and the state would be doing another. He suggested that police departments be required to notify juvenile intake of any enforcement action taken, which could be easily done and something they were willing to do. CO-CHAIR BUNDE asked if there were any questions for Deputy Chief Udland. REPRESENTATIVE ROBINSON asked how this system would work in relation to the different types of diversion programs like youth courts for example? DEPUTY CHIEF UDLAND said he didn't think those decisions had been made yet. They were very interested in the youth court concept, it had the backing of the mayor's office and the assembly, and they are looking forward to working out the details as to what offenses would go before the youth court as opposed to what would go before a hearing officer. It is the intent of the Anchorage Police Department to fully support the youth court. CO-CHAIR TOOHEY commented that when this bill was heard in the Community and Regional Affairs, it was stated that up to 50 percent of the juveniles who have committed minor offenses slip through the cracks because nobody wants to handle them. They are not hard core criminals; they are kids that know they can get away with it, because no one wants to bother with them. Number 1308 BOB BAILEY, Member, Board of Directors, Anchorage Chamber of Commerce, testified that he is also the co-chair of the Chamber's Crime Prevention Committee. He said several months ago, the Municipality of Anchorage brought a package of legislation before the Chamber's Crime Prevention Committee to address law enforcement problems in their city and state. Early on in the meeting process, it quickly became apparent that juvenile crime is a serious problem in Anchorage. Due to the lack of jurisdiction however, the city has been helpless to address the problem. He said there are juveniles who actually shoplift intentionally at Dimond Center in south Anchorage, so they can get a free ride downtown with the police department, knowing full well that juvenile intake is too busy to do anything. He commented that HB 474 certainly doesn't solve the problem of juvenile crime, but allows the local municipalities to use their resources to the first line of defense. It has been shown time and time again that juveniles will commit crimes because they know they won't be prosecuted. When they get away with it once, they have no hesitation to offend again. While fines certainly don't deter serious criminals, the Chamber's Crime Prevention Committee and the business community in Anchorage strongly feel that a fine may stop a juvenile first time offender from becoming a repeat offender if they realize there are indeed consequences for their actions. Mr. Bailey stated the Anchorage Chamber of Commerce board of directors passed a resolution supporting HB 474 and urged its passage out of committee. CO-CHAIR BUNDE asked if there were any questions of Mr. Bailey. Hearing none, he asked Diane Worley to come forward to testify. Number 1400 DIANE WORLEY, Director, Division of Family & Youth Services, Department of Health & Social Services, testified the department is opposed to HB 474, but agrees with the concept. She said the department realizes that something needs to be done early on with kids inasmuch as their workload prevents them from intervening with early juvenile violations, but they have concerns with the process and a number of related issues. One of the department's main issues is the automatic waiver of juveniles to adult court; district court is adult court, not juvenile court. It opens a whole new area and she felt it was something that needed to be looked at in a very comprehensive approach with the entire juvenile justice system. The department also has concern that when municipalities have the ability to set their own ordinance violations, depending upon what community picks which violations, children and youth will receive disparate treatment. For example, in one community they could go to district court, in another community there may be nothing, yet in still another community, they may go into the juvenile justice system. She also expressed concern about the parameters of a municipal ordinance. MS. WORLEY further stated the department has concern about the Division of Family & Youth Services receiving notification. For example, if a child had received 10 citations and had gone to district court 10 times for those various violations, and then committed a more serious crime and came into the DFYS system, it would be considered a first time offense, not the 11th offense. She felt there needed to be a process whereby the whole scope of the youth's activity is looked at. Number 1540 MS. WORLEY stated another concern is if a child in the DFYS probation system goes to district court for a violation, the division won't hear about it. In a sense, the juvenile has broken their probation, but the division wouldn't receive notification of it because the child would have gone through a different system. She concluded that a number of the department's concerns are system type problems they would like to have considered. She reiterated the department supports the concept and would like to have more immediate consequences for juveniles' activities, but it is the department's belief these issues can be addressed through the juvenile process if they really work at them. She added the department would like to see many of these issues wait for the recommendations of the Governor's Conference on Youth & Justice so a comprehensive approach can be put together. Number 1600 CO-CHAIR BUNDE commented the bill drafter, Mr. Chenoweth was available for questions. REPRESENTATIVE ROBINSON inquired which of the communities with ordinances, would actually be able to utilize this legislation. She thought that Kodiak had done away with their city ordinances so everything could be charged at the state level. Number 1642 JACK