Legislature(2015 - 2016)GRUENBERG 120
03/30/2016 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB205 | |
| HB317 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 317 | TELECONFERENCED | |
| *+ | HB 236 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 205 | TELECONFERENCED | |
HB 317-FORFEITURE: NO CIVIL IN REM; ONLY CRIMINAL
2:05:05 PM
CHAIR LEDOUX announced that the next order of business would be
HOUSE BILL NO. 317, "An Act relating to forfeiture to the state;
relating to criminal law; amending Rules 3, 4, 11, 12, 16, 32,
32.2, 32.3, 39, 39.1, and 42, Alaska Rules of Criminal
Procedure, Rules 501, 801, and 803, Alaska Rules of Evidence,
and Rules 202, 209, and 217, Alaska Rules of Appellate
Procedure; and providing for an effective date."
2:05:15 PM
TAMMIE WILSON, Representative, Alaska State Legislature,
paraphrased the following sponsor statement [original
punctuation provided] as follows:
House Bill 317 protects the private property rights of
innocent citizens by requiring that Alaska's revered
and dedicated law enforcement agencies, convict
individuals of a crime before permanently seizing
private property. Alaska's "civil asset forfeiture"
laws have been reported to be among the worst in the
country, allowing private property to be permanently
taken from individuals suspected of crimes, even if
they are never charged, much less found guilty.
Across the nation, civil asset forfeiture laws have
gained notoriety in recent years for rampant abuse and
deliberate circumvention of due process. Well-
documented cases of policing for profit have sparked a
wave of reform nationwide. In Alaska, local law
enforcement only need to show probable cause to seize
property. Failure to challenge a seizure within a
given timeframe results in an automatic and permanent
forfeiture. These problems are compounded by an
incentive for law enforcement to seize as much as
possible, since 75-100% of the revenues generated from
civil forfeitures flow back to the local agency.
Moreover, there is no requirement that Alaska
authorities collect or report data on their
forfeitures.
While assets may be reclaimed, civil asset forfeitures
places the burden on individuals to fight the
bureaucracy to prove that their assets were not gotten
through ill means, or that they did not consent to
using their property for an illegal purpose. Civil
cases do not provide for free legal assistance, so for
individuals that cannot afford private representation,
the process is intimidating at best, and ill-fated at
worst. HB 317 would require that an individual be
convicted of an actual crime before forfeiture
proceedings can take place, and would protect
guiltless spouses and family members from property
loss as a result of the process. The bill would also
impose transparency and accountability for civil asset
seizures and reduce financial incentives for abuse, by
providing that any revenues that do flow back to the
state as a result of federalized proceedings, are
deposited in the General Fund.
This bill reaffirms our confidence in local law
enforcement, as well as the most basic tenets of
Constitutional law and values. Convicted criminals
will still see the fruits of their crime confiscated
by the state, but innocent Alaskans can rest easy
knowing they will no longer be deprived of property
without due process.
2:09:08 PM
REPRESENTATIVE WILSON said the bill asks that "if you are going
to take something until someone has their day in court, you
should take good care of it. I would have already expected that
to have happened." She referred to the fiscal note from the
Department of Public Safety (DPS) and read as follows: "Passage
of this bill could potentially increase costs to the Alaska
Wildlife Troopers with respect to managing illegal taken fish
and game statewide." She said it is not illegal until someone
has their day in court and until they are proven guilty "we do
expect you to take care of things." She then referred to the
Department of Law's (DOL) fiscal note in the amount of $2
million, which stated it would require eight additional
attorneys and eight assistants for each attorney. If the
department needs eight additional attorneys, she asked how much
is being taken from Alaskans, who is receiving it, and where is
it going. She explained that the bill does four things:
criminal conviction before forfeiture, provides a consistent
overall process for forfeiture, a transparent accounting, and
revenues for forfeiture will go to general fund and not
necessarily to the agencies deciding whether or not they get to
keep it.
2:11:28 PM
CHAIR LEDOUX asked whether there is anyone seriously against
this bill, but the question was answered by the fiscal notes.
REPRESENTATIVE WILSON related that the commissioner of the
Department of Public Safety (DPS) advised that he did not like
the bill, and the representatives from DOL and the Alaska Court
System have discussed their issues and they are working on them.
She further related that this is good for Alaska and they should
be excited about making sure the legislature does the right
thing for Alaskan residents.
2:12:30 PM
REPRESENTATIVE LYNN opined that if property is forfeited to DPS
or the state, and if [a person] does not act within an
appropriate period of time, the agency can take the airplane or
boat and give it to the federal government and he doubts the
owner would ever see it again.
