Legislature(2013 - 2014)

03/31/2014 02:30 PM House JUD


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* first hearing in first committee of referral
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                SB 110-RETURN OF SEIZED PROPERTY                                                                            
                                                                                                                                
VICE CHAIR LYNN announced that  the first order of business would                                                               
be  CS FOR  SENATE BILL  NO. 110(JUD),  "An Act  relating to  the                                                               
authority of the  victims' advocate to request a  hearing for the                                                               
release to  a crime  victim under  certain conditions  of certain                                                               
property in the custody of a law enforcement agency."                                                                           
                                                                                                                                
2:31:49 PM                                                                                                                    
                                                                                                                                
SENATOR  FRED  DYSON,  Alaska  State  Legislature,  said  SB  110                                                               
probably  looks familiar.    A  bill went  through  last year  to                                                               
facilitate the process  of returning property to  victims, and he                                                               
feels that it  should never have needed to be  done.  Authorities                                                               
ought to  be giving innocent  people back their property  as soon                                                               
as possible, he  opined.  He said that last  year's bill provided                                                               
a  process  for   a  victim  to  get  property   back  after  the                                                               
authorities had  completed a  chain of  custody, but  people have                                                               
told  him  that  the  process  was not  working  well  with  some                                                               
authorities.  He  noted that SB 110 is a  modification that gives                                                               
the  victim advocate  the authority  to go  and get  the property                                                               
back.  The bill gives an agency  or a person who has the victim's                                                               
interest at  heart the  authority to  pursue those  interests and                                                               
get the property returned, he explained.                                                                                        
                                                                                                                                
2:33:55 PM                                                                                                                    
                                                                                                                                
CHARLES KOPP, Staff, Senator Fred  Dyson, stated that in 2012 the                                                               
legislature passed  SB 30, which  established a process  in Title                                                               
12 of  the Alaska Code  of Criminal Procedure for  property crime                                                               
victims  to petition  the court  for relief  in recovering  their                                                               
property that  was held  as evidence.   This  was brought  to the                                                               
attention  of   the  bill's   sponsor  by   numerous  businesses-                                                               
particularly  small   businesses-and  individuals  who   had  had                                                               
property seized  and had no  recourse other than suing  the state                                                               
to get  their property  back.   He said  SB 30  put a  process in                                                               
place for the  crime victim to petition a  law enforcement agency                                                               
through a victim's  advocate to have the property  returned.  The                                                               
petition  went through  the victim's  advocate because  advocates                                                               
are  very  familiar  with  the Code  of  Criminal  Procedure  and                                                               
Chapter  36 of  Title 12,  which  deals with  the disposition  of                                                               
recovered and seized property.                                                                                                  
                                                                                                                                
2:35:53 PM                                                                                                                    
                                                                                                                                
MR.  KOPP said  the victims'  advocate would  review the  laws of                                                               
evidence  and  see  if  the  victim was  eligible  to  take  back                                                               
property.    Once the  advocate  petitioned  the law  enforcement                                                               
agency,  the agency  would  have  10 days  to  either return  the                                                               
property or  to request a  hearing before the court  to determine                                                               
if the  property should  be released  to the  crime victim.   "We                                                               
thought  that was  all  going well,"  he said,  but  there was  a                                                               
misunderstanding.  The Department  of Law requested clarification                                                               
whether it  was the law  enforcement agency that was  supposed to                                                               
be asking  the court  for the hearing,  rather than  the victims'                                                               
advocate, he stated.   After the clarification  request came from                                                               
Mr. [Richard]  Svobodny [Deputy  Attorney General,  Department of                                                               
Law] in  March 2013,  the court  system researched  the testimony                                                               
and  said that  there was  no question  that the  law enforcement                                                               
agency was  the entity to request  the hearing for the  return of                                                               
property.   The  victims' advocate  requested that  he or  she be                                                               
given the  authority to  request the hearing  in addition  to the                                                               
law enforcement agency, which would  empower the crime victim, he                                                               
explained.                                                                                                                      
                                                                                                                                
