Legislature(2003 - 2004)

02/27/2004 01:20 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 514 - CHILD SUPPORT ENFORCEMENT/CRIMES                                                                                     
                                                                                                                                
Number 1485                                                                                                                     
                                                                                                                                
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."   [Before the committee was the                                                               
proposed  committee  substitute  (CS)  for HB  514,  Version  23-                                                               
LS1639\I, Mischel,  2/21/04, which  was adopted  as a  work draft                                                               
and amended on 2/23/04.]                                                                                                        
                                                                                                                                
Number 1560                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  moved to  adopt proposed  CS for  HB 514,                                                               
Version 23-LS1639\S, Mischel, 2/26/04, as  the work draft.  There                                                               
being no objection, Version S was before the committee.                                                                         
                                                                                                                                
Number 1569                                                                                                                     
                                                                                                                                
JOHN  MAIN,  Staff  to Representative  Pete  Kott,  Alaska  State                                                               
Legislature,  sponsor,  presented,  on behalf  of  Representative                                                               
Kott, the changes proposed in Version  S.  He pointed out that in                                                               
Section 1,  line 9, the  word "knowingly" has been  placed before                                                               
"fails."    In Section  3,  starting  on  line  17, a  whole  new                                                               
subsection has  been added regarding the  definitions of "child",                                                               
"child support", and "lawful excuse".                                                                                           
                                                                                                                                
CHAIR McGUIRE stated  that committee members have  all received a                                                               
letter  from the  attorney general's  office regarding  the term,                                                               
"without lawful excuse."                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  opined that  that letter does  not seem                                                               
to  track the  definition as  the committee  previously discussed                                                               
it.                                                                                                                             
                                                                                                                                
REPRESENTATIVE  GARA said  he worked  with Representative  Kott's                                                               
office  to make  sure that  [a person]  wouldn't get  thrown into                                                               
jail unless  the failure  to pay  was knowingly  done and  was an                                                               
amount  that was  affordable.   This  issue is  addressed in  the                                                               
definition of "without lawful excuse."   Representative Gara said                                                               
Representative Gruenberg is also correct  in that there were many                                                               
things that could  be considered a lawful excuse.   He noted that                                                               
[the  bill] only  addressed one  definition and  suggested adding                                                               
the wording, "and lawful excuse includes".                                                                                      
                                                                                                                                
MR. MAIN, continuing  with his presentation, pointed  out that in                                                               
Section 5,  line 17  says, "and unreasonably".   He  relayed that                                                               
Section 7 is a new section  which says, "in this section, 'child'                                                               
and 'child support' have the meaning given in AS 11.51.120."                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG asked  Mr. Main to go  over the sections                                                               
from Version I that were eliminated in Version S.                                                                               
                                                                                                                                
MR. MAIN said he would also  discuss the deletions.  He continued                                                               
to explain  that Section 9,  lines 24-25,  is a new  section that                                                               
was  worked on  in  conjunction with  the  Department of  Revenue                                                               
(DOR).   In  Version I,  AS 47.07  was eliminated,  but has  been                                                               
added back into Version S, he said.                                                                                             
                                                                                                                                
Number 1784                                                                                                                     
                                                                                                                                
MR. MAIN continued to explain the  changes to Version S.  Section                                                               
10 (f) -  which, in Version I,  used to be [Section 9]  (f) - now                                                               
says in part,  "Peace officer powers granted by  the agency under                                                               
this subsection  may be exercised  for protection in the  line of                                                               
duty".  Additionally,  the phrases, "at some  time" and "approved                                                               
by  the commissioner  of public  safety" have  been removed  from                                                               
proposed  AS  25.27.020(f)(1).   He  noted  that in  Section  10,                                                               
proposed  [subsection] (g)  contains  all new  language that  was                                                               
requested by [the Department of Law (DOL)].                                                                                     
                                                                                                                                
MR. MAIN  referred to Section 1  of Version I and  indicated that                                                               
subsection (a)(2) was  deleted and the concept embodied  in it is                                                               
now covered under Section 3 [of Version S].                                                                                     
                                                                                                                                
MR.   MAIN  said   the  amendment   to  Version   I  offered   by                                                               
Representative  Ogg pertaining  to, "without  lawful excuse"  has                                                               
been incorporated  into Version  S.   He went  on to  remark that                                                               
when  a  misdemeanor  is filed,  the  Child  Support  Enforcement                                                               
Division  (CSED) can  only  charge for  conduct  that covers  the                                                               
preceding five  years.  With  a felony,  the CSED can  charge for                                                               
conduct that covers the previous ten years.                                                                                     
                                                                                                                                
Number 1929                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG asked  if there is a  10-year statute of                                                               
limitation  for  [criminal  non-support]  and, if  so,  where  in                                                               
statute that might be located.                                                                                                  
                                                                                                                                
MR. MAIN replied he did not have that information.                                                                              
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he  would like  to [be  provided]                                                               
that information.                                                                                                               
                                                                                                                                
MR. MAIN  said that child  support, by  its nature, spans  an 18-                                                               
year commitment and is a continuing offense as opposed to a one-                                                                
time event  such as a robbery.   In Taylor v.  State, [failure to                                                             
pay  child support]  became  one continuous  charge  if a  person                                                               
failed  to pay  over a  period of  time.   He opined  that it  is                                                               
appropriate  for  the  conduct  charge to  reach  back  10  years                                                               
because criminal non-support is theft,  even though the CSED does                                                               
not  call it  that.   It  has always  been viewed  as a  domestic                                                               
issue, but it can  be argued that a theft has  occurred.  He gave                                                               
an  example of  someone  stealing  $500 from  a  store and  being                                                               
charged   with  a   felony;  however,   current   law  allows   a                                                               
noncustodial parent to steal thousands, and sometimes tens-of-                                                                  
thousands,  of dollars  from  his or  her child  and  it is  only                                                               
considered a misdemeanor.                                                                                                       
                                                                                                                                