REPRESENTATIVE WILSON advised there is a process to where a
person has a limited amount of days to put in paperwork, and if
the person doesn't do it the agency has the right to keep it.
2:13:07 PM
REPRESENTATIVE LYNN asked whether it goes from the state agency
to the federal government.
REPRESENTATIVE WILSON opined that it could be a federal case and
it could go in that direction but the person would have had to
break federal law. She related stories that when the state
doesn't have enough evidence the state will turn it over to the
federal government and allow them to pursue the action.
CHAIR LEDOUX said she presumes that if the federal government is
charging an individual and seizing property initially, that as
draconian as Alaska's forfeiture laws are, that probably the
federal laws are at least equal if not surpassing Alaska law.
She surmised that the bill doesn't do anything with the federal
seizure of assets.
REPRESENTATIVE WILSON explained that the federal government can
still charge but currently there is an agreement that some of
the money comes back to the state. In those cases it would not
come back to the troopers or any other agency, and is directed
to the general fund. The bill would not change [federal] laws
or processes in any fashion, she said.
2:14:41 PM
REPRESENTATIVE KELLER referred to the offenses subject to
forfeiture, on pages 6-7, and asked her to explain the types of
crimes being discussed.
REPRESENTATIVE WILSON responded that many are mandatory having
to do with drinking and driving and she then deferred to Kevin
Fitzgerald.
REPRESENTATIVE KELLER referred to the outline for the forfeiture
process under the bill and asked whether she is saying that it
is not currently there, and she included it. He further asked
whether other states have clear standards on forfeitures as a
model.
REPRESENTATIVE WILSON replied yes, and this has come from the
states that are rated as "A" or "B" and not "D" as Alaska is.
2:15:57 PM
REPRESENTATIVE KELLER advised he likes the bill, but he would
like a description of the crimes.
REPRESENTATIVE WILSON reiterated that Mr. Fitzgerald could speak
to that issue.
CHAIR LEDOUX opened invited testimony.
2:16:42 PM
KEVIN FITZGERALD, Attorney, said he has been in practice as a
prosecutor and a defense attorney for over 27 years, and is in
in favor of the bill. He opined that the dual aim of the bill
is to put into play standardized and centralized procedures
designed to protect the rights of property owners and interested
parties while at the same time not undermining the ability of
the government to seize or ultimately forfeit property nor to
place undue burdens on the court in doing so. He said in the
perspective of a practitioner that practices in the areas
implicated by the existing forfeiture law, which includes fish
and game, Medicaid, and other areas, he is advocating for the
bill. In response to the question concerning offenses subject
to forfeiture, he advised that they include liquor, assault,
property, drugs, and DUIs. He described it as having quite an
expansive scope and it's intended to be that way in order to
centralize and standardize procedures for any number of
different areas that are in some measure disparate, or contrary
to each other, and difficult to find. As a practitioner, he
said the current law as it addresses forfeiture is broken,
confusing, ill understood even by those practicing in these
areas, frequently applied in a haphazard or ad hoc fashion, is
neither standardized nor centralized, and appears to be a
vehicle increasingly used by prosecution to impose sanctions.
He reiterated the benefits of this bill as being profound in
providing a standardized and centralized process for forfeiture.
He then related a case he has of seized property spanning over
the course of four years regarding current law and after
explaining the details of the case, he commented that this
particular case is not unusual and the circumstances and issues
raises over the forfeiture law are not unique to that case. He
then reiterated that he strongly supports the passage of the
bill to give standardize and centralized rules governing
Alaska's forfeiture law.
2:27:59 PM
REPRESENTATIVE CLAMAN referred to Mr. Fitzgerald's earlier years
as a prosecutor and asked his perspective regarding civil
forfeiture, whether he ever used it, and in what cases.
MR. FITZGERALD explained that it wasn't used often as much as it
is now being used, or used for items of significance. Case law
does reference occasional cases in which airplanes had been
seized, but he estimated that the forfeiture law is being used
as a tool more frequently to obtain significant items of
property. He opined that when it was used when he was a
prosecutor it was largely items that would be characterized as
contraband and he does not remember any actions pursued pursuant
to the forfeiture and what typically now is the avenue used in
the fish and game context under AS 16.05.109 or 16.05.195. In
answer to the question he reiterated that it is being used more
often now.
2:30:10 PM
REPRESENTATIVE CLAMAN asked whether, within his current
practice, he is in federal court as well as state court.
