Legislature(2005 - 2006)BUTROVICH 205
04/04/2005 01:30 PM Senate HEALTH, EDUCATION & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| HB85 | |
| SB10 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 85 | TELECONFERENCED | |
| += | SB 10 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 10-PARENTAL LIABILITY FOR CHILD'S DAMAGE
CHAIR FRED DYSON announced SB 10, version C, to be up for
consideration.
SENATOR GUESS, sponsor, explained that SB 10 focused on civil
liability and lifting the current civil liability caps for
vandalism. Research has led her in many directions and into a
fairly comprehensive, very different CS. The process for
recovering restitution from vandalism is that first a suspect
has to be identified and then he needs to go through some type
of channel whether it's criminal or civil. "Then we have to
collect."
School districts have said that it's more difficult to find who
committed the smaller vandalisms, but vandals of the over
$100,000 in damages cases are usually found, but this bill does
not address that issue.
Currently, different restitution processes are used for
different crimes and most juvenile crime goes through an
informal process in the juvenile justice system. It holds the
offender accountable while protecting the public and supporting
the development of social and personal skills. A probationary
deal is brokered with the perpetrator. Restitution isn't
required, but accountability is one of the goals. Parent
liability can be required, but juvenile liability is the main
focus.
On the other hand, the criminal adjudication process says that
you have to have suitable restitution, but it does not
definition what that is. It holds both the parent and the
juvenile liable and leaves it up to the judge to determine what
happens.
On the civil side, there are limits for vandalism, but other
crimes are limited by other tort reform and apportionment of
fault. This committee substitute is needed, because parent
liability is capped for vandalism and there is no juvenile
liability.
1:56:09 PM
SENATOR GUESS said she included all crimes and tried to make
accountability and restitution consistent. However, she ran into
equal protection issues when one crime, specifically, was
treated different from other crimes. She excluded shoplifting
because the shoplifting statute is already well thought-out. She
thought the committee should discuss whether the bill should
cover only vandalism or all crimes and discuss the equal
protection issues. She pointed out that she applied the adult
statute, which pays the victim full restitution.
2:00:10 PM
She explained that ninety-nine percent of crimes are under
$5,000, so a student would be accountable for up to that amount;
and parents would be liable for up to $15,000, which is the
current civil cap. The list of people the bill exempts from the
parent liability consists of current criminal and civil
exemptions. Additionally, the bill allows a driver's license to
be revoked for repeated alcohol, drug and possession of weapons
charges, but no other charges. Judges and other people who have
worked with youth have all said the best deterrent is revoking a
driver's license and she decided to use that for all crimes at
the misdemeanor and felony levels. PFDs can also be garnished if
restitution is not paid and the court can order people to apply
for a PFD if they are in this situation.
2:03:37 PM
SENATOR ELTON asked if an insurance company could be considered
a victim if it paid the damages through a claim.
SENATOR GUESS responded that the victim is always the owner of
the property.
SENATOR ELTON asked if the victim would collect the entire
damage amount or the remainder beyond the settlement.
2:05:41 PM
SENATOR GUESS replied that the bill does not address that
question, but maintains that the family and the perpetrator pay
full restitution to the victim.
CHAIR DYSON said that it is his intention that the victim is not
paid twice, but if the victim had insurance that restored his
property to him, the insurance company could collect from the
perpetrator.
2:07:34 PM
SENATOR ELTON asked if the parent could pay the child's
liability.
SENATOR GUESS answered that they could, but the child would
still be the responsible party.
SENATOR ELTON asked regarding page 8, line 23, whether a parent
would be liable for restitution if they report their child. He
didn't want a suspect to skate because the parent would have to
pay $15,000. He was not interested in the parent of a runaway,
but in the parent of an at-home child who knows their child is
responsible for a crime.
2:09:31 PM
SENATOR GUESS responded that could happen, but right now a
parent might not know he may be jointly responsible for his
child's criminal action and this bill may not elevate that
knowledge.
2:11:33 PM
SENATOR ELTON said the committee should consider adopting an
amendment that would allow parents to do the right thing without
facing a financial disincentive for doing so.
SENATOR GREEN asked if a parent could be regarded as an
accessory to a vandalism crime if he does not report his child.
CHAIR DYSON replied that he thought a parent could be considered
an accessory in such a situation, because he would gain a
benefit.
2:13:35 PM
SENATOR GREEN asked if the title should mention criminal actions
as well.
SENATOR GUESS replied that she was right and the title should be
corrected to reflect the bill.
