Legislature(1995 - 1996)
01/27/1995 01:05 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
January 27, 1995
1:05 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
COMMITTEE CALENDAR
* HB 25:"An Act revising Rule 16, Alaska Rules of
Criminal Procedure, relating to discovery and
inspection in criminal proceedings, to adopt
the comparable federal rule."
HEARD AND HELD
* HB 9:"An Act relating to recovery of damages from a
minor's parent or legal guardian when property
is destroyed by the minor."
PASSED OUT OF COMMITTEE
(* First public hearing)
WITNESS REGISTER
REPRESENTATIVE SEAN PARNELL
Alaska State Legislature
State Capitol, Room 515
Juneau, AK 99801-1182
(907) 465-2995
POSITION STATEMENT: Sponsor of HB 25
DEAN GUANELI, Assistant Attorney General
Criminal Division, Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
(907) 465-3428
POSITION STATEMENT: Testified in favor of HB 25
JOHN SALEMI, Director
Public Defender Agency
Department of Administration
900 W. 5th Avenue, Suite 200
Anchorage, AK 99501-2090
(907) 264-4400
POSITION STATEMENT: Provided information regarding HB 25
ANNE CARPENETI, Aide
House Judiciary Committee
State Capitol, Room 120
Juneau, AK 99801-1182
(907) 465-4990
POSITION STATEMENT: Explained differences between HB 25 and
a proposed committee substitute for HB 25
REPRESENTATIVE GENE THERRIAULT
Alaska State Legislature
State Capitol, Room 421
Juneau, AK 99801-1182
(907)465-4797
POSITION STATEMENT: Sponsor of HB 9
SHELDON WINTERS, Attorney
One Sealaska Plaza, Suite 303
Juneau, AK 99801
(907) 586-5912
POSITION STATEMENT: Provided information regarding HB 9
GEORGE BINGHAM, Claims Superintendent
State Farm Insurance Company
8391 Airport Road
Juneau, AK 99801
(907) 789-9849
POSITION STATEMENT: Provided information regarding HB 9
JAN RUTHERDALE, Assistant Attorney General
Juvenile Delinquency Section
Department of Law
P.O. Box 110300
Juneau, AK 99811
(907) 465-3600
POSITION STATEMENT: Provided information regarding HB 9
ELMER LINDSTROM, Special Assistant
Office of the Commissioner
Department of Health and Social Services
P.O. Box 110620
Juneau, AK 998011
(907) 465-3030
POSITION STATEMENT: Answered questions regarding HB 9
PREVIOUS ACTION
BILL: HB 25
SHORT TITLE: CRIMINAL DISCOVERY RULES
SPONSOR(S): REPRESENTATIVE(S) PARNELL, Porter, Green, Bunde
JRN-DATE JRN-PG ACTION
01/06/95 27 (H) PREFILE RELEASED
01/16/95 27 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 27 (H) JUD, FIN
01/18/95 75 (H) COSPONSOR(S): GREEN
01/19/95 89 (H) COSPONSOR(S): BUNDE
01/27/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 9
SHORT TITLE: DAMAGE TO PROPERTY BY MINORS
SPONSOR(S): REPRESENTATIVE(S) THERRIAULT, Porter, Green
JRN-DATE JRN-PG ACTION
01/06/95 22 (H) PREFILE RELEASED
01/16/95 23 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 23 (H) JUD, FIN
01/20/95 104 (H) COSPONSOR(S): GREEN
01/27/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-3, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 1:05
p.m. on Friday, January 27, 1995. A quorum was present. CHAIRMAN
BRIAN PORTER announced all members were present. He then stated
that the following bills were scheduled for consideration: First,
HB 25, via teleconference, and then HB 9. He stated that the
committee would not try to move HB 25 out yet, as they had just
received a large committee substitute (CS), but there would be
discussion on it. He requested Representative Parnell to come
forward and testify on HB 25.
