Legislature(2003 - 2004)
05/07/2004 08:44 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE CS FOR CS FOR HOUSE BILL NO. 514(JUD) "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." This was the first hearing for this bill in the Senate Finance Committee. Co-Chair Wilken stated that this "omnibus" legislation is sponsored by Representative Pete Kott and would result in six changes to the Child Support Enforcement Division statutes. Senator Bunde moved to adopt SCS CS HB 514, Version 23-LS1639\N as the working document. There being no objection, Version "N" was ADOPTED as the working document. JOHN MAIN, Staff to Representative Pete Kott, stated that the bill would correct six items in the child support statutes, with the first being that it would change "criminal nonsupport," which is currently a misdemeanor, to a felony. He shared that there are approximately 14,000 cases that exceed $20,000 in arrears or are in excess of 24-months in arrears on their child support payments. He shared that these cases amount to approximately $580 million. He stated that that fact that a person might be in arrears on a large amount of child support does not necessarily make that person a criminal; however, he continued, this change would align the State with 33 other states who categorize criminal nonsupport as a felony, primarily because a felony charge as opposed to a misdemeanor charge mandates that a person be on probation for ten years with up to a five-year suspended sentence rather than an informal probation of up to ten years with a suspended sentence of up to one year. In addition, he stated that the statute of limitations on a felony is ten years as opposed to five years for a misdemeanor. SFC 04 # 110, Side B 09:31 AM Mr. Main noted that the Child Support Investigator Unit oversees a misdemeanor probationer, and that were this offense reclassified as a felony, the probation would be overseen by the Department of Corrections Probation Office. He stressed that changing the charge from a misdemeanor to a felony in cases where a large amount of child support is owed would provide the Child Support Division with "another tool to have to be able to collect higher amounts." Senator Dyson asked whether a person who might be convicted as a felon for being in arrears on their child support would lose their right to vote and to bear arms. Mr. Main affirmed that would be the case, were they convicted under a Class C felony. Senator Dyson asked whether those rights would be restored upon the completion of the sentence. Mr. Main could not provide the answer to that question. Mr. Main exampled that: were someone to steal oil valued at or in excess of $500 from an oil company "through deception," they could be convicted of a Class C felony; were a person to conceal $500 of merchandise from, for instance, JC Penney's, it would be considered a Class C felony; were an individual to defraud a creditor of $500 or more that is a Class C felony; or were an individual to steal $500 or more from a non-profit organization, that would be a Class C felony. He attested that withholding child support from a child "is like stealing money from their piggy bank" and yet, he noted, a person withholding child support payments must be at least $20,000 in arrears before they could be charged with a Class C felony. He noted that the State's Child Support Agency is currently monitoring twenty-four cases at this level. Mr. Main stated that the second change proposed by this legislation would be to incorporate a Conspiracy Law through which people who assist people with avoiding child support payments could also be charged with Class C felony. He noted that the current misdemeanor charge for non-payment of child support does not have a "conspiracy law as companion to the actual crime." Mr. Main further noted that this legislation would address differing jurisdictional court issues in order to clarify, through State statute, that the Courts have the statutory authority "across the board" through which approved payment plans could be developed; through which a person could be required to seek work; and through which a person could be required to complete and submit a Permanent Fund Dividend application, if qualified. Mr. Main voiced that another important component of the legislation would be to provide the ability "to compromise State debt through settlement." He exampled that this would allow individuals with a large amount of child support in arrears to establish a payment plan through which payments would be paid over a period of time. He noted that were this to occur, some of the debt could be forgiven. This program, he declared, would be limited to those situations in which it was determined to be in "the best interest of the State and the children." Mr. Main explained that the legislation would also address a situation in which there is "a victim of rape and incest" who, as a result, bears a child. He noted that State statute currently prohibits the State Child Support Enforcement Division (CSED) from assisting someone in establishing paternity. However, he explained, this legislation would allow the victim to request CSED assistance in establishing paternity and subsequently, were paternity established, to assist them in "seeking a child support order." He explained therefore, that while CSED "would not seek to establish paternity on their own," they could do so, were this legislation adopted, if asked to do so by a victim of rape or incest. Mr. Main noted that the final change proposed in this legislation