MR.  MAIN offered  an example  wherein the  CSED filed  against a                                                               
noncustodial  parent with  one child  who  was 18  years old  and                                                               
another  child who  was 16  years old  and emancipated,  with the                                                               
emancipation having  occurred six years  ago.  At the  trial, the                                                               
defense argued that for the  16-year-old who was emancipated over                                                               
five  years  ago, the  charges  should  be  dismissed.   A  judge                                                               
dismissed the  charge from the  second child because  the conduct                                                               
occurred outside the  statute of limitations of five  years.  Had                                                               
there been a felony statute in  place, the conduct would not have                                                               
been  dismissed   because  the  second  child   would  have  been                                                               
emancipated  within  the  10-year  period.    In  that  case,  he                                                               
continued, the CSED proceeded to trial  on only one child who was                                                               
currently 18 years  old.  The noncustodial parent,  in that case,                                                               
was  $55,736  in  arrears.    He noted  that  currently,  if  the                                                               
noncustodial  parent  can avoid  paying  child  support for  five                                                               
years past  emancipation of  his or her  children, or  five years                                                               
past  the children's  age of  majority,  the noncustodial  parent                                                               
cannot  be  criminally charged  no  matter  what the  arrears  or                                                               
conduct  is  and  regardless  of what  the  child  support  order                                                               
contains, whether it be for  support for college, or for special-                                                               
needs children.                                                                                                                 
                                                                                                                                
MR. MAIN explained  that when it comes to probation  of a felony,                                                               
versus probation  for a  misdemeanor, the  success that  the CSED                                                               
has  had   in  convicted  noncustodial  parents   making  regular                                                               
payments is  due to the fact  that there is jail  time waiting in                                                               
the  wings if  they stop  paying.   After conviction  or plea,  a                                                               
court can order informal probation for  a term of up to ten years                                                               
and suspended jail  time for a year.   For a Class  C felony, the                                                               
amount  of formal  probation  is  ten years,  and  the amount  of                                                               
suspended  jail  time is  five  years.   Misdemeanor  convictions                                                               
receive  informal   probation,  whereas  felony   probations  are                                                               
formal, he  explained.  With  felony probation, the  defendant is                                                               
assigned a  probation officer with the  Department of Corrections                                                               
(DOC).  The probation officer  monitors compliance with the court                                                               
order to stay  employed, to make monthly  child support payments,                                                               
and follow the terms of probation ordered by the judge.                                                                         
                                                                                                                                
Number 2096                                                                                                                     
                                                                                                                                
MR.  MAIN said  that  the current  situation  with a  misdemeanor                                                               
conviction  requires   that  CSED  investigators   and  assistant                                                               
district attorneys serve the function  of a parole officer.  They                                                               
are  the ones  who  track  compliance.   When  a defendant  stops                                                               
working  and paying,  or drops  out, the  CSED and  the assistant                                                               
district  attorney file  a petition  to  revoke probation,  which                                                               
involves  a  separate case  that  requires  a  report by  a  CSED                                                               
investigator,  a court  filing,  an arraignment,  and a  judicial                                                               
hearing.   When a  petition to  revoke probation  is adjudicated,                                                               
the CSED  can request that  the court  impose those parts  of the                                                               
criminal judgment  that are suspended, unfulfilled,  or unordered                                                               
by the court.  For example, if  the court orders 365 days in jail                                                               
with 360 suspended, the defendant  would have served five days at                                                               
the time of  conviction; then, at a petition  to revoke probation                                                               
hearing, the  CSED can ask  that a  portion of the  remaining 360                                                               
days be imposed.                                                                                                                
                                                                                                                                
MR. MAIN  said that the  CSED can also  ask the court  to enforce                                                               
the  criminal order  that the  noncustodial parents  be employed.                                                               
In misdemeanors,  it is  common for the  courts to  re-assign the                                                               
defendant  on the  first  petition  to revoke  probation.   In  a                                                               
criminal  non-support context,  the  court is  likely  to tell  a                                                               
defendant  to  get  a  job  and start  paying,  and  the  defense                                                               
attorney is  going to drag  out the petition to  revoke probation                                                               
by  receiving continuances  until the  client is  employed again.                                                               
When  the case  is  adjudicated  and the  client  is working  and                                                               
paying   again,  the   court   is  hesitant   to  incarcerate   a                                                               
noncustodial parent.                                                                                                            
                                                                                                                                
Number 2176                                                                                                                     
                                                                                                                                
MR. MAIN  said that even if  the court remands the  defendant for                                                               
some of  the suspended jail time,  it is going to  be assigned in                                                               
small   allotments;  in   other  words   in  10-day,   or  20-day                                                               
allotments.   Because the CSED  has no  other tools, it  has been                                                               
very  successful in  getting misdemeanor  probation for  5 to  10                                                               
years.  It's the only hook it has,  at this point, and it's not a                                                               
very effective  one.   Ideally, a  misdemeanor charge  would mean                                                               
that a  defendant is placed  on probation for  3 to 5  years, and                                                               
the  CSED  would   file  one,  maybe  two   petitions  to  revoke                                                               
probation, but no  more, and after the second one,  would be able                                                               
to file a felony [charge].   Or, when the conduct is appropriate,                                                               
the  CSED would  file  a felony  charge.   Again,  with a  felony                                                               
conviction, there is a probation  officer assigned to monitor the                                                               
noncustodial   parent's  compliance   with  employment,   monthly                                                               
payments,  and  other  conditions.   The  courts  view  a  felony                                                               
petition  to  revoke  probation very  differently.    For  felony                                                               
probation, the  felony officer files  a petition, and  the period                                                               
of suspended  jail can be  up to 5 years,  and it is  more likely                                                               
that  the court  will impose  jail time.   For  a felony,  by the                                                               
second petition  to revoke probation,  the argument will  be much                                                               
stronger that the amount of jail  time will be months, instead of                                                               
days.  He  said that this is appropriate for  some of the conduct                                                               
that the CSED sees.                                                                                                             
                                                                                                                                
