Legislature(2005 - 2006)BUTROVICH 205
02/01/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB10 | |
| HB101 | |
| HB148 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 10 | TELECONFERENCED | |
| += | HB 101 | TELECONFERENCED | |
| += | HB 148 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 10-PARENTAL LIABILITY FOR CHILD'S DAMAGE
8:38:01 AM
CHAIR RALPH SEEKINS announced SB 10 to be up for consideration.
SENATOR GRETCHEN GUESS moved to adopt CSSB 10, version W as the
working document before the committee. Hearing no objection, the
motion carried.
8:38:51 AM
SENATOR GUESS, sponsor of SB 10, offered to start off by
reporting her answers to the questions that were raised during
the previous hearing of the bill. She said currently the state
is not liable for acts of vandalism committed by children who
are in state's custody. She suggested the committee decide
whether or not to hold the state liable in this situation. She
said constitutional issues could arise from the committee's
decision because SB 10 is a bill concerning crimes against
property instead of people. She recommended that the committee
make its decision with regard to the best policy decision and
then resolve constitutional issues as they arise.
With regard to an earlier question by Senator French, she said
the same collections process that is applied to other adults
would be applied to juvenile perpetrators when they become 18.
With regard to an earlier question by Chair Seekins, she said
credit-reporting agencies are informed of outstanding payments
owed by perpetrators to victims so that wouldn't be any
different than with the average person.
With regard to an earlier concern of Mr. Newman, she said she
has an amendment to allow juveniles to use vehicles to fulfill
the conditions of their parole.
8:41:24 AM
CHAIR SEEKINS said he felt the state should be held liable for
acts of vandalism committed by children under its custody
because it would be unfair to deny compensation to the victims
for the mere reason that they are wards of the state. He said he
would support an amendment that would establish the state's
liability in such cases.
SENATOR GUESS offered that one of her proposed amendments would
establish state's liability. She said:
I think, Mr. Chair, as you stated, this bill is a
balance, it is a balance of policy calls, of who and
how are we going to hold people accountable, and then
ensuring that victims are being taken care of at the
same time. If the committee believes that we should go
in this direction I don't have any objections, I think
that it is a good decision that the committee should
make.
SENATOR GUESS moved Amendment 1.
24-LS0115\W.3
Cook
A M E N D M E N T 1
OFFERED IN THE SENATE BY SENATOR GUESS
TO: CSSB 10( ), Draft Version "W"
Page 4, following line 24:
Insert a new bill section to read:
"* Sec. 7. AS 34.50.020(b) is amended to read:
(b) A state agency or an agent of a state agency [ITS
AGENTS], including a person working in or responsible for
the operation of a foster, receiving, or detention home, or
children's institution, is [NOT] liable, to the same extent
a parent is liable under (a) of this section, for the acts
of unemancipated minors in the [ITS] charge or custody of
the agency or agent. A state agency or an agent of a state
agency, including a nonprofit corporation that designates
shelters for runaways under AS 47.10.392 - 47.10.399 and
employees of or volunteers with that corporation, is [NOT]
liable, to the same extent a parent is liable under (a) of
this section, for the acts of a minor sheltered in a
shelter for runaways, as defined in AS 47.10.399."
Renumber the following bill sections accordingly.
Page 8, line 3, following "index.":
Insert "A state agency or an agent of a state agency,
including a person working in or responsible for the operation
of a foster, receiving, or detention home, or children's
institution, is responsible for restitution, to the same extent
a parent is responsible under this subsection, for the acts of
minors in the charge or custody of the agency or agent. A state
agency or an agent of a state agency, including a nonprofit
corporation that designates shelters for runaways under
AS 47.10.392 - 47.10.399 and employees of or volunteers with
that corporation, is responsible for restitution, to the same
extent a parent is responsible under this subsection, for the
acts of a minor sheltered in a shelter for runaways, as defined
in AS 47.10.399."
