Legislature(2003 - 2004)
01/27/2004 08:00 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 350-CRIME VICTIMS' COMPENSATION FOR ARSON Number 0060 CHAIR WEYHRAUCH announced that the first order of business was HOUSE BILL NO. 350, "An Act relating to adding personal injury, death, and property damage from arson in the first degree to the offenses compensable by the Violent Crimes Compensation Board." Number 0117 REPRESENTATIVE SEATON moved to adopt the committee substitute (CS) for HB 350, [Version 23-LS1324\Q, Luckhaupt, 1/21/04, as a work draft. There being no objection, Version Q was before the committee. Number 0150 REPRESENTATIVE CARL GATTO, Alaska State Legislature, as sponsor of HB 350, revealed that he spent 25 years in the fire department in Anchorage and as a result has responded to a countless number of small fires, fewer large fires, and many medical runs. He said he has seen many of the difficulties that people suffer as a result of fires. Representative Gatto, depicting the viciousness of arson, recounted a personal experience in his own community whereby a friend of his was asleep at home and his wife awoke at 3 a.m. to noises and found that the side of the house was on fire. The fire department said that at that hour of the morning, the fire had clearly been set by someone. REPRESENTATIVE GATTO told the committee that when [fire fighters respond to] a fire at 2 a.m. and find a car in the driveway and no smoke alarm going off, they are fairly certain that people are inside; therefore, a search and rescue must be done. The situation [where his friends awoke to find the house on fire] clearly was attempted murder, he stated. REPRESENTATIVE GATTO said that death is not the only devastating result of fire, but sometimes more devastating are injuries resulting from fires. That is why there are special facilities that provide long-term care. He mentioned military personnel coming back from war with burns. He continued as follows: Because it is so ... devastating to people, and because it was not included in the list of violent crimes compensation, Representative Gruenberg and I looked at it, and it just seemed apparent that it was simply an error of omission. And it is our wish to simply add this to the list of violent crimes that can receive compensation through the board. Number 0377 CHAIR WEYHRAUCH asked why the proposed legislation limits the addition to [the crime of] arson in the first degree. Number 0400 REPRESENTATIVE GRUENBERG explained that the reason that he and Representative Gatto chose arson in the first degree is: "It requires that somebody be placed in immediate physical danger; the other crimes don't." He noted that the Violent Crimes Compensation Board compensates for physical injury or death. He said he supposes it would be possible to have a "criminally negligent burning with that result," and he said he doesn't think that [the sponsors] would have any objection to amending the bill to include "those." REPRESENTATIVE GRUENBERG said there have been some recent crimes, particularly in Anchorage, that brought this omission to his attention. There didn't seem to be any reason not to have arson in the first degree on the list. He remarked that to prove the crime of murder, the intent to kill must be shown; however, with arson in the first degree, all that needs to be shown is that there is an intentional or reckless burning, and that somebody was thereby endangered. He added, "You don't even have to show that the person knew that the person was inside, just that they negligently set the fire." He said, "If you had the injury, then you'd have the [arson in the first degree]." Number 0600 CHAIR WEYHRAUCH stated for the record, "This has to do with impacts to individuals, not to property." If it was opened up to impact to property in regard to compensation received from [the Victims of Crime Compensation Board], then "you've got the entire Title 11 to add in to the statute." He added that that would be a policy decision that he is not sure the committee wants to [make]. REPRESENTATIVE GRUENBERG noted that the original bill version did include property damage from arson in the first degree, because usually, if there is a fire sufficient to cause a significant injury, there will also be significant property damage. He noted that there had been immediate outcry from a number of different people that "this would soon exhaust the resources of that board." CHAIR WEYHRAUCH asked, "Why not have an immediate effective date?" REPRESENTATIVE GRUENBERG explained that, as a policy matter, whenever he introduces legislation he doesn't [include] an immediate effective date, unless there is a reason to do so. He said, "The statutes contemplate a 90-day period to give people time to gear up." He stated that he would not have any objection [to an immediate effective date]. He suggested asking a representative of the previously mentioned board what the impact