Legislature(1995 - 1996)

03/12/1996 03:03 PM House HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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             
 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               
 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             
 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                
 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                     
 MS. CARPENETI wasn't certain, but she assumed the child would be              
 charged under the law of the authority that arrested or stopped the           
 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                       
 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                
 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             
 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.                             

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