Legislature(1999 - 2000)

05/14/1999 01:40 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
CSSB 100(FIN)-REIMBURSEMENT FOR PUBLIC DEFENDER                                                                                 
                                                                                                                                
CHAIRMAN KOTT announced the next order of business is CSSB
100(FIN), "An Act relating to the payment by indigent persons for                                                               
legal services and related costs."                                                                                              
                                                                                                                                
Number 0325                                                                                                                     
                                                                                                                                
DOUG WOOLIVER, Administrative Attorney, Office of the                                                                           
Administrative Director, Alaska Court System, informed the                                                                      
committee that SB 100 was introduced at the Alaska Supreme Court's                                                              
request.  Therefore, Mr. Wooliver said he would provide the                                                                     
testimony on SB 100.  Senate Bill 100 amends the current public                                                                 
defender reimbursement statute so that anyone who receives public                                                               
defender services would fall within the reimbursement provisions.                                                               
Currently, for those people represented by the public defender,                                                                 
only those convicted of crimes reimburse the public defender.                                                                   
Under this legislation, anyone who receives those services would                                                                
reimburse which is similar to what people who hire private counsel                                                              
have to do.                                                                                                                     
                                                                                                                                
MR. WOOLIVER explained this provision was before the legislature in                                                             
1993.  In that year, the Alaska Supreme Court had legislation                                                                   
introduced which requested several changes to the public defender                                                               
statutes.  This provision requiring public defenders to be                                                                      
reimbursed for people not convicted was part of that legislation                                                                
but was not adopted, although the rest of the bill did pass.                                                                    
Subsequent to that request in 1993, Legislative Budget and Audit                                                                
did an audit of the public defender system, making several                                                                      
recommendations.  One of the recommendations, Mr Wooliver said,                                                                 
"Was, quote, 'that the statute and court rules be amended to assess                                                             
judgment against public counsel defendants not on the basis of if                                                               
convicted, but rather on the mere fact that services were                                                                       
provided.'"  He noted Alaska's court system has made the other                                                                  
requested rule changes and, therefore, is now coming back with the                                                              
final piece of what Legislative Budget and Audit requested, the                                                                 
amendment to the statute.                                                                                                       
                                                                                                                                
MR. WOOLIVER noted that although this makes indigent defendants                                                                 
similar to non-indigent defendants in that they have to repay their                                                             
defense costs, there are some significant differences.  For                                                                     
instance, a person represented by the public defender only pays a                                                               
portion of the fees set out in Criminal Rule 39, which should be in                                                             
the committee packets.  Additionally, because this is a civil                                                                   
judgment, a person is entitled to all of the defenses he/she would                                                              
receive (indisc.) Alaska Exemptions Act [AS 09.38].  Furthermore,                                                               
there are certain things which can't be attached in order to                                                                    
collect these fees.  He indicated that a person could petition the                                                              
court to have those fees reduced, eliminated completely, or put on                                                              
a monthly payment schedule.  Therefore, there are safeguards, both                                                              
under the rules and under the statutes, so that people who are                                                                  
indigent wouldn't be driven further into poverty because of ruinous                                                             
defense costs.  Mr. Wooliver noted that the fees are a fraction of                                                              
what a private attorney would charge and, as mentioned, there are                                                               
ways to reduce them.  He pointed out that the Senate made several                                                               
amendments which he offered to review.                                                                                          
                                                                                                                                
MR. WOOLIVER mentioned that he would like the committee to consider                                                             
the following change.  He referred to page 2, line 6, of CSSB
100(FIN) which read, "(c) The court shall [MAY] enter a judgment."                                                              
He noted the original "may" language and explained that the "shall"                                                             
language is a Senate amendment.  The Senate was attempting to                                                                   
address the perception that judges weren't entering these judgments                                                             
very often.  While judges, in fact, almost always enter these                                                                   
judgments.  He noted that Alaska's court rule requires that judges                                                              
enter the judgments.  Mr. Wooliver indicated this fact was                                                                      
confirmed through research after the Senate committee hearing.  The                                                             
problem the Senate was attempting to fix doesn't really exist.                                                                  
Therefore, he recommended that "shall" be changed back to "may"                                                                 
because the "shall" language would make it mandatory in all cases.                                                              
Mr. Wooliver explained, "So, the problem they were trying to fix                                                                
doesn't really exist, but ... the problem is created with the                                                                   
'shall' language, is now it's not limited to criminal defendants or                                                             
juvenile delinquents; it also covers attorneys ... in child need of                                                             
aid cases, including children who are appointed attorneys in child                                                              
need of aid cases, the mental commitment proceedings, and other                                                                 
areas that the court may or may not want to impose fees under."                                                                 
                                                                                                                                
Number 0717                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT recognized the suggestion.  He questioned if that                                                                 
would mean the committee should change "may" back to "shall" on                                                                 
page 2, lines 11 and 13. [CSSB 100(FIN), page 2, lines 11 through                                                               
14 currently read:                                                                                                              
                                                                                                                                
     ... Upon a showing of financial hardship, the court (1)                                                                    
     may [SHALL] allow a person subject to a judgment entered                                                                   
     under this subsection to make payments under a payment                                                                     
     schedule; and (2) may [SHALL] allow a person subject to                                                                    
     a judgment entered under this subsection to petition the                                                                   
     court at any time for remission,"]                                                                                         
                                                                                                                                
MR. WOOLIVER noted those also were Senate amendments.  The Senate                                                               
was concerned that the "shall" language required a court to take                                                                
into account a payment schedule or a person's financial situation                                                               
rather than the discretion not to.  Mr. Wooliver suspected the                                                                  
court would take those things into account anyway.  He had no                                                                   
preference one way or the other.                                                                                                
                                                                                                                                
CHAIRMAN KOTT asked how a petition for remission, reduction, or                                                                 
deferral of the unpaid portion of a judgment or an entire judgment                                                              
would be entered with the court under this provision in Section 2.                                                              
He questioned if that person received a public defender and then                                                                
would be further obligated.                                                                                                     
                                                                                                                                
Number 0811                                                                                                                     
                                                                                                                                
MR. WOOLIVER answered anyone can come before the court at anytime                                                               
and ask that his/her fees be remitted, reduced or scheduled.  This                                                              
does happen.  The courts also routinely issue a fee that is less                                                                
than what is on the schedule in the committee packet.  According to                                                             
the Department of Law and its "collections division,"  someone who                                                              
only meets with the public defender for a short period of time,                                                                 
enters a guilty plea, and "that's the end of it," would receive a                                                               
judgment for something like $50 because there is only a short                                                                   
contact.  A person who has a fee and wishes to have it reduced can                                                              
come to the court and explain his/her situation.  The judge can                                                                 
reduce the fee, eliminate it, or allow the person to make payments                                                              
on a schedule.                                                                                                                  
                                                                                                                                
