Legislature(1995 - 1996)
02/14/1996 08:07 AM House RES
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 386 - CRUELTY TO ANIMALS Number 2048 REPRESENTATIVE BEN GRUSSENDORF addressed the proposed committee substitute for HB 386. He said the proposed changes offer prosecutors a more workable statute. Changing "intentionally" to "knowingly" lowers the state of mind the state must prove in prosecuting a case. Changing the wording which describes the animal's level of suffering offers more options under which to prosecute and lowers the difficult standard which exists. Number 2159 REPRESENTATIVE GRUSSENDORF discussed the term reckless. He said in order to prove cruelty through neglect, current law requires that the accused acted "recklessly" which means "a person is aware of and consciously disregards a substantial and unjustifiable risk that the result with occur." Number 2198 REPRESENTATIVE GRUSSENDORF stated that the main thrust of the proposed committee substitute for HB 386 is the penalty section. He said a lot of local governments had contacted his office and said they would like to have the power in regards to cruelty to animals. He said Section 2 and Section 5 allow first and second class boroughs to exercise this power. REPRESENTATIVE GRUSSENDORF said there was some concern with Section 3 and Section 6 where some boroughs said they had ordinances that they were operating under and might have to change what they are doing. He offered a proposed amendment to take care of those concerns: Page 2, line 8: Delete "inconsistent with" and insert "more stringent than." Page 2, line 22: Delete "inconsistent with" and insert "more stringent than." Number 2297 REPRESENTATIVE GRUSSENDORF stated that his bill does not apply to lawful hunting and trapping activities and clarified that his intent is not to regulate, but just to be specific with the prevention of cruelty to animals. Number 2397 CO-CHAIRMAN GREEN asked for the adoption of Committee Substitute of HB 386.C as the working document. Hearing no objection, it was so ordered. CO-CHAIRMAN GREEN asked the sponsor if he would like the Resources Committee to move the amendment on page 2, lines 8 and 22. Number 2450 REPRESENTATIVE AUSTERMAN moved to adopt the amendment to CSHB 386. Hearing no objection, it was so ordered. Number 2465 REPRESENTATIVE OGAN asked if the Iditarod Trail Committee or any other dog racing association had contacted Representative Grussendorf about this bill. REPRESENTATIVE GRUSSENDORF asked his staff, Terri Tibbett, to come forward.....(change tape) TAPE 96-16, SIDE B Number 000 TERRI TIBBETT, Legislative Staff to Representative Grussendorf, responded that HB 386 is now before the Iditarod Trail Committee and has not received an official endorsement but, unofficially, Mr. Stan Hooley had expressed his support. Number 039 MS. TIBBETT said the Alaska Animal Control Association also supports HB 386. Number 049 REPRESENTATIVE OGAN asked for more background information on the introduction of this bill and the intent. Number 122 REPRESENTATIVE GRUSSENDORF discussed with the committee the terms of negligence, intent and preponderance of the evidence. Number 153 REPRESENTATIVE LONG related a story about Polar Bears coming into the City of Barrow and having to be chased away. He said people complained about cruelty to the Polar Bears. He said when Polar Bears come to town, they eat people, they are dangerous. He asked if there is a distinction between wild and domesticated animals. REPRESENTATIVE GRUSSENDORF said there is a distinction between wild and domestic animals. He said unless we have a special permit, you and I cannot have control over a wild animal. Number 235 REPRESENTATIVE OGAN asked if criminal negligence was a misdemeanor. He said he takes exception when the state will not pass a statute making it criminally negligent to kill people but we are asking for a statute to make it criminally negligent to kill animals. He said he cannot support this bill and, therefore, put a higher priority on an animal's life than a human's life. Number 341 JERRY LUCKHAUPT, Legislative Counsel, Division of Legal Services, Legislative Affairs Agency, said that Representative Ogan's comments would be better addressed by the Department of Law. He said Alaska has a criminally negligent homicide statute that penalizes the killing of a person with criminal negligence in this state, that is a Class E Felony. He expounded on criminal negligence and Class E Felonies. MR. LUCKHAUPT said that HB 386 reduces the requisite mental states or cruelty to animals in the first degree from intentional conduct to knowing conduct. In this case, it would be intentionally inflicting severe physical pain or prolonged suffering on an animal. Number 509 REPRESENTATIVE AUSTERMAN felt that Representative Ogan's concern was a separate issue and stated that he supports HB 386. Number 540 MICHAEL GATTI, Borough Attorney, Matanuska-Susitna Borough, thanked Representative Grussendorf for bringing the bill forward and stated that it is generally a good bill. He said amending the standard for establishing cruelty to animals is a good step forward because these cases can be difficult to prosecute. MR. GATTI referred to his letter of February 13 to Representatives Ben Grussendorf and Scott Ogan outlining municipal concerns about language in Sections 3, 4, 5 and 6 of HB 386. He said the bill amends the animal control power that is set up by ordinance to prohibit cruelty to animals. He said animal control regulations includes a number of activities other than license, impound, regulate, prohibit cruelty to, or disposition of animals. While the language "prohibit cruelty to" is good language, a good amendment would be to insert instead license, impound, regulate, prohibit cruelty to those animals. MR. GATTI said with respect to municipal powers, they are liberally construed and you would not want to restrict municipal powers in a particular area because they should have the discretion and flexibility to deal with different geographical, social and economic conditions. He said a good example is the Polar Bear story. He said animal control in rural areas is much different that animal control in Anchorage or even Mat-Su. You would not want to undermine the principle that municipal powers are liberally construed. MR. GATTI said if you look at the various municipal animal control codes you will find that not only do they regulate licensing, impounding, cruelty and disposition of animals, but they are concerned about barking dogs, sanitary enclosures, diseased animals, animals near the street, kennel licensing, rabies