2:38:18 PM                                                                                                                    
                                                                                                                                
MR. KOPP  said that  SB 110  improves the  standing of  the crime                                                               
victim by  allowing the victims'  advocate to directly  appeal to                                                               
the court for the hearing if  the law enforcement agency does not                                                               
do it  within the  deadline prescribed under  existing law.   The                                                               
bill  is  very brief,  he  noted.   Section  1  just  adds a  new                                                               
subsection (f) to  return the property by hearing  and to provide                                                               
that the Office  of Victims' Rights may request  a hearing before                                                               
the court if  the law enforcement agency fails to  act within ten                                                               
days after  receiving the request.   Section 2 just  amends Title                                                               
24, which is the victims' advocate authorizing language.                                                                        
                                                                                                                                
VICE CHAIR Lynn passed the gavel to Chair Keller.                                                                               
                                                                                                                                
2:41:05 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  said SB  110's purpose  is to  give the                                                               
victims' advocate standing to file a  motion with the court for a                                                               
hearing  to get  the victim's  property back.   He  asked if  the                                                               
sponsor  would  have  any  problem  with  allowing  the  victims,                                                               
themselves,  to  file that  motion.    He  said  he could  see  a                                                               
situation  where  there  is  an   acrimonious  divorce  and  some                                                               
property is  removed and found, and  there would not be  a reason                                                               
for an advocate to file.                                                                                                        
                                                                                                                                
2:42:45 PM                                                                                                                    
                                                                                                                                
MR. KOPP  said the  bill amends  Title 12, which  is the  Code of                                                               
Criminal  Procedure and  would  not pertain  to  a divorce  court                                                               
property hearing.  It specifically  pertains to crime victims, he                                                               
added.   The reason why the  request is to go  through the Office                                                               
of Victims' Rights  is because the victim advocate  is trained in                                                               
the law  to know all of  the procedures and different  rules that                                                               
come into  play depending on  the crime.  Additionally,  it could                                                               
open  a  floodgate  for  individuals  to  make  requests  without                                                               
knowing  the legal  process, he  said.   "It  kind of  acts as  a                                                               
gatekeeper," he said.                                                                                                           
                                                                                                                                
2:46:10 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  expressed doubt  that the effect  would be                                                               
to open up  the floodgates, and she noted that  at times there is                                                               
both a  criminal prosecution and a  civil suit.  It  would make a                                                               
lot  of sense  to also  allow  a victim's  counsel to  ask for  a                                                               
hearing, she  stated, and the  counsel would be  as knowledgeable                                                               
as the victims' advocate.                                                                                                       
                                                                                                                                
MR. KOPP  said that  the counsel  to parties  can always  ask the                                                               
court outside  of this  law, and SB  110 allows  an unrepresented                                                               
crime victim, working  through the Office of  Victims' Rights, to                                                               
request  the  court for  a  hearing.    The  judge can  make  the                                                               
determination if the  victim has more of a right  to the property                                                               
than  there is  a need  for the  state, the  defense, or  another                                                               
third  party to  keep hold  of  it.   The issue  might be  better                                                               
understood by looking at the  context of the entire AS 12.36.070,                                                               
Return of  Property by  Hearing, which already  has a  process in                                                               
place,  he said.   "Your  question is  already envisioned  in the                                                               
entirety of  the law," he stated.   A civil suit  will come under                                                               
civil law,  he explained.   There is  nothing to  prevent counsel                                                               
from asking  the court for a  return of property.   Under SB 110,                                                               
if  no  criminal case  is  pending  regarding the  property,  the                                                               
hearing shall  be before a  district or superior court  where the                                                               
property is located.   If it is  a criminal case, it  will be the                                                               
court of jurisdiction,  he explained.  At the  hearing, the party                                                               
that is  objecting to the return  of the property will  state the                                                               
reason on the record.  He said  the court may order the return of                                                               
the property  if the  crime victim, by  the preponderance  of the                                                               
evidence, provides satisfactory proof  of ownership and the party                                                               
that objects fails to prove,  by a preponderance of the evidence,                                                               
that the property must be retained for evidentiary purposes.                                                                    
                                                                                                                                