CHAIRMAN KOTT questioned what the payment would be for one to repay                                                             
the costs of utilizing the public defender.                                                                                     
                                                                                                                                
MR. WOOLIVER reiterated that the court has adopted a schedule of                                                                
fees under Criminal Rule 39 which lays out various fees for various                                                             
services.                                                                                                                       
                                                                                                                                
CHAIRMAN KOTT noted he did not have a copy, indicating staff would                                                              
make copies for the committee, and asked Mr. Wooliver to give an                                                                
idea in monetary terms of what they were discussing.                                                                            
                                                                                                                                
MR. WOOLIVER described that for a misdemeanor trial such as driving                                                             
while intoxicated the maximum would be $500.  The maximum for a                                                                 
first degree murder trial would be $5,000.  Most of the misdemeanor                                                             
fees are $200 to $250.  He noted that the amount of the fee depends                                                             
upon  where a person is in the process.  For example, a guilty plea                                                             
before a great deal of work is done on a case could result in a fee                                                             
of $1,000 for the most serious felony, decreasing from there.  He                                                               
informed the committee that the fee of a trial for a Class B or                                                                 
Class C felony is $1,500.  A trial for a Class A or unclassified                                                                
felony, except for murder, would have a $2,500 fee.  Mr. Wooliver                                                               
noted that most people don't go to trial, but rather plead out at                                                               
some point prior to trial.  For most felonies, a change of plea                                                                 
after someone has been indicted, but before a substantial amount of                                                             
work has been done carries a $500 fee.  These are the types of fees                                                             
they are looking at.  The most someone could pay is $5,000 for a                                                                
first or second degree murder trial; the least someone would pay is                                                             
$200 for a misdemeanor change of plea.  Most fees are less than                                                                 
$1,000.                                                                                                                         
                                                                                                                                
Number 1024                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN referred to the Senate's insertion of "only"                                                               
on page 2, line 15.  He asked what that adds.  [CSSB 100(FIN), page                                                             
2, lines 13-15 read: "...; and (2) may [SHALL] allow a person                                                                   
subject to a judgment under this subsection to petition the court                                                               
at any time for remission, reduction, or deferral of only the                                                                   
unpaid portion of the judgment ..."]                                                                                            
                                                                                                                                
MR. WOOLIVER indicated the "only" was inserted because of testimony                                                             
from the Department of Law's collection division.   The collection                                                              
division said that occasionally it receives an order from a judge                                                               
ordering the collection division to reimburse a person for some                                                                 
fees that person had paid.  Mr. Wooliver explained he hasn't been                                                               
able to discover exactly why that happens.  He suspected there                                                                  
might have been a paperwork problem where someone had his/her fees                                                              
reduced, but it was not transmitted to the Department of Law.  Mr.                                                              
Wooliver noted it is not a common occurrence; he didn't know for a                                                              
fact that is actually a problem.  The Senate's solution, however,                                                               
was to insert "only" as a reminder to the court.                                                                                
                                                                                                                                
CHAIRMAN KOTT questioned if someone is asked whether or not he/she                                                              
wants defense counsel if the person is indigent.                                                                                
                                                                                                                                
MR. WOOLIVER explained that a person would request that counsel be                                                              
appointed, the courts would determine indigency, and if the person                                                              
is entitled to publicly-appointed counsel, one would be assigned.                                                               
                                                                                                                                
Number 1134                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked if someone can pick and choose from a list.  He                                                             
indicated that public defenders, like private attorneys, might vary                                                             
in quality.                                                                                                                     
                                                                                                                                
MR. WOOLIVER answered no.                                                                                                       
                                                                                                                                
REPRESENTATIVE GREEN agreed with Mr. Wooliver's point on page 2,                                                                
line 6, returning "shall" to "may".  He added, "But as far as those                                                             
other changes from 'shalls' to 'may', that also seems like a pretty                                                             
reasonable approach.  Do you have a personal view of what the                                                                   
Senate did there ...?"                                                                                                          
                                                                                                                                
MR. WOOLIVER, referring to the change of the two "shalls" to "may"                                                              
on lines 11 and 13, answered that the court has no position on                                                                  
whether  those changes are good, but would not have any objection                                                               
to changing them back.                                                                                                          
                                                                                                                                
CHAIRMAN KOTT inquired as to whether the judge should be able to                                                                
allow for the indigent person to make payments or should that be                                                                
left to the judge's discretion?  The "may" language allows the                                                                  
judge's discretion.  Noting the person is indigent, Chairman Kott                                                               
questioned why the person shouldn't be allowed to make payments.                                                                
He added, "I'd need to hear a compelling argument that would                                                                    
suggest..."                                                                                                                     
                                                                                                                                
MR. WOOLIVER responded he could not think of a compelling argument                                                              
as to why this shouldn't be "shall."                                                                                            
                                                                                                                                
Number 1275                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES indicated this is where her confusion lies.                                                                
Given that a person is found to be innocent, or at least not found                                                              
to be a criminal, this says that the court shall enter a judgment                                                               
to that person for whatever the cost is.  Then, depending on how                                                                
the court feels, the person might be let out of the fee or might be                                                             
able to make payments.  She questioned if returning the language to                                                             
"shall" would mean that the court would at least look at it and                                                                 
consider the circumstances.  One of her problems is that "fairness                                                              
is fairness" and someone who is not indigent has to pay for an                                                                  
attorney.  If a person is indigent, the state has the obligation to                                                             
provide that person counsel.  Representative James believed someone                                                             
who is not indigent should be in a position not to pay also.  In                                                                
any event, currently someone who is indigent does not have to pay                                                               
and what is being hoped is that this person will pay.                                                                           
Representative James reviewed her understanding, indicating the                                                                 
person might have been indigent when he/she went in, and at some                                                                
subsequent time within the next six-year period the person might                                                                
not be indigent anymore for some reason.  It seems to her the                                                                   
person should pay if that is the case.  She compared it to the                                                                  
Internal Revenue Service (IRS) which puts a lien on a person who                                                                
owes taxes and has no ability to pay.  This lien stays there for a                                                              
long period of time; the person can petition and negotiate to get                                                               
it off, or it stays there until the time goes by and then it falls                                                              
off.  However, during the period of the lien, if the person comes                                                               
into any money, it gets attached.  This seems like it would be a                                                                
rational approach.  Representative James questioned whether there                                                               
is anything in the state's laws that says they cannot treat                                                                     
everybody alike.                                                                                                                
                                                                                                                                
Number 1397                                                                                                                     
                                                                                                                                
MR. WOOLIVER answered everyone is not treated alike in all                                                                      
situations; criminals are treated differently from non-criminals.                                                               
                                                                                                                                
REPRESENTATIVE JAMES clarified she is speaking of innocent people.                                                              
                                                                                                                                