MR. MAIN said that with  a misdemeanor charge, not all defendants                                                               
are treated the same.   He gave an example of  one person who had                                                               
a monthly obligation  of $250, one child, arrears  of $5,000, and                                                               
was  employed  seasonally.   Another  noncustodial  parent had  a                                                               
monthly  obligation  of  $700,   four  children,  two  marriages,                                                               
arrears of  $69,000, and was  employed as  a doctor or  lawyer or                                                               
whose  contracting business  was transferred  into another  name.                                                               
Both  of those  examples had  to  be charged  the same  - with  a                                                               
misdemeanor.                                                                                                                    
                                                                                                                                
MR.  MAIN  requested that  Sue  Stancliff  address the  issue  of                                                               
arming investigators.                                                                                                           
                                                                                                                                
Number 2275                                                                                                                     
                                                                                                                                
SUE STANCLIFF,  House Majority Office, Alaska  State Legislature,                                                               
explained, on  behalf of the  sponsor, Representative  Pete Kott,                                                               
that  Section 10  gives CSED  investigators the  power of  police                                                               
officers when enforcing child support laws.  She went on to say:                                                                
                                                                                                                                
     The Department  of Public Safety has  commissioned CSED                                                                    
     investigators  for  20  years.   The  commissions  were                                                                    
     granted  because  [the]  CSED had  access  to  National                                                                    
     Crime Information Centers (NCIC).   Their database from                                                                    
     the FBI  was to locate noncustodial  parents and assist                                                                    
     law enforcement agencies  in parental kidnapping cases.                                                                    
     The  FBI recognized  [the] CSED  as  a law  enforcement                                                                    
     agency  when it  granted access  to the  NCIC database.                                                                    
     The   State   of   Alaska,  under   previous   statute,                                                                    
     recognized [the] CSED as a  criminal justice agency and                                                                    
     allowed  the  agency  access to  Alaska  Public  Safety                                                                    
     Information Network, which we all know as the APSIN.                                                                       
                                                                                                                                
     Currently,  CSED investigators  hold a  limited special                                                                    
     "Peace  Officer  Alaska  State Trooper  Without  Weapon                                                                    
     Commission"   to   perform    [the   CSED's]   criminal                                                                    
     investigation  duties.   These  commissions grant  them                                                                    
     the  ability to  do search  warrants, testify  at grand                                                                    
     jury, and issue criminal  non-support citations.  [The]                                                                    
     CSED has  interior protection for its  employees due to                                                                    
     the dangers  experienced there, past and  present.  The                                                                    
     customer  service center  in Anchorage  has bulletproof                                                                    
     glass now and Kevlar walls.   I believe we probably all                                                                    
     recall recent  articles in the paper  that brought that                                                                    
     about.      [The]   CSED  investigators   were   issued                                                                    
     bulletproof vests because of  an incident that occurred                                                                    
     in 1995 where individuals brandished firearms.                                                                             
                                                                                                                                
MS.  STANCLIFF said  that in  the past,  CSED investigators  have                                                               
requested assistance from the state  troopers, and that Mr. Main,                                                               
former director of [the] CSED, would  be able to give the example                                                               
because he'd had "first-hand experience."                                                                                       
                                                                                                                                
TAPE 04-28, SIDE B                                                                                                            
Number 2393                                                                                                                     
                                                                                                                                
MR.  MAIN  explained that  the  situation  was  one in  which  an                                                               
individual  had  advised  [division  personnel] as  well  as  FBI                                                               
personnel  that he  carried  a firearm.    Therefore, the  Alaska                                                               
State  Troopers  were  called for  assistance.    The  dispatcher                                                               
simply  turned around  and  called  that investigator's  division                                                               
office  and forwarded  the  request for  assistance  back to  the                                                               
CSED.  Mr. Main specified  that the CSED has requested assistance                                                               
from  the Department  of Public  Safety (DPS),  the Alaska  State                                                               
Troopers, as  well as  the Anchorage  Police Department  (APD) on                                                               
more   than   one  occasion,   and   in   those  instances,   the                                                               
aforementioned entities have called  the CSED directly to request                                                               
that the division  assist its own people, or have  given the CSED                                                               
its own phone number, thereby referring the CSED to itself.                                                                     
                                                                                                                                
REPRESENTATIVE   SAMUELS  offered   his  recollection   that  the                                                               
commissioner  of   the  Department  of  Public   Safety,  William                                                               
Tandeske, had expressed concerns  about whether the training CSED                                                               
investigators  receive  includes  "shoot,  no  shoot"  scenarios.                                                               
Representative Samuels directed  attention to page 5,  line 5, of                                                               
Version  S and  asked if  that language  includes all  the deadly                                                               
force  training  or only  refers  to  technical accuracy  with  a                                                               
firearm.                                                                                                                        
                                                                                                                                
MS. STANCLIFF pointed  out that [in order for  an investigator to                                                               
carry a firearm  the investigator must] complete  a peace officer                                                               
training  academy   program  as  well  as   meet  annual  firearm                                                               
certification  requirements.     Ms.  Stancliff   mentioned  that                                                               
although  she knew  the  firearm  certification requirements  are                                                               
quite  rigorous, she  didn't know  what they  were exactly.   She                                                               
characterized  the peace  officer training  academy program  as a                                                               
firm foundation.   She highlighted that one must  meet the annual                                                               
firearm  certification requirements,  emphasizing that  it is  an                                                               
annual certification .   Ms. Stancliff said she  assumes that the                                                               
annual firearm  certification requirements would include  when to                                                               
shoot and when not to shoot.                                                                                                    
                                                                                                                                