on it would be. Number 0846 GERAD GODFREY, Chair, Violent Crimes Compensation Board, Department of Administration, told the committee that the board has chosen to support [HB 350] as a piece of legislation beneficial particularly to victims of arson. He stated his personal belief that the bill stands on its own merit and sells itself. He said, "The absence of arson from the inception of the bill that created the parameters for this board was likely an oversight. Perhaps arson, at the time, didn't fit the traditional paradigm of the era for a violent crime." Ironically, he noted, fire, in and of itself, may be the most violent natural force on earth. Therefore, when an individual sets a fire with or without intent, that person unleashes the most violent, unpredictable, and often uncontrollable force. Any personally adverse results from that fire should be compensable by the Violent Crime Compensation Board, he opined. He gave credit to both Representatives Gatto and Gruenberg for addressing this long overdue and overlooked provision for victims of arson. MR. GODFREY mentioned current fiscal limitations and said he would not normally look to increase the number of eligible claimants. He indicated that that was probably his first reservation upon looking at the initial draft of the bill. However, regarding [Version Q], he stated his belief that it is necessary to add Arson, which perhaps "epitomizes a violent crime." He stated that the victims of arson have the potential to suffer as much, or more than victims of gunshot wounds and assaults with any other type of weapon. He encouraged the committee members to support HB 350. Number 1022 REPRESENTATIVE LYNN asked what the average award is "from this compensation front." MR. GODFREY noted that the maximum allowable [award] is $40,000 and there is no minimum. He surmised that the average falls around $2,000. That typically would include counseling for victims. He offered more examples of how the money is awarded. Number 1165 REPRESENTATIVE LYNN stated, "I assume that this doesn't preclude any civil liability for the ... arsonist; in other words, ... you still sue for civil damages. Is that correct?" In response to a request by Mr. Godfrey to clarify his question, he asked, "They can still sue for civil damages in addition to the compensation from the fund?" MR. GODFREY answered that they can. He noted that the board has a caveat in place that if that person should recuperate his/her losses through avenues such as insurance, he/she does have an obligation to reimburse the board. He noted that that reimbursement does not go into the board's coffers, but rather into the general fund. He said that it is the board's purpose to help people as soon as possible, whereas he noted that civil law doesn't work in an expeditious fashion. He said that, occasionally, a person's attorney will contact the board and request that the board waive the person's repayment obligation, because, even after the settlement, that person is still in dire straits. REPRESENTATIVE LYNN asked, "How much did we spend last year for this?" MR. GODFREY deferred that question to the board's administrator. Number 1330 SUSAN BROWNE, Administrator, Violent Crimes Compensation Board, Department of Administration, told the committee that the board awarded approximately $1.3 million to fire victims in Alaska or their service providers. Number 1400 CHAIR WEYHRAUCH mentioned reading about the board's binary report in odd number years. He asked if that was the figure given to the legislature last year. MS. BROWNE said that she is talking about fiscal year (FY) 2003. She noted that the report has not been completed yet, but is almost available on line and will be delivered sometime within the next month. In response to a question by Chair Weyhrauch, she said that the $1.3 million was for one year. In response to a follow-up questions by Chair Weyhrauch, she said that the limit for awards is $40,000 per victim, per incident, except in the case of homicide, where there are multiple dependents and the limit is then $80,000. She added, "And that was raised, effective two years ago." The $40,000 used to be $30,000, and the $80,000 used to be $40,000. It is funded through PFD funds that are not given to those convicted of felonies and multiple misdemeanors. Also, she said, an application is made every year for an office of victims of crime fund, which is a Department of Justice fund where the federal convicts are fined and states can apply for a grant. Before the permanent fund, the money came from the general fund. CHAIR WEYHRAUCH asked Mr. Godfrey if he has an opinion about an immediate effective date. MR. GODFREY replied that he doesn't have a problem with that at all. He noted that there are not a large number of arson cases throughout the state, and he said he doesn't "expect this to really flood us with claims in [arson in the first degree]." He stated that his expectation