Legislature(1997 - 1998)
04/25/1997 01:06 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 3 - MINOR'S CURFEW VIOLATIONS CHAIRMAN GREEN announced the next item of business was CS for Senate Bill No. 3(JUD), "An Act authorizing prosecution and trial in the district court of municipal curfew violations, and providing for punishment of minors upon conviction for violation of a curfew ordinance." Number 1904 MYRNA MAYNARD, Legislative Administrative Assistant to Senator Drue Pearce, came forward to present CSSB 3(JUD) on behalf of the sponsor. The bill had been introduced in response to an article in the Anchorage newspaper relating to Juneau. The City and Borough of Juneau had wanted to institute a curfew ordinance but was unable to do so because juvenile curfew cases are heard by the Division of Family and Youth Services (DFYS) and then go to the superior court. Ms. Maynard said curfew violations were low on the agenda for DFYS and did not get heard. Kids knew that even if they were cited for a curfew violation, nothing would happen to them. Thus, this bill was introduced. MS. MAYNARD noted that the bill has the support of the Municipality of Anchorage, the City and Borough of Juneau, the mayor's task force on youth in Juneau and the Alaska Peace Officers Association. She advised that there was a fiscal note from the court system for $24,000. REPRESENTATIVE BERKOWITZ expressed concern that the bill may impede a municipality's ability to choose how to proceed. MS. MAYNARD responded, "No, it will have no effect. ... If you have a youth court or some other system in place, this does not affect it at all." REPRESENTATIVE BERKOWITZ asked: If a municipality chose to proceed under the juvenile rules, would they be precluded from doing that? MS. MAYNARD replied, "No." REPRESENTATIVE BERKOWITZ said that alleviated his concern. MS. MAYNARD reported that Judge Peter Froehlich of the Alaska District Court in Juneau has a Friday afternoon juvenile court where he hears violations relating to tobacco, firearms, alcohol and so forth. "And he loves this and wants to put it in place, because they have a real problem, evidently, here in Juneau," she stated. "And he doesn't think the fiscal impact is going to be great because probably 75 percent of the kids they see already, under the alcohol and those other violations, would also be the curfew [violators]." MS. MAYNARD said at the request of Assemblyman Murdy from Anchorage, they put in the ability to have community work in lieu of a fine. She explained, "We couldn't mandate that because that's putting them into servitude, and then they would be entitled to a trial by jury; so, we've made it that the violator can choose to do community work if they can't pay the fine. And perhaps some parents who choose not to pay the fine will encourage their children to choose community work because it will have more effect on them, and they may think twice before they violate the curfew again. At least, that's our hope." Number 2081 REPRESENTATIVE BERKOWITZ indicated he had discussed this with "some of the folks at APD" who were doing truancy work; they believe that this is a highly effective way of doing community-based policing and that it has a big impact on reducing overall crime rates. CHAIRMAN GREEN asked whether the sponsor had received comments about the state's taking action on behalf of municipalities. MS. MAYNARD said no, although a parent had come to one meeting to voice support, hoping juveniles will stop after the first or second violation. Number 2132 REPRESENTATIVE PORTER advised that he was trying to find in the bill where there is an option on how to deal with a violation, such as sending the case to a youth court. CHAIRMAN GREEN called an at-ease. He called the meeting back to order at 2:00 p.m. Number 2207 ROBERT BUTTCANE, Juvenile Probation Officer, Division of Family and Youth Services, Department of Health and Social Services, came forward to testify. One concern the department has about the bill is that although it appears to be a civil infraction to violate a curfew or tobacco ordinance, in practice a citation is issued and if the young person fails to appear in district court in response to that citation summons, the court issues a "failure to appear" warrant. MR. BUTTCANE explained that although that is not a problem in most of Alaska, 20 to 30 percent of the detention population at the Johnson Youth Center in Juneau are young people who have failed to appear in district court for possession of tobacco or minor- consuming-alcohol violations. He stated, "And this bill, although it doesn't directly cause young people to be detained in our youth facilities or to fall into the juvenile system, kind of by default, because they are in violation of this `failure to appear' order and then subject to contempt issues, they're clogging up our detention facilities." MR. BUTTCANE advised that Margot Knuth had been unable to attend this hearing but could speak more to the legalities. He explained, "We would like to see some provision that would ensure that it stays in a civil realm. In terms of the options available to municipalities, I know Anchorage did go to a hearing officer for these cases. They had something