Legislature(2003 - 2004)
02/09/2004 01:04 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 357 - RESTITUTION Number 1270 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 357, "An Act relating to restitution; and providing for an effective date." Number 1285 REPRESENTATIVE SAMUELS moved that the committee rescind its action in reporting CSHB 357, Version 23-LS1384\H, Luckhaupt, 1/29/04, as amended, from committee. There being no objection, it was so ordered. REPRESENTATIVE SAMUELS moved to adopt a new proposed committee substitute (CS), Version 23-LS1384\I, as the working document. There being no objection, Version I was before the committee. Number 1327 SARA NIELSEN, Staff to Representative Ralph Samuels, Alaska State Legislature, spoke on behalf of Representative Samuels, one of the prime sponsors of HB 357. She reminded the committee that at the last hearing on HB 357, the committee passed an amendment that inserted "when presented with evidence," on page 1, line 4. The drafters have said that the aforementioned language is unnecessary and actually complicates the situation because it would require that other statutes be changed in order to ensure that the statutes [use parallel language]. She noted that this language was also inserted on page 1, line 10. Ms. Nielsen then turned attention to the insertion of a new Section 6 on page 3, beginning on line 2. This new Section 6 addresses [the ability of the] juvenile court to take into consideration a defendant's ability to pay past the age of 19. She relayed that the committee has possession of two amendments that will eliminate both of the insertions discussed. Number 1402 REPRESENTATIVE SAMUELS moved that the committee adopt Amendment 1, which read [original punctuation provided]: Page 1, line 4 Delete "when presented with evidence," Page 1, line 10 Delete "when presented with evidence," REPRESENTATIVE GARA objected and asked why there is a problem [with the language adopted at the prior hearing]. MS. NIELSEN referred members to a memorandum from Gerald Luckhaupt, Attorney, Legislative Legal and Research Services, dated February 2, 2004, which said in part [original punctuation provided]: The committee added the words "when presented with evidence" in two places. Apparently, the committee is limiting a criminal court from ordering restitution except when evidence is presented. I do not understand the reason for the amendment, as a criminal court (or even a civil court for that matter) cannot deprive a person of property arbitrarily or without evidence to support the judgment. It seems beyond question to me that a court cannot enter a restitution order without evidence to support the order and I therefore do not see the need for the amendment. Beyond this concern, the amendment is troubling because the legislature requires a court to order restitution in AS 12.55.045(e) and allows the awarding of restitution under AS 12.55.045(d). In each of these provisions there is no mention of "when presented with evidence." Because of the differences in these restitution statutes, the courts may choose to interpret these provisions differently. It is possible that a court could interpret AS 12.55.045(a) to require a restitution order to be supported by a different level, quantity, or type of evidence than restitution orders under AS 12.55.045(d) or (e). REPRESENTATIVE SAMUELS, speaking as one of the prime sponsors of HB 357, explained that by [inserting language] only in the areas specified by this legislation, it appears to have muddied the waters. MS. NIELSEN informed the committee that she had spoken with Anne Carpeneti, Assistant Attorney General, Department of Law (DOL), who had attended the hearing at which the language was inserted. Ms. Nielsen relayed that Ms. Carpeneti said she was troubled by the insertion of the language, but that day didn't feel strongly one way or another; however, upon being informed of the memorandum from Legislative Legal and Research Services, Ms. Carpeneti agreed with the drafters. Number 1546 REPRESENTATIVE GARA remarked that if the [legislation] tells the court that it has to order restitution, then it will do so. "If the victim doesn't present any evidence, the court still has to order restitution," he said. He recalled that the concern was that the court shouldn't have to spend scarce resources or [order] restitution when no evidence has been presented. Representative Gara said that he believes Mr. Luckhaupt's opinion is possibly correct and possibly incorrect. Unless the legislation requires that the prosecution and/or the victim comes in with evidence, then the legislation will require that the courts speculate, spend time coming up with evidence that the prosecution doesn't have. Therefore, he disagreed with the argument that "we should just see what the courts do with this." REPRESENTATIVE SAMUELS pointed out that currently, there is a constitutional right to [restitution]. Therefore, the courts should order restitution every time. He said that the courts aren't going to order restitution unless there is some proof that a loss was suffered. REPRESENTATIVE GRUENBERG said that he has a concern similar to that of Representative Gara in that he didn't know what a judge might do. He agreed that there needs to be some evidence to support an award. CHAIR McGUIRE, speaking as one of the prime sponsors of HB 357, agreed. However, if a term in one part of the statute is defined in a different way [than in other parts of existing statute], then it might give an unintended meaning or implied meaning to the term in those other sections of statute. REPRESENTATIVE GRUENBERG expressed the need to be sure that something indicates the intent. CHAIR McGUIRE remarked that she believes a sufficient record has been created specifying that there is no intention for judges to waste time trying to uncover evidence that simply doesn't exist because of a mandate in the constitution or this legislation. She said she is supportive of removing the "when presented with evidence," language. She suggested that Representative Gara could contact Mr. Luckhaupt on this matter and if Representative Gara continues to believe there is a problem, then the legislation can be revisited or amended on the House floor. She noted her hesitation with holding the legislation further. Number 1771 REPRESENTATIVE SAMUELS pointed out that currently the judge operates under the constitutional [mandate] that restitution shall be ordered. Therefore, this legislation makes the statute follow the constitution, which doesn't say anything about needing evidence. He related his belief that if there is no evidence, then no restitution would be awarded. REPRESENTATIVE GARA commented, "The only reason that this odd wording is needed is because we're doing a very odd thing with the bill." This legislation specifies that restitution shall be awarded; the only circumstance in which the court isn't allowed to award restitution is when the victim expressly denies the need for restitution. The legislation creates an odd circumstance by saying that the award should be made even if the person the money is going to go to doesn't ask for it, doesn't present any evidence for it, doesn't do anything to help the court decide the amount of money. He characterized this as almost unprecedented, which is why he supports this additional language. In response to Mr. Luckhaupt's statement saying that the language in the legislation doesn't appear in other provisions, Representative Gara surmised that that is because in other areas of law the victim presents evidence to support the claim. Representative Gara said, "This is a unique circumstance and that's what justifies the unique language." REPRESENTATIVE SAMUELS reiterated that the constitution already specifies that the courts shall award restitution. He said that he would give the court some leeway for common sense. REPRESENTATIVE GARA maintained his objection. He pointed out that the legislation changes [the statute] from "may" to "shall" and specifies that there is only one circumstance under which the court can't follow this mandate. Therefore, the court will be left in a situation wherein there is no evidence but there is a mandate to order restitution. REPRESENTATIVE GRUENBERG asked if Doug Wooliver could speak to this matter. Number 1942 DOUG WOOLIVER, Administrative Attorney, Administrative Staff, Office of the Administrative Director, Alaska Court System (ACS), said that he didn't know what a court would do either. However, judges are famous for finding ambiguities where no one else thinks they exist. Furthermore, judges sometimes interpret a statute in a way that the legislature didn't intend. Therefore, Mr. Wooliver said that if the committee sees any ambiguity, then it would be best to clarify it now, rather than later. Mr. Wooliver pointed out that the court, if there is a mandate to order restitution and there's no evidence, could direct the district attorney or prosecutor to find the evidence. REPRESENTATIVE SAMUELS asked, "Wouldn't the constitution be the mandate?" MR. WOOLIVER said that he didn't have any more insight than anyone else with regard to how the court would interpret this. However, he reiterated that if there is ambiguity, the court will find it. REPRESENTATIVE GRUENBERG urged the committee to leave the language and then there would be no question. The committee took an at-ease from 3:32 p.m. to 3:40 p.m. REPRESENTATIVE GARA explained that with the adoption of Amendment 1, the legislation specifies that the court shall award restitution. He