Legislature(2003 - 2004)
04/14/2004 01:45 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 275 - VETERINARIANS AND ANIMALS Number 0652 CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 275, "An Act relating to veterinarians and animals." [Before the committee was CSHB 275(L&C), which had been amended on 4/7/04.] Number 0581 SHARALYN WRIGHT, Staff to Representative Mike Chenault, Alaska State Legislature, sponsor, indicated that she'd like the bill to move out as is and let the House Finance Committee deal with any further amendments. REPRESENTATIVE GRUENBERG noted, however, that he'd been working with Representative Crawford's office on some further proposed amendments, and offered his belief that those proposed amendments wouldn't be controversial. CHAIR McGUIRE directed attention to the remainder of the changes suggested by the Department of Law (DOL), some of which had been adopted during the bill's hearing on 4/7/04. [These suggested changes were presented and explained by Elise Hsieh from the DOL during the bill's hearing on 4/6/04]. CHAIR McGUIRE - referring to the DOL's suggestion that proposed AS 11.61.138(a)(7) be rewritten to clarify what is meant by the phrase, "with elements similar to a crime under this section" - indicated a preference for letting the House Finance Committee address this suggestion. CHAIR McGUIRE referred to the DOL's suggestion that proposed AS 11.61.138(b) is awkward and should be rewritten to say, "Each animal that is subject to cruelty to animals under (a)(1)-(5) and (7) of this section shall constitute a separate offense". Number 0390 REPRESENTATIVE GRUENBERG made a motion to adopt the foregoing suggested language as Amendment 11. There being no objection, Amendment 11 was adopted. Number 0339 CHAIR McGUIRE made a motion to adopt Amendment 12, which was labeled 23-LS0940\U.1, Luckhaupt, 4/7/04, and read: Page 6, line 29: Delete "a new paragraph" Insert "new paragraphs" Page 7, line 1, following "AS 11.61.140": Insert "; (32) the defendant is convicted of an offense specified in AS 11.46.360 or 11.46.365 and an animal was present in the propelled vehicle at the time of the offense; in this paragraph, "animal" has the meaning given in AS 11.61.140" CHAIR McGUIRE noted that Amendment 12 would add an additional aggravator to Section 4, which pertains to the statute regarding aggravating and mitigating factors in sentencing. This aggravator would apply for crimes of vehicle theft in the first or second degree. She noted that she and her committee aide, Vanessa Tondini, had their dogs taken when Ms. Tondini and her mother had their car carjacked. MS. WRIGHT pointed out that if such a situation involved a service dog, it would be an even more serious crime than just having one's pet taken away. Number 0210 CHAIR McGUIRE asked whether there were any objections to Amendment 12. There being none, Amendment 12 was adopted. The committee took an at-ease from 5:28 p.m. to 5:29 p.m. Number 0102 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 13, which, with a handwritten correction, read [original punctuation provided]: Page 4, lines 27 - 28: Delete all material and insert "(5) with criminal negligence fails to care for an animal and, as a result, causes the death of the animal or causes severe physical pain or prolonged suffering to the animal;" Page 5, after line 12: Insert the following: "(e) In (a)(5) of this section, failure to provide the minimum standards of care for an animal under AS 03.55.100 is prima facie evidence of failure to care for an animal." Renumber remaining subsections accordingly. Number 0089 REPRESENTATIVE HOLM objected Number 0081 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), said that whenever there are laws that create civil penalties on the one hand and related criminal penalties on the other hand, there is often a tension between the two; the kinds of standards that could be applied to civil penalties sometimes don't work well in the criminal context because the standards for vagueness and ambiguity are much stricter for the latter. TAPE 04-66, SIDE A Number 0001 MR. GUANELI relayed that the first part of Amendment 13, which was created by the DOL, proposes to keep the language that is in current law because it doesn't refer to the civil standards regarding minimum standards of care. With regard to the second part of Amendment 13, he indicated that one of the problems facing prosecutors is, what does "fails to care" mean and how is that to be assessed by a jury, and so the DOL's suggested solution is a provision pertaining to prima facie evidence, that if someone fails to provide the minimum standards of care as set out in the civil statutes, that constitutes prima facie evidence of failure to care for the animal. This will give guidance to the jury without having those standards written into the elements of the criminal