Page 8, line 23:
Delete "from"
Page 8, line 24, following "(1)":
Insert "from"
Page 8, line 25, following "(2)":
Insert "except as provided in (d) of this section, from"
Page 8, line 28, following "(3)":
Insert "from"
Page 11, line 26:
Delete "by"
Page 11, line 27, following "(i)":
Insert "by"
Page 12, line 5, following "(ii)":
Insert "by"
Page 12, line 6, following "(iii)":
Insert "except as provided in (m) of this section, by"
Page 12, line 9, following "(iv)":
Insert "by"
Page 14, line 22, following "index.":
Insert "A state agency or an agent of a state agency,
including a person working in or responsible for the operation
of a foster, receiving, or detention home, or children's
institution, is responsible for restitution, to the same extent
a parent is responsible under this subsection, for the acts of
minors in the charge or custody of the agency or agent. A state
agency or an agent of a state agency, including a nonprofit
corporation that designates shelters for runaways under
AS 47.10.392 - 47.10.399 and employees of or volunteers with
that corporation, is responsible for restitution, to the same
extent a parent is responsible under this subsection, for the
acts of a minor sheltered in a shelter for runaways, as defined
in AS 47.10.399."
Page 18, line 14:
Delete "sec. 7"
Insert "sec. 8"
SENATOR HOLLIS FRENCH noted he would be interested to hear the
reason that the state has never been held liable for children
who are wards of the state. He voiced agreement with Chair
Seekins on the issue as well as support for the amendment.
8:45:11 AM
Senator Gene Therriault joined the committee.
SENATOR CHARLIE HUGGINS expressed concern that the state could
be exploited under Amendment 1.
SENATOR GUESS explained that under the amendment, liability
would be capped at $15,000, just as it is for parents. She
clarified that in the case of foster parents, the state would be
held liable for vandalism committed by foster children.
CHAIR SEEKINS noted that without objection, Amendment 1 was
adopted.
8:47:38 AM
SENATOR GUESS informed the committee that all the amendments she
had prepared were requested by different parts of the
administration and that she supports all of them.
CHAIR SEEKINS moved Amendment 2.
SENATOR GUESS explained Amendment 2 was written in response to a
request from the Division of Juvenile Justice that juveniles
with suspended licenses be allowed to drive in order to meet
certain conditions of probation.
SENATOR THERRIAULT asked whether the amendment would replace the
entire section pertaining to revoked licenses.
SENATOR GUESS replied that it would not.
24-LS0115\W.1
Cook
A M E N D M E N T 2
OFFERED IN THE SENATE BY SENATOR GUESS
TO: CSSB 10( ), Draft Version "W"
Page 3, line 23, following "public.":
Insert "The court may also impose limitations on the
driver's license of a person who is under 18 years of age that
will enable the person to satisfy conditions of probation
without excessive risk or danger to the public."
CHAIR SEEKINS noted that without objection, Amendment 2 was
adopted.
8:48:40 AM
CHAIR SEEKINS moved Amendment 3.
24-LS0115\W.2
Cook
A M E N D M E N T 3
OFFERED IN THE SENATE BY SENATOR GUESS
TO: CSSB 10( ), Draft Version "W"
Page 4, line 9:
Delete "damages"
Insert "that portion of damages for which the parents are
liable"
Page 4, line 12:
Delete "minor is not liable, but the"
Insert "The"
Page 7, line 19:
Delete "the minor is not responsible, but"
Page 7, line 20:
Delete ","
Page 7, line 23:
Delete "the amount"
Insert "that portion of the amount for which the parents
are liable"
Page 14, line 6:
Delete "the minor is not responsible, but"
Page 14, line 7:
Delete ","
Page 14, line 10:
Delete "the amount"
Insert "that portion of the amount for which the parents
are liable"
SENATOR GUESS explained that Amendment 3 resolves a conflict
between two sentences in the outline of the payment structure of
the bill.
8:50:43 AM
CHAIR SEEKINS noted the amendment created a sentence with two
consecutive "the's."
SENATOR FRENCH concurred with Chair Seekins.
8:51:46 AM
SENATOR GUESS moved an amendment to Amendment 3. Delete the
phrase "insert the" from page 4, line 7 of Amendment 3.
CHAIR SEEKINS noted that without objection, the amendment to
Amendment 3 was adopted and that Amendment 3 was therefore
adopted.