HJUD - 01/25/95
HB 25 - CRIMINAL DISCOVERY RULES
Number 050
REPRESENTATIVE SEAN PARNELL described a proposed committee
substitute for HB 25. He understood and recognized that current
language in Alaska Criminal Rules is quite one-sided to the
defense. There should be more discovery available between the
prosection and the defense. One way to accomplish this is through
reciprocal discovery, a system under the federal rule whereby when
certain conditions are met, each side exchanges information. He
referenced the Scott v. State case which basically said that the
criminal defendant, as we know, has the right against compelled
self incrimination, and that reciprocal discovery is likely to
violate that right under a lot of circumstances. We would be
compelling the defendant to turn over information that would
incriminate them.
REPRESENTATIVE PARNELL explained that through consultation with the
Department of Law, what he proposes is a committee substitute which
provides for an "opt in" to reciprocal discovery, giving the
defendant the ability to opt in to full and free discovery. You
are not compelling them, you are giving them a choice. On page 1,
the "opt in" provision is on line 10. It says that within ten days
of arraignment, a defendant shall file a written notice stating
whether the defendant elects to participate in discovery under this
rule. The failure to file a notice shall be deemed an election not
to proceed under this rule. If the defendant elects not to proceed
under this rule, discovery is governed by AS 12.45.050 through AS
12.45.082; which are some rather minimal discovery requirements,
requiring the prosecution to turn over certain documents at certain
times.
REPRESENTATIVE PARNELL noted other changes to the rule are on page
5, line 5. It says "the trial courts shall require that the
prosecuting attorney be informed of ..." That was changed from a
"may" to a "shall." On page 5, lines 18 - 26, the section marked
"Defenses," that is also a change to the current rule. Both Dean
Guaneli and John Salemi can address those.
REPRESENTATIVE PARNELL summed up his statements, saying what the
bill does, is to permit the defendant to opt in to discovery, and
if they do, then the prosecution is required to turn over matters
they have discovered as well.
Number 165
REPRESENTATIVE JOE GREEN moved that version "C", dated January 26,
be adopted as the committee's working draft. As there was no
objection, the draft was adopted.
Number 170
REPRESENTATIVE DAVID FINKELSTEIN asked how many changes were in the
CS.
Number 175
REPRESENTATIVE PARNELL felt the Department of Law could answer that
best. He said perhaps a better way would have been to amend the
court rule, rather than appeal and reenact; but he wanted the
Department of Law to address why they chose to do it this way. The
substantive change is the "opt in" provision.
Number 190
REPRESENTATIVE FINKELSTEIN asked what would happen if you did not
have the same discovery access to the prosecution's case, if you
were the defense and decided not to opt in.
Number 195
REPRESENTATIVE PARNELL replied that it would be limited to the
statutory provisions of AS 12.45.050 - AS 12.45.082. He said the
whole purpose of the bill is to avoid a trial by ambush and to
permit the flow of free discovery. This has been discussed before,
by the Court Rules Committee, and one of the concerns discussed was
the defendant would not opt in, choosing instead to keep
information to themselves. However, Florida has a very high opt in
rate (99.9 percent).
Number 225
REPRESENTATIVE GREEN asked about the right of defense against self
incrimination, and where this deviates from other tests that may
require some bodily fluid, or breathalizers. There is a
presumption if you are arrested for driving while intoxicated and
do not do one of the these tests, there is an automatic presumption
of guilt. Will there be something like that here? Does this
indicate that those who refuse are probably guilty?
REPRESENTATIVE PARNELL referred that question to Dean Guaneli and
John Salemi.
REPRESENTATIVE CON BUNDE asked for clarification on an earlier
statement about the discovery process; whether it is currently
unequal and weighted to the advantage of the defense.
Number 255
REPRESENTATIVE PARNELL confirmed that to be correct.
Number 260
CHAIRMAN PORTER asked for the Department of Law to testify.