offense. He noted that there is a similar provision regarding prima facie evidence on page 6, lines 13-15, and opined that such provisions are more workable from a criminal prosecution standpoint. MS. WRIGHT expressed concern with the first part of Amendment 13 because it removes reference to minimum standards of care, which, she opined, can only be defined by a veterinarian. She also opined that using the phrase "criminal negligence" removes any standard of care for an animal. REPRESENTATIVE GRUENBERG mentioned that Amendment 13 looks like a good amendment to him. CHAIR McGUIRE opined that Mr. Guaneli is correct in that if certain actions are going to made a crime, they need to be careful about what the standards are going to be. She offered her belief that application of a civil standard probably won't be upheld. REPRESENTATIVE HOLM said he disagrees with this kind of a bill because animal cruelty does not rise to the level of cruelty against humans. He mentioned that what is meant by the phrase "minimum standard of care" will vary depending on the area of the state and the type of animal. He questioned whether allowing buffalo to roam free in the Fairbanks area, for example, would rise to the level of criminal negligence. He relayed that at one point, animal control personnel rounded up some range-fed horses because they appeared to be too thin; when the veterinarian looked at those horses, he deemed them healthy and appropriately thin given that they were range-fed horses. He said he agrees that it should be the veterinarian who determines what the standards of care should be. Number 0509 CHAIR McGUIRE offered her belief that Amendment 13 would satisfy Representative Holm's concerns because it ensures that before someone is charged with a crime, the behavior has to rise to a higher level, that of criminal negligence. REPRESENTATIVE HOLM opined, however, that the phrase "fails to care" is subjective. REPRESENTATIVE GRUENBERG surmised that that is simply a term of art. He also pointed out that the phrase "fails to care for an animal" in the first part of Amendment 13 is linked with the phrase "failure to provide the minimum standards of care" in the second part, which directly references those standards as they are set out in Section 1 of the bill, under proposed AS 03.55.100. He opined that under Amendment 13, in order to make a criminal case, the prosecution will have to present objective evidence from a veterinarian as stipulated in Section 1, subsection (b). CHAIR McGUIRE opined that Amendment 13 will make the bill better. MR. GUANELI, in an effort to alleviate Representative Holm's concern regarding the phrase "fails to care", reiterated that that language is part of existing law, and offered his belief that the second part of Amendment 13 gives guidance regarding the standards of care that are set out in the rest of the bill. He relayed that the current language in the bill would repeal current law and make violation of the minimum standards a crime even if the animal is not in pain, injured, or suffering in any way. MS. WRIGHT said she is not comfortable with Amendment 13 and would like more time to consider it. CHAIR McGUIRE said she would feel more comfortable with HB 275 if Amendment 13 is included in it, because she thinks that Mr. Guaneli has made good points. Number 0917 REPRESENTATIVE MIKE CHENAULT, Alaska State Legislature, sponsor, expressed concern that it might be more difficult to prove that someone actually intended to treat an animal a certain way versus just letting a situation develop. MR. GUANELI, in response to comments about prima facie evidence, said: Prima facie evidence probably means a lot of different things in a lot of contexts, but what it would certainly mean in the first instance for investigators is that if they determine that prima facie exists - in other words, that the minimum standards have been violated - that gives them the authority to take some action based on that. In other words, ... but for other things, they can assume that ... there's been a violation of law because, prima facie, this constitutes evidence of that. So I think the police could seize the animals or ... do those kinds of things that are necessary to protect the animals. I think that a prosecutor could then ..., in good faith, file charges based on that. When it comes to the jury, though, the jury ... would be instructed by the judge that it may rely on those standards [but] it is not required to; in other words, the jury isn't forced to rely on those standards, but those are things that the jury can take into consideration to determine whether the other elements of the crime have been met. ... REPRESENTATIVE GRUENBERG offered his belief that adoption of Amendment 13 would enable the prosecution to get a motion to dismiss for failure to make out a case denied. REPRESENTATIVE HOLM removed his