is that the few [claims] the board will get will be from those in dire need. Number 1553 CHAIR WEYHRAUCH asked if adding another crime to the list of what can be compensated would create a fiscal impact to the state. MR. GODFREY answered that the board's funding will not be incrementally increased in any way by the addition of [arson in the first degree] to [statute]. He explained that the increase in applications will have the effect of ultimately reducing the amount of funds available for further applications. At the end of the fiscal year, he said, the board may be holding applicants off or deferring them until it gets new funding. He said, "That's unfortunate, but that's the way it is." Number 1637 REPRESENTATIVE COGHILL asked the following three questions: Is there a priority list; have other states done this and what is the type of payout that has gone out to the victim because of arson-related crime; and has there been anything in Alaska that has gone wanting because of this not being in statute? MR. GODFREY, addressing the question regarding a hierarchy of claims, said the board has a great deal of latitude and discretion and does everything on a case-by-case basis. He also noted that the board limits itself through approximately seven policies. Regarding the question about other states, he said he doesn't know. He noted that he has been seated on the board for only about a year now. However, he said the former board administrator stated that the disparity in the way states "do this" is "nothing short of a chasm." He noted that there is a person who serves as a director of a national violent crimes compensation board who is a wealth of information regarding other states. Number 1890 MR. GODFREY said he would defer Representative Coghill's third question to the administrator. He explained that if there have been any applications [made by victims of arson], the office in Juneau would know, but the applications would never have been sent on to the board to consider in one of its meetings. He added that if such an application had made it to the board, it would have been denied as noncompensable. He surmised that [if the board covered compensation for victims of arson], the average claim awarded would be for personal injury and psychological counseling. The financial burden for a burn victim can be astronomical, he stated, because the victim may need skin grafts for years to come. That person may come back years later for reconsideration by the board after having their first claim granted. The board would then have to set a policy at that time to decide how long it would continue to cover that person. He indicated that some claims may be awarded $15,000 to $30,000 "a hit." He summarized that it's a choice of how many get helped how much. Number 2075 REPRESENTATIVE GRUENBERG, regarding Representative Coghill's previously stated question whether there had been any interest in getting awards from the board in the past [for arson], returned to the subject of the recent events in the Mountain View area [in Anchorage]. He noted that he had asked the constituents involved if they had applied to the Violent Crimes Compensation Board; however, he discovered that they were not eligible for compensation [because arson is not one of the crimes currently covered]. REPRESENTATIVE GRUENBERG recalled that one of the previous examples offered by Mr. Godfrey regarding uses of the fund was to sometimes relocate victims of stalking. He asked Ms. Browne if Alaska has a witness relocation program similar to that run by the federal government. MS. BROWNE answered no. MR. GODFREY interjected that he doesn't believe there is any program like that at all. He remarked, "It's a small world in Alaska and people know people, so I think ... if you're relocating, it would have to be outside the state." He offered his understanding that there are no states that run such a program; the federal marshals are the only ones who [relocate witnesses]. Mr. Godfrey indicated that in order for the board to even consider awarding money to a person who wants to relocate [to get away from a stalker, for example], that person would have to show that he/she has an entire plan in order. Number 2235 REPRESENTATIVE GRUENBERG handed out a spreadsheet [showing deaths as a result of arson, included in the committee packet]. He also read statistics regarding incidents of arson and the resulting injuries, as follows: Four injuries in two incidents in 2001; seven injuries in three incidents in 2002; and, in an incomplete 2003 report, seven injuries in one incident. Number 2280 KELLY NICOLELLO, Assistant State Fire Marshall, Division of Fire Prevention, Department of Public Safety, told the committee that he had supplied those statistics, as well as [the spread sheet]. He stated that [the State Fire Marshals] are the primary investigators for the crime of arson in determining the origin and cause. The criminal