SENATOR GREEN said that sometimes hard-to-place children are
place with families when they are one year old and asked:
One would assume that 14 years later we've made some
strides, because they would have been receiving...and
financial assistance. Is there any ability to place a
time-frame around the time in-house...? I don't think
because someone has a hard-to-place child in their
home that they should be absolved forever from being
responsible for the action.
SENATOR GUESS responded that the first reference was on page 4,
line 5, and that was pulled for current statute. The juvenile
never gets exempted, although sometimes the parents do.
2:16:17 PM
CHAIR DYSON added that subsidized foster children are evaluated
and reclassified relatively frequently and this may address
Senator Green's concern. He did not want to raise barriers for
people who take in hard-to-place children.
SENATOR GREEN informed the committee that the parent must
initiate the reclassification process, not the state.
2:19:15 PM
SENATOR WILKEN said the revocation of a driver's license would
not deter children and may be an unnecessary punishment in
reference to page 2, line 20. He asked if there was a definition
of "harms a person" and asked if the harm could be mental as
well as physical.
SENATOR GUESS answered that she was told by the drafter that
language would encompass any crime.
SENATOR WILKEN said he appreciated the intent of the bill, but
he didn't understand the driver's license link. The effect of
losing a driver's license is that a 17-year old is put on the
street without a driver's license or insurance and that could
make the problem worse. "It's too big a hammer for what we are
trying to do.... Why is everything else bad, but shoplifting is
just sort of bad?"
2:22:02 PM
SENATOR GUESS responded that the committee could remove the
driver's license language if it chooses to do so, but experts
informed her that suspending a driver's license has proved to be
a very effective deterrent.
The shoplifting statute is very unique she said because of the
difference in magnitude of offenses and the provision she
included accommodates minor shoplifting offenses.
SENATOR OLSON felt that suspending a driver's license was an
appropriate and effective deterrent to vandalism, which is
becoming more and more rampant. So he did not support taking
that provision out. However, shoplifting is often committed
inadvertently and he thought the bill should accommodate that
also.
2:26:05 PM
SENATOR WILKEN asked whether payment of damages in a felony
incident would affect the placement of the crime on the child's
adult record.
SENATOR GUESS advised that a felony incident would be dealt with
as it is today in a sealed record.
SENATOR WILKEN said the Anchorage School District recently paid
a surprisingly large portion of its budget to repairing
vandalism damage and recovered only a small part of it. He
speculated that given the low recovery rate, SB 10 might cause
the school districts to incur more legal fees to chase the
little things they don't have any success in getting anyhow.
SENATOR GUESS acknowledged that school districts recover very
little restitution for vandalism cases. Current civil and
criminal procedure caps the amount of recoverable damage and SB
10 would help to reverse the "leave it to insurance" attitude
that prevails today.
2:31:04 PM
SENATOR WILKEN said there is a difference between vandalism
committed to a person and vandalism committed to a larger
institution.
SENATOR GUESS responded that her intent was to try and get more
restitution out of the informal criminal system so school
districts don't have to spend any money on legal fees versus
everything is civil now where many districts determine it's just
not worth it to go after.
2:33:32 PM
CHAIR DYSON related that the police department has concluded it
is more effective to prevent criminal development early in life.
Also, he pointed out that if Senator Guess is successful in
getting the criminal process to take care of restitution orders,
the system would have gained a whole lot. He also had a judge
tell him that it is up to the civil department to collect on a
restitution order. However, their records are so antiquated on
who is making restitution payments that the data is not readily
available to the criminal section.
SENATOR WILKEN said he is surprised that there is no fiscal note
from the Public Defenders Office since he thought some folks in
the state would require immediate representation.
CHAIR DYSON asked the sponsor if she considered the bill's
definition of harm since mental harm is a rather vague term.
SENATOR GUESS remarked that the definition was adopted at the
request of the drafters, but some people have suggested limiting
the language to property harm versus harm to a person and she
would consider that if the committee wants. She would need more
discussions with the drafter on constitutional problems,
however.
2:40:18 PM
CHAIR DYSON said he thought the definition of harm might already
be in existing statute under assault. So, harm to a person might
already be covered and she might not be losing anything by
restricting this language to crimes against property.
SENATOR ELTON expressed concern about creating a financial
disadvantage for parents reporting their children. He asked the
sponsor to consider allowing insurance companies to be
considered victims.
2:42:26 PM
SHELDON WINTERS, State Farm Insurance Company, said case law
says the property insurer steps into the shoes of their insured
and if State Farm covers a loss, it has the option of pursuing
legal action against the perpetrator.
MR. WINTERS said he was concerned that the current definition of
harm creates a new cause of action and with the concept of
attaching liability for personal injury claims to a parent. He
said that the phrase "harms the person" is the language of
greatest concern.