MR. FITZGERALD answered that he is in both courts and the
federal arena offers even less protections than Alaska's current
forfeiture law.
REPRESENTATIVE CLAMAN asked whether he sees a difference in how
this is being used in drug cases and the forfeiture of property
that may be the benefits of massive drug profits versus fish and
game and fish and wildlife forfeiture cases that shut entire
businesses down for violations.
MR. FITZGERALD remarked that the difference in many instances
within the fish and game context occurs on a state level and
occasionally it is in the federal level as well, but under the
Lacey Act [16 USC 3371-3378] it must be predicated on a
violation of state fish and game law. In a drug context, it is
not uncommon that the state charges are more focused on
individuals and the state side does do co-defendant cases but
the federal government, because of its sentencing guidelines,
utilizes a lot more conspiracy multi-defendant cases involving
10-30 individuals. In the event an individual is charged with a
drug crime at the state level, Mr. Fitzgerald said he doesn't
see a lot of attempts at forfeiting property, and typically if
the defendant does not play ball with the state authorities the
matter is referred to the federal authorities who are happy to
help. He remarked that under federal law it can be scary with
regard to what is seized, the nexus between the properties
seized, and the offense can be extraordinarily de minimis. An
individual really has no recourse at all other than under the
Eighth Amendment, which is cruel and unusual punishment, and the
way that has been defined under federal law is unless the
property amounts to twice what the otherwise applicable fine
would be, the individual does not have cruel and unusual
punishment. Since most of the crimes proceeded in federal court
are $500,000 at least fine range such as million dollar plus
items such as houses, he explained.
2:35:23 PM
JOHN SKIDMORE, Director, Legal Services Section, Criminal
Division, Department of Law (DOL), said he has been a prosecutor
for the last 18 years, and has not practiced often in the area
of drug offense but he supervises the prosecutors within the
state. He said he previously expressed to Representative
Wilson, and now to the committee, the Department of Law's (DOL)
interest and commitment in working on trying to standardize and
centralize forfeiture law in Alaska. He agreed that the current
forfeiture law is scattered in at least seven different titles
and it addresses different types of crimes. He advised that
within those seven different titles it describes the procedure
or process at varying levels, and the Alaska courts have filled
in the procedures or processes that are left vacant in some of
the various titles. The result has been a complex system in
trying to understand how forfeiture law works, and he agrees
that is an issue and that trying to standardize and centralize
is an excellent idea. Although, he commented, the issues
between that [intent] and this bill are that this bill adds
additional processes that may or may not be the intended
consequences. For example, he said, in current law a person can
forfeit property in a criminal case at a sentencing when there
is a preponderance of the evidence that the item is connected to
the case and should be forfeited.
2:37:30 PM
MR. SKIDMORE explained that HB 317 creates a separate process
tracking the criminal process to deal with those forfeitures
because it wants the state to file separately against property
to be forfeited, hold separate hearings to decide what should
happen with the property, and raise the burden of proof from
preponderance of the evidence to clear and convincing. He
related that those are the sorts of things that resulted in
DOL's fiscal note. He agreed that the process would be labor
intensive but that doesn't mean it is not possible to
standardize and centralize without having some of the
requirements, thereby, eliminating the fiscal note. He
reiterated that the department is committed to working with
folks on those things, but there are important issues to look at
which are ultimately policy decisions for the committee to
decide. He pointed out that in discussing forfeiture ...
2:39:08 PM
REPRESENTATIVE CLAMAN referred to Mr. Skidmore's statement and
said that due to the fiscal note it is more than a policy call
because it is now about how much money is being dedicated to
certain functions of government.
2:39:49 PM
REPRESENTATIVE KELLER said the policy here is the Department of
Law (DOL) and the state's justice branch of the whole
government, and it appears that the things Mr. Skidmore said
need to be dealt with are fundamental. He referred to the job
not getting done and asked why it takes more money to get it
done, why hasn't the committee heard about this before, why
aren't things being done right, and how does he attach a price
tag to doing things right. He said he realizes that different
sections of law were added on but it appears DOL would have come
forward with proposed legislation to fix this on its own rather
than the legislature trying to build it. He related that part
of the reason he is in Mr. Skidmore's face is that time is
running out, the session is moving along, and this sounds like a
critical item to deal with.