aspect is usually followed up by either the Alaska State Troopers, or the police force in the jurisdiction involved. MR. NICOLELLO said the impact on family members, both those injured and those dealing with the loss of loved ones, is dramatic. He stated, "It's such a visible etching ... on their mind, that to take the crime of arson in the first degree and not give it the same weight as somebody who is injured or dies by gunshot or stabbing is really a misnomer." He said, "We are in agreement with this bill the way it's written, based on injury and death versus the property rights issue, and we believe it's a good bill." Number 2380 REPRESENTATIVE GATTO, as a former fire fighter, said it's certainly obvious that firemen are often injured and burned as a result of arson fires; however, "they're compensated in other ways." He added, "So, I'm going to take it that this is generally a needs-based situation when you award?" Number 2395 MR. GODFREY replied, "Truth be told, again, that is something that this current seated board is operating by, or attempting to." Statutorily, he added, "that is not a criteria." Typically, he said, the board does give consideration regardless of somebody's financial status. He noted that the board would not double an award in the instance where a person had already been given money by his/her insurance company. REPRESENTATIVE GATTO noted that the existing list of things that apply [towards consideration for compensation] includes murder and sexual assault "in any degree." He asked Mr. Godfrey how he feels about arson being considered only in the first degree. MR. GODFREY responded that he is "at peace with" arson in the first degree, because it is cut and dry regarding the crime having taken place. He offered the example of the fire that was out in the Big Lake area. If someone had started that fire as a campfire that got out of control and it enveloped the whole area to include "a house where people didn't get out in time," he said he doesn't believe that that would be arson in the first degree. He stated that although he personally thinks it's an unfortunate incident that was a violent occurrence, he questions whether the intent to violence was there. He said he would be reluctant to "increase the degrees there on that." MR. GODFREY noted that the board still has the option and the discretion to consider compensation for [victims of arson in the second degree]. He stated his reluctance has always been getting people's hopes up and making them "jump through a bunch of hoops, only to shoot 'em down," when it's a foregone conclusion that there's nothing the board is going to be able to do for them. He revealed that the board has some severe fiscal restraints it has continually faced over the last year. He added, "It's very difficult to see a scenario off the top of my head, whereby something beyond [arson in the first degree] would be compensated." Number 2639 MS. BROWNE noted that a few states compensate both arson and hit and run; therefore, there would be some precedence for compensating arson. She told the committee that there are currently a couple of claims involving arson that would be affected when the committee decides upon an effective date. She noted that Mr. Godfrey would not have known that, because the board has not received those claims yet. She said [the Department of Administration] receives two to three arson claims each year that end up "getting closed" because arson is not currently a crime that is compensated. Number 2685 REPRESENTATIVE GRUENBERG said he hadn't realized that hit and run is not compensated. He suggested that the House Judiciary Standing Committee, the next committee of referral, consider adding that to the bill. He said there are a lot of hit and runs around, which may "bust the bank," and he remarked that he is very protective of the board and doesn't want to see it get too many claims that it cannot respond to. REPRESENTATIVE GATTO said, "I'm with you on that." REPRESENTATIVE GRUENBERG explained that he doesn't want to add that in the House State Affairs Standing Committee, because that would be "quite a step." MR. GODFREY said he appreciates that. CHAIR WEYHRAUCH asked if there is any opposition to an immediate effective date. REPRESENTATIVE GRUENBERG reiterated that this is an issue that he has not contemplated, but it seems like it might "help some people" [to add an immediate effective date]. MS. BROWNE agreed that it would. Number 2776 CHAIR WEYHRAUCH asked if there was any objection to adding an immediate effective date to HB 350. There being none, it was so ordered. CHAIR WEYHRAUCH closed public testimony. NUMBER 2793 REPRESENTATIVE HOLM moved to report CSHB 350, Version 23- LS1324\Q, Luckhaupt, 1/21/04, as amended, out of committee with individual recommendations and the accompanying fiscal note. There being no objection, CSHB 350(STA) was moved out of the House State Affairs Standing Committee.