Number 265
DEAN GUANELI, CRIMINAL DIVISION, ATTORNEY GENERAL'S OFFICE,
DEPARTMENT OF LAW, stated that for a variety of reasons, the courts
have gotten away from trial by ambush, and have, through a series
of rules, particularly in civil cases, decreed that the best way to
promote justice or settlement is to have full and fair discovery
between civil litigants - each side asking for a certain amount of
information, whatever they feel is relevant, and the other side
having an obligation to provide that level of information. The
Supreme Court is in the process of changing its rules so that you
do not even have to ask, in a civil case, for information; the
other side is obligated to turn it over. That obligation has
existed in Alaska for the prosecution for a number of years. The
prosecution is obligated to turn over all of the statements of the
witnesses, all of the expert opinions, laboratory tests, access to
all of the grand jury transcripts, et cetera. That certainly
provides the defense with everything it needs, but the prosecution
also needs a level of evidence to be able to prepare its case. It
does not get that from the defense. There is no obligation for the
defense to provide much of anything to the prosecution. The
defendant can give fingerprints, a handwriting example, or appear
in a line-up, and get the names of their expert witnesses in
advance; but beyond that, there is no obligation for the defense to
provide information about witnesses they have contacted, who they
intend to call at trial, or what those people are going to say. In
the same way that it promotes early settlement in civil cases, and
the fairness of the Administration, just as it would do the same in
criminal cases if the defense had an obligation to provide
information to the state.
MR. GUANELI went on to explain that ordinarily in a criminal case
when the prosecution is surprised, it usually happens in the middle
of trial. The only thing the prosecution can do at that point; the
jury has been sworn, jeopardy has attached; is to ask the judge for
a postponement, and sometimes that happens and sometimes not. It
is usually a short postponement, maybe 24 hours. Then the
prosecutor and police have to check into that person's story, and
it really leaves the prosecution at a severe disadvantage. It is
a devastating defense tactic to postpone any notice of witnesses.
MR. GUANELI explained that frequently an expert witness is found
out about right at the last minute; and if the expert witness would
have been available for the prosecution to speak with before trial,
it could have alleviated two weeks of trial to get to the same
result. This happens with some regularity. Some experts are
requested not to write reports, so as to make sure the report is
not required by a judge, to be given over to the prosecution. Yet
the prosecution is dutifully required to give this type of
information over to the defense.
MR. GUANELI noted the CS starts with changing the Alaska Supreme
Court Rule. He hoped the next CS draft would be clearer in what
the changes are. The goal is full and fair discovery on both
sides. There is a certain level of information we must provide
that will be set out in the rule. The prosecution has a
constitutional obligation to provide a certain level of
information. The proposal will require them to also provide
information about what went on at the grand jury, because there is
a need for the defense to know something about the prosecution's
case. Beyond that, before the state should be obligated to provide
any more information about its case, the defendant should be
obligated to do the same thing, in terms of fairness. That is what
this amendment to the rules is designed to do: To stop trial by
ambush, mid-trial postponements; the types of things that makes
prosecutors say, "Why did they not tell me this before hand?"
Number 500
REPRESENTATIVE BUNDE asked if juries would know that a defendant
had chosen not to use the discovery option.
Number 510
MR. GUANELI replied there would be no indication to the jury
whether or not the defendant had opted in or out.
Number 513
REPRESENTATIVE BUNDE's concern was whether the opting option would
taint the jury.
Number 514
MR. GUANELI did not see how it could.
Number 515
REPRESENTATIVE BUNDE noted the after being on juries, he realizes
judgments are supposed to be based on facts, but does also realize
that sometimes perceptions do come into play. In postponements,
where the prosecution gets blind-sighted, he wondered if that would
have an impact on the credibility, in the jury's mind, of the
prosecution's case.
Number 520
MR. GUANELI believed the jury feels the prosecution should have all
of it's ducks in a row, in a straight forward, methodical,
organized manner. It tends to cast some doubt in the jury's mind
when the prosecution is fumbling around, not prepared for cross
examination of experts. It may very well be the case that if it is
done right by the judge, and the postponement is done in a matter
of fact way, the jury will not get that perception. Postponement
never helps the prosecution in a case. The further away you get
from the presentation of the State's evidence, the less evidence
that presentation has, so any kind of delay in a trial works to the
detriment of the prosecution, and to the benefit of the defense.
He stated that he would not say for sure if it would have an
impact, but it does have that possibility.
Number 545
REPRESENTATIVE FINKELSTEIN asked about a case when the defense
would not choose to do the reciprocal arrangement, it is probably
because there is something in it that is incriminating, or could be
misinterpreted. He asked if that was possible.