2:51:17 PM                                                                                                                    
                                                                                                                                
MR.  KOPP  said that  if  the  court  orders  the return  of  the                                                               
property to  the crime  victim, the  court may  impose reasonable                                                               
conditions  on the  return,  such as  requiring  that the  victim                                                               
retain the property to be  available for future court hearings or                                                               
requiring photographs of the property.                                                                                          
                                                                                                                                
2:52:01 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  said she  is really confused,  and perhaps                                                               
someone from the Department of Law  or the court system can help.                                                               
She said  she is muddling  through the civil  rules.  In  a civil                                                               
case,  Rule  24,  persons  claiming the  right  to  property  can                                                               
intervene, "but, as  far as I know, just because  somebody has an                                                               
attorney in  a civil  suit, that doesn't  allow that  attorney to                                                               
intervene, as the law stands now,  in the criminal action, and it                                                               
would be the criminal action that we're talking about here."                                                                    
                                                                                                                                
2:53:13 PM                                                                                                                    
                                                                                                                                
SENATOR  DYSON  said  this  mostly has  to  do  with  evidentiary                                                               
property.  What  has happened is that there would  be a suspected                                                               
crime with  property seized  and held  for evidence,  "and months                                                               
and years  will go by  and it  doesn't get returned,"  he stated.                                                               
It has always  been in the statutes that as  soon as property has                                                               
been  analyzed  and evidence  has  been  gathered, it  should  be                                                               
returned to the rightful owner.   He said that the prosecutor has                                                               
often said, "No, we might need it."   Or there may be appeals, so                                                               
the property sits  in an evidence locker or yard.   Remedy always                                                               
was for  the victim  of a  crime to  go get  counsel and  go into                                                               
court to  try to  get property back.   He said  he has  about six                                                               
cases where that has not worked, and  that is why he came up with                                                               
a process in  2012.  It has been working,  "but they've come back                                                               
to us  and said please clarify  this bill, and I  could spend the                                                               
afternoon  telling  you  horror  stories, but  that's  what  it's                                                               
about."                                                                                                                         
                                                                                                                                
2:54:48 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  said she  has experienced this  and thinks                                                               
it is  a great idea.   She suggested that some  people may choose                                                               
not  to use  a  victims'  advocate and  would  rather call  their                                                               
counsel to intervene to get property back.                                                                                      
                                                                                                                                
2:55:39 PM                                                                                                                    
                                                                                                                                
SENATOR DYSON  said, "That's always  been true, it's  still true,                                                               
and it still hasn't worked."                                                                                                    
                                                                                                                                
MR. KOPP said the option  that Representative LeDoux is referring                                                               
to  has always  been in  the law,  and it  has been  ineffective.                                                               
This gives someone who does  not have counsel that opportunity as                                                               
well, he added.                                                                                                                 
                                                                                                                                
NANCY MEADE, General Counsel, Alaska  Court System, Department of                                                               
Administration, said there  is no way to intervene  in a criminal                                                               
case; criminal cases are a  state prosecuting authority against a                                                               
defendant.   Civil cases  have a means  for intervening,  and the                                                               
court weighs whether  the non-party has an interest  in the suit.                                                               
She  surmised  that  what  the  sponsor was  speaking  of  is  an                                                               
instance where a law enforcement  agency is holding property, and                                                               
a victim  who has  an attorney  (for other  purposes or  for this                                                               
purpose) would  file a case that  is not an intervention  in that                                                               
criminal  case, but  the  victim  has standing  to  say that  the                                                               
troopers are  keeping his or her  car that was stolen.   It would                                                               
be a separate action, she explained.                                                                                            
                                                                                                                                
