Legislature(2003 - 2004)
02/23/2004 01:34 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 514 - CHILD SUPPORT ENFORCEMENT/CRIMES Number 0501 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 514, "An Act relating to child support modification and enforcement, to the establishment of paternity by the child support enforcement agency, and to the crimes of criminal nonsupport and aiding the nonpayment of child support; amending Rule 90.3, Alaska Rules of Civil Procedure; and providing for an effective date." Number 0478 JOHN MAIN, Staff to Representative Pete Kott, Alaska State Legislature, sponsor, presented HB 514 on behalf of the sponsor, Representative Kott. He said that HB 514 has seven major components to it. One element of the bill makes criminal nonsupport a felony; 33 states already do the same, as does the federal government. In order to be charged with a class C felony for criminal nonsupport under HB 514, someone would have to be over $10,000 in arrears or not have made a payment for more than 24 months, and it must be shown that that person does have the ability to pay. Currently, there are over 14,000 such cases. This is not to say that all such persons should be charged with a felony, he added, noting that the Child Support Enforcement Division (CSED) only wants to go after the most egregious cases such as those wherein the individual has had the ability to pay for some time and has simply chosen not to pay. MR. MAIN indicated that HB 514 establishes the crime of aiding the nonpayment of child support in the first degree if one assists the aforementioned class of people, and makes it a class C felony. The current crime of aiding the nonpayment of child support would become a crime in the second degree and would still be class A misdemeanor. Mr. Main opined that the current law regarding aiding the nonpayment of child support, which was created by former representative Terry Martin, has had an effect on people who [know] they are assisting somebody in escaping child support payments. MR. MAIN relayed that HB 514 gives the courts statutory authority to require obligors to make payments on approved payment plans, to seek work unless incapacitated, and to complete and submit applications for a permanent fund dividend (PFD). He explained that one judicial jurisdiction determined, after being asked by the [CSED] to require such things, that it did not need to comply. In response to a question, he indicated that this change is in Section 7. He went on to say that Section 8 of the bill gives the courts the authority to issue administrative orders, court orders, requiring people to make payments according to a payment plan unless incapacitated or [otherwise] unable to work. Number 0137 MR. MAIN explained that Section 9 of HB 514 has two components. One component, subsection (f), allows CSED investigators to be armed while performing their duty. Subsection (g) allows the CSED to "settle" state debt without the assistance of the Department of Law (DOL). Currently, the DOL performs this service for the CSED, and the reason for the change is because there is "so much debt out there"; on a national level, there is $90 billion worth of debt, with Alaska being responsible for $600 million of that - $300 million owed to custodial parents and $300 million owed to the state and federal government. He relayed that throughout the nation, states are struggling with ways to contain and reduce this debt, so there are a variety of programs being proposed, and one such program is "the compromising of arrears." Under such a program, if a person is not currently paying child support and owes in excess of $50,000 - or even $100,000 in some cases - he/she would be given the opportunity to come back into society and fulfill his/her child support obligations while having part of the debt reduced. TAPE 04-22, SIDE A Number 0001 MR. MAIN added that such would help such persons to reintegrate with their families and start to repay their debt. He cited several studies that indicate that if this process is implemented, it works. These programs have accomplished as much as a 25 percent success rate, Mr. Main added. REPRESENTATIVE GRUENBERG asked if the $600 million figure is a national figure. MR. MAIN responded that $600 million is for the state of Alaska. CHAIR McGUIRE commented that that is a staggering figure. She asked Mr. Main what other states are doing about this problem. MR. MAIN highlighted that Maryland, Colorado, and California [have made changes to child support enforcement laws]. He added that every state is looking at how to contain child support arrearages and reduce them. Mr. Main said that the federal government will be imposing some kind of requirement with respect to the debt unless the states start reducing it. The federal government even went as far as saying that if the states do not collect the debt when compromising the arrears, then it will not be necessary to pay the federal portion either. REPRESENTATIVE GRUENBERG asked if the state gets 50 percent of what is owed, for example, does the whole 50 percent go to the federal