8:53:26 AM
CHAIR SEEKINS moved Amendment 4.
24-LS0115\W.4
Cook
A M E N D M E N T 4
OFFERED IN THE SENATE BY SENATOR GUESS
TO: CSSB 10( ), Draft Version "W"
Page 1, line 5, through page 2, line 2:
Delete all material.
Page 2, line 3:
Delete "Sec. 2"
Insert "Section 1"
Renumber the following bill sections accordingly.
Page 2, lines 11 - 12:
Delete all material and insert:
"(2) revoke the person's driver's license for a
period of not less than six months but not to exceed one
year;"
Page 3, line 2:
Delete "AS 04.16.050(c) and (d)"
Insert "AS 04.16.050(d)"
Page 18, line 14:
Delete "sec. 7"
Insert "sec. 6"
SENATOR GUESS explained Amendment 4 was drafted in response to
concerns raised by the DOL over Section 1 of the bill's
reference to repeat minor consuming, which is not a misdemeanor,
and habitual minor consuming, which is a misdemeanor. The bill
is attempting to deal with all misdemeanors and felonies in the
same manner.
CHAIR SEEKINS noted that without objection, Amendment 4 was
adopted.
8:54:41 AM
CHAIR SEEKINS moved Amendment 5.
24-LS0115\W.5
Cook
A M E N D M E N T 5
OFFERED IN THE SENATE BY SENATOR GUESS
TO: CSSB 10( ), Draft Version "W"
Page 7, lines 1 - 7:
Delete all material.
Insert "allegation, including restitution to the victim
unless the restitution is expressly waived by the victim. In
determining the amount of restitution, the department or the
entity"
Page 13, lines 20 - 26:
Delete all material.
Insert "including restitution to the victim unless the
restitution is expressly waived by the victim. In determining
the amount of restitution, the court may not consider the"
SENATOR GUESS explained Amendment 5 was drafted by request of
the courts. It removes language about the bill's requirement
that restitution include repayment to third parties for
counseling and medical care. The courts asked to have that
language removed because going to third party restitution is
difficult in cases involving property crimes.
CHAIR SEEKINS noted that without objection, Amendment 5 was
adopted. He then called for public testimony.
8:56:35 AM
STACEY STEINBERG, Statewide Section Chief, Collections and
Support Section, Department of Law (DOL), said she was present
to address the impact that SB 10 would have on the collections
unit.
SENATOR FRENCH asked Ms. Steinberg to give the committee an
overview of the average amount of a claim, how successful the
department is in getting restitution, and a general overview of
the collections process.
MS. STEINBERG said she did not have specific numbers but the
unit began collecting restitution in January 2002. They collect
in adult and juvenile cases. Since 2002, they have opened a
total of 867 juvenile cases and have collected all of the
restitution of 472 cases. She did not have current information
on the average judgment but said she would estimate that
currently there are 100-125 juvenile cases with a balance of
over $5,000.
9:00:30 AM
MS. STEINBERG estimated out of the total number of cases they
have opened, 612 cases were joint and several, which is
generally a juvenile with another juvenile, or a juvenile and a
parent. They had approximately 255 cases that were not joint and
several.
SENATOR FRENCH asked who would be the person that sets the ratio
of liability.
MS. STEINBERG said currently the judge would decide if a case is
to be joint and several. An example of joint and several
liability is when a juvenile gets into trouble and goes through
the formal adjudication process, the judge determines the
appropriate restitution to be paid to the victim and who is
responsible to pay. The way joint and several liability works is
it means that anyone is responsible for the full amount of the
judgment. If the judgment is for $5,000, the one parent can be
held responsible for the entire amount or the Department can
collect from the juvenile. Basically the DOL unit can collect
from either party. If one party thinks the other party should
pay - that is an issue between the two.
9:03:09 AM
MS. STEINBERG it provides a mechanism that favors the victim.
For example if the juvenile does not have an income but the
parent does, the DOL can collect the money more quickly.
SENATOR FRENCH asked whether SB 10 would preserve that system.
MS. STEINBERG said SB 10 could make it take longer to collect
because they would only be able to collect so much from the
parent before they would have to collect from the juvenile. If
the juvenile were reluctant to make payments, they would have to
rely on garnishing the permanent fund dividend. Currently they
are able to collect from both the parent and the juvenile until
the entire amount is collected.