MR. WOOLIVER answered, "Right.  No, there's nothing that says we -                                                              
we don't treat them alike."  In response to Representative James'                                                               
first question about what this language change does, he noted                                                                   
Representative James is right.  Under the original language the                                                                 
court would be required to either put the payments to a schedule if                                                             
the person has a hardship, or, he said, "... they are required now                                                              
to at least listen to the person in order for them to have a                                                                    
hearing to say, 'Look, I can't make these payments.'"  Under the                                                                
Senate changes, the judge would not have to have a hearing and                                                                  
would not necessarily have to put it to a schedule, regardless of                                                               
(indisc.).                                                                                                                      
                                                                                                                                
REPRESENTATIVE JAMES expressed her preference for the previous                                                                  
language and thinks the committee should change it back.                                                                        
                                                                                                                                
CHAIRMAN KOTT agreed.  His biggest concern with the whole issue                                                                 
dates back to the landmark 1960s "Wainright" [Gideon v. Wainright,                                                              
372 U.S. 335 (1963)] case which determined that indigent people                                                                 
need to have counsel.  With the suggestion that a person would have                                                             
to pay or buy counsel Chairman Kott wondered if this would create                                                               
some barriers, even if minimal.  For a person with no funds, $5,000                                                             
is a very large amount of money.  He described the scenario of a                                                                
person being found innocent and then having to raise $5,000 for a                                                               
long-term repayment plan probably including interest.  He wondered                                                              
whether this crosses over the fine line from that landmark 1960s                                                                
case, or is there something more recent.                                                                                        
                                                                                                                                
Number 1530                                                                                                                     
                                                                                                                                
MR. WOOLIVER responded that the U.S. Supreme Court has upheld                                                                   
repayment statutes, requiring those who have been provided with                                                                 
public defender services to repay them.  From just a quick "Westlaw                                                             
(ph)" search, he found that a few states have upheld similar                                                                    
statutes, which required the person to repay even if he/she is not                                                              
guilty.  However, Chairman Kott raises the fundamental public                                                                   
policy question regarding whether to go in this direction or not                                                                
which is a question for the legislature to resolve.  Mr. Wooliver                                                               
informed the committee that some type of repayment provision for                                                                
public defender agencies is present in almost every state.                                                                      
                                                                                                                                
REPRESENTATIVE GREEN indicated that this really seems strange                                                                   
because he had been "beaten up pretty badly on the [House] floor"                                                               
for attempting to attack the problem of public interest litigants,                                                              
where these litigants do not pay anything.  However, an indigent                                                                
person would be forced to pay.  He commented it doesn't seem like                                                               
the kind of society he would like to belong to.  Therefore, he                                                                  
would certainly suggest the language be changed back to "may."                                                                  
Representative Green clarified he was speaking of the change on                                                                 
page 2, line 6.                                                                                                                 
                                                                                                                                
MR. WOOLIVER noted that would not prevent the court from charging                                                               
someone who is not convicted.  However, the return to "may" does                                                                
not place any mandatory requirement for all public defender                                                                     
appointments.                                                                                                                   
                                                                                                                                
REPRESENTATIVE GREEN agreed; that is his point.                                                                                 
                                                                                                                                
Number 1620                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES commented she had liked Representative Green's                                                             
bill so she has a different attitude.  She expressed her belief                                                                 
that everyone should be treated fairly and equally, and the judge                                                               
should have discretionary decision-making power to determine what                                                               
is fair in a specific case.  Representative James said she has a                                                                
problem with not charging people, but she has no problem with the                                                               
court deciding the person should not have to pay.  Therefore, that                                                              
should be examined in every case.  Representative James indicated                                                               
the need for language which would also allow the judge                                                                          
discretionary power to say whether or not this is realistic for a                                                               
particular person based on the charge against the person and                                                                    
anything else relevant to that case.  If that ability isn't                                                                     
available, there is the possibility that someone "just stand-by                                                                 
innocent" who needed attorney representation to get cleared of                                                                  
charges would have to pay.  This person should not be jeopardized                                                               
in the long run.  All such considerations should be taken into                                                                  
account and the judge is the only one who can do that.                                                                          
Representative James added, "We can't sit here and draft a piece of                                                             
legislation that going to make fairness.  It's going to have to be                                                              
determined on a case by case basis."                                                                                            
                                                                                                                                
CHAIRMAN KOTT noted he would save his comments for debate.                                                                      
Confirming there were no further questions for Mr. Wooliver, the                                                                
chairman called the next witness in Juneau forward.                                                                             
                                                                                                                                
Number 1761                                                                                                                     
                                                                                                                                
WALTER MAJOROS, Executive Director, Alaska Mental Health Board,                                                                 
Department of Health and Social Services (HSS), came forward.  He                                                               
stated the Alaska Mental Health Board is a planning and advocacy                                                                
organization for people in Alaska who experience mental illnesses.                                                              
The board believes SB 100 has some potentially, and perhaps                                                                     
unintentional, adverse impacts on people with mental illnesses.                                                                 
Through this legislation this occurs in both the civil and criminal                                                             
systems.                                                                                                                        
                                                                                                                                
MR. MAJOROS understood the concern about the legislation applying                                                               
to someone who is not convicted and that person being responsible                                                               
for fees.  However, he does not know that the intention was to also                                                             
go over to the civil system to deal with issues of a non-criminal                                                               
nature altogether.  Providing an example of how this impacts people                                                             
with mental illnesses on the civil system side, Mr. Majoros                                                                     
described that many people with mental illnesses experience                                                                     
psychiatric emergencies.  When that happens, if people are unable                                                               
to help themselves and are a danger to themselves or others, or are                                                             
gravely disabled, it is necessary to enter the system of civil                                                                  
commitment.  This is where someone is involuntarily committed -                                                                 
committed against the person's will - to a psychiatric facility to                                                              
receive evaluation and treatment.  Many of these people are                                                                     
indigent and are on social security insurance and/or adult public                                                               
assistance due to the severity of their disabilities.  This                                                                     
legislation would require those people to make payment for the                                                                  
civil commitment process or the representation they received in                                                                 
that process.  Clearly, this presents an undue economic hardship on                                                             
people with mental illnesses who are already marginally able to                                                                 
survive.  With regard to the ability to petition for reduction or                                                               
elimination of fees, the legislation's current drafting would                                                                   
require the individual to petition for reduction of fees and would                                                              
not allow for judicial discretion regarding those fees.  Many with                                                              
mental illnesses do not have the capacity to petition the court for                                                             
fee remission, especially those in crisis situations or psychiatric                                                             
emergencies.  To put the total burden on an individual to make that                                                             
petition in all cases, absent any form of judicial discretion, is                                                               
not in the interests of people with severe mental illnesses.                                                                    
Furthermore, it doesn't recognize what going through that process                                                               
would be like for such a person.  Therefore, the board would ask                                                                
the committee to strongly consider whether this legislation should                                                              
be addressing the civil system at all because it clearly has some                                                               
severe impact on people with mental illnesses who are being civilly                                                             
committed.                                                                                                                      
                                                                                                                                