2:57:16 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX surmised  that  without SB  110, a  person                                                               
with an  attorney has to  file a separate  case, and SB  110 will                                                               
allow the  victims' advocate to  intervene in the  criminal case.                                                               
"My concern is maybe we should  also let the lawyer for the other                                                               
side,  as  well as  the  victims'  rights advocate,  whoever  the                                                               
victim chooses  to have represent  them, be able to  intervene in                                                               
this criminal case."                                                                                                            
                                                                                                                                
2:58:09 PM                                                                                                                    
                                                                                                                                
MS. MEADE  pointed out that the  standing that is granted  to the                                                               
victims' advocate  under Section 1  of the bill is  very limited.                                                               
It is just to ask for the  hearing and to advocate for the return                                                               
of the property-the advocate is not granted intervener status.                                                                  
                                                                                                                                
REPRESENTATIVE GRUENBERG said that "this  tail could wag the dog"                                                               
in some cases.   There could be  a very valuable jewel  and a lot                                                               
of money  involved.  He further  opined that there are  many good                                                               
judges  in Alaska,  and a  judge  should be  qualified to  decide                                                               
whether  to allow  an unrepresented  person  in a  given case  to                                                               
[file] or to direct the person  to the Office of Victims' Rights.                                                               
If a  person has an  attorney, that  attorney may have  more time                                                               
and more  familiarity than the  victims' rights lawyer,  he said.                                                               
"I don't  see any down side  in giving the judge  the opportunity                                                               
to entertain a  motion," he stated.  If it  were considered to be                                                               
an intervention  motion, it  would be  for a  limited time  and a                                                               
limited purpose simply for the release  of the property.  He gave                                                               
the scenario  of a stolen good  being claimed by two  people in a                                                               
divorce situation.                                                                                                              
                                                                                                                                
3:00:55 PM                                                                                                                    
                                                                                                                                
MS.  MEADE  said   she  would  have  to  think   a  little  about                                                               
Representative  Gruenberg's   comments.    She  noted   that  the                                                               
Department of  Law would have a  view on whether there  should be                                                               
others who  are allowed to  intervene even for a  limited purpose                                                               
in a  criminal case  because of  time frames  and confidentiality                                                               
issues.  She said the sponsor's  goal is limited just to victims,                                                               
and the Office of Victims' Rights  has not said that there is not                                                               
time to handle the work.                                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG referenced  a  memo to  Ms. Meade  from                                                               
Adam Keller  about the meaning of  "agency" as it appears  in the                                                               
bill.    He  asked  if  there  should  be  an  amendment  to  the                                                               
definitional statute.                                                                                                           
                                                                                                                                
3:03:01 PM                                                                                                                    
                                                                                                                                
MS.  MEADE  said  that  the  memo was  prepared  by  her  request                                                               
regarding SB 110 to  clear up confusion from SB 30  in 2012 as to                                                               
which agency  could ask for  the hearing.   She said she  did not                                                               
think that  the definition of  the word, agency, was  unclear, it                                                               
was just which agency the  legislation referred to [which was the                                                               
law enforcement  agency].   It is now  Senator Dyson's  intent to                                                               
let  the Office  of Victims'  Rights  also have  the standing  to                                                               
request the hearing.                                                                                                            
                                                                                                                                
CHAIR KELLER closed public testimony.                                                                                           
                                                                                                                                
The committee took an at-ease from 3:04:32 PM to 3:06:44 PM.                                                                    
                                                                                                                                
3:06:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  said she  is  not  offering an  amendment                                                               
because it is a good bill, and it was late in the session.                                                                      
                                                                                                                                
REPRESENTATIVE  LYNN  moved  to   report  CSSB  110(JUD)  out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal  notes.   There  being  no  objection, CSSB  110(JUD)  was                                                               
reported from the House Judiciary Standing Committee.                                                                           
                                                                                                                                
3:07:14 PM                                                                                                                    
                                                                                                                                
The committee took an at-ease from 3:07:14 PM to 3:08:17 PM.                                                                    
                                                                                                                                
3:08:17 PM                                                                                                                    
                                                                                                                                

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