certificates, adoption, rabies control. If a municipality does not follow the power through an election to make sure that it encompasses all those activities, it could be limited from engaging in those activities. MR. GATTI suggested the word "regulate" be included in those sections because that will allow municipalities more flexibility to protect the public interest. Number 780 MR. GATTI referred to subsection (e) of Sections 3 and 6. He felt that subsection (e) is not needed because municipalities cannot have criminal penalties more stringent than a misdemeanor. He said Title 29, for second class boroughs, limits a municipal penalty for misdemeanors to a $1,000 fine or 90 days in jail. He said that municipalities do not have the jurisdiction to develop felony offenses, and it is his understanding that the state would be responsible for that. A municipality cannot have laws more stringent than the state. Number 859 CO-CHAIRMAN GREEN said that the next committee of referral is the House Judiciary Committee. He said the legality issue might be better addressed by House Judiciary. Number 871 EDNA ANDERSON, President, Farm Bureau - Kenai Chapter, testified from Homer saying that most of her questions had been addressed by previous witnesses. Number 887 JIM JENNINGS testified from Fairbanks that he has been involved with animals for 25 years as a horseshoer. He said what you are trying to do here is give boroughs authority without a vote of the people of the boroughs. He said if there is a problem in the borough, the borough has the ability to go to the vote of the people. It may be costly, but the people are going to pay the bill one way or the other. MR. JENNINGS noted that nowhere in HB 386 does it call for a veterinarian to make the diagnostic call on cruelty to animals. He predicted that without the diagnostic call by a licensed veterinarian, there could be litigation that could cost the borough or the state financially. A licensed veterinarian is the only one who can make a diagnostic call on an animal that will hold up in a court of law. Number 1026 BEVERLY NESTER testified from Fairbanks stating that the language changes in HB 386 are very disturbing to her. The intent, as she understands it, is to lower the standards of intent of cruelty so as to more easily charge an accused and offer more options to prosecute. She feels that if a person is negligent but does not mean to cause harm, they should not be guilty of a crime and should be given a chance to amend the problem without the harassment from power groups. MS. NESTER listed multiple concerns and talked about a concern with selective enforcement and discrimination. She said all citizens should be treated equally under the law including the people in Juneau, Fairbanks, Anchorage, Barrow, Wainwright and Nome. She said if the state foots the bill in unorganized boroughs, it should also foot the bill in the first and second class boroughs. She recommended that any amendments require a vote of the people rather than an ordinance of the borough. Number 1162 DIXIE JENNINGS testified that her concerns echo the two previous speakers and she had nothing new to add. Number 1199 DAN LaSOTA, Assemblyman, Fairbanks North Star Borough, distributed a memorandum dated September 7, 1995 outlining a history of the borough's authority to prosecute cruelty to animals. A second class borough can exercise powers that are approved by the voters and the legislature. MR. LaSOTA said beginning in 1965, the voters approved dog control and, in the ensuing years, various powers were granted by the state through statute. MR. LaSOTA talked about a recent incident involving an owner and a pig. The judge ruled that in a 1978 borough ordinance, the borough adopted more powers than it was entitled to. Specifically, in relation to cruelty to animals, the judge ruled that the borough only has the power to prohibit cruelty to dogs. Cats, pigs and snakes are out of the borough's bounds. MR. LaSOTA stated that further advice from their attorney indicated that there were two options for the borough's cruelty ordinance: go to the voters or have the legislature grant those powers. MR. LaSOTA said the FNSB intent is to get back those powers and the borough passed resolution 95-062 relating to cruelty to animals. MR. LaSOTA said that by asking the state to grant these additional powers, there will be no additional fiscal impact. He said the proposed committee substitute for HB 386 is the best vehicle to attain what the borough needs. Number 1442 REPRESENTATIVE DAVIES clarified that the operative word in the bill is "may" and does not require any municipality to adopt this. It just allows them to adopt it. MR. LaSOTA said that his intent is, if legislation passes during this session, to bring forth an ordinance and hold lengthy public hearings. If the legislation does not pass, his intention is to put it on the ballot. Number 1505 ANNE CARPENETI, Attorney, Criminal Division, Department of Law, testified that the department supports the committee substitute for HB 386. She clarified that this is still a crime and if the state brings charges under this statute, we are obliged to prove our case beyond a reasonable doubt in order to obtain a conviction. She said by changing the mental states required for the state to prove its case, you are still requiring the state to prove that the defendant who is charged with the offense acted, at least, under paragraph 2, with criminal negligence which is different from the standard in civil negligence. She said this is found in the definition section of Title 11. A criminal negligence is a gross deviation from the standard of reasonable care. Civil negligence is less of a deviation. This bill does not reduce the standard of burden of proof in terms of reducing it beyond any state of a crime. The state is obliged to prove, beyond a reasonable doubt, that the person acted with criminal negligence under paragraph 2, and knowingly under paragraph 1. Number 1631 CO-CHAIRMAN GREEN asked the wish of the committee. Number 1637 REPRESENTATIVE DAVIES moved that CSHB 386 amended (RES) move from the House Resources Committee with individual recommendations and attached fiscal note and a note from Chairman Green to the House Judiciary Committee to consider the issue of "regulation." There was an objection, so a roll call vote was taken. Representatives Austerman, Davies, Kott, Long, Nicholia, Williams and Green voted in favor of moving the bill. Representative Ogan voted against moving the bill. So CSHB 386 (RES) moved from the House Resources Committee.
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