REPRESENTATIVE  SAMUELS  clarified  that  he was  asking  if  the                                                               
annual firearm  certification requirements included  the judgment                                                               
portion, which is the most important portion of the training.                                                                   
                                                                                                                                
CHAIR  McGUIRE interjected  that  she  believes regulations  will                                                               
have to be drafted regarding the requirements.                                                                                  
                                                                                                                                
Number 2226                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG   expressed  concern   about  dangerous                                                               
situations  in  which  the  CSED  requested  assistance  and  the                                                               
division wasn't  given immediate  assistance by  law enforcement.                                                               
There should  be no reason  for that to  occur, he opined.   Just                                                               
because the CSED wasn't given  the help it needed, Representative                                                               
Gruenberg said  he didn't believe  that it follows that  the CSED                                                               
should be  armed.  He  said he believes  the solution is  for the                                                               
CSED  to  obtain  the  help and  assistance  necessary  from  law                                                               
enforcement, and  suggested perhaps  including an  intent section                                                               
or   attaching  a   letter  of   intent   specifying  that   [law                                                               
enforcement]  should   provide  the   CSED  with   all  necessary                                                               
assistance  as quickly  as  possible.   There  is  no reason,  he                                                               
stressed,  that  CSED  staff  should  endanger  themselves  on  a                                                               
nonsupport matter.                                                                                                              
                                                                                                                                
CHAIR McGUIRE announced that she  supports "it."  She pointed out                                                               
that  the  Alcohol  Beverage Control  Board  investigators  carry                                                               
firearms and  yet those  who are  entering hostile  situations in                                                               
which  they  are asking  to  take  away significant  assets  from                                                               
enraged parents  don't carry firearms.   Chair  McGuire indicated                                                               
agreement with  Representative Samuels  that the  training should                                                               
include shooting  judgment.  She  specified that everyone  at the                                                               
CSED doesn't need  to carry a firearm and  what's being discussed                                                               
here  is allowing  the investigators  to  carry a  firearm.   She                                                               
requested that Mr.  Main walk through some of  the scenarios, and                                                               
noted  that 33  states have  made  failure to  pay child  support                                                               
beyond certain  years or levels,  a felony.   She asked  if other                                                               
states  authorize investigators  in divisions  equivalent to  the                                                               
CSED to carry a firearm.                                                                                                        
                                                                                                                                
MR.   MAIN   answered   that   California's   district   attorney                                                               
investigators who  perform family  support for  criminal purposes                                                               
are  considered post-certified  or police-standard  certified and                                                               
carry firearms.   Louisiana gives  its child  support enforcement                                                               
investigators the  authority to  carry a firearm.   Oregon  has a                                                               
law, although it doesn't arm its child support investigators.                                                                   
                                                                                                                                
Number 2034                                                                                                                     
                                                                                                                                
MR.  MAIN,  in  response  to   a  question,  explained  that  the                                                               
investigators currently  working at the  CSED have many  years of                                                               
experience  in law  enforcement, including  investigations.   The                                                               
investigators  of   the  CSED   do  surveillance,   following  an                                                               
individual to work in order to  show that that individual has the                                                               
ability  to   pay.     Sometimes  CSED   investigators  interview                                                               
individuals at  the Department of  Revenue office building  or in                                                               
the field.  Some of these  individuals have [been charged with or                                                               
been   convicted  of]   violent  crimes.     Furthermore,   [CSED                                                               
investigators] are  called upon  to respond when  the CSED  has a                                                               
threat at the  CSED office, and this has occurred  more than once                                                               
at the Anchorage facility.                                                                                                      
                                                                                                                                
MR.  MAIN  recalled  that  approximately a  year  ago,  the  CSED                                                               
received a  threat from an individual  who said he was  coming to                                                               
the  office.   When  that individual  entered  the building,  the                                                               
current director  of the CSED  called the investigators,  not the                                                               
Anchorage Police  Department or the  Alaska State Troopers.   All                                                               
past directors  of the CSED have  responded in such a  manner and                                                               
expected  the investigators  to protect  the CSED.   However,  he                                                               
noted  that  he  didn't  respond   in  that  manner  because  the                                                               
investigators aren't armed.                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked if  providing protection  for the                                                               
agency is part of the job description.                                                                                          
                                                                                                                                
MR.  MAIN   specified  that  the  CSED's   investigator  position                                                               
description  specifies that  instigators  are to  respond to  any                                                               
emergency situation, including threats.                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG said that  changes his thinking and thus                                                               
he  said [CSED  investigators] need  the ability  to protect  the                                                               
agency.   On  a different  issue,  he suggested  Mr. Main  should                                                               
follow-up  with regard  to what  the legislature  can do  to make                                                               
sure that  [CSED investigators] have the  protection necessary in                                                               
the field.                                                                                                                      
                                                                                                                                
Number 1861                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGG posed  a situation  in which  an investigator                                                               
gathers  all  the  information he/she  needs  and  confronts  the                                                               
individual.  In such a situation,  who performs the arrest of the                                                               
individual, he asked.                                                                                                           
                                                                                                                                
MR. MAIN  answered that arrests  would be left for  the Anchorage                                                               
Police Department or the Alaska  State Troopers to perform.  It's                                                               
not  in  the job  description  of  CSED investigators  to  arrest                                                               
individuals.   For misdemeanors, individuals are  given a summons                                                               
or a citation  instructing them to come to court.   Sometimes the                                                               
U.S. Marshals have  had to arrest individuals  in cases involving                                                               
federal [jurisdiction].                                                                                                         
                                                                                                                                