MR. MAJOROS addressed the impact on the criminal side of the                                                                    
equation.  He noted there are many people with mental illnesses who                                                             
are arrested for nuisance-type offenses, although the real need is                                                              
for community treatment to address these mental health needs.  One                                                              
of the board's main goals has been to decriminalize mental illness.                                                             
He expressed embarrassment that the current largest provider of                                                                 
mental health services is the state Department of Corrections and                                                               
correctional facilities.  He explained that people who do not have                                                              
their medications or are not being stabilized with the community,                                                               
often commit minor offenses and end up in the Department of                                                                     
Corrections.  The board is actively involved in attempting to                                                                   
reverse that process.  The board has assisted with setting up a                                                                 
mental health court in Anchorage, a jail diversion program which                                                                
diverts mentally-ill offenders from the correctional system into                                                                
community-based services.  The board seriously believes the                                                                     
legislation in its current form could hurt its efforts to move                                                                  
mentally-ill people out of correctional settings into                                                                           
community-based settings.                                                                                                       
                                                                                                                                
MR. MAJOROS pointed out that once again in the criminal system, the                                                             
onus would be placed on the individual to make the petition                                                                     
independently to reduce or eliminate the fees.  Again, an economic                                                              
burden would be placed on people with mental illnesses, and their                                                               
ability to live successfully within the community would be                                                                      
threatened.  Mr. Majoros emphasized the board does not believe the                                                              
bill's intent was to apply to this population on either the                                                                     
criminal or civil side, and certainly not in all or nothing type                                                                
situations.  He expressed approval of the discussion regarding the                                                              
possibility of returning the judicial discretion for these cases;                                                               
the board agrees that judicial discretion is the appropriate way to                                                             
deal with these cases.  Mr. Majoros requested the committee closely                                                             
examine whether it is the legislation's intent to look at the civil                                                             
side at all, or if it is mainly to address people on the criminal                                                               
side who are not convicted.  He believed that is perhaps an                                                                     
unintended consequence, but noted there is a potentially severe                                                                 
impact to mentally-ill people on both the civil and criminal sides.                                                             
                                                                                                                                
Number 2070                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES asked for an example of a case in a civil                                                                  
court.                                                                                                                          
                                                                                                                                
MR. MAJOROS described an example in which a mentally-ill person is                                                              
not taking his/her medications or whose need for medication changes                                                             
and he/she starts hearing voices.  Perhaps, the voices begin                                                                    
telling him/her to kill someone.  If the person started to take                                                                 
actions in that direction or began talking to people about that                                                                 
then there would be the civil commitment statute, Title 47, which                                                               
allows mental health professionals and peace officers to initiate                                                               
proceedings that would have him/her involuntarily evaluated in a                                                                
hospital setting in order to determine whether he/she is suffering                                                              
from a mental disorder and needs to be detained against his/her                                                                 
will to be stabilized.                                                                                                          
                                                                                                                                
REPRESENTATIVE JAMES questioned if that person would be represented                                                             
by counsel in that process.                                                                                                     
                                                                                                                                
MR. MAJOROS answered yes.                                                                                                       
                                                                                                                                
REPRESENTATIVE JAMES questioned, then, wouldn't counsel petition                                                                
the court for that person if this is in the person's best interest,                                                             
or would the person receive a guardian ad litem.  She asked who                                                                 
would be the responsible person in that individual's life.                                                                      
                                                                                                                                
MR. MAJOROS replied that he is not exactly sure regarding the                                                                   
procedural issue of whether the individual could use the public                                                                 
defender to petition for those costs to be waived.  This would seem                                                             
to be an apparent of conflict interest situation because the fees                                                               
are due to the public defender and they would also be petitioning                                                               
for a waiver.  Perhaps, Mr. Wooliver could speak to that more                                                                   
directly.                                                                                                                       
                                                                                                                                
Number 2123                                                                                                                     
                                                                                                                                
MR. WOOLIVER understood that a person is not entitled to a public                                                               
defender to petition the court to have those fees reduced.  He                                                                  
clarified that the fees do not actually go to the public defender,                                                              
but are collected by the Department of Law's collections division.                                                              
                                                                                                                                
REPRESENTATIVE JAMES surmised, in the specific example being                                                                    
discussed, that if a person never used the public defender in the                                                               
first place they would not fall under this.                                                                                     
                                                                                                                                
MR. WOOLIVER agreed that is correct, but pointed out that people                                                                
subject to involuntary commitments are entitled to public defender                                                              
representation so they could and would be generating fees.                                                                      
                                                                                                                                
REPRESENTATIVE JAMES concluded that people could not use the public                                                             
defender to petition the court regarding the fees.                                                                              
                                                                                                                                
MR. WOOLIVER agreed; it was his understanding that a person is not                                                              
entitled to a public defender at the subsequent hearings about the                                                              
fees.                                                                                                                           
                                                                                                                                
REPRESENTATIVE JAMES asked if a person is charged to be mentally                                                                
ill and was put away for awhile would have a responsible individual                                                             
as representation or would the person have to represent                                                                         
himself/herself.                                                                                                                
                                                                                                                                
MR. WOOLIVER answered, "If they were, they would most likely have                                                               
some type of a guardian that ... could take of that issue."                                                                     
                                                                                                                                
CHAIRMAN KOTT called an at-ease from 4:06 p.m. to 4:18 p.m.                                                                     
                                                                                                                                
Number 2194                                                                                                                     
                                                                                                                                
ROBERT BUTTCANE, Administrative Juvenile Probation Officer, Youth                                                               
Corrections State Central Office, Division of Family and Youth                                                                  
Services, Department of Health and Social Services, came forward in                                                             
Juneau.  As has already been stated, the department has some                                                                    
concerns over SB 100.  The current Senate legislation [CSSB
100(FIN)] would adversely impact virtually all of the client                                                                    
constituencies within the Department of Health and Social Services.                                                             
These constituencies include children, mentally-ill persons,                                                                    
children and families involved in adoption proceedings, alcoholism                                                              
treatment commitment cases and others.  The department believes Mr.                                                             
Wooliver's proposal to give the court the discretionary authority                                                               
to impose these judgments to be the most direct fix.  That way the                                                              
judiciary would have the discretion to impose those payment                                                                     
judgments where it is still appropriate.  When it is clearly not                                                                
practical at the outset, the court would not then be under an                                                                   
obligation to make those judgments.  Therefore, the department                                                                  
would favor the amendment to change "shall" to "may" on page 2,                                                                 
line 6.  He noted that the change would still allow the court to                                                                
impose judgments against certain delinquency cases.  That would not                                                             
be a problem for the department in view that some juvenile                                                                      
delinquents would also be treated much like the adult offenders                                                                 
which is appropriate in certain cases.  However, he indicated the                                                               
preference is to allow the court to make the distinction of whether                                                             
or not to impose a judgment for a public representative, after                                                                  
considering all of the factors in a case.                                                                                       
                                                                                                                                