government, or is it divided pro rata. MR. MAIN replied that the state gives the federal government its portion of what is collected. He pointed to Section 10 and told members that presently there is a statute that prohibits the Division of Child Support Enforcement from establishing child support for victims of rape and incest. This section would change the statute so that victims may ask for paternity to be established and allow the agency to require that child support be paid; however, the section ensures that the victim is not victimized again, he added. He emphasized that the agency cannot ask for child support without the consent of the victim. MR. MAIN told members that the last portion of HB 514 would adopt the federal changes to the modification regulation. He explained that the CSED believed all along that it was doing the modifications correctly based on what the federal government had advised. However, this year the federal government advised the CSED that the state misinterpreted the regulation, and directed the division to do it differently. Mr. Main added that the [language in Section 12] complies with the federal code. REPRESENTATIVE OGG asked if HB 514 addresses the issue of proving whether someone has the ability to pay. MR. MAIN responded that the courts actually determined through case law that [the ability to pay] had to be proven and therefore it is not necessary to put that in statute. REPRESENTATIVE OGG turned attention to page 2, line 5, and suggested that "lawful excuse" should be inserted after the word "failed". He added that this change would track with language on [page 1, line 12] and would provide clarity. MR. MAIN replied that he sees no problem with such a change. Number 0476 REPRESENTATIVE SAMUELS moved to adopt the proposed committee substitute (CS) for HB 514, Version 23-LS1639\I, Mischel, 2/14/04, as the work draft. There being no objection, Version I, was before the committee. Number 0509 REPRESENTATIVE OGG moved to adopt Amendment 1 as follows: On page 2, line 5 After the word "failed" Insert the words "without lawful excuse" The committee took an at-ease from 3:20 p.m. to 3:21 p.m. Number 551 REPRESENTATIVE OGG renewed his motion to adopt Amendment 1. There being no objection, Amendment 1 was adopted. REPRESENTATIVE GARA cautioned that the committee needs to be clear about the reasons for putting someone in jail. Sections 2 and 3 deal with someone who fails to pay support without lawful excuse, he said. He asked where the lawful excuses are listed. MR. MAIN replied that he believes that lawful excuses are based on court rulings. He said he does not believe it is in statute. CHAIR McGUIRE asked Diane Wendlandt of the Department of Law if the list of lawful excuses is based on statutory law or case law. Number 0647 DIANE WENDLANDT, Chief Assistant Attorney General, Statewide Section Supervisor, Collections and Support Section, Civil Division (Anchorage), Department of Law (DOL), referred the question posed by Chair McGuire to Cathy Schindler, the prosecutor who handles cases such as this. Number 0667 CATHY SCHINDLER, Assistant Attorney General, Child Support Enforcement, Special Prosecutions Unit, Office of Special Prosecutions & Appeals, Department of Law (DOL), said that case law addresses what is a lawful or unlawful excuse for non- payment. The courts talk about whether a person has voluntarily put himself or herself in a situation of non-employment or under-employment. If a court finds that a person has voluntarily entered either state, then that is found to be without a lawful excuse, she said, adding that there is discretion on the part of the court regarding anything that is outside of that situation. REPRESENTATIVE GARA asked what standard the courts would apply in determining what is voluntarily under-employed. MS. SCHINDLER replied that in criminal cases, that would be left up to the jury. REPRESENTATIVE GRUENBERG said that under-employed means that an individual has the ability to obtain higher paying employment that is available and the individual willing chooses not to accept [that employment]. MS. SCHINDLER replied that is correct. REPRESENTATIVE GARA posed a hypothetical example of a person who is a doctor, but is fed up with that employment, and becomes a teacher. If that person applies to lower their child support payments [based on lower pay] and the order is denied, would that be an example of an individual who is voluntarily under- employed. MS. SCHINDLER said that whenever there is a modification request outside of the realm of the criminal court, that would be handled in civil court. She relayed, however, that she is not qualified to answer that question fully. Number 0847 REPRESENTATIVE GRUENBERG commented that he believes [that in the aforementioned example], the information would come up in a criminal case if the defense were that the person could not [provide child support at the level originally set] because the defendant was voluntarily under-employed. He said it would be the central issue and the judge would have to give legal instruction to the jury regarding what is a