Number 550
MR. GUANELI said that was a possibility. The prosecution is
obligated to give over to the defense, as a matter of
constitutional minimum, all information that tends to be
exculpatory. In other words, it tends to negate guilt, or reduce
a defendant's punishment. What ought to be prohibited, is forcing
a defendant to give over information from the defendant's own
mouth; classic self incrimination. That does not mean we forced
the person to confess, or that it was compelled evidence, which the
constitution prohibits. We are not doing that.
Number 575
REPRESENTATIVE FINKELSTEIN said it is not forced, but you get a
lower set of standards to assist you in court. It does not protect
you against self incrimination, but if there is something out
there, you may have to operate under a set of standards that makes
it harder for you to defend a client.
Number 585
CHAIRMAN PORTER clarified the point. The only thing that would be
required under this discovery requirement concept, is the name of
a witness, if they intended that witness to testify.
Number 589
MR. GUANELI said they were proposing that they get the names of the
witnesses the defense intends to call.
Number 592
CHAIRMAN PORTER said if the defendant knew that he had confessed to
his girlfriend, and if the girlfriend now, did not particularly
like him, there is no way he would conceive that girlfriend would
be a witness, and under this, be compelled to give the name of his
girlfriend, saying he had confessed to her.
Number 600
MR. GUANELI said not unless that person had something else
beneficial to say. The Alaska Supreme Court in the Scott decision
that Representative Parnell mentioned, in fact, said that when you
are required to give over the name of a witness, you might say
something that could incriminate you, that you have a fifth
amendment privilege not to do that. We are saying that as long as
the prosecution gives over that amount of information required by
the constitution, anything else we give you is a freebie out of the
goodness of our hearts. This rule says the fair and just results
that comes out of this are more complete and factual information to
both sides, and speedier resolution of cases.
Number 625
CHAIRMAN PORTER said we have statutory and constitutional
requirements for discovery for the defense. What we are saying in
this bill is that if we go beyond that, you have to reciprocate.
Number 630
MR. GUANELI agreed.
Number 631
CHAIRMAN PORTER asked how we got beyond that now.
Number 632
MR. GUANELI said we got beyond what the constitution requires, and
beyond what the statutes require simply by virtue of the Alaska
Supreme Court adopting a court rule. It has been in effect, in
Alaska, for a number of years. It was something proposed by the
American Law Institute, a group of lawyers and judges that thinks
about how the system ought to be changed. This particular rule of
discovery was developed in the late 60s or early 70s when the tenor
of the times was different than today, and the rule has existed
largely in that form since then.
Number 640
CHAIRMAN PORTER welcomed John Salemi.
Number 645
JOHN SALEMI, DIRECTOR OF THE PUBLIC DEFENDER AGENCY, DEPARTMENT OF
ADMINISTRATION said the department does not have an official
position on this legislation yet. His thoughts on the bill
included the following: He felt it important to maintain some
perspective. In talking about crime bills, there is a rather
popular idea that the way our criminal justice system has been
built over time is such that it favors the accused. That is a
popular assumption made by certain components of government; which,
although popular, may not be accurate.
MR. SALEMI mentioned an example, most people think the welfare
system drains our government of a large percentage of our operating
budget; when, in fact, the federal system is only two percent, and
social security is almost 22 percent. So there are several
misconceptions floating around about a lot of components of
government, and it is his belief that the present system does not
favor the accused, when you look at it overall. One of the most
telling statistics is what happens when a criminal case is filed.
Mr. Guaneli would probably confirm that at least from the Public
Defender's experience, well over 90 percent of our cases end in
pleas of guilty or no contest. In other words, where a person,
without exercising his/her right to a trial, admits they have
committed a crime, or at least subject themselves to the punishment
of the court. If we had a system that was heavily tilted in favor
of the accused in court, we would see a very different statistic.
The other part of that statistic is that only a small percentage of
our cases end up in trial. He said the system works quite
efficiently and expeditiously. The prosecution gets their case
together, provides information to the defense, so the defense can
evaluate the strengths or weaknesses of the prosecution's case, and
then in the vast majority of the cases, the defendant acknowledges
that the prosecution has a very strong case.