REPRESENTATIVE GREEN indicated there were two other previously                                                                  
discussed Senate amendments on lines 11 and 13.  Representative                                                                 
Green asked if Mr. Buttcane felt a return to the original wording                                                               
would be to the benefit of the HSS patients.                                                                                    
                                                                                                                                
MR. BUTTCANE answered in the affirmative; that would require the                                                                
court to take a look at each case and then make that determination                                                              
and consideration which makes sense.                                                                                            
                                                                                                                                
Number 2318                                                                                                                     
                                                                                                                                
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union                                                             
(AkCLU), testified next via off-network teleconference from                                                                     
Anchorage.  Ms. Rudinger noted this is a very important issue from                                                              
a civil liberties standpoint, commenting that she had faxed each                                                                
House Judiciary Standing Committee member a copy of the AkCLU's                                                                 
position paper on SB 100.  With Chairman Kott's confirmation that                                                               
the AkCLU's position paper has been distributed, Ms. Rudinger did                                                               
not address the constitutional arguments.                                                                                       
                                                                                                                                
MS. RUDINGER commented the committee heard earlier that the U.S.                                                                
Supreme Court has upheld recoupment formula which is true.  In                                                                  
Fuller v. Oregon [417 U.S. 40 (1974)] the Supreme Court upheld the                                                              
recoupment formula, but the defendant was at least convicted of                                                                 
something which was critical in that case.  The AkCLU's biggest                                                                 
opposition, not only constitutionally but in terms of public                                                                    
policy, is the fact that it applies to people who are wrongfully                                                                
hailed into court in the first place, or when the charges are                                                                   
dropped, or when people are found not guilty for whatever reason.                                                               
Ms. Rudinger stated this is really offensive and from the                                                                       
discussion, she sensed that some of the committee members agreed.                                                               
She pointed out that the Supreme Court has not examined a                                                                       
recoupment formula that applies to people who were not convicted of                                                             
a crime.  Therefore, it is not known what the Supreme Court would                                                               
do in such a case.  However, there is instructive language in the                                                               
Fuller decision where the court points out all the reasons Oregon                                                               
was correct when it exempted acquitted defendants from the scope of                                                             
its recoupment statute.  She discussed the many serious                                                                         
reprecussions, such as stress and a damaged reputation and loss of                                                              
a job and lost hours defending himself/herself, this would impose                                                               
on someone who is not convicted.  The state can already recoup                                                                  
money from people who are convicted or plead guilty to some                                                                     
wrongdoing.  Therefore, there is a real fairness problem here.                                                                  
                                                                                                                                
MS. RUDINGER informed the committee of a case, Fitch v. Belshaw,                                                                
581 F.Supp. 273 (1984), that was brought up after Fuller.  Oregon                                                               
had passed a statute that applied to acquitted indigent defendants.                                                             
In this case, the plaintiffs won and the statute was struck down.                                                               
She noted that the case did not go up on appeal.  In this case, the                                                             
judge did not say that recoupment statutes applying to innocent                                                                 
people or acquitted defendants are always unconstitutional.  "The                                                               
judge was able to strike it down on narrower grounds and still                                                                  
found Sixth Amendment and Equal Protection violations.  That                                                                    
statute had some defects that are also present in Senate Bill 100."                                                             
Ms. Rudinger pointed out that Fitch is the only district court case                                                             
in the Ninth Circuit that she has found and there is no Ninth                                                                   
Circuit case.  Therefore, the Fitch case is instructive.  She                                                                   
identified the defects as the lack of any specific standards for                                                                
courts to use when deciding who can afford to pay and who can't.                                                                
Even if the word "shall" to "may" is changed on line 6, problems                                                                
remain with the court, without any standards, being allowed to                                                                  
decide on whether someone should pay for the costs of defending                                                                 
themselves against phony charges.                                                                                               
                                                                                                                                
TAPE 99-70, SIDE B                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
MS. RUDINGER continued by pointing out that SB 100 does not include                                                             
any assurances, as was the case with the Oregon statute, "that a                                                                
defendant who is unable to make payment could demonstrate the                                                                   
reason they can't make payments has nothing to do with some                                                                     
deliberate disobedience of a court order or some bad faith.  They                                                               
need to be able to demonstrate that, because if it has nothing to                                                               
do with deliberate disobedience and it really is financial                                                                      
hardship, then the standards for criminal justice as well as the                                                                
dicta in Fuller versus Oregon indicate that this person should not                                                              
have to pay to defend themselves when they weren't convicted of                                                                 
anything."  Practically speaking, what is being discussed here is                                                               
taking poor people's permanent fund dividend (PFD) checks which is                                                              
how most of the money is collected for court-appointed attorneys'                                                               
fees.  Under SB 100, if someone is poor, wrongfully accused and                                                                 
found innocent, the government will still take money from that                                                                  
person's PFD.  She posited the question:  "Why not just say that if                                                             
you are poor you don't get a PFD because the state needs to pay for                                                             
taking care of you and providing lawyers for you when they want to                                                              
bring you up on false charges?  There's something really wrong                                                                  
here."                                                                                                                          
                                                                                                                                
Number 0138                                                                                                                     
                                                                                                                                
MS. RUDINGER pointed out other problems.  In smaller communities in                                                             
Alaska, often the person making decisions about who to charge with                                                              
a crime is the local police not a legally-trained district                                                                      
attorney.  The district attorney's office in the larger cities is                                                               
able to screen out cases which lack merit or have legal problems.                                                               
In smaller jurisdictions, the police make these decisions, file the                                                             
paperwork with the court, counsel is appointed and the paperwork is                                                             
sent to the DA who covers that area.  Upon review of a case, the DA                                                             
may simply dismiss the charges, but by then the person has already                                                              
needed to use the public defender.  This occurs often enough that                                                               
there should be concern about the fairness of SB 100 in this                                                                    
context.  Ms. Rudinger expressed concern that SB 100 would require                                                              
a wrongly accused person to pay for legal representation even if                                                                
the defense filed a motion to dismiss, or the court dropped the                                                                 
charges, or if the charges were a mistake of a rural police                                                                     
officer.  She indicated that the state should pay for mistakenly                                                                
bringing the charges.                                                                                                           
                                                                                                                                
MS. RUDINGER turned to the possible scenario of a defendant                                                                     
refusing representation and wishing to represent himself/herself in                                                             
court.  In such a situation, the court would still appoint counsel                                                              
against the person's will.  Upon discussing this with one of the                                                                
attorneys on the AkCLU's legislative committee, the attorney noted                                                              
such a situation is rare.  She explained the court's justification                                                              
for appointing counsel against a person's will is that the                                                                      
potential pro se defendant does not know the rules of evidence and                                                              
would not be able to conduct himself/herself according to the                                                                   
court's rules of decorum.  However, Ms. Rudinger indicated the real                                                             
reason the courts would force such a defendant to have a public                                                                 
defender is to make things run more smoothly and more conveniently                                                              
for the court.  She questioned whether it is fair to appoint a                                                                  
lawyer against a person's will and then make the person pay for the                                                             
counsel when he/she is acquitted.                                                                                               
                                                                                                                                