REPRESENTATIVE  OGG  remarked  that  when  the  individuals  have                                                               
committed  felonies, these  individuals are  different characters                                                               
under the  law.  He  pointed out  that [law enforcement]  can use                                                               
extreme  force and  sometimes deadly  force  when apprehending  a                                                               
felon who is  escaping.  [Under this legislation,  those who have                                                               
failed  to pay  child support]  will  now fall  into [the  felony                                                               
category].    Representative Ogg  posed  a  situation under  this                                                               
proposed statute  in which [an  individual who has failed  to pay                                                               
child support]  is determined to  be a felon and  that individual                                                               
takes off.  He questioned what an armed investigator would do.                                                                  
                                                                                                                                
MR.  MAIN   answered  that  the  investigator   would  allow  the                                                               
individual  to   flee.    He   explained  that  the   reason  the                                                               
legislation specifies that [peace  officers powers granted by the                                                               
agency may be  exercised] is for protection in the  line of duty.                                                               
"There is no reason ... for  them to shoot anyone unless it's for                                                               
the protection of themselves or  others," he specified.  Mr. Main                                                               
emphasized that the investigators  currently with the agency have                                                               
been  trained   extensively  throughout   the  years   and  these                                                               
investigators, even  if armed, know  that they have no  reason to                                                               
shoot a fleeing felon.                                                                                                          
                                                                                                                                
CHAIR  McGUIRE highlighted  that peace  officer powers  come with                                                               
all the  obligations those  powers carry.   She said  she assumes                                                               
that  there  would  also  be  a policy  crafted  with  regard  to                                                               
granting peace officer powers.                                                                                                  
                                                                                                                                
Number 1689                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  recalled  that last  year  this  committee  heard                                                               
Representative  Croft's legislation  that  allows  anyone in  the                                                               
state  to carry  a concealed  weapon  so long  as the  individual                                                               
isn't a felon.  Chair  McGuire remarked that it's the committee's                                                               
obligation to remember that legislation  as well as keep policies                                                               
commiserate.   For  example, it  seem ironic  if the  [policy] is                                                               
that any man  or woman over the  age of 18 who  isn't a convicted                                                               
felon can carry a  weapon, while a person who, as  part of his or                                                               
her job description,  is required to be the  source of protection                                                               
for a department cannot.                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  characterized Chair  McGuire's comments                                                               
as very  persuasive.  He  asked if  the CSED office  in Anchorage                                                               
employs  any security  measures, such  as the  screening that  is                                                               
done at the court building.                                                                                                     
                                                                                                                                
MR.  MAIN relayed  that the  CSED  office in  Anchorage is  being                                                               
reviewed extensively  with regard  to providing security  for the                                                               
entire building [the Atwood building].   This review is occurring                                                               
[partly]  because  the  governor's   office  and  the  lieutenant                                                               
governor's office are  located in that building as well.   One of                                                               
the options that  has been reviewed is something  similar to [the                                                               
screening] that occurs at court buildings.                                                                                      
                                                                                                                                
REPRESENTATIVE  GARA turned  attention  to page  5  [line 4]  and                                                               
asked  if the  investigators have  to complete  and pass  a peace                                                               
officer training academy program.                                                                                               
                                                                                                                                
MR. MAIN  confirmed that the  intent is for the  investigators to                                                               
successfully complete a peace officer training academy program.                                                                 
                                                                                                                                
REPRESENTATIVE OGG drew attention to  page 4, Section 10, and the                                                               
language specifying  that peace  officer powers  may be  used for                                                               
protection in  the line  of duty.   Representative Ogg  said that                                                               
the  language   is  permissive,   although  it   isn't  limiting.                                                               
Therefore, when  [an investigator] has  the full range  of police                                                               
officer  powers, it  would seem  that  [the investigators]  would                                                               
have the  ability and  in fact  have a duty  to arrest  a fleeing                                                               
felon.                                                                                                                          
                                                                                                                                
CHAIR McGUIRE  asked if there  was any objection to  altering the                                                               
language [on page 5, line 1]  to read as follows:  "exercised for                                                               
protection only in the line of duty."                                                                                           
                                                                                                                                
MR. MAIN said he saw no problem with such a change.                                                                             
                                                                                                                                
Number 1422                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG  clarified that  he didn't  want to  limit the                                                               
powers but merely wanted to be clear on the intent.                                                                             
                                                                                                                                
MR. MAIN  noted that even  the Anchorage Police  Department won't                                                               
go after  fleeing felons.  In  fact, there are policies  in place                                                               
that specify when a chase is discontinued.                                                                                      
                                                                                                                                
REPRESENTATIVE OGG expressed the need  to be clear with regard to                                                               
whether   the   legislation   only  speaks   to   limiting   CSED                                                               
investigators to protection  only in the line of  duty or whether                                                               
the broader power desired.                                                                                                      
                                                                                                                                
MR.  MAIN clarified  that  the  goal is  to  protect these  [CSED                                                               
investigators],  but not  give them  the broad  power that  would                                                               
[require] them to make arrests.                                                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG pointed  out  that  this also  includes                                                               
protection  of the  office.   He explained  that he  now supports                                                               
arming  [CSED  investigators] because,  although  [investigators]                                                               
can wait  for the police to  arrive when [in the  field], [a CSED                                                               
investigator] can't wait  for the police when  an enraged obligor                                                               
arrives at the CSED office.                                                                                                     
                                                                                                                                
CHAIR McGUIRE remarked  that she believes that  [the language] is                                                               
clear enough,  especially because  if "we  try to  micromanage it                                                               
too much, we run into problems."                                                                                                
                                                                                                                                