9:05:16 AM
CHAIR SEEKINS asked Ms. Steinberg the number of juvenile cases
they have who are wards of the state.
MS. STEINBERG did not know.
CHAIR SEEKINS said the committee was curious to know the number
of juvenile offenders in foster care.
MS. STEINBERG said they do not obtain that information. They
only get the judgment.
CHAIR SEEKINS asked the number of cases where there is no
liability listed for the parent.
MS. STEINBERG repeated the collections unit does not get any
additional information.
9:08:05 AM
CHAIR SEEKINS asked the number of sole liability out of the
total number of cases.
MS. STEINBERG said there were 255 cases up to date that were not
joint and several.
CHAIR SEEKINS speculated that was an indication.
SENATOR GUESS noted the cases Ms. Steinberg was referring to
were all crimes against property and persons. Also courts look
at the ability of the child to pay. There is no data to suggest
that if the restitution was paid then all of the damage was paid
because is it not a one-to-one relationship, especially in
juvenile cases. SB 10 does not restrict a parent from giving
their child the money to pay the restitution. She asserted it
was important to start holding juveniles accountable even if
there might be a slow-down of restitution.
9:12:39 AM
SENATOR FRENCH commented he is struggling with whether the
victim would be getting further punished by waiting for the
juvenile to pay restitution.
CHAIR SEEKINS agreed.
SENATOR GUESS said there was currently a case in court where the
damage was over $120,000 but the judgment was for only $5,000
because that was all that the child could pay.
SENATOR THERRIAULT said he worked on this section of the statute
years ago and remembered that they had to be mindful not to set
up a system where a child could impose a lot of damage to get
back at the parents for something the child felt they deserved.
9:16:06 AM
SENATOR FRENCH asked Ms. Steinberg whether she reads Amendment 1
as though it makes foster parents liable.
MS. STEINBERG responded she is not the best person to answer
that question because the collections department does not
determine who is responsible for paying money to a victim. They
work only off of the judgment.
SENATOR FRENCH commented it is a different set of lawyers that
go to court and argue about the amount of restitution and who
should pay it.
MS. STEINBERG agreed. Someone in the criminal division handles
those matters. She remarked that she was testifying on behalf of
the civil division, which simply collects the restitution
judgments.
9:18:44 AM
SENATOR GUESS said she believed it was the intent of the
committee to hold the state, not the foster parents, liable for
children under its custody. She would work with the drafters to
ensure that the bill reflects that intent.
CHAIR SEEKINS agreed that was the intent.
LARRY WIGET, Director of Government Relations, Anchorage School
District, thanked the committee for discussing the issues
pertinent to the bill. His testimony was as follows:
The Anchorage School Board urges the Legislature to
allow a school district to recover with appropriate
judicial protections, the full amount of damages to
school property from an unemancipated minor from
either parent, both parents, or the legal guardian of
a minor, who as a result of knowing or intentional
act, destroys real or personal property belonging to a
school district.
Vandalism damages a schools physical plant, has a
negative impact on student learning and demoralizes
hard working staff and students. Every taxpayer dollar
spent on repairing vandalism is a dollar that the
school district cannot invest in textbooks, teachers,
or technologies.
For example, between December 2001 and August 2004,
vandals did $770,469 in major damage to our schools
and facilities. Of this amount, over $325,000 was
incurred in the summer of 2004 by juveniles who set
fire to playground equipment in four of our elementary
schools. We believe that offenders should be held
fully accountable for the damages done to our schools
and facilities. Parents must also accept some
responsibility for their child's act and we should be
th
able to collect from minors past their 19 birthday.
Thank you.
9:21:38 AM
BRUCE JOHNSON, Association of Alaska School Boards, expressed
support for SB 10 and commended the committee for its efforts to
create a fair approach to the issue of school vandalism.
SENATOR HUGGINS asked Mr. Johnson whether he had any figures
relating to the statewide cost of school vandalism.
MR. JOHNSON replied he did not but his organization could
conduct a survey of school districts throughout the state and he
could report back with the results in a few days.