MS. RUDINGER noted that SB 100 also creates a potential for abuse.                                                              
There could be situations in which a police officer could bring                                                                 
false charges against a person, who happens to be poor.  That poor                                                              
person would have no recourse to receive court-appointed counsel                                                                
without the risk of financial damage.  Therefore, a coercion factor                                                             
would happen in these situations.  Some people would be so afraid                                                               
of fighting these charges that they would rather just plead out and                                                             
settle quickly in order to avoid a lengthy case in which the                                                                    
public defender's fees would build up.  She questioned how these                                                                
people, who may have been brought into court wrongfully, are                                                                    
supposed to maintain confidence that they have the right to go to                                                               
their court and ask the court to not make them pay.  She indicated                                                              
that these people may not understand the process or may be                                                                      
intimidated by everything that has happened to them; therefore, it                                                              
would be incorrect to assume such people would take the initiative                                                              
and petition the court about the legal fees.  In effect, these                                                                  
people would be coerced into pleading out even if they had done                                                                 
nothing wrong.  Therefore, Ms. Rudinger urged the committee to                                                                  
follow its gut instinct on this.  "If something seems unfair, it's                                                              
because it is in this case."                                                                                                    
                                                                                                                                
Number 0275                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES expressed that her concern that this affects                                                               
everyone the same way.  There are cases where people's lives were                                                               
ruined by a false accusation.  If a person is on the line between                                                               
indigency and non-indigency, the financial damages for                                                                          
representation by counsel to the person who is not indigent may be                                                              
even more devastating to that person than to someone who is                                                                     
indigent.   Representative James said she is for fairness, but                                                                  
isn't certain that some kind of discretionary decision-making                                                                   
process over this shouldn't be a good thing.                                                                                    
                                                                                                                                
MS. RUDINGER agreed that people who do not qualify for public                                                                   
defenders and do have to hire private defense counsel are put at                                                                
great hardship.  No matter a person's economic status, being                                                                    
wrongfully brought up on charges is a great hardship.  She                                                                      
suggested if the desire is treat everyone equally, then reimbursing                                                             
people brought up false charges might be considered.  Ms. Rudinger                                                              
emphasized that this is about people who are clearly indigent,                                                                  
although she acknowledged the gray area along this line that                                                                    
Representative James is concerned may be arbitrary or somehow                                                                   
unfair.  Of those who are acquitted or found not guilty, Ms.                                                                    
Rudinger believed the financial hardship falls more heavily on the                                                              
person who is indigent and needed a public defender.  "There is                                                                 
just no getting around that."                                                                                                   
                                                                                                                                
REPRESENTATIVE ROKEBERG interjected his disagreement, commenting on                                                             
the redistribution of income.                                                                                                   
                                                                                                                                
REPRESENTATIVE JAMES described a scenario in which an indigent                                                                  
person may have a job, may not have a car, may not necessarily have                                                             
a family; while, the person just over the indigency line may have                                                               
a car and be making car payments and may have a low-paying job.                                                                 
The indigent person might have a struggle making the payment, but                                                               
might have some cause to plead with the court to get out of the fee                                                             
or set up a payment schedule.  The person over the line does not                                                                
have that option.  She surmised that the only option the person                                                                 
over the line probably has is to voluntarily spend more on an                                                                   
attorney to sue the state in order to not have to pay.  That could                                                              
result in the person losing his/her car, job, et cetera.  Now this                                                              
person is even below the indigent person who the state helped.                                                                  
                                                                                                                                
MS. RUDINGER agreed; there is that gray area near the line where                                                                
people can be hurt.  Perhaps, the legislature wants to provide more                                                             
people the option to get court-appointed counsel.  She noted that                                                               
in order to provide due process for people affected by this, as a                                                               
minimum, the courts need specific standards to use when determining                                                             
whether someone is financially able to make restitution.  For a                                                                 
person who has been found not guilty or whose charges have been                                                                 
dropped, Ms. Rudinger indicated that having the court demand                                                                    
reimbursement adds insult to the injury.  She questioned, "Do we                                                                
want more people to be treated unfairly by expanding the scope of                                                               
who needs to make restitution or do we want fewer people to be                                                                  
treated unfairly and maybe want to think about raising the bar in                                                               
terms of -- or at least setting down specific standards for who can                                                             
be ordered to make restitution."                                                                                                
                                                                                                                                
Number 0470                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked, "Are you more concerned with the ...                                                                
possibility of amending Section 2, are you concerned with the                                                                   
'shall' there or are you, as you've alluded to earlier, ... that                                                                
any time someone is brought up on charges and not found guilty that                                                             
the state made a mistake."  He also asked if sometimes there is a                                                               
difference between whether someone is guilty, or there has been a                                                               
mistake, or the person was simply found not guilty but may have                                                                 
still done something to cause this action to be brought.                                                                        
Representative Green continued, asking if Ms. Rudinger is "opposed                                                              
to any time the state brings an action and loses; there should be                                                               
no charges?  Or only that there should be an ability for the court                                                              
to determine?"  He indicated the last question, could be very                                                                   
problematic.                                                                                                                    
                                                                                                                                
MS. RUDINGER answered, regarding Representative Green's question                                                                
about the possible language change, that "shall enter a judgment"                                                               
is the more offensive language from a civil liberties standpoint.                                                               
The permissive standard, "may" standard, is less offensive.   From                                                              
a public policy standpoint, the AkCLU feels that people who are                                                                 
acquitted or whose charges have been dropped should not have to                                                                 
repay the cost of a public defender (PD) when the person haa                                                                    
already qualified as indigent; therefore, qualified for a PD.                                                                   
Perhaps some people are more innocent than others, but the fact is                                                              
that either the government did not have enough evidence to get a                                                                
conviction or the government just made a mistake.  In either case,                                                              
these people have already suffered greatly.  Ms. Rudinger said, "I                                                              
don't think that you can draw this distinction:  Under our system                                                               
of justice, "not guilty" means "not guilty" and we let it go at                                                                 
that.  I don't think you want to start tinkering with that."                                                                    
                                                                                                                                