lawful excuse for "inability" [to pay child support]. It would definitely be part of a criminal case if it becomes a crime in this manner, he stated. He asked for Ms. Schindler to comment on this point. MS. SCHINDLER responded that the court findings on the civil modification would be something the prosecution may choose to use as a supporting document in a criminal matter. She told the members that Ms. Wendlandt can comment on the determination of the modification. MS. SCHINDLER, in response to questions, said that if there has been a stipulation where a modification has been requested due to unemployment or under-employment, then there will be judgment in superior court where there will be findings. Those findings will set forth the factual basis on which the modification is granted or not granted, she explained. An administrative hearing could also result in findings. Ms. Schindler said that those findings will be part of the evidence potentially presented by either side. The jury would be given instruction that is fashioned around the controlling case law. She added that the jury would make a determination on the findings, like it does on any piece of evidence. The jury would make a determination based on the veracity of the witness and the evidence presented within the context of the jury instruction on unemployment or under-employment, and whether or not the elements of the statute have been met. MS. WENDLANDT, on the issue of voluntary under-employment, said that there have been a number of cases in the Alaska Supreme Court on that issue in the civil context of what must be proven to show voluntary under-employment. There is a two-part test in that situation, she said. The first part is the question of voluntary conduct; for example, was it something the parent chose to do. The second part is the question of reasonableness. In the hypothetical example posed by Representative Gara, the question really comes down to: Was this a reasonable decision given that the person has an obligation to the child? Sometimes a person's decision to take a lower paying job is reasonable, and other times it is not, she said. Ms. Wendlandt explained that the courts have, through a whole series of cases, addressed the issue of what is and is not reasonable. She indicated that [such a determination] would be very factual. Number 1123 REPRESENTATIVE GARA told members that he would be much more comfortable with HB 514 if the standards were delineated within criminal law to say under what circumstances a person would and would not go to jail. He said he is not in agreement with the practice of borrowing the "administrative law rules" on when payment is owed and then translating those into a felony. He said he is not sure if this works or not, and asked if the members would want to come up with the elements of the crime. For instance, he said, maybe the language could say, in order to charge someone with a felony, this is what the crime constitutes. He said that in order for him to be comfortable with this language, the scenario would have to be something like a person owes a child support arrearage, and intentionally chooses not to pay it, even though the person can pay it. He reiterated that he does not know the administrative standards that are being "borrowed" for the purpose of becoming criminal standards. CHAIR McGUIRE commented that she does not know how all the factual evidence could be incorporated into a standard. She suggested Representative Gara work with Mr. Main on this subject between now and the bill's next hearing. She said her understanding is that in order for this to be considered a felony, $10,000 or more must be owed, and that there would have to be more than 24 months of non-payments. MR. MAIN concurred. CHAIR McGUIRE went on to say that many facts could come into a case. For instance, someone could say that there is more than $10,000 owed, but that the person has been employed as a teacher because the individual did not enjoy being a doctor any more because it was stressful, and at that point plead the case. She said she does not believe that [kind of situation] is what the division deals with in most cases. Chair McGuire said she would like a representative from the CSED to speak to this. She commented that she believes that most of these cases are people that say, "I'm not going to pay, and do whatever you want to me." CHAIR McGUIRE noted that back in 1986 to 1989, there were only 15 nonsupport cases prosecuted. It was clear that there was a problem, but then from 1990 to 2000, there have been no cases prosecuted. She said that there is a lack of personnel and part of it is that the Department of Law has a lot to consider when deciding where to place their efforts. Misdemeanors have not risen to the level of [high] priority. The federal government recognized the problem in 1998 by raising the crime to the felony level. She remarked that it must have gotten people's attention because there were then over 4,600 cases reviewed, over 580 arrests, over 450 convictions and civil adjudications, and courts were ordered to pay over $18 