2:45:44 PM
SENATOR ELTON asked Mr. Winters if he is more concerned with
emotional damages other than physical damages.
MR. WINTERS replied that he is concerned with physical damage as
well. He explained:
The history is simply this. It all goes back to
holding a parent vicariously liable for the conduct of
a child even when the parent did nothing wrong. I keep
using the term "Super Dad" or "Super Mom." The history
is this. Public policy through the court system
through a couple hundred years of case law has
consistently held that parents are not liable for the
torts of their children simply because they're
parents. They may be liable if they negligently
supervised their children. If they did something wrong
and knew this child had the propensity to go out and
commit whatever act of vandalism or assault people,
then certainly there is a cause of action or a duty on
behalf of the parent of the cause of action for
violating that duty. But the concern is about again
the Super Dad or the Super Mom - the kid has done
nothing wrong in the past; there's no history there;
there's no reason to believe that the parent should be
doing anything other than what they are doing and then
goes out and commits the one act and the parent is on
the hook for that. That's the policy level concern,
question - that we have - is why we need to be doing
that.
Alaska, through AS 34.50, years ago decided to address
that issue in the context of vandalism and they said a
parent is basically vicariously strictly liable for a
child's act of vandalism, but limited up to $10,000. A
couple of years ago through continued discussion
raised that to $25,000. It's something completely
different now to morph that into a parent's strict
liability for what would be emotional distress or even
a fight that a kid may get into....
2:48:44 PM
SENATOR ELTON responded that the bill caps the parental
responsibility at $15,000 and the "super parent" argument he
made is equally applicable whether it relates to vandalism and
property damage or damage to a person that requires extensive
reconstructive surgery and asked whether the distinction was
artificial.
MR. WINTERS replied that he didn't think there was a realistic
reason to have a distinction between vandalism and personal
injury. But the vandalism law is now on the books and the
question is if it is going to be expanded to something way
beyond vandalism and include all personal injury. He was real
concerned about that. He had also researched the company's
claims history to find if the cap had ever precluded them from
recovery and couldn't find any instance where it had. State Farm
had only four of these claims in the last couple of years. With
this change, they would have a lot more claims and lawsuits. His
concern is that the parent would be sued in every instance the
child does anything wrong and that is his concern.
2:50:18 PM
MR. WINTERS said the word "harm" is open to a large number of
interpretations in this bill and it should be limited and
defined.
CHAIR DYSON asked him if their disclaimer of not paying for
criminal activities had ever been challenged.
MR. WINTERS replied no. Their policies do not cover a child's
intentional conduct, but this statute imposes liability on a
parent regardless of the conduct - whether it's intentional or
not.
CHAIR DYSON remarked in a recent case, a child caused far
greater damage with a fire than he intended. He asked what would
happen if a child caused great damage accidentally.
MR. WINTERS replied that the only limitation in the CS under the
civil statute it that the action doesn't have to be a crime. The
only limitation on the type of conduct is that it is done
intentionally or knowingly, language that comes from criminal
statutes, which is less than intentional.
CHAIR DYSON asked the sponsor to consider whether she wanted her
bill to deal with criminal activity or to include accidental
activity that would include damages that would only proceed in
civil court because there was no criminal activity.
SENATOR ELTON said he thought that covering physical harm to a
person could be a little bit of a wash.
2:54:07 PM
SHARON BARTON, Director, Permanent Fund Dividend Division,
Department of Revenue (DOR), said she was available to answer
questions.
CHAIR DYSON asked her if she saw any problems with the concept
of using permanent fund checks for restitution in vandalism
cases.
MS. BARTON replied that she could not see any problems with
processing those claims.
2:57:43 PM
SENATOR ELTON asked if releasing Permanent Fund information in
connection with a vandalism incident could be considered a
breach of sealed juvenile records.
MS. BARTON replied that her division sees no detail behind the
garnishments. It simply receives the list of garnishments with
the certification from the court system that they are all
legitimate.
SENATOR OLSON asked how the division would prioritize
garnishment in vandalism cases.
MS. BARTON referenced page 5 of the bill that listed the
priorities of the division for garnishment and this writ was
number five.
SENATOR OLSON asked if perpetrators could be forced to file an
application for a PFD so it could be garnished.
MS. BARTON replied that she knows that some judges impose such
requirements on other kinds of crimes, but her division does not
track them.
3:01:16 PM
LARRY WIGET, Director, Government Relations, Anchorage School
District, thanked the committee for its efforts on this
legislation.
CHAIR DYSON said he would hold SB 10 in committee. There being
no further business to come before the committee, he adjourned
the meeting at 3:04:38 PM.
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