Number 1282                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  moved that the committee  adopt Amendment 1,                                                               
a  handwritten   amendment,  which  read   [original  punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     Insert at p.2 line 25                                                                                                      
     after "efforts"                                                                                                            
          "and also includes any lawful excuse that is                                                                          
     otherwise provided by law."                                                                                                
                                                                                                                                
CHAIR McGUIRE objected.                                                                                                         
                                                                                                                                
REPRESENTATIVE GARA  explained that [this legislation]  creates a                                                               
felony and a  misdemeanor for those who don't  pay child support.                                                               
The language  in the  statute specifies that  if one  doesn't pay                                                               
child support and has no lawful  reason for not paying, then that                                                               
individual goes to jail.  Therefore,  the focus is with regard to                                                               
whether the individual  has a lawful excuse for  not paying child                                                               
support.  Upon review of the  cases, it seems that the failure to                                                               
pay  has to  be  knowing  [there is  child  support  to pay]  and                                                               
failure  to pay  an  amount that  the individual  can  pay.   The                                                               
drafters   placed  most   of  the   language  dealing   with  the                                                               
aforementioned in the definition of a lawful excuse, he noted.                                                                  
                                                                                                                                
CHAIR McGUIRE specified  that this language can be  found on page                                                               
2,  line  23  of Version  S.    She  then  pointed out  that  the                                                               
annotations  for  AS 11.51.120  specifies  the  following:   "The                                                               
Alaska Court  of Appeals interpreted  'without lawful  excuse' to                                                               
mean that  the state is required  to establish, as an  element of                                                               
criminal nonsupport under this section,  that the accused had the                                                               
financial ability to pay the support  - that is, that the accused                                                               
either actually  had funds  available for  payment of  support or                                                               
that  he  could  have  obtained  such  funds  through  reasonable                                                               
efforts."                                                                                                                       
                                                                                                                                
REPRESENTATIVE GARA said that  the previously referenced standard                                                               
is a good  standard to put in  the law.  However,  he pointed out                                                               
that now  it would say  that that is  the only lawful  excuse and                                                               
thus  he  asked  if  there  are other  lawful  excuses.    To  be                                                               
cautious,  he said  he was  thinking of  adding language  "or any                                                               
other lawful excuse".                                                                                                           
                                                                                                                                
MR. MAIN specified that the major  lawful excuse would be that an                                                               
individual can't  afford to pay  the child support.   He informed                                                               
the committee that  of the $300 million in  [child support] debt,                                                               
approximately  70  percent  of  those  obligors  make  less  than                                                               
$10,000 a year.  In  further response to Representative Gara, Mr.                                                               
Main informed the committee that  after the investigators closely                                                               
scrutinize each case  with regard to meeting  the [lawful excuse]                                                               
criteria,  each  case  is further  scrutinized  by  the  district                                                               
attorney assigned to  the case.  Mr. Main  acknowledged that each                                                               
child  support  enforcement  case   is  surrounded  by  different                                                               
circumstances and  thus the issue becomes  whether the individual                                                               
has the ability to pay or not.                                                                                                  
                                                                                                                                
REPRESENTATIVE GARA asked  if Mr. Main would  have any difficulty                                                               
with defining "lawful excuse" as specified in Amendment 1.                                                                      
                                                                                                                                
MR. MAIN  replied that he has  no problem with that,  although he                                                               
said he didn't know what other lawful excuses there would be.                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG pointed  out that  technically, someone                                                               
could have the ability to pay  but legally have the money tied up                                                               
in a bankruptcy, injunction, or sequestration.                                                                                  
                                                                                                                                
CHAIR McGUIRE  interjected, "Or  a piece  of property  they don't                                                               
want to sell."                                                                                                                  
                                                                                                                                
REPRESENTATIVE  GRUENBERG  specified  that not  wanting  to  sell                                                               
isn't enough  because an  individual can be  ordered to  sell it.                                                               
Representative  Gruenberg  clarified  that  he  is  referring  to                                                               
something that legally prevents the individual from [paying].                                                                   
                                                                                                                                
Number 0902                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG then  turned to  the annotation  to [AS                                                               
11.51.120] and suggested that this  [proposed] statute not define                                                               
"lawful  excuse"  because  the  courts [have  already  done  so].                                                               
Frankly, it would be simpler,  he remarked.  Furthermore, he said                                                               
he didn't  believe "child  support" needs  to be  defined because                                                               
it's an instance of tautology.                                                                                                  
                                                                                                                                
REPRESENTATIVE GARA disagreed and  explained that "lawful excuse"                                                               
does need  to be defined.   In  Alaska, the statute  doesn't list                                                               
reasons  why  one  might  justifiably   not  pay  child  support.                                                               
Furthermore, the  supreme court  hasn't provided any  guidance on                                                               
this.  Other states have taken  the approach the court of appeals                                                               
did  [with Taylor  v. State]  by inferring  that the  legislature                                                             
meant, "unless  you have  no ability to  pay," while  others have                                                               
not inferred in that requirement.   Representative Gara commented                                                               
that he  liked the court of  appeals rule and questioned  why one                                                               
wouldn't include  it in the  law.  He  noted that New  Mexico and                                                               
Tennessee follow a similar rule.                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG said that  he believes Amendment 1 would                                                               
be  helpful  otherwise the  [courts]  might  say the  [definition                                                               
specified in the  legislation] is the only  definition.  However,                                                               
he pointed out that the  number of reported decisions in criminal                                                               
cases in Alaska that reach  the Alaska Supreme Court is miniscule                                                               
and  usually  involve  procedural   issues  of  a  constitutional                                                               
nature.   As a  practical matter,  a decision  from the  court of                                                               
appeals in  Alaska is  the court of  highest appeal.   Therefore,                                                               
Representative  Gruenberg  said  he  felt  comfortable  with  the                                                               
[Taylor v. State] decision.                                                                                                   
                                                                                                                                