in the neighborhood of 1,100 or 1,200 curfew violations, I believe, once they instituted the ordinance in the Municipality of Anchorage. And even if a small portion of them started ending up in our detention facility in Anchorage, the system would grind to a halt." He said they did not need to put people who smoke tobacco in "concrete and cinder block." Number 2301 REPRESENTATIVE BERKOWITZ mentioned the difference between civil and criminal contempt. He said most failures to appear are outgrowths of criminal contempt charges. He suggested if there were a way of proceeding for civil contempt, even though it may subject someone to a warrant and arrest, it would not have the same criminal consequences as a criminal contempt charge would. He said he wished someone were present who could address that. MR. BUTTCANE replied that he could ask the Department of Law to respond. He stated, "I do know here in Juneau there were 41 detention admissions at the Johnson Youth Center from the district court for those. So, whatever those nuances are, we are ending up with people detained at our youth facility for failure to appear on these issues." Number 2345 REPRESENTATIVE JAMES asked what kind of statistics Mr. Buttcane had regarding the admissions to the Juneau youth facility. She asked how long people were detained and what has happened to them following that. MR. BUTTCANE replied that he did not have specific numbers broken down in that way, although he believed they could be obtained. "They are identifiable cases, and we could summarize what they look like," he added. Number 2366 REPRESENTATIVE JAMES suggested they meet about that later. She said she has always been a proponent of the reform school concept, mostly because many of her foster kids came from that concept. She noted that many offenders are not "super-bad" but will not mind their parents, who have lost control of them. She wanted to know whether that was the last they heard from kids put in that system for minor infractions or whether their behavior worsened because of the influence of others in the system whose misbehavior was more serious. MR. BUTTCANE indicated the department could provide that information. Number 2412 REPRESENTATIVE BUNDE mentioned "turnstile jumping" in New York and suggested that youth who violated curfew may in fact have committed more serious offenses as well. He agreed to not wanting to clog the "cinder block and bars" with simple curfew violations. However, failure to appear in court is a much more serious offense than a curfew violation. He concurred with exploring the idea of channeling that down a civil contempt route, so that there would be increased penalties for being a scofflaw. He said without that, there might as well be no curfew. TAPE 97-64, SIDE B Number 0006 [Begins mid-speech] MR. BUTTCANE said a truly civil track still provides the consequence for noncompliance with some social order without the expense of detention. He advised that he would ask department employees to look into that and clarify it. CHAIRMAN GREEN noted that except for the court's fiscal note, the others were zero fiscal notes. He asked who would ensure that the youth do what they are supposed to do. Number 0030 MS. MAYNARD replied, "I assume the court system." REPRESENTATIVE BERKOWITZ said normally, fines go through the court clerk, who keeps track of those. CHAIRMAN GREEN said his question related to Section 6 and the ability to do community work. MS. MAYNARD responded, "Actually, some judges already assign community work, although evidently you can't mandate it. But some of them do. Judge Froehlich here in Juneau has assigned community work to some kids, and they find that those kids pay more attention than if ... some parent pays a $250 fine." CHAIRMAN GREEN asked, "But doesn't it require somebody to be with the person or persons that are doing community work?" MS. MAYNARD said she did not know. Number 0070 REPRESENTATIVE BERKOWITZ explained, "Usually what happens is, if there is court-ordered community work service, it's done through the ASAP program, and ASAP monitors the amount of work that's done. So, if someone has an eight-hour work requirement, they would check in with ASAP; ASAP would send them off to do a job; there would be some sort of supervision; and they would come back and their eight hours would be checked off. ASAP would send something back to the court, and the court would know that the work had been completed. ... That's the norm, and I would imagine that this program envisions expanding that supervision to tribal councils and some of the other entities that are designated, some kind of supervision." Number 0110 REPRESENTATIVE PORTER pointed out that the Alcohol Safety Action Program (ASAP) exists only in Anchorage and Fairbanks. Other communities approach it differently but have some accountability mechanism. He referred to the desire not to have a warrant result from failure to appear and asked: Is the parent notified at the time that the original curfew violation citation is issued? MS. MAYNARD replied, "Under this, the parent has to come to the court with the child." REPRESENTATIVE PORTER asked: Why not change that to an order to show cause against the