9:23:58 AM
MARY FRANCES, Executive Director, School Administrators
Association, testified in support of SB 10. She said oftentimes
the cost of vandalism to a school exceeds the maximum amount
that it can recover under state law. Her organization has long
supported a resolution to increase the maximum amount that a
district can recover relative to the actual cost of the damage.
CHAIR SEEKINS closed public testimony.
ANNE CARPENETI, Criminal Division, Department of Law (DOL)
introduced herself.
TONY NEWMAN, Program Officer, Division of Juvenile Justice (DJJ)
introduced himself.
SENATOR THERRIAULT asked Ms. Carpeneti whether her concerns
regarding the fiscal note have been addressed with the
amendments of the day.
MS. CARPENETI stated the amendments did not address the concerns
outlined in the DOL's fiscal note. The three layered collection
system proposed by the bill would require three files for each
collection and thus would require more effort to manage. The
amendments do not address the concerns of Senator French and Ms.
Steinberg that the collection system proposed by the bill would
limit the amount of restitution that the DOL would be able
collect. Additionally, the fiscal note does not address the
liability that SB 10 would create for the state.
SENATOR THERRIAULT asked whether the bill would create a new
financial obligation for the state.
9:28:07 AM
SENATOR GUESS replied:
The amendment that we passed today that provided state
obligation hadn't been discussed before, so it is not
reflected in any fiscal notes. Right now there is no
obligation for the state so there would be. On the law
fiscal note, again, this is why I am just going to
agree to disagree with the administration somewhat.
Right now it depends on how many cases come down, so
there is two files open if it is joint and severable
which is most of the cases. It is going to be three in
cases where it is over $20,000 so I guess I don't see
that it is so much more complex than the current
system, which is going to have at least 2 cases open.
In some cases we are only going to have 1 because
those under $5,000 will only be the juvenile and won't
be joint and severable. Again, unfortunately as we are
changing it we don't necessarily know because we would
need better statistics than we have now on what the
actual damage is versus the ordered damage and how
that breaks out in the new system versus the old
system.
MS. CARPENETI speculated that Ms. Steinberg could answer the
question. The fiscal note from collections comes from her.
SENATOR THERRIAULT remarked that Senator Guess is correct in her
claim that the fiscal impact of the bill would depend on the
number of cases that have to be prefiled. He said his staff
gathered data showing that 99 percent of the vandalism claims
fall below $5,000 and this proves that the number of cases
requiring multilayered filling would be fairly minimal.
He expressed concern with a discrepancy in the DOL fiscal note.
He said that while the note shows an estimate of a one-time
payment of $6500 for the cost of equipment, it also shows an
annual equipment expense of $7300. He asked Ms. Steinberg to
comment on whether the amendments have affected the fiscal
notes.
MS. STEINBERG said the current fiscal note did not consider the
possibility of state liability represented by Amendment 1. The
other amendments would not seem to have any affect on the
current fiscal note. She said she was not prepared to discuss
the fiscal note.
9:32:31 AM
MS. CARPENETI interrupted to say the DOL discussed fiscal notes
with Senator Guess who said she would prefer to take up the
matter when the bill reached the Senate Finance Standing
Committee.
SENATOR THERRIAULT asserted the bill should not leave the Senate
Judiciary Standing Committee with attached fiscal notes that are
known to be invalid
MR. NEWMAN advised he wanted to consult the DJJ to determine the
fiscal impact, if any, for his division. He said with regard to
the earlier question about the number of children in state
custody, the state has 1,300 children in custody or under
supervision at any given time. Of these children, 70 percent are
under the supervision of the state while under the custody of
the parents while 30 percent are in the custody of the state.
To determine the state's liability for children in custody, it
is important to consider that most of these children are in a
state facility where they have a limited opportunity to commit
acts of vandalism. If they do commit such acts, they would be
committing them against state property for which the state would
be liable for anyway. He said he is most interested in the
liability that the state might incur from vandalism committed by
children placed in foster homes.
9:35:14 AM
CHAIR SEEKINS held SB 10 in committee. He announced a brief
recess at 9:35:49 AM.
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