Legislature(2003 - 2004)

05/07/2004 08:44 AM FIN

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

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