MS. RUDINGER understood the second part of Representative Green's                                                               
question to speak to the hardship on the legislature with regard to                                                             
developing standards for courts to apply in determining whether                                                                 
someone is able to pay.  However, that is exactly the defect found                                                              
in the Oregon statute, that it was lacking those standards, which                                                               
lead to Judge Panner striking down that statute as                                                                              
unconstitutional.  "Under due process, there must be standards for                                                              
courts to apply."  Additionally, there must be notice to the                                                                    
defendant as well as an opportunity to be heard.  Ms. Rudinger                                                                  
commented that earlier a good point was raised indirectly regarding                                                             
that defendants do not have the right of a public defender to argue                                                             
on the defendants' behalf in financial hardship type hearings.                                                                  
Perhaps, this should be revisited; she was unsure as to whether                                                                 
this would be a conflict of interest since the court is collecting                                                              
the money.  Ms. Rudinger drew attention to this possible lack of a                                                              
right to a lawyer for a person who might be mentally ill, have some                                                             
other kind of deficiency or incapacity to argue on his/her own                                                                  
behalf, or who could be too afraid to even try because he/she has                                                               
already lost faith in the system, et cetera.  Ms. Rudinger                                                                      
reiterated that this runs the risk of indirectly, unintentionally                                                               
urging people to plead out, plead guilty, which will                                                                            
disproportionately impact poor people as opposed to those who are                                                               
not poor.                                                                                                                       
                                                                                                                                
CHAIRMAN KOTT asked if that had answered Representative Green's                                                                 
question.                                                                                                                       
                                                                                                                                
REPRESENTATIVE GREEN replied no, and commented that he is not going                                                             
any further.                                                                                                                    
                                                                                                                                
MS. RUDINGER commented that she thought she had answered his                                                                    
question.                                                                                                                       
                                                                                                                                
Number 0685                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG expressed his frustration, noting he has                                                                
had an opportunity to read the AkCLU position paper.  He                                                                        
appreciated the desire for fairness.  Ensuring that people's                                                                    
constitutional right of representation is absolutely paramount.                                                                 
However, he did not understand the concept that an individual who                                                               
can pay for counsel has to pay whether innocent or not, while the                                                               
court says a higher value must be given to the fact that an                                                                     
innocent poor person should receive payment for counsel.                                                                        
Representative Rokeberg commented that the logic, someone has                                                                   
greater rights if he/she is indigent than if he/she is part of the                                                              
working poor, is beyond his understanding.  It seems that, as a                                                                 
matter of policy, the working poor of this country are paying for                                                               
the freight for these people who are abusing the system, in large                                                               
part, today.  For many in this country, using and working the                                                                   
system is a way of life.  He stressed that this is one area he is                                                               
aware of where the courts do not even do enough "interrogatories                                                                
(ph)" to determine whether a person qualifies before a public                                                                   
defender is appointed.                                                                                                          
                                                                                                                                
MS. RUDINGER said she shared his frustration that any time anybody                                                              
is wrongfully held up on charges that person, regardless of that                                                                
person's financial status, is greatly inconvenienced by the                                                                     
government and unfairly so.   As the committee is aware, the                                                                    
legislation asks the legislature to make a decision whether poor                                                                
people have to repay the government for the costs of their defense.                                                             
Such a financial order would fall most heavily on those with the                                                                
least money which is the issue here.  She acknowledged that any                                                                 
innocent person, wrongly brought up on charges has been unfairly                                                                
treated.  However, should poor people who don't have a choice in                                                                
their lawyer, who are acquitted, pay a portion of those attorney                                                                
fees.  While a person who can afford it, at least has the choice of                                                             
who represents them.                                                                                                            
                                                                                                                                
REPRESENTATIVE ROKEBERG emphasized that he did not understand the                                                               
distinction that someone who is poor receives free counsel while                                                                
someone who is part of the working poor has to pay for it whether                                                               
guilty or innocent.                                                                                                             
                                                                                                                                
MS. RUDINGER commented that goes back to Gideon v. Wainwright, a                                                                
1963 U.S. Supreme Court decision.                                                                                               
                                                                                                                                
REPRESENTATIVE ROKEBERG stressed that it is illogical.  Even if it                                                              
is a Supreme Court decision, it is not fair.                                                                                    
                                                                                                                                
MS. RUDINGER responded she certainly thinks he has a right to                                                                   
disagree with the Sixth Amendment.                                                                                              
                                                                                                                                
REPRESENTATIVE ROKEBERG rebutted that he was not disagreeing with                                                               
the Sixth Amendment nor was he disagreeing with the right to                                                                    
counsel.  Representative Rokeberg noted he had questioned why is it                                                             
as a matter of public policy that the poor get a better deal than                                                               
the people who are paying taxes which isn't fair at all.                                                                        
                                                                                                                                
REPRESENTATIVE JAMES noted Ms. Rudinger's earlier comment regarding                                                             
indigent people's permanent fund dividend checks being seized for                                                               
this purpose.  Representative James said, "That going up, quite a                                                               
ways up, from indigency if a person has to pay it -- probably, they                                                             
have to give up their permanent fund dividend too.  So, it goes a                                                               
long ways up the scale, so there is some unfairness there and I                                                                 
don't know what to do about it."  She agreed that everyone is                                                                   
guaranteed counsel, and it is not appropriate to charge those who                                                               
were wrongfully accused.  However, some people should not be able                                                               
to get away with it while others do not.                                                                                        
                                                                                                                                
Number 0947                                                                                                                     
                                                                                                                                
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department                                                               
of Administration, testified next via off-network teleconference                                                                
from Anchorage.  Mr. McCune stated, in preface to his remarks, that                                                             
the Public Defender Agency is very cautious about testifying and                                                                
making remarks about the fees legislation for public defender                                                                   
services because of any possible conflict of interest that could                                                                
arise.  He described the way the fees are collected:  there is a                                                                
judgment set up by the court and then the fees are collected by the                                                             
Office of the Attorney General or a section of the Department of                                                                
Law.  The agency does not collect the fees itself.  The fees go                                                                 
into the state's general fund; they do not go directly into the                                                                 
agency's budget.  Mr. McCune indicated he thinks this is a good way                                                             
to handle this to avoid any kind of adversarial relationship with                                                               
a client in the middle a case.  With the agency's caution in                                                                    
testifying on fees legislation voiced, Mr. McCune expressed support                                                             
for the idea of not having mandatory fees for any kind of child in                                                              
need of aid case or civil case where the agency represents people.                                                              
He indicated the agency is concerned about the child in need of aid                                                             
cases and mental health commitment cases, where the agency                                                                      
represents clients.  Mr. McCune believed the court does have some                                                               
authority in juvenile delinquency cases.                                                                                        
                                                                                                                                