million to kids that were owed child support. In summary, she said that she supports the bill the way it is, but would be willing to look at putting specific elements in it. Number 1312 REPRESENTATIVE GARA said that he does not disagree with Chair McGuire, but urged the members to be very careful when entering the area of criminal law. He added that when a net is cast too wide, those that should be in jail, are put in jail, but those for whom there was no intention of throwing in jail [could be jailed as well]. He suggested that two standards be added to the language that says the failure [to pay child support] is intentional and unreasonable. He commented that juries are always asked those two questions. CHAIR McGUIRE posited that one option might be to add in the elements of intentional and reasonable, and asked whether the sponsor would be amenable to such a change to the bill. REPRESENTATIVE GRUENBERG pointed out that the way the bill is drafted now, it is an affirmative defense. If the law is changed to make it an element of the crime, then the burden is placed on the prosecution, he said. Representative Gruenberg emphasized his belief that this law should remain as an affirmative defense. The committee took an at-ease from 3:35 p.m. to 3:50 p.m. CHAIR McGUIRE announced that it is her intention to take public testimony and then hold the bill over to allow members to explore possible amendments. Number 1492 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration (DOA), explained that she does not have the CS or the sponsor statement in front of her, but she saw the original bill and she submitted an indeterminate fiscal note. She relayed that the PDA is concerned that there are possibly 14,000 cases wherein a person could be prosecuted for felony criminal nonsupport. These 14,000 cases meet the standards of having more than $10,000 in arrearages or not having payments made in over 24 months. She said that is a lot of cases that will be raised to a felony. Ms. Wilson said that the question of what a "lawful excuse" is would be considered in the context of the criminal case. She said she does not have any idea how many of those cases would become PDA cases, but since the PDA represents indigents, her guess is that a fair amount of those 14,000 cases will qualify for a public defender. In conclusion, she said she believes that this bill will have a fiscal impact on the PDA. CHAIR McGUIRE told Ms. Wilson that she would be faxed a copy of Version I so that she has an opportunity to review the bill before its next hearing. Chair McGuire agreed with Ms. Wilson that according to the sponsor statement there are 14,946 [child support cases] having either arrearages greater than $10,000 or having no payments made in over 24 months. The sponsor statement explains, however, that not all of these cases would qualify for nonsupport charges. She surmised that one point that will be clarified is that there are other factors that come into consideration beyond the amount that is owed and length of time [since a payment was received]. She said that she would like to see a comparison of the factors that the federal government takes into [account], adding that she believes the standard is similar [in HB 514]. She referred to the intentional and reasonable factors considered in civil law, as an example. CHAIR McGUIRE commented that most of the information is in case law which Legislative Legal and Research Services can provide to the committee. In conclusion, she told Ms. Wilson that she appreciates whatever suggestions the PDA has time to contribute, and relayed that the committee also welcomes any suggestions from Ms. Wendlandt. REPRESENTATIVE GRUENBERG asked Ms. Wendlandt to provide the committee with a written statement on the lawful excuse issue. Number 1769 STEVEN B. PORTER, Deputy Commissioner, Office of the Commissioner, Department of Revenue (DOR), told members that he will walk through the bill section by section and provide the department's position on each. He relayed that the department appreciates the changes to Section 1 in Version I, where the rebuttable presumption language was deleted. He asked, however, whether, under Section 1, a person over the age of 18 could be covered, adding that the DOL has drafted some language to clarify that point and has provided it to the sponsor. MR. PORTER said Sections 2 and 3 relate to criminal nonsupport. The sponsor statement is very clear on this in that "there are 14,946 cases having arrearages greater than $10,000 or no payments for 24 months or more." He explained that this means that there are approximately that many people who are technically felons. It is the DOR's intent, from an implementation standpoint, he remarked, to only look at those cases that are the most egregious cases, adding that if it were the department's intent to prosecute all 14,000 [cases], there would be several different groups [at this hearing]. He emphasized that it is the department's intent to only look at those very specific cases where it is important for the department to make a statement and to identify those