Number 0636                                                                                                                     
                                                                                                                                
CHAIR McGUIRE expressed concern with  regard to Amendment 1.  She                                                               
said she  didn't really  know what  the proposed  language really                                                               
means.   Furthermore,  she said  she didn't  want to  provide too                                                               
many excuses.   She turned to the memorandum  from the Department                                                               
of Law  dated February 26, 2004,  and offered the following:   in                                                               
the Taylor case, the defendant  argued that the language "without                                                             
lawful excuse" was impermissibly vague  and, because of that, the                                                               
defendant charged  that he didn't  have sufficient notice  of the                                                               
"precise   conduct  that   [the]   criminal  nonsupport   statute                                                               
purported to  prohibit."   She relayed  that the  memorandum said                                                               
the  following:    "The  court  found that:    'the  statute,  as                                                               
construed, affords  adequate notice of the  conduct it prohibits,                                                               
so  that  reasonable people  need  not  guess at  its  meaning.'"                                                               
Chair McGuire said that although  she is concerned with regard to                                                               
going beyond  that, she did  believe there is merit  in including                                                               
it in statute.                                                                                                                  
                                                                                                                                
REPRESENTATIVE GARA withdrew Amendment 1.                                                                                       
                                                                                                                                
Number 0493                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG  moved   that   the  committee   adopt                                                               
Amendment 2, to delete from page  2, line 22, the language:  "(2)                                                               
'child support' means support for a child;".                                                                                    
                                                                                                                                
MR. MAIN, in  response, explained that the  Department of Revenue                                                               
felt that  there was  another way to  address [the  definition of                                                               
child support]  but Legislative Legal and  Research Services felt                                                               
that the language specified is how it should be addressed.                                                                      
                                                                                                                                
CHAIR  McGUIRE  announced  that she  supported  leaving  in  [the                                                               
definition of child support].                                                                                                   
                                                                                                                                
Number 0414                                                                                                                     
                                                                                                                                
A roll call  vote was taken.  Representatives  Gara and Gruenberg                                                               
voted in  favor of  Amendment 2.   Representatives  Ogg, Samuels,                                                               
and McGuire voted  against it.  Therefore, Amendment  2 failed by                                                               
a vote of 2-3.                                                                                                                  
                                                                                                                                
Number 0353                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG  moved   that   the  committee   adopt                                                               
Amendment 3, which read [original punctuation provided]:                                                                        
                                                                                                                                
     Page 4  following line  9: Insert  new bill  section to                                                                    
     read:                                                                                                                      
                                                                                                                                
     *Sec.8 AS 12.55.139 is amended to read:                                                                                  
                                                                                                                                
     Penalties for criminal nonsupport  In addition to other                                                                  
     penalties   imposed  for   the   offense  of   criminal                                                                    
     nonsupport under  AS 11.51.120, the court  may suspend,                                                                    
     restrict, or  revoke, for the  period during  which the                                                                
     arrearage  continues  to exist  [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.                                                                                                                    
                                                                                                                                
     Renumber  bill  sections  and bill  section  references                                                                    
     accordingly.                                                                                                               
                                                                                                                                
Number 0319                                                                                                                     
                                                                                                                                
CHAIR McGUIRE objected for discussion purposes.                                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG   explained  that  Amendment   3  would                                                               
increase  the  penalty under  [AS  11.51].120.   Furthermore,  it                                                               
would  increase the  period that  a recreational  license can  be                                                               
revoked.  Currently, a recreational  license can be suspended for                                                               
six  months,  which really  isn't  effective  for a  misdemeanor.                                                               
Amendment  3  will allow  the  court  to "suspend,  restrict,  or                                                               
revoke, for the period during  which the arrearage continues" and                                                           
thus put some teeth into this [penalty], he opined.                                                                             
                                                                                                                                
CHAIR  McGUIRE  removed her  objection.    There being  no  other                                                               
objection, Amendment 3 was adopted.                                                                                             
                                                                                                                                
Number 0171                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG moved that the committee adopt                                                                         
Amendment 4, which read [original punctuation provided]:                                                                        
                                                                                                                                
     Page  3 following  line  10: Insert  a  new section  to                                                                    
     read:                                                                                                                      
                                                                                                                                
          "(c) In addition to the provisions of (a) and (b)                                                                     
     of  this  section,  aiding   the  nonpayment  of  child                                                                    
     support in  the first degree  is punishable by  loss or                                                                    
     restriction of  a recreational  license as  provided in                                                                    
     AS 12.55.139.                                                                                                              
                                                                                                                                
                                                                                                                                
     Page 4  following line 9:  Insert new bill  sections to                                                                    
     read:                                                                                                                      
                                                                                                                                
     *Sec.  8.  AS  11.51.122  is   amended  to  add  a  new                                                                  
     subsection to read:                                                                                                        
                                                                                                                                
     (f) In  addition to the  provisions of (a)-(e)  of this                                                                    
     section, aiding the nonpayment of  child support in the                                                                    
     second degree  is punishable by loss  or restriction of                                                                    
     a recreational license as provided in AS 12.55.139.                                                                        
                                                                                                                                
     *Sec.  9  AS  12.55.139  is amended  by  adding  a  new                                                                  
     subsection to read:                                                                                                        
                                                                                                                                
     (b)  In addition  to other  penalties  imposed for  the                                                                    
     offense of  aiding the nonpayment  of child  support in                                                                    
     the  first  degree  under  AS  11.51.121  and  for  the                                                                    
     offense of  aiding the nonpayment  of child  support in                                                                    
     the  second degree  under AS  11.51.122, the  court may                                                                    
     suspend,  restrict,  or revoke,  for  a  period not  to                                                                    
     exceed one  year, a recreational license  as defined in                                                                    
     AS 09.50.020(c), if the defendant is a natural person.                                                                     
                                                                                                                                