MR. McCUNE referred to the change from current statutory language,                                                              
"Upon the person's conviction", et cetera, on page 2, line 6, and                                                               
commented that this is just something that did not occur to the                                                                 
agency when they were talking in the Senate.  It was generally                                                                  
restricted to criminal cases which he felt was appropriate and                                                                  
where the emphasis on picking up fees should lie.  Mr. McCune noted                                                             
there is a case involving attorneys' fees in child in need of aid                                                               
cases, "Cooper versus State and it's found at (indisc.) Pacific                                                                 
Reporter, ... 638, page 174."  Mr. McCune indicated that it would                                                               
not be appropriate to have attorneys' fees charged in any way in                                                                
child in need of aid cases.  Currently, in most civil cases, under                                                              
Civil Rule 82 the prevailing party can get attorney's fees from the                                                             
other party even if the other party is the state.  Therefore, he                                                                
expressed the need not to change that - where a prevailing party in                                                             
a child in need of aid case could ask for attorney's fees from the                                                              
state.  The reason is that, as the court said in Cooper, there are                                                              
strong policy considerations.  Child in need of aid proceedings are                                                             
intended to promote important public interest and welfare of                                                                    
children.  Because of this, the agency certainly wants to support                                                               
Mr. Buttcane's position that attorneys' fees for public defenders                                                               
should not be collected in civil cases.  Mr. McCune noted the                                                                   
agency is also supportive of some way to provide mentally-ill                                                                   
people help in petitioning the court to be able to be relieved from                                                             
fee payment.                                                                                                                    
                                                                                                                                
MR. MCCUNE described the way the process currently works.                                                                       
Generally, the court sends a judgment or notice of intent to impose                                                             
a judgment for public defender fees to the person at his/her last                                                               
known address.   A court form is attached to that notice which can                                                              
be filled out, expressing why he/she thinks a lower fee or no fee                                                               
should be paid.  The agency does not assist people in filling out                                                               
those forms because of conflict of interest problems and because                                                                
the rule says the person is not entitled to public defender                                                                     
representation for that part of the case.  The agency passes the                                                                
forms along if people request them, but goes no further.  Mr.                                                                   
McCune said he thinks it is quite good to have some discretion in                                                               
the courts to allow the court to decide when fees should be imposed                                                             
and the amount of fees that someone realistically can pay.  He                                                                  
indicated that often the courts look at restitution to the victim                                                               
first if there is a conviction.  Other items considered are the                                                                 
support of the convicted person's children and counseling fees.                                                                 
Mr. McCune explained that often a person is placed on probation and                                                             
required to attend substance abuse, mental awareness type                                                                       
counseling, receive assessments, et cetera which can be expensive.                                                              
He indicated the judges would prefer to see people pay for those                                                                
services rather than returning to the court with the excuse that                                                                
he/she cannot do those things because of the need to pay their                                                                  
attorneys' fees.                                                                                                                
                                                                                                                                
Number 1307                                                                                                                     
                                                                                                                                
MR. McCUNE informed the committee the Senate changed one other                                                                  
section; on page 1, lines 12 and 13.  The representation would be                                                               
at the level and to the extent required by both the state and                                                                   
federal constitutions.  Although it will not change the agency's                                                                
operations, the agency is somewhat concerned that there is no                                                                   
reference to statutes, court rules, bar association and ethical                                                                 
rules as also coming into play in how the agency does its job.  Mr.                                                             
McCune concluded by offering to answer any questions.                                                                           
                                                                                                                                
REPRESENTATIVE ROKEBERG questioned what the current threshold is                                                                
where some repayment is sought under court rules from some of the                                                               
public defender clients.  He asked if it varies with the type of                                                                
case, or the person's income threshold.                                                                                         
                                                                                                                                
MR. McCUNE understood Representative Rokeberg to be inquiring as to                                                             
what is indigent.  The Anchorage court system and all the larger                                                                
court locations have a pretrial services department which makes                                                                 
that determination.  The agency does not question clients, whether                                                              
someone is indigent is decided by the courts through their pretrial                                                             
services and indigency screening.  Referring to Representative                                                                  
Rokeberg's mention of the "working poor,"  Mr. McCune commented                                                                 
that, depending on the charge, almost everyone is indigent.  If a                                                               
person is looking at representation for a first degree murder case,                                                             
he/she would face a very large up-front cash payment.  In such a                                                                
case, the court suggests that the person try to find a lawyer.  If                                                              
the person can't find a lawyer, the court would require the Public                                                              
Defender Agency to keep track of the hours it works on the case.                                                                
That person then would be charged at an hourly rate for the                                                                     
agency's services which would be more than the Rule 39 or Rule 209                                                              
rate.                                                                                                                           
                                                                                                                                
REPRESENTATIVE ROKEBERG commented, "Interesting to note that Mr.                                                                
McCune's point is hire a lawyer, become indigent."                                                                              
                                                                                                                                
Number 1501                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI referred to the current statutory language                                                             
to be deleted on page 2, beginning at line 8, "ENFORCEMENT OF A                                                                 
JUDGMENT UNDER THIS SUBSECTION MAY BE STAYED BY THE TRIAL COURT OR                                                              
THE APPELLATE COURT DURING THE PENDENCY OF AN APPEAL OF THE                                                                     
PERSON'S CONVICTION."  Representative Murkowski added, "And I guess                                                             
if it has been eliminated, you're going ahead and you're executing                                                              
on your judgment and then you are found out at the ... higher                                                                   
appellate level that in fact your conviction's been overturned.                                                                 
What would the procedure be ... to just handle all that?"                                                                       
                                                                                                                                
MR. McCUNE explained that currently, if a person is convicted at                                                                
the trial court level, the person can request a stay of the                                                                     
attorney's fees order pending appeal.  If the person then wins the                                                              
case on appeal, his/her conviction is vacated and set aside as is                                                               
the order for attorney's fees.  He believed the language is                                                                     
included in order to give the court a chance to have the order on                                                               
attorney's fees stayed pending the appeal, if someone appeals.  Of                                                              
course, as the legislation has been changed and no longer says                                                                  
"Upon the person's conviction" and if the court wants this change                                                               
to also apply to people who are acquitted, receive not guilty                                                                   
verdicts, or whose convictions are vacated - then there wouldn't be                                                             
reason for the stay because the person would still have to pay no                                                               
matter what happened on the appeal.                                                                                             
                                                                                                                                
REPRESENTATIVE MURKOWSKI clarified her question.  She posed a                                                                   
situation in which one is an executing a judgment and then the                                                                  
conviction is reversed; that person has paid out and their                                                                      
permanent fund dividend has been attached.  She asked,                                                                          
procedurally, how difficult would it be to stop everything, and                                                                 
return it?                                                                                                                      
                                                                                                                                
MR. McCUNE indicated that language would be reinserted if the                                                                   
legislation were to be changed so that people who are found not                                                                 
guilty, or whose cases are vacated upon appeal would not have a                                                                 
fee.                                                                                                                            
                                                                                                                                
Number 1720                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT confirmed no one else wished to testify on SB 100 and                                                             
announced the public testimony was closed.  He stated his intention                                                             
to hold SB 100 over, based on the testimony heard.  Chairman Kott                                                               
noted the legislation needs additional work before moving out of                                                                
the committee.  He referred to copies of the mentioned Pacific                                                                  
Reporter case, Cooper v. State, that were provided to the committee                                                             
members for their review.  With that, SB 100 was held over.                                                                     
                                                                                                                                

Document Name Date/Time Subjects