Legislature(1997 - 1998)

04/25/1997 01:06 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 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.                                               

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