MR. SALEMI noted that the committee was looking at a very small
part of the criminal justice system, the regulation of discovery.
You have to realize that the criminal justice system has the state
crime lab, the police force, troopers, and local law enforcement.
They get a significant amount of money for staff. We do have a
contractual budget with which to hire expert witnesses. The
defense does not have this kind of money and resources, so the
issue of "leveling the playing field" is not easily plumbed by
looking at just one aspect of the criminal justice system. He
disagreed that the prosecution was giving out a freebie out of the
goodness of their heart. The reason is because they understand
that an important societal value is vamped. That is the
expeditious process of these cases. People who are victims of
crimes do not want them litigated on and on if at all possible, and
to the extent that the prosecution provide the information which
convinces the defendant of his or her guilt, then the cases move
much more quickly.
MR. SALEMI was in favor of some adjustment to Rule 16, adjustments
that will not erode the fundamental theories of our present system,
and will expedite the processing of cases. He did favor the rule
that the prosecution and the defense have adequate advance notice
of experts, and that there is no game playing on the issue of
expert witnesses, and that they are either provided reports from
those expert witnesses, or summaries of the proposed chapter line.
Number 850
CHAIRMAN PORTER asked if there were questions of Mr. Salemi.
Number 852
REPRESENTATIVE FINKELSTEIN asked if there was a fiscal note
prepared by the Department of Administration.
Number 855
MR. SALEMI said there was not one yet.
Number 860
CHAIRMAN PORTER asked if Mr. Salemi would agree that the most
justification for this kind of treatment to the current discovery
situation would not be as much towards problems for the Public
Defender's Office, as it would be for those fewer, but quite
lengthy cases that are generated through the normal defense
methods.
Number 870
MR. SALEMI agreed.
Number 880
CHAIRMAN PORTER asked about the ongoing work in his draft. He
asked if it would change the general content of the CS draft, or
just reconfigure it.
MR. GUANELI said there would be some changes.
REPRESENTATIVE PARNELL added, "in the terms of the concept of 'opt
in.'"
Number 886
CHAIRMAN PORTER said he wanted to continue the discussion on
Monday, but requested Anne Carpeneti, Committee Aide to explain the
differences between this CS and the existing rule.
TAPE 95-03, SIDE B
Number 000
ANNE CARPENETI, LEGISLATIVE AIDE, HOUSE JUDICIARY COMMITTEE,
explained the differences as follows: Page 1, subsection (A), is
similar to existing law. Subsection (B) starting on line 10 of
page 1 is a new section which contains the "opt in" provision,
which is the main provision of the legislation. Subsection (C),
disclosure to the accused, the first paragraph is new, and it
provides the election to proceed under this rule, which is
consistent with subsection (B). Starting with line 13, down to the
end of page 2, the provisions are the same as the existing rule.
All the material on pages 3 and 4 is the same as the existing rule.
On page 5, starting with line 5, the subparagraph (4) it the same
as the existing rule with the significant exception of mandatory
language in line 5, the trial courts shall require that the
prosecuting attorney be informed of, and permitted to copy expert
reports and various material. The same is true in subparagraph 5,
beginning on line 11 of page 5, replacing the word "may" with
"shall" on line 14. Page 5, line 26 is all new material, setting
forth what the defense would be required to divulge if opting in.
She said from line 27 to the bottom of page 5, is similar language.
No changes were made to pages 6 through 8.
Number 090
REPRESENTATIVE FINKELSTEIN asked how much time is generally left
before the trial, under the existing rules, after the discovery
procedure for the prosecution has occurred, and the defense has the
information.
Number 110
MR. GUANELI said the discovery normally happens very soon after a
person is charged or indicted.
Number 130
REPRESENTATIVE FINKELSTEIN felt the defense point of view was not
coming from fairness, but from expenditure.
Number 145
MR. GUANELI said they anticipate the defense to turn over materials
either early on, or not at all.
Number 170
CHAIRMAN PORTER scheduled the continuation for hearing CSHB 25 for
Monday, January 30, then announced the hearing of HB 9.