posed a situation in which the prosecution has no evidence from the victim because the victim has decided he or she doesn't care. However, [with the adoption of Amendment 1, the court would have to order the prosecution to go out and do something that the victim doesn't want and for which the prosecution doesn't have time. Including the language, "when presented with evidence," tells the court that if the prosecution doesn't come in with evidence, the court won't make the prosecution undergo a second hearing. Representative Gara said, "Let's not tell the courts to tell the prosecution to go do more work than the prosecution has thought is justified when a victim doesn't give you the evidence that you want." Representative Gara recalled that this was more of a fiscal concern than an evidence concern. CHAIR McGUIRE suggested that if a defense attorney representing a client found a situation [in which the victim didn't come in with evidence], it would assist in obtaining a decline [of restitution]. Number 2157 MR. BRANCHFLOWER explained that when a person is convicted, it comes about by the person entering a guilty or no contest plea or there is a conviction following a trial. In the latter case, there will always be evidence in the record to support a conviction, especially with regard to financial crimes. The state will have had to put on some evidence concerning the degree of the crime. However, most convictions follow a plea, and in that situation the court requires a factual basis, which is found in the charging document before the court. So, there is always evidence before the court and upon which it can rely to enter a restitution award. The complaint or information is a sworn document supported by an affidavit that is filed by the prosecutor or police officer. Because of the structure of the defense statute, there is a requirement that a specific dollar loss be alleged. He reiterated that it isn't possible for a conviction to be obtained without some evidence on the record. Therefore, Mr. Branchflower said that he didn't see a problem that needs to be fixed because there will always be some evidence. REPRESENTATIVE SAMUELS surmised from Mr. Branchflower's comments that it doesn't matter whether the language is left in or not. Therefore, if the language "when presented with evidence" is left in the CS to alleviate Representative Gara's concerns, it wouldn't matter because the evidence is always going to be there anyway. MR. BRANCHFLOWER reiterated that the evidence would be present in the form of a sworn document or some oral representation that is made by the prosecutor, which would form the basis for taking the plea. REPRESENTATIVE SAMUELS relayed his understanding, then, that if the language is included, the prosecution wouldn't be impacted one way or another. MR. BRANCHFLOWER responded that he didn't believe so unless it's a particularly complicated case. CHAIR McGUIRE asked if Mr. Branchflower has concerns that including the language would impact how restitution is awarded in other places in the statute. MR. BRANCHFLOWER replied no. Number 2269 REPRESENTATIVE SAMUELS withdrew Amendment 1. Number 2287 REPRESENTATIVE SAMUELS moved that the committee adopt Amendment 2, which read [original punctuation provided]: Page 3, line 2 Delete all of Section 6 REPRESENTATIVE GRUENBERG said he didn't understand why Section 6 is being deleted. MS. NIELSEN explained that [Section 6] attempted to clarify something that the courts can already do. In doing so, it seems that [Section 6] has "mucked it up." Therefore, it seems best to leave Section 6 out. REPRESENTATIVE GRUENBERG asked if the court already has the ability to take into account the minor's ability to pay. MS. NIELSEN replied yes. The concern, she explained, is that the language on page 3, line 31, could limit the amount of restitution now. REPRESENTATIVE GRUENBERG emphasized the need to be sure that the court can already do this. Therefore, Representative Gruenberg said he would withdraw his objection [to Amendment 2] if he was assured that the court already has this authority. Number 2390 CHAIR McGUIRE asked if there was any objection to Amendment 2. There being no objection, Amendment 2 was adopted. TAPE 04-12, SIDE B Number 2386 REPRESENTATIVE HOLM moved to report the proposed CS for HB 357, Version 23-LS1384\I, as amended, out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE GARA objected. He explained that although he will vote to move this legislation from committee, he still has some real concerns with it. He then removed his objection. CHAIR McGUIRE, upon determining that there were no further objections, announced that CSHB 357(JUD) was reported from the House Judiciary Standing Committee.
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