CHENOWETH, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, said that any municipality has the authority to draw ordinances and enforce them. There is a general provision in the law that allows them to penalize up to $1,000 and 90 days jail time, which is stated on page 2, lines 2-3. This legislation tries to get at conduct that a municipality chooses to punish only by imposition of a fine with no jail time or no other stigma or punitive element attached. It was done that way so it would be defined as a minor offense, as that term is understood in the district court rules and should prevent the court system from having to give the defendant a trial by jury or to supply the defendant with court-appointed counsel or counsel at public expense. Neither of those requirements attaches to a minor offense. He said the Municipality of Anchorage had asked for a bill that would allow them to charge more conduct criminally so they could take over the disposition, and that did not require the municipality to provide a trial by jury or court-appointed counsel. Mr. Chenoweth believed that had been accomplished. CO-CHAIR BUNDE asked if municipalities would only charge for misdemeanors and would not be able to charge for felony offenses. MR. CHENOWETH said the penalty referred to in the legislation, the $1,000 and 90-day imprisonment which is the maximum for municipalities, is the equivalent of a class B misdemeanor. REPRESENTATIVE ROBINSON asked about the disparity issue in terms of constitutionally. For example, one community could charge a juvenile through the adult system, while another community could charge a juvenile through the juvenile system. MR. CHENOWETH did not believe there was any protection argument that necessarily attaches. He used the example of littering where it is so bad in one municipality they may decide to address it in a municipal ordinance and impose a fine of not to exceed $300. Another community may decide it is not a problem and not have any ordinance for littering whatsoever. If a juvenile is engaged in littering and charged, he/she would be charged under the state statute, if there is one and prosecuted, or if appropriate, handled through the adjustment and disposition process of the DFYS. The fact that some municipalities have in some cases stepped in and taken responsibility for prosecution but other municipalities haven't, doesn't particularly raise an equal protection issue. REPRESENTATIVE ROBINSON asked if it would be the responsibility of the municipalities to bear the associated costs. MR. CHENOWETH responded in the normal scheme, municipalities would have to pick up the cost of enforcing their own ordinances. For about the last two years, Anchorage has used its authority as a home rule municipality, and instead of criminalizing a lot of the conduct that many people regard as appropriate for enforcing through a criminal ordinance, they made the violation of those activities a civil matter and prosecuted before their own hearing officers. In other words, they have internalized it, kept it out of the court system and put the representation of the civil action before their own hearing officers. Also, the enforcement of a judgment given by the hearing officers is handled by their own hearing officers. He commented that he had no idea if it had been successful or not, but in the early discussions of HB 474 and how it would be used in Anchorage, there was some indication the municipality would expand upon the civil enforcement model they have and perhaps make use of that. If they do, there would probably be less demand on the DFYS system because there would be fewer referrals of minors and probably little or no demand on the court system because it would all be internalized within the Anchorage court hearing system. Number 1890 MARY HUGHES, Municipal Attorney, City of Anchorage, stated that Mr. Chenoweth's comments were correct. She added that Deputy Chief Udland had alluded to the fact that if this bill passes, it was the intent of the Municipality of Anchorage to make these civil infractions and the entire process would be handled in-house. REPRESENTATIVE ROKEBERG referred to the disparity issue and asked Mr. Chenoweth if different community standards were recognized by the courts. MR. CHENOWETH responded the courts will enforce the ordinance as it comes to them. He explained that Anchorage is a unified municipality, but in the Fairbanks area there are at least three jurisdictions, the borough, the city of Fairbanks and the city of North Pole, and all three may decide to address the same issue. There may be three separate defendants, one prosecuted by the borough, one by the city of Fairbanks and one by the city of North Pole. The judge will take each ordinance as it is written and will look at the circumstances under which the person is being prosecuted. It doesn't necessarily have to be uniform either in the definition of the offense or in the penalty attached, if the court finds the individual guilty. REPRESENTATIVE ROKEBERG said there is nothing that speaks to public disclosure of juveniles in the legislation. He asked if there were any conflicting statutes? MR. CHENOWETH said the theory of the legislation is that if a minor commits a minor offense in a municipality that has chosen to establish an ordinance and prosecute under the ordinance, the municipality would present the matter before the district court instead of having an automatic referral of the matter through the DFYS system. The fact that the minor appears before the district court means the minor is in open court and those records are public records. The legislation is drafted in such a way that the minor would be prosecuted as an adult. Through a prosecution in the district court of an ordinance of this kind, that information could become public. The record itself would be treated as the court records are, but the