HJUD - 01/27/95
HB 9 - DAMAGE TO PROPERTY BY MINORS
Number 180
REPRESENTATIVE GENE THERRIAULT, sponsor of HB 9 explained the
victim's rights bill. It encourages parents to take responsibility
for juveniles, and provides an increase in monetary recourse for
property loss to victims. It would raise the limit from 2,000
dollars to $10,000. The national average is $10,000 to $15,000.
The $2,000 figure dates back to 1957. The bill stems from cases
such as two Fairbanks schools loosing $50,000 in vandalism damages.
Although the vandals were caught, the school district was unable to
recover most costs.
REPRESENTATIVE THERRIAULT also proposed amending the bill to add
garnishment of the juvenile's permanent fund checks to satisfy up
to $10,000 for damages. This does not pertain to runaway children
who have been reported missing.
He talked about replacing the language "wilful or malicious", with
updated terms.
Number 400
REPRESENTATIVE CYNTHIA TOOHEY asked whether parents of foster
children would be held liable for damages caused by the foster
child.
Number 430
REPRESENTATIVE THERRIAULT cited AS 34.50.020 which exempts foster
parents from this type of liability.
Number 450
REPRESENTATIVE GREEN wondered about the financial liability of a
non-custodial parent who pays child support payments.
Number 465
REPRESENTATIVE THERRIAULT felt the liability would fall upon the
person having legal guardianship of the child.
Number 470
CHAIRMAN PORTER noted this bill would not change the answer to that
interesting question. It would just raise the amount.
Number 475
REPRESENTATIVE VEZEY said he has never heard of anyone using this
statute to recover $2,000 worth of damages and, therefore, wondered
if the bill was futile.
Number 478
REPRESENTATIVE THERRIAULT had known of cases relying on this
statute to recover damages.
Number 485
REPRESENTATIVE VEZEY asked if they had to go to civil court, and
prove accusations in order to achieve this recovery; and if people
would do that for $10,000. He said he would pay someone $10,000 to
avoid going to court.
REPRESENTATIVE BUNDE felt something was better than nothing. He
also felt the bill held a preventative nature. Parents might be
more interested as to where their children are in the evenings if
they know they can be held liable for up to $10,000 for damages
done by a dependent.
Number 563
SHELDON WINTERS, ATTORNEY, STATE FARM INSURANCE COMPANY, explained
the insurance aspects of the bill (the language "wilful and
malicious" and the amount of the proposed increase). Doing away
with the wilful or malicious standard would change the essence of
what the statute has always been about, which is vandalism.
MR. WINTERS expressed concern over increasing the amount of
recourse. Home owners insurance policies were never meant to cover
these types of claims, yet insurance companies will sometimes cover
them at $2,000. If raised to $10,000, insurance companies will
stop paying the claims. He noted the following statistics: 69
percent of vandalism claims have been under $1,000, 85 percent have
been less than $2,000, 96 percent have been less than $5,000, and
99 percent have been less than $10,000.
Number 730
CHAIRMAN PORTER asked if State Farm is excepting and paying claims
up to $2,000 that they do not have to pay, but would not do so if
the claims went up to $10,000.
Number 745
GEORGE BINGHAM, STATE FARM INSURANCE COMPANY, said these figures
are based on two years worth of claims that State Farm paid under
home owners policies in Alaska. He could not say what percent of
vandalism claims were caused by minors. They would not provide
defense if a minor was named in a tort action, unless the parent
were named for negligent supervision. Then they would pay up to
$2,000.
MR. WINTERS clarified that these policies were never designed to
cover vandalism, but they do pay up to $2,000 because it is not
worth fighting.
Number 798
CHAIRMAN PORTER asked if the wording "wilful or malicious" were
taken out, would the standard be the regular tort civil standard,
or would there be no standard?
Number 800
MR. WINTERS thought there would be a strong argument that there
would be no standard.
Number 803
REPRESENTATIVE GREEN asked what State Farm did on claims exceeding
$5,000.
Number 804
MR. BINGHAM said they were paid under the person's own homeowner's
policy. It was not something paid to the victim.
Number 860
JAN RUTHERDALE, ASSISTANT ATTORNEY GENERAL, JUVENILE DELINQUENCY
SECTION, DEPARTMENT OF LAW noted people do have the small claims
court option; if $2,000 or $10,000 seems too small to fight over in
court.
