Legislature(2003 - 2004)

02/23/2004 01:34 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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.                                                                                                             
                                                                                                                                

Document Name Date/Time Subjects