people who should be prosecuted. Mr. Porter said there will probably be between one-half dozen to a dozen cases pursued per year. CHAIR McGUIRE asked Mr. Porter to elaborate on the factors that would be considered in making the decision [to prosecute]. MR. PORTER replied that he would like to work with the CSED on that question and get back to the committee later. CHAIR McGUIRE commented that Mr. Porter has heard the concerns of the committee and the wish to amend the language to specify the factors which will be considered. Number 1889 The committee took an at-ease from 4:02 p.m. to 4:03 p.m. REPRESENTATIVE GRUENBERG referred to page 2, lines 15 through 17, which says: In addition to the provisions of (c) and (d) of this section, criminal nonsupport is punishable by loss or restriction of a recreational license as provided in AS 12.55.139. REPRESENTATIVE GRUENBERG noted that AS 12.55.139 says: Penalties for criminal nonsupport. In addition to other penalties imposed for the offense of criminal nonsupport under 11.51.120, the court may suspend, restrict, or revoke for a period not to exceed six months, a recreational license as defined in AS 09.50.020(c), if the defendant is a natural person. REPRESENTATIVE GRUENBERG pointed out that if this bill makes these acts a felony, then why shouldn't the department have the authority to suspend a fishing license for more than six months. MR. PORTER responded that such is a policy question and the department would be willing to consider a change in that regard. REPRESENTATIVE GRUENBERG commented that he might offer an amendment to change that [language]. MR. PORTER noted that Sections 4, 5, and 6 relate directly to the aiding and abetting statutes. Because there is less information available with respect to what other states are doing on this issue, the department does not have a position on those sections, he stated. CHAIR McGUIRE asked if aiding and abetting is currently a misdemeanor. MR. PORTER indicated that it is. CHAIR McGUIRE said that according to her understanding, if a person knows of another person's obligation [to pay] child support and agrees, for example, to pay the person in cash so that the income is not traceable, [that would be aiding and abetting]. MR. PORTER replied that it also includes intentionally withholding information about the residence or employment of an individual. Number 2036 JOHN MALLONEE, Acting Director, Child Support Enforcement Division (CSED), Department of Revenue (DOR), said the original statute for aiding and abetting was defined as assisting in the avoidance of paying child support. This statute would apply to any business or person who helps an individual to not pay child support. He said he believes there have been three cases prosecuted on that charge. REPRESENTATIVE GRUENBERG turned attention to subsection (e) on page 2, lines 15 through 17, and suggested that perhaps the committee would want to consider taking away [driver's] licenses too if these people are engaged in criminal activity. He also said he believes the committee should look at adding a similar provision to Sections 4 and 5, noting that other types of licenses could be addressed as well, such as business licenses. MR. PORTER noted that Section 7 provides the courts with the statutory authority to order obligors who are eligible for permanent fund dividends to file for them. He explained that not all judicial jurisdictions believe that the CSED has the authority to ask the courts to require that, and this section would clarify that point. He noted that the department fully supports such a change. MR. PORTER noted that Section 8 deletes language referencing three provisions of the statute: AS 47.07, AS 47.25.310, and 47.25.420. The department recommends that this reference be retained because once it is deleted, the provision may be over- inclusive, he said. He recommended that a section be added that says "for a child whose parents have applied for services from the agency under AS 25.27.100". He told members that this suggested language has been provided to the sponsor. MR. PORTER commented that with Section 9, subsection (f), it is not the intent of the DOR to put its investigating officers at risk or put them in a position where they are required to carry weapons. If the investigating officer believes he/she is at risk, the department would recommend that he/she call a state trooper and not step into that risk environment. The department recommends deleting subsection (f) from Section 9 of the bill, he said. MR. PORTER said that with respect to section 9(g) there is approximately $587 million in arrears owed to the state. About one half of that would go to the state, and one-half is owed to the custodial parents, and this amount the division would not be able to forgive. This section would allow the agency the authority to negotiate and compromise the arrearages owed to the state. The department has recommended that the division develop a pilot program to do this with some oversight from the DOL. He said that it would be necessary to have substantial oversight to allow a single agency