2:41:02 PM
MR. SKIDMORE responded that this is an issue the department has
been looking at, and pointed out that there is a distinction
between forfeiture and seizure that has been somewhat lost in
the discussion. For example, when Mr. Fitzgerald discussed the
airplane being seized, he said, it was seized pursuant to search
warrants in a criminal case. He remarked that he was unaware of
that particular case and did not know whether it was evidence
seized for purposes of that case, There are legal restrictions
on the department regarding its obligation to preserve if it is
going to trial under Thorne v. Department of Public Safety, [774
P.2d 1326 (1989)], or if it's strictly about seizure. He
referred to a DUI case and driving a vehicle, and said if that
vehicle is seized pursuant to a search warrant or incident to
arrest, it may be that the vehicle is evidence in the case
because the defense may allege the bad driving, observed by the
officer, is the result of the vehicle having faulty mechanics.
The department is then required to preserve that vehicle so the
information can be presented at the time of trial, which has
nothing to do with whether or not that vehicle is going to be
forfeited at the end of the case. He extended that it may be
that it's not going to be forfeited and it is just about using
it for evidence, or it may be a case in which the DUI is a
felony DUI or something else egregious, and not only was that
vehicle needed for evidence but then later was also subject to
forfeiture. He explained that it is easy to confuse those two
things and he opined the area that needing the most work is
returning property that is not needed in the criminal case and
should not be subject to forfeiture. He stated that for the
past three years while he has been director of the criminal
division it has worked on trying to return property to citizens
across the state. There are problems of where impound yards of
law enforcement agencies have more vehicles than should be
there, and that various policies have been instituted and
practices to get vehicles returned to people. He opined there
is evidence in evidence lockers within law enforcement agencies
around that state that are not subject to forfeiture and that
property needs to be returned. The law requires a process to be
followed in order to get property returned and it should be
looked at, which is separate from property seized, ultimately
subject to forfeiture, and whether or not that forfeiture is
appropriate. He related that [there are provisions] in HB 317
that he is not certain address the seizure problems because it
focuses on forfeiture, although there are areas it seems to
cross over. He said he views those as two separate issues, and
the seizure and returning things is an area to work on and
forfeiture needs to be standardized and centralized. The law in
Alaska regarding how forfeiture is supposed to work, he opined,
is not broken, it is just not in one place that is easy to
follow.
2:44:59 PM
CHAIR LEDOUX referred to Alaska's forfeiture law and said that
sometimes a case can be dismissed against a person and yet the
state will continue in an in rem action for forfeiture, not
seizure. For example, she said, take a drug case and the person
is acquitted, she asked whether the state is ever able to
forfeit the property when someone is acquitted.
MR. SKIDMORE responded that the vast majority of materials
seized should be returned, with the exception of seized cocaine
and the department unable to prove its case.
CHAIR LEDOUX expressed that she knows the department is not
going to give back the cocaine, but what about the house.
MR. SKIDMORE said he would change it to a different type of
case, such as fish and game, because there are certain types of
items in fish and game cases that are also illegal to possess.
For example, in most of the state when hunting moose the antlers
must be of a certain size and a hunter may have innocently shot
a moose that was not legal, it is illegal to possess that animal
thereafter. The seized gun in that case would have been
returned, but not the moose because it is illegal to possess.
Generally, he said, the department does not use civil in rem
forfeiture proceedings in criminal cases. He referred to the
case Mr. Fitzgerald discussed and although Mr. Fitzgerald said
it was not an exception, he disagreed because he does not
believe the department is using civil in rem forfeitures in the
vast majority of cases other than the example offered.
2:47:30 PM
CHAIR LEDOUX asked whether civil in rem forfeitures are being
used and further asked whether he was willing to say that the
department is prohibited by law, and that the department never
does it for something such as, a house, gun, airplane, or a
legal item. She expressed that she can't see any justification
whatsoever when someone hasn't been convicted of something to
seize their legal property. She stressed that if the department
can't get the person under criminal law, she finds it repugnant
that the department would try to do it through a civil
forfeiture proceeding, and she wanted to know whether or not it
is used.
2:48:31 PM
MR. SKIDMORE answered that the only case he is aware of in which
civil forfeiture has been attempted to be used like that is the
case Mr. Fitzgerald discussed. Wherein there was a pending
prosecution that was expected to result, but hadn't gotten there
until much later in the process because the investigation seemed
to have taken awhile. Other than that, he said, he is unaware
of it being used. He stated that the department does not have a
problem eliminating that civil in rem forfeiture, it is not
often used because the department doesn't think it should be
used often.
2:49:11 PM
CHAIR LEDOUX surmised that the only thing the department has a
problem with is taking care of the property, and figuring out
where it is at a certain time.