     Renumber  bill  sections  and bill  section  references                                                                    
     accordingly.                                                                                                               
                                                                                                                                
Number 0168                                                                                                                     
                                                                                                                                
CHAIR McGUIRE objected for purposes of discussion.                                                                              
                                                                                                                                
REPRESENTATIVE GRUENBERG explained that Amendment 4 references                                                                  
Amendment 3 and allows the loss or restriction of a recreational                                                                
license.                                                                                                                        
                                                                                                                                
CHAIR McGUIRE removed her objection.  There being no other                                                                      
objection, Amendment 4 was adopted.                                                                                             
                                                                                                                                
Number 0125                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG moved that the committee adopt                                                                         
[Conceptual] Amendment 5, which read [original punctuation                                                                      
provided]:                                                                                                                      
                                                                                                                                
     Page 3  following line 10:  Insert a new  subsection to                                                                    
     read:                                                                                                                      
                                                                                                                                
          "(c) In addition to the provisions of (a) and (b)                                                                     
     of  this  section,  aiding   the  nonpayment  of  child                                                                    
     support in  the first degree  is punishable by  loss or                                                                    
     restriction  of a  business license  as provided  in AS                                                                    
     12.55. 139.                                                                                                                
                                                                                                                                
     Page 4  following line 9:  Insert new bill  sections to                                                                    
     read:                                                                                                                      
                                                                                                                                
     *Sec.  8.  AS  11.51.122  is   amended  to  add  a  new                                                                  
     subsection to read:                                                                                                        
                                                                                                                                
     (f) In  addition to the  provisions of (a)-(e)  of this                                                                    
     section, aiding the nonpayment of  child support in the                                                                    
     second degree  is punishable by loss  or restriction of                                                                    
     a business license as provided in AS 12.55.139.                                                                            
                                                                                                                                
     *Sec.  9.  AS 12.55.139  is  amended  by adding  a  new                                                                  
     subsection to read:                                                                                                        
                                                                                                                                
     (b)  In addition  to other  penalties  imposed for  the                                                                    
     offense of  aiding the nonpayment  of child  support in                                                                    
     the  first  degree  under  AS  11.51.121  and  for  the                                                                    
     offense of  aiding the nonpayment  of child  support in                                                                    
     the  second degree  under AS  11.51.122, the  court may                                                                    
     suspend,  restrict,  or revoke,  for  a  period not  to                                                                    
     exceed  one year,  a business  license issued  under AS                                                                    
     43.70.                                                                                                                     
                                                                                                                                
     Renumber  bill  sections  and bill  section  references                                                                    
     accordingly.                                                                                                               
                                                                                                                                
Number 0070                                                                                                                     
                                                                                                                                
CHAIR McGUIRE objected for purposes of discussion.                                                                              
                                                                                                                                
REPRESENTATIVE GRUENBERG explained  that [Conceptual] Amendment 5                                                               
states  that for  aiding and  abetting [the  nonpayment of  child                                                               
support], an  individual can  lose his  or her  business license.                                                               
This  would  also   put  some  teeth  into   [the  penalties  for                                                               
nonpayment of child support], he opined.                                                                                        
                                                                                                                                
TAPE 04-29, SIDE A                                                                                                            
Number 0001                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG, in  response to Representative Samuels,                                                               
said  that aiding  and abetting  is  a statutorily-defined  basic                                                               
crime.                                                                                                                          
                                                                                                                                
REPRESENTATIVE SAMUELS  surmised, "You're  paying them  under the                                                               
table  for  the  reason  of   getting  away  from  child  support                                                               
payments."                                                                                                                      
                                                                                                                                
CHAIR  McGUIRE  said,  "And,  there   is  the  mental  intent  of                                                               
'knowingly', correct?"                                                                                                          
                                                                                                                                
REPRESENTATIVE SAMUELS replied, "Absolutely."                                                                                   
                                                                                                                                
REPRESENTATIVE GARA said  he felt it was too harsh  to remove the                                                               
business license, and going to jail was enough of a sanction.                                                                   
                                                                                                                                
REPRESENTATIVE OGG said  there seemed to be "typos"  in that both                                                               
amendments 4 and 5 reference the same subsections.                                                                              
                                                                                                                                
REPRESENTATIVE  GRUENBERG offered  his  amendment as  conceptual.                                                               
He said  his intent is to  deter criminal conduct and  to enforce                                                               
compliance  with  the  child support  law.    Having  [Conceptual                                                               
Amendment 5]  as a potential  sanction for businesses may  be far                                                               
more effective than anything else, he  opined.  He said he wanted                                                               
the  court be  able to  suspend a  business owner's  license, but                                                               
suspend  that  portion  of  the sentence,  if  the  defendant  is                                                               
compliant.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  SAMUELS agreed  with Representative  Gara because                                                               
of the potential harm to the employees of a suspended business.                                                                 
                                                                                                                                
CHAIR McGUIRE  asked if  there was any  further discussion.   She                                                               
maintained her objection [to Conceptual Amendment 5].                                                                           
                                                                                                                                
Number 0325                                                                                                                     
                                                                                                                                
A roll  call vote was  taken.  Representative Gruenberg  voted in                                                               
favor of  Conceptual Amendment 5.   Representatives Ogg, Samuels,                                                               
Gara,  and  McGuire  voted against  it.    Therefore,  Conceptual                                                               
Amendment 5 failed by a vote of 1-4.                                                                                            
                                                                                                                                
Number 0377                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  moved to  report the  proposed CS  for HB
514, Version  23-LS1639\S, Mischel,  2/26/04, as amended,  out of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal  notes.   There  being  no  objection, CSHB  514(JUD)  was                                                               
reported from House Judiciary Standing Committee.                                                                               

Document Name Date/Time Subjects