to compromise and negotiate the arrearages. He said the greater the amount of latitude, the greater the amount of oversight that should occur, either from the DOL or from the commissioner of the DOR. The department recommends some clarification on that particular provision, he said. MR. PORTER noted that Section 10 pertains to paternity in cases of rape and incest, and said the department supports this provision. REPRESENTATIVE HOLM asked Mr. Porter why the word "shall" is used in Section 11, page 5, and line 15. MR. PORTER explained that the word "shall" is in current statute, adding that the only change to that provision of current law is the deletion of, "so entered", and he referred to this change as a housekeeping measure. He went on to note that Section 12 provides for the state to be in compliance with federal law, and relayed that the department supports that section. Number 2320 WILLIAM TANDESKE, Commissioner, Department of Public Safety (DPS), shared concerns about Section 9, subsection (f), of the bill. Referring to subsections (f)(1) and (2), he deferred to the Department of Law to discuss issues relating to limited peace officer authority and deferred to the Division of Risk Management [Department of Administration] to talk about real- life consequences and liabilities pertaining to use of deadly force while "operating under the color of office of the State of Alaska." COMMISSIONER TANDESKE noted that subsection (f)(1) says: "has completed at some time a peace officer training academy program approved by the commissioner of public safety". He said he isn't sure whether that is meant to be training certified by Alaska police standards or whether the commissioner would be "looking back 18 years ago at a sheriff's academy in Arkansas." TAPE 04-22, SIDE B Number 2390 COMMISSIONER TANDESKE went on to say the academy isn't a standard by which to judge anyone's ability and whether someone should be armed. He said peace officers, by and large - and certainly state troopers - are screened psychologically by use of a polygraph and extensive background [checks]. In addition, there is a field-training program for applying what has been learned. COMMISSIONER TANDESKE read from [subsection] (f)(2), which says "has met annual firearms certification requirements that are equivalent to those required by the Department of Public Safety." He explained that he didn't know who in the Department of Revenue would be capable of doing "this." Furthermore, there's more to the use of deadly force than qualifying a certain number of times a year. For example, there are issues relating to "shooting decisions" training, commonly referred to as "shoot, don't shoot interactive training." He emphasized the importance of such decisions in determining whether someone will make the correct judgments under stress. COMMISSIONER TANDESKE pointed out that firearms are the last option, and certainly not the only one. In the vast majority of situations in which law enforcement [personnel] get involved, he said, guns are a liability. They must be kept track of, for example; he cited an example of a Kenai police officer who was killed with his own gun. Noting that those are serious issues and that a continuum of force isn't addressed in the bill, he mentioned "presence, physical ability, cap-stun (ph), and batons" as things to think about before ever pointing a gun at someone. And who will be shot, a fleeing deadbeat dad? Agreeing with the deputy commissioner that if an individual is known to be difficult, then law enforcement [personnel] should handle it, Commissioner Tandeske added, "The key to handling these matters is the experience to handle them without using force - not to rely on the fact that I happen to have a gun." COMMISSIONER TANDESKE noted that the Division of Motor Vehicles (DMV) gets aggravated people standing in line, for example. But should [DMV personnel] be armed? He asked where the argument [for being armed] would stop. He added that for the state and the Department of Revenue, he believes it opens another door as to what the policy will be. For example, will it relate to personally owned guns or will the state buy the guns? Who will ensure that the guns are in proper operating condition? What kind of holsters should be used? What will the training standards, rules of engagement, and use-of-force policy be? How will it be tested and how often? Getting into the use of deadly force will result in a state department's taking on a lot of obligations, he said. It's not as simple as just having a gun. COMMISSIONER TANDESKE closed by saying this isn't a "gun rights" issue about carrying a gun on one's own time. Rather, this relates to carrying a gun under the color of office, representing the State of Alaska. From a public policy standpoint, he suggested the question is whether or not to arm folks who haven't been recruited and trained with the intent that they act as peace officers. He added, "And if so, then probably the whole process needs to be worked around." Number 2200 CHAIR McGUIRE indicated that HB 514 [Version I, as amended] would be held over.