MR. SKIDMORE said that law enforcement can tell the committee
where the seized property is because it is required to track
that information. The question asked was how much of that
property has been forfeited and he said that is a statistic that
DOL has not kept. For example, he could answer how many murder
sentences, but could not answer how many of those murder
sentences resulted in property being forfeited because he would
have to go back and look at each individual judgment to
determine which cases had property forfeited. He explained that
he doesn't have the ability to track that information currently
and does not know the cost, but it would not take eight
attorneys. He referred to the eight attorneys in the fiscal
note and qualified it is when a separate proceeding is created
where the department has to file against the property, then
there are court hearings about the property both before the
trial and after the trial that are not the trial or the
sentencing itself. If the current process is followed wherein
items can be seized and subject to forfeiture at the sentencing,
he opined that the fiscal note would disappear.
2:50:40 PM
CHAIR LEDOUX asked him to repeat how he would make the fiscal
note disappear rather than just zeroing it out.
MR. SKIDMORE explained that in current law with regard to items
that are seized a person has the opportunity to petition to have
it bonded out ...
CHAIR LEDOUX argued that if it is seized she thought it was
seized because it's evidence, so how could a person ever bond
out the evidence. She surmised that the department is seizing
property that may not be evidence or required to be kept, and
that the department seizes property because it believes it will
convict the defendant and; therefore, wants to make sure the
property the department might want forfeited is there. She
expressed that she has a problem with that because the state
doesn't get to fine someone before being convicted so why does
the department get to take this property if it's not evidence
just to make sure it stays around.
2:52:00 PM
MR. SKIDMORE explained there are two different reasons for which
seizure can occur, simply for evidence that is sometimes
forfeited but it is evidence in the case and in those
circumstances that property cannot be bonded out. There are
also circumstances rarely used in which law enforcement can
seize property that would be subject to forfeiture not because
it is evidence in the case, but because it would likely be
forfeited at the end of the case. He further explained that the
reason is that, in the law, it is recognized that with property
subject to seizure there are defendants who will frequently
attempt to sell, destroy, or somehow change that property from
their ownership so it can't be taken later on.
CHAIR LEDOUX pointed out that the seizure for this reason is a
civil action and, other than a maritime suit which has its own
unique rules of law, the property can't be seized. For example,
as an attorney, Representative Claman may be 100 percent certain
he has a slam dunk winnable case, he still is not allowed to ask
the court to seize the property because the defendant may go to
Mexico or spend the money. She reminded Mr. Skidmore that
Representative Claman must wait until the end of the case and
then sometimes the case is not a slam dunk.
REPRESENTATIVE CLAMAN said in the background "We know a lot
about (indisc.) and they only seize them in federal court."
2:54:15 PM
MR. SKIDMORE responded that it is not a civil matter, it's a
criminal matter and when people have violated the criminal law
authorities are given greater power to take property. That is
what the Fourth Amendment of the United State Constitution is
about, the search and seizure laws are about.
CHAIR LEDOUX argued that if it is a criminal matter why isn't
the standard of proof beyond a reasonable doubt when taking
property, the same as when imprisoning a person.
MR. SKIDMORE explained that there does have to be proof beyond a
reasonable doubt that the person committed the crime. He
clarified that once it has been proven the person committed the
crime with a conviction, in determining the sanctions to be
imposed the courts evaluate the evidence on a preponderance of
the evidence standard to determine jail time, community work
service, fine, probation, probation conditions, and forfeiture.
He reiterated that all of those various sanctions, after proving
someone committed a crime beyond a reasonable doubt, the courts
evaluate those sanctions based on a preponderance of the
evidence.
2:55:46 PM
REPRESENTATIVE KELLER referred to property being seized, and
whether law enforcement or a governmental entity receives any
benefit from the seizure such as using it. He explained that he
can't help but think about a seized airplane for four years, and
being a pilot he knows that is the end of some $30,000-$50,000
engines because they have to be used. He referred to Mr.
Skidmore's statement that it is totally up to the authorities
when making that determination as to whether the property will
likely be forfeited and it can take that into account or not,
meanwhile the airplane sits. The state has the responsibility
to store property in a dry place, possibly heated. He said he
would like to know how many warehouses are available and full of
evidence, how long it sits there, and the cost to the state in
keeping this evidence. He commented that he saw Mr. Skidmore
shaking his head no, and requested confirmed information that
seized property is not ever used for the benefit of law
enforcement or governmental entities until it is forfeited.