fact that the minor was in front of a judge or a jury is something that might appear in the newspaper the next day. Number 2026 CO-CHAIR BUNDE commented that attempts have been made in the past to address the juvenile disclosure issue but as soon as the child becomes a child in need of aid under the DFYS system, the federal government does not allow the records to be disclosed. In effect, if the prosecution of these juveniles is kept out of the DFYS system, the access to records is allowed. MR. CHENOWETH said in the last two hearings on the bill, he had not heard any objection from the DFYS to the release of the information. While he personally has not gone back to fit this legislation into the federal act referred to by Co-Chair Bunde, he felt the DFYS would have cited that as one of the objections to this approach. He commented this takes the theory of traffic offenses, which municipalities may now bring before the district court, and expanding it to other things that municipalities may decide they want to enforce as criminal actions. Number 2087 REPRESENTATIVE ROBINSON referred to the concern expressed by the DFYS regarding the lack of notification of repeat offenders who have been before the court a number of times and asked Mr. Chenoweth if this legislation could be amended to require municipalities to notify the DFYS. MR. CHENOWETH responded yes, he thought it would be a good idea. If it is critical for DFYS or any other state agency to have this kind of information, then there should be a requirement that a report or the outcome of the offense be submitted to DFYS, released to DFYS upon request, or whatever is felt would not be so onerous as to discourage the municipalities from taking advantage of this legislation. REPRESENTATIVE ROBINSON said she wanted to ensure that if there is a need for intervention, the division has some level of power to intervene for such things as treatment, counseling, etc. REPRESENTATIVE DAVIS thought that if a youth was being tried in adult court by a municipality, the information would be public and available to the DFYS. Number 2209 DEPUTY CHIEF UDLAND thought it would be easy enough to do inasmuch as the police department has an excellent relationship with the division and youth intake. Even if it is not inserted in statute, he thought it could be worked out with juvenile intake to ensure that information is exchanged. REPRESENTATIVE ROBINSON expressed her desire that it be in statute. Number 2260 ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, said it was difficult to take a position of opposition to the bill because the goal to have swift consequences and early intervention for children who disobey the law is a good one. However, the department does oppose it. There is no oversight in the bill as to what ordinances a municipality could adopt. While shoplifting may be an area of concern to Anchorage, if a person is tried in adult court for shoplifting, that person would receive an adult record. That would be an unequal situation compared to a person outside the municipality of Anchorage who would be tried as a juvenile and not receive an adult record. Although page 2, lines 14-16, state there should be no consequences beyond that of a fine, a child would end up with an adult record and if it's for a violation such as shoplifting, the conviction would be for an offense involving dishonesty and would make it more difficult to get a job, into the military, etc. As a matter of fact, there would be consequences to receiving an adult record. MS. CARPENETI said generally the department opposes automatic waiver of juveniles to adult court, except for the most serious offenses, because the mission of juvenile justice is early intervention for children to guide them away from committing more crimes. The argument presented by Ms. Hughes that the waiver would be to a civil process is not specified in the bill. If a child is waived to district court for a minor offense, the child will receive a fine, but there would be no supervision of the child because there is no probation supervision in district court in our state. There would be no probation officer to try to help the kids. TAPE 96-24, SIDE B Number 001 MS. CARPENETI continued to explain there is no restitution provided for victims, which means the court would not have the power to order restitution for a conviction for shoplifting. In conclusion she said the Governor's Commission on Youth and Justice was established to address difficult issues such as this. REPRESENTATIVE BRICE questioned which ordinance would supersede which in a situation where there was a borough and a city government. MS. CARPENETI wasn't certain, but she assumed the child would be charged under the law of the authority that arrested or stopped the child. REPRESENTATIVE ROBINSON asked Ms. Carpeneti if she thought the bill could be amended to allow for restitution. MS. CARPENETI said that was an interesting question. The legislation was trying to cover offenses that don't give rise to the right of court-appointed counsel and a jury trial. There was a possibility of authorizing the court to order restitution, depending on the amount. Number 123 MS. HUGHES said it would be the preference of the municipality of Anchorage not to include any type of restitution in the bill. The reason for the current language was to avoid any of the criminal prosecutorial concerns for the defendant in a criminal process. She said with regard to the issue of shoplifting, nothing would change inasmuch as there is no restitution now. CO-CHAIR BUNDE asked if there was further testimony on HB 474. MS. HUGHES stated she would like to testify at this time. She said HB 474 is fundamental as far as she is concerned, particularly with respect to the juvenile crime issue. As is evidenced from the Public Safety Partnership Program packet furnished to committee members, the municipality