objection. REPRESENTATIVE CHENAULT said he has no objection to Amendment 13. Number 1123 CHAIR McGUIRE asked whether there were any further objections to adopting Amendment 13. There being none, Amendment 13 was adopted. REPRESENTATIVE GRUENBERG relayed that he had two more proposed amendments that he wished to discuss, adding his belief that they went together. Number 1162 JOE McKINNON, Staff to Representative Max Gruenberg, Alaska State Legislature, referred to Amendment 14, which read [original punctuation provided]: Page 3, line 10: Amend subsection (d) as follows: (d) The state, a municipality, a person, or another entity that supplies shelter, care, veterinary attention or medical treatment for an animal seized under this section shall [MAKE EVERY REASONABLE EFFORT TO LOCATE THE OWNER] have a lien on the animal for the cost of shelter, care, veterinary attention, or medical treatment. MR. McKINNON explained that Amendment 14 came from Representative Crawford's office, and that in part its intent is to delete the language "make every reasonable effort to locate the owner" because it was felt that that burden should not be on the person or entity that is simply caring for the animal. And presumably, he remarked, law enforcement will already be making an effort to locate the owner. Amendment 14 also adds language regarding having a lien for the costs of providing care for the animal. He noted that there have been instances wherein humane groups have spent a significant amount of money caring for the abused animals placed in their care but not received any compensation from the owner. Currently, there is no clear authority for such an entity to assert a claim for any of the costs of caring for an animal. Number 1238 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 14. MR. McKINNON referred to Amendment 15, which read [original punctuation provided]: Page 5, Line 2: Insert new bill section 5 and renumber bill sections accordingly: Sec. 5. AS 34.35.220 is amended to read: Sec. 34.35.220. Persons entitled to carrier, warehouse, [AND] livestock and animal liens. The following persons shall have liens upon personal property for their just and reasonable charges for the labor, care, and attention bestowed and the food furnished, and may retain possession of the property until the charges are paid: (1) a person who is a common carrier, or who, at the request of the owner or lawful possessor of personal property, carries, conveys, or transports the property from one place to another; (2) a person who safely keeps or stores grain, wares, merchandise, and personal property at the request of the owner or lawful possessor of the property; [AND] (3) a person who pastures or feeds horses, cattle, hogs, sheep, or other livestock, or bestows labor, care, or attention upon the livestock at the request of the owner or lawful possessor of the livestock; and (4) the state, a municipality or another person who provides feed, shelter, care, veterinary attention or medical treatment to an animal seized pursuant to AS 03.55.120. MR. McKINNON pointed out that if the committee adopts Amendment 15, then Amendment 14 should be changed such that, "have a lien on the animal for the cost of shelter, care, veterinary attention, or medical treatment" should be changed to read, "have a lien under AS 34.35.220". Number 1301 REPRESENTATIVE GRUENBERG made a motion to amend Amendment 14 to that effect. Number 1328 CHAIR McGUIRE asked whether there were any objections to the amendment to Amendment 14. There being none, Amendment 14 was amended. Number 1340 CHAIR McGUIRE asked whether there were any objections to Amendment 14, as amended. There being none, Amendment 14, as amended, was adopted. Number 1345 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 15. REPRESENTATIVE HOLM objected, and asked what happens if someone were to be accused but ultimately not convicted. REPRESENTATIVE GRUENBERG said that the lien is for the cost of care regardless of whether the person is convicted. REPRESENTATIVE HOLM opined, however, that if the owner is not convicted, the animal, in essence, was seized without his/her permission and therefore he/she should not be liable for the cost of that care. MS. WRIGHT suggested that instead of using a lien system, the person or entity that incurs costs for providing care can still file a suit to recover those costs. Number 1526 REPRESENTATIVE GRUENBERG withdrew Amendment 15, and made a motion that the committee rescind its action in adopting Amendment 14, as amended. There being no objection, the committee rescinded its action in adopting Amendment 14, as amended. Number 1553 REPRESENTATIVE GRUENBERG moved to report CSHB 275(L&C), as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 275(JUD) was reported from the House Judiciary Standing Committee.
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