2:57:21 PM
MR. SKIDMORE responded that when property is seized prior to any
forfeiture order, the state cannot and does not use any property
that is seized and the state has an obligation to hold onto the
property and safeguard it. He acknowledged that there have been
steps in recent years to do precisely what Representative Keller
was discussing for a seized airplane and not many airplanes are
seized but for those that are, they are stored indoor, the
engine is foamed to try to preserve it, and other sorts of
things that need to be done in order to preserve that airplane.
In the event the airplane is ultimately forfeited, the state
would have the opportunity to, in some cases use it, and
according to statute give it to the Civil Air Patrol Wing.
Other items can be forfeited and used in different ways, and
other items are auctioned. He reiterated that prior to the
forfeiture order, the state cannot use the property because it
does not belong to the state.
2:58:40 PM
REPRESENTATIVE CLAMAN asked whether the state currently has the
authority to bring a civil action for in rem forfeiture against
an airplane allegedly used or connected with criminal activity.
MR. SKIDMORE answered in the affirmative, which does exist in
statute and is not often used.
REPRESENTATIVE CLAMAN surmised that things are seen in the
federal reporters such as "United States v. $450,000 in Cash, or
United States v. One Cessna 206, or United States v. Some
fishing boat that was used in, typically we see these in drug
cases," the state still has the authority as a prosecution tool
to seize the property and try to forfeit the property to take
some drug kingpins ill-gotten gains away even if it doesn't have
the evidence to convict him of selling the drugs,
MR. SKIDMORE answered that he does know whether he would call it
a prosecution tool, but the state does have that authority.
3:00:12 PM
REPRESENTATIVE CLAMAN surmised that Mr. Skidmore, speaking on
behalf of the state, would have no problem cleaning up the
statute with respect to these civil actions against property.
Although, Mr. Skidmore would like the continued ability to
forfeit property connected with a crime at the end of the
criminal case with a conviction, he further surmised.
MS. SKIDMORE replied that the description is accurate except
when the items are illegal in and of themselves, as he discussed
with Chair LeDoux.
REPRESENTATIVE CLAMAN offered a hunting scenario wherein a big
game guide has an airplane and has successfully flown clients to
various areas for many years. The state performs an undercover
investigation and discovers the guide is taking folks out but
the wrong size game is being taken so there is a fish and game
prosecution against the guide. He said the rifles are evidence
of the crime but there is nothing in the airplane that is
evidence other than the fact that the money he was making
involved the airplane. Representative Claman asked why the
state would take the airplane for purposes of trying to forfeit
the airplane even though it is not needed for evidence at trial,
and why the state would go after the airplane and hold it during
the entire period of time awaiting trial.
3:02:43 PM
MR. SKIDMORE answered that generally the department wouldn't
seize the airplane and within this scenario, the only
hypothetical circumstance in which seizing the airplane would
become justified is whether the guide had a history of
committing fish and game violations and that he was primarily
getting to the locations to commit those violations through the
use of the airplane. He noted that other hypothetical concepts
must be added to that scenario before it becomes appropriate,
and he would have to know more information about the
hypothetical before he could determine the exact crimes and
determine whether the state would seek to seize the airplane.
He advised that the department could hypothetically attempt to
obtain a court order to seize the airplane for purposes of
forfeiture, but it generally doesn't do that except in the more
serious or egregious cases.
REPRESENTATIVE CLAMAN commented that it appears this bill may
not perfectly do it, but the idea that the department still has
the authority for civil in rem forfeiture actions, is not using
it, and it is creating problems is something the legislature
should fix. He surmised that the more complicated question
about what happens in criminal cases, which appears must be tied
into the criminal cases at all times, the department can forfeit
after the conviction. He related that he does not like the idea
of anyone being able to forfeit property absent the conviction
and there have been a tremendous amount of comments about how
the federal government and many states are using civil
forfeiture where they can't get convictions and that is what the
committee is unhappy about.
CHAIR LEDOUX expressed that she is definitely unhappy about it.
3:04:46 PM
REPRESENTATIVE CLAMAN expressed concern that Representative
Wilson's bill may go further and create burdens on the
prosecution and costs that may not be appropriate, and stressed
his concern about having laws on the books that no one wants
enforced and are not enforceable.
CHAIR LEDOUX encouraged Mr. Skidmore to work quickly with
Representative Wilson because members of the committee believe
there is a real problem here and it wants to do something about
it.
MR. SKIDMORE reiterated that he is committed to continuing to
work with Representative Wilson.
[HB 317 was held over.]