TAPE 95-4, SIDE A
Number 000
CHAIRMAN PORTER asked the committee if there were suggestions for
amendments.
Number 033
REPRESENTATIVE DAVIS asked if the parents would be liable for those
children in state custody, if the child destroyed some property;
and whether the state would be exempt from that.
Number 045
ELMER LINDSTROM, SPECIAL ASSISTANT TO THE COMMISSIONER, DEPARTMENT
OF HEALTH and SOCIAL SERVICES, stated that what you do not see in
the bill is AS 34.50.020(b), referred to earlier, which is the
immunity protection for the state or its agents, which includes
foster parents. This bill does not change that statute.
Number 065
REPRESENTATIVE DAVIS said that covers the state, not the parent.
She thought the parent would be liable under this bill regardless.
REPRESENTATIVE THERRIAULT answered Ms. Davis' question. If the
child is out of the parent's home in state custody, the state has
assumed legal custody, therefore, the parent is no longer in
control, and they are no longer liable.
Number 085
REPRESENTATIVE DAVIS asked to be shown that in the statute, because
there are things parents are liable for even though the child is in
physical custody of the state. They have to pay part of the money
for their board, or whatever; so she wondered what the bill would
really change.
Number 100
MR. LINDSTROM believed that under section 1, lines 8 and 9 of page
1, it does speak to having legal custody of an unemancipated minor.
If they were in custody of the Department of Health and Social
Services, the parents would not have custody, the state would, and
that would trigger section (b) which speaks to the state's immunity
in that situation.
Number 110
REPRESENTATIVE THERRIAULT said under that circumstance, the parent
would have immunity, because the child was not in his/her custody.
Number 155
CHAIRMAN PORTER asked the committee's wish regarding the use of the
permanent fund being available at 100 percent rather than 55
percent. REPRESENTATIVE BUNDE made a motion to adopt Amendment 1.
Chairman Porter said in the information in his packet, Amendment 1
is referred to as C.1, dated January 23, 1995.
REPRESENTATIVE DAVIS objected.
Number 190
A roll call vote was taken. Representatives Finkelstein, Toohey,
Vezey, Bunde, Green and Porter voted in favor of Amendment 1.
Representative Davis voted against the amendment. So Amendment 1
was adopted.
CHAIRMAN PORTER then brought up line 9 on the bill for discussion.
Number 195
REPRESENTATIVE FINKELSTEIN did not believe there would be a problem
with the original language, "malicious or wilful."
A motion was made to move Amendment 2, which would change page 1,
line 9 to read, after the words 18 years, "... who as a result of
a knowing or intentional act, steals real or personal property
...". Hearing no objection, and Amendment 2 was adopted.
Number 270
REPRESENTATIVE BUNDE made motion to move CS HB 9 with appropriate
fiscal notes and individual recommendations out of committee.
REPRESENTATIVE VEZEY asked what the statutory liability for the
parents would be if the act was not malicious or wilful.
Number 335
REPRESENTATIVE FINKELSTEIN said it would be up to the jury.
REPRESENTATIVE BUNDE noted that any claim you seek recovery for in
district court has an upper limit of $50,000.
Number 348
CHAIRMAN PORTER felt the liability hinged upon the proof of
"knowingly or intentionally."
Number 375
SHELDON WINTERS clarified that under this statute, a parent has to
be proven negligent in supervising that child.
Number 390
REPRESENTATIVE VEZEY understood this to mean that a parent is not
liable for a child unless the parent is negligent.
Number 392
MR. WINTERS replied that is why we have this statute. Without it,
you would have to prove liability on behalf of the parent. It does
not matter what the parent did. You are liable strictly if your
kid acts maliciously or intentionally. This statute adds liability
on the parent. You do not have to prove any liability up to
$10,000.
Number 400
CHAIRMAN PORTER agreed that this language makes strict liability
for "knowingly or intentionally".
Number 435
CHAIRMAN PORTER said hearing no objection, the bill is passed from
committee.
ADJOURNMENT
The House Judiciary Committee adjourned at 3:12 p.m.
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