parent? He asked whether this kind of offense could go through a magistrate's office if that was the only option. He further asked whether "district court" included a magistrate. MR. BUTTCANE responded, "That's the way we understand the intent of this." Number 0158 REPRESENTATIVE BERKOWITZ referred to Representative Porter's suggestion about an order to show cause. He said although he was not taking a position because he had not yet thought it through, there has been much discussion about vicarious liability, making parents responsible for children. To his knowledge, that had been extensively litigated. He suggested before they required an order to show cause, they should explore that. REPRESENTATIVE PORTER responded that over the last four or five years, the legislature has passed several statutes that go towards recognizing parental responsibility and increasing parents' financial responsibility for property damage by children. He does not believe there is a constitutional issue when the parent is properly put on notice. He pointed out that an order to show cause is not a finding. He suggested if it is required that the parent be notified of the original citation, in effect it is the parent who fails to come to court, not the child. Number 0226 CHAIRMAN GREEN said, "This says the parent, guardian or legal custodian." He asked: If it were under the DFYS, would someone from that agency be there during the sentencing? MS. MAYNARD replied, "Or the foster parent, if they were in a foster home." CHAIRMAN GREEN asked whether that person would be held accountable as well. REPRESENTATIVE PORTER replied, "Well, what we're talking about is someone who fails to appear in response to the original citation. And the parent or guardian is notified and asked to appear with the child for that appearance. And that's made before the scheduled time of the appearance. So, to me, it is the parent who is saying, `I'm not going to be responsible for showing up here,' not the kid. So, why not, if we're going to take an action because of that failure to appear, why not take it against the person that's responsible?" Number 0296 REPRESENTATIVE BUNDE said while he was not unsympathetic to that point, having authored the bill that increased financial responsibility, it also provided a "hammer" to an incorrigible young person who wanted to make life difficult for his or her parents, if the parents would be in contempt for the young person's failure to appear. REPRESENTATIVE PORTER responded that an order to show cause is not a criminal charge; it is a "rather forceful subpoena" that tells them to come before the court to explain why the court should not presume that the failure to appear should be treated seriously. Number 0340 REPRESENTATIVE BUNDE said that increased his comfort level somewhat. However, he believed both parent and child should be required to appear for a curfew violation, not the parent alone. REPRESENTATIVE PORTER said he would presume that would be the order. Number 0368 REPRESENTATIVE JAMES said she agreed with Representative Porter on this. However, either these kids are minors and under parental control or they are not; there must be consistency. Unless a minor has been emancipated or is under the responsibility of the DFYS, she believes that "anything done to the kids" must include the parents. Number 0440 REPRESENTATIVE BERKOWITZ pointed out that they had just passed a juvenile crime bill through committee that said the opposite, that juveniles could be treated as adults. He said the requirement that parents or guardians be present at all proceedings has to do with the juveniles' ability to knowingly, intelligently and voluntarily waive any rights that attach during a proceeding. The focus is on the juvenile, with the parent or guardian in the position of ensuring that the juvenile knows what is going on. Traditionally, the requirement has not been in recognition of parental rights but rather in recognition of the juvenile's understanding of his or her rights. Number 0483 REPRESENTATIVE JAMES also referred to the juvenile crime bill. She said when a minor commits a crime against a person, that is a different situation; had they kept the parents involved with earlier transgressions by that child, that might not have occurred. But by the time it happens, public safety is a concern, which is one reason they want to come down harder on those with crimes against a person. Number 0516 CHAIRMAN GREEN called an at-ease at 2:22 p.m. [END OF TAPE 97-64] TAPE 97-65, SIDE A Number 0006 CHAIRMAN GREEN called the meeting back to order at 2:30 p.m. He asked if there were further questions or comments. He then announced he would hold the bill over and check with the Department of Law. Number 0105 REPRESENTATIVE NORMAN ROKEBERG apologized for being late and asked whether they had addressed the issue of why only the elderly and disabled were identified for community work. MS. MAYNARD responded that it did not mean "only." In rural communities, people felt this was where services could be used. REPRESENTATIVE ROKEBERG said it seemed restrictive and he had concerns about it. CHAIRMAN GREEN advised that the committee would try to hear the bill again on Monday, April 28.