of Anchorage believes the long term approach to the juvenile issues Anchorage is currently facing is to put together a task force, as the Governor has done, and look at every aspect of how juvenile crime is handled, including the authority of the DFYS to handle a particular juvenile crime. The municipality applauds the Governor's efforts in that respect; however, situations still have to be handled in the interim. Even though the task force has set their goal as September to come out with some type of overhaul of the juvenile code, she is expecting this process to extend far beyond September. She said one of the things this particular provision does is allows the city to handle certain criminal conduct under the same code as the city's own littering and loitering type conduct. In essence, these juveniles, many of whom never even get into the system now, can at least be fined on site for their crime. As Deputy Chief Udland indicated, the municipality is willing to take on some responsibility and see if it will help get a handle on the situation. MS. HUGHES further stated she did not believe there was any problem with the equal protection, primarily because many local governments within the state handle varied matters differently and as long as it doesn't rise to the standpoint of an equal protection argument. She also believes that depending on how it is decided to handle certain offenses, it is possible the Anchorage Police Department can report to the DFYS, if deemed necessary, or the hearing officer could provide information with respect to civil fines for various conduct. With respect to the repeat offender concept, Ms. Hughes said that no one knows who the repeat offenders are now, because they don't even get into the DFYS system. CO-CHAIR BUNDE asked Ms. Hughes if going to court and being treated as if the crime was very serious would be considered as intervention. MS. HUGHES said it has been the city's experience that it is a form of intervention. They also have used juvenile's mediation with the victim, which has been very successful. She believed that attention being paid to the act was very important because the juveniles feel they can get away with their activities with no consequences. Number 467 REPRESENTATIVE BRICE asked what happens if a child doesn't pay the fine? Would they be sent to adult court, sent to prison or given another ticket? MS. HUGHES said she thought it would be handled on the civil side, as it is currently. REPRESENTATIVE ROBINSON said she understood there could be imprisonment up to 90 days based on the language on page 2, lines 2-3. MS. HUGHES said the municipality may by ordinance prescribe a penalty not to exceed $1,000 or 90 days imprisonment, but the municipality doesn't do that. They would provide a penalty of $300 as is currently done and no imprisonment. REPRESENTATIVE ROBINSON said her concern was that if a decision was made to imprison the child, where would they go and who would pay for it. While page 2, line 12, says that a person charged with a violation is not entitled to appointment of a public defender or other counsel appointed at public expense, what about the person who has money available for counsel? MS. HUGHES said a person could be represented by counsel in front of a hearing officer. REPRESENTATIVE ROBINSON asked if her interpretation was correct that a person who doesn't have money wouldn't be able to use a public defender or other counsel. MS. HUGHES said the stature of this particular infraction is such that it doesn't call into question the use of a public defender. Currently, the (indisc.) the misdemeanor in the municipality of Anchorage, and prosecute them all. The municipality pays for their own public defender and is considered within their current system. If an infraction rises to the point that a public defender is required under the law, then one would be appointed and the municipality of Anchorage would pay for it. CO-CHAIR BUNDE noted that page 2, line 4, clearly states that a violation cannot result in incarceration. CO-CHAIR TOOHEY commented this does not deal with serious criminals; it's the spray paint kids and the infractions so minor that no one wants to deal with them, including the DFYS. She suggested the municipality of Anchorage work with the Division of Family & Youth Services and the Division of Legal Services in resolving these issues. Number 725 MS. WORLEY asked to clarify the issue of imprisonment raised by Representative Robinson. A concern she forgot to address in her testimony was if a child does not pay the fine, the judge can file a contempt of court, and the child could be sent to the local youth facility for a certain number of days. This could impact the overcrowding situation, particularly in Anchorage at the McLaughlin Youth Facility. REPRESENTATIVE VEZEY asked if there was a mandatory jail time for contempt of court fines? MS. WORLEY said she didn't know if it was mandatory. CO-CHAIR BUNDE asked if there was any other public testimony. Hearing none, he closed public testimony. Number 781 REPRESENTATIVE ROKEBERG moved to pass HB 474 out of committee with zero fiscal notes and individual recommendations. REPRESENTATIVE DAVIS objected. Based on the discussion he believed there had been a consensus that an amendment should be considered to include a requirement that notice be passed on to the DFYS. CO-CHAIR BUNDE believed testimony had indicated that notice would be given to the division. He asked the sponsor, Co-Chair Toohey to address that issue. CO-CHAIR TOOHEY said she would like for the Division of Family & Youth Services, Ms. Carpeneti, Mary Hughes and Deputy Chief Udland to come up with an amendment that could be introduced in the Judiciary Committee, which is the next committee of referral. CO-CHAIR BUNDE asked if there were any objections to moving HB 474 from committee. Hearing none, it was so ordered.