would be to change Alaska Statutes in order for State laws to be consistent and compliant with federal funding requirements. Senator Dyson voiced appreciation and support for the bill. He asked whether the legislation should address the "timely change in enforcement orders" issue. Mr. Main understood the question to pertain "to adjustments and modifications of orders," and he noted that while the issue was raised, it is not addressed in this bill. Senator Dyson asked whether this issue was not addressed because "the solution does not require a Statute change, or because there is no problem, or is it a big enough issue" to be addressed separately after the issues included in this legislation are resolved. Mr. Main responded that in working with CSED in the development of this legislation, that issue was not identified as needing to be addressed. However, he stated that it might be an issue that should be further discussed. LINDA WILSON, Deputy Director, Alaska Public Defender Agency, Department of Administration, testified via teleconference from an offnet site and raised concern in regards "to the large number of people who would be exposed to a felony prosecution," were this legislation enacted. She reminded that there are in excess of 14,000 "who owe more than $20,000 in child support or have not made a payment in 24-months." She declared that prosecuting this number of people under a felony would have an impact on the operations of the Public Defender Agency (PDA). Ms. Wilson pointed out that language "narrowing the qualifications of a Class C felony" were incorporated into Section 3(d) on page two, line two of the SCS CS HB 514(JUD), Version 23-LS1639\E, by the inclusion of the word "intentionally," in that a person could be prosecuted with a Class C felony were they to "intentionally fail to provide the support." Ms. Wilson noted that the recent version of the bill incorporates the word "knowingly" rather than the word "intentionally." She stressed that use of the word "'intentionally' would serve to narrow the exposure to a felony prosecution to really get at the people that are being targeted." She declared that, "it does not take much to get behind in child support" and were the intent "to get at the worst offenders, the ones who intentionally withhold or have the ability to pay and don't," then using "the word 'intentionally' would hopefully narrow the field from 14,000 to a smaller number of people." Ms. Wilson stated that other than the concern regarding "the large number of people who could be prosecuted for a felony," the Department is comfortable with the remainder of the provisions being proposed. Co-Chair Wilken asked whether the committee substitute, Version "N" addresses the Department's concern. Mr. Main noted that, to the contrary, the word "knowingly" is incorporated into Version "N" at the recommendation of the Criminal Section of the Department of Law, as, he continued, the use of the word "intentionally" was determined "to be almost impossible for the Department to try these people and convict them." He stated that in order to prosecute a person, the individual would have to have been legally charged with the support of the child or ordered to pay support through such things as a Court order; that the person failed to provide the child support and that "the State must prove without a reasonable doubt" that the person was aware that he or she must pay child support and aware that they were not paying it; and that the lack of payment was without lawful excuse. Senator Bunde recalled that several years earlier, Legislators were provided a list [copy not provided] of approximately 100 individuals who owned more $100,000 in back child support. He noted that the majority of those individuals resided in Rural Alaska, and who, he opined, would be likely to require assistance from the Public Defender Agency. He asked therefore, whether this legislation would have a "substantial impact" on the PDA. Mr. Main replied that the procedure that must be undertaken in order to charge these people is such that only "the most egregious individuals" are investigated. He noted that in the last three years, only 24 cases have been presented as the CSEA only has four investigators, and only two of those address criminal non-support. He concurred with the information that some people owe upwards of $50,000 in back child support, but noted that the biggest issue is "ability to pay." Therefore, he concluded, the CSEA only pursues those who have the ability to pay and who "have refused to pay." He noted that the Department works with people who live in Rural Alaska and people who have "very larges arrearages to be able to get those reduced." Senator Dyson moved to report the Finance committee substitute from Committee with individual recommendations and accompanying fiscal notes. There being no objection, SCS CS HB 514(FIN) was REPORTED from Committee with indeterminate fiscal note #2, dated February 23, 2004 from the Court System; indeterminate fiscal note #3, dated February 22, 2004 from the Department of Law; zero fiscal note #4, dated March 12, 2004 from the Division of Retirement and Benefits, Department of Administration; zero fiscal note #5, dated March 9, 2004 from the Division of Risk Management, Department of Administration; zero fiscal note #6, dated March 12, 2004 from the Department of Public Safety; indeterminate fiscal note #9, dated April 6, 2004 from the Department of Administration; and a new zero fiscal note, dated May 6, 2004 from the Department of Revenue.