Legislature(2001 - 2002)

04/20/2001 01:18 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 105 - VICTIMS' RIGHTS/ PRISONER'S PFD                                                                                      
                                                                                                                                
[Contains brief note  that HB 133 was incorporated  into the work                                                               
draft of  SB 105, Version L,  which was adopted and  discussed at                                                               
this meeting.]                                                                                                                  
                                                                                                                                
Number 1600                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  announced that the  next order of  business would                                                               
be CS FOR SENATE BILL NO.  105(FIN), "An Act relating to victims'                                                               
rights; relating  to establishing  an office of  victims' rights;                                                               
relating to the  authority of litigants and the  court to comment                                                               
on the crime  victim's choice to appear or testify  in a criminal                                                               
case;  relating to  compensation  of victims  of violent  crimes;                                                               
relating  to  eligibility  for  a  permanent  fund  dividend  for                                                               
persons  convicted  of  and incarcerated  for  certain  offenses;                                                               
relating to notice of  appropriations concerning victims' rights;                                                               
amending Rules  16 and  30, Alaska  Rules of  Criminal Procedure,                                                               
Rule 9, Alaska  Delinquency Rules, and Rule 501,  Alaska Rules of                                                               
Evidence; and providing for an effective date."                                                                                 
                                                                                                                                
Number 1677                                                                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL  made  a  motion to  adopt  the  proposed                                                               
committee  substitute  (CS)  for  SB  105,  version  22-LS0219\L,                                                               
Luckhaupt, 4/11/01, as  a work draft.  There  being no objection,                                                               
Version L was before the committee.                                                                                             
                                                                                                                                
Number 1700                                                                                                                     
                                                                                                                                
JULI  LUCKY,   Staff  to  Senator  Rick   Halford,  Alaska  State                                                               
Legislature,  on behalf  of Senator  Halford, sponsor,  confirmed                                                               
that HB  133 -  the governor's bill  pertaining to  restitution -                                                               
has been incorporated into Version L of SB 105.                                                                                 
                                                                                                                                
Number 1756                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  made a  motion to adopt  Amendment 1,  which read                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
     Page 6, lines 8-9:                                                                                                         
          Following "misdemeanor."                                                                                              
         Delete "A copy of the completed form shall be                                                                          
     provided"                                                                                                                  
          Insert "The defendant shall provide a copy of the                                                                     
     completed form"                                                                                                            
                                                                                                                                
     Page 7, line 2 through Page 8, line 6:                                                                                     
          Delete all material and insert:                                                                                       
          (e) The Department of Law is authorized to                                                                            
     collect restitution on behalf of the recipient unless                                                                      
          (1)  the recipient elects as provided in (f) of                                                                       
     this  section  to  enforce  the  order  of  restitution                                                                    
     without the assistance of the Department of Law; or                                                                        
          (2)  the order requires restitution to be made in                                                                     
     a form other than payment of a specific dollar amount.                                                                     
          (f)  The court shall forward a copy of an order                                                                       
     of  restitution  to  the Department  of  Law  when  the                                                                    
     judgement  is entered.    Along with  the  copy of  the                                                                    
     order,  the  court  shall provide  the  name,  date  of                                                                    
     birth, social  security number, and current  address of                                                                    
     the recipient of the restitution  and the defendant, to                                                                    
     the extent that  the court has that  information in its                                                                    
     possession.    Upon  receipt of  the  order  and  other                                                                    
     information  from  the  court, the  Department  of  Law                                                                    
     shall  send a  notice  to the  recipient regarding  the                                                                    
     recipient's  rights under  this section,  including the                                                                    
     right  to elect  to  enforce the  order of  restitution                                                                    
     without the  assistance of the  Department of  Law. The                                                                    
     information  provided to  the Department  of Law  under                                                                    
     this  subsection is  confidential  and is  not open  to                                                                    
     inspection as a public record  under AS 40.25.110.  The                                                                    
     Department of  Law or its  agents may not  disclose the                                                                    
     information  except  as  necessary to  collect  on  the                                                                    
     restitution.                                                                                                               
          (g)  The Department of Law may not begin                                                                              
     collection  procedures  on  the  order  of  restitution                                                                    
     until the recipient has been  given notice and has been                                                                    
     given  30 days  after  receipt of  notice  to elect  to                                                                    
     collect the  restitution without the assistance  of the                                                                    
     Department  of  Law.    A   recipient  may  inform  the                                                                    
     Department of  Law at a  later time of  the recipient's                                                                    
     election  to   collect  the  restitution   without  the                                                                    
     assistance of  the Department of  Law; upon  receipt of                                                                    
     that information,  the Department of Law  may no longer                                                                    
     proceed  with  collection  efforts  on  behalf  of  the                                                                    
     recipient.   A  recipient  who has  elected under  this                                                                    
     section to  collect restitution without  the assistance                                                                    
     of  the Department  of Law  may not  later request  the                                                                    
     services   of   that    department   to   collect   the                                                                    
     restitution.                                                                                                               
          (h)  If the Department of Law or its agents                                                                           
     proceed  to   collect  restitution   on  behalf   of  a                                                                    
     recipient  under (g)  of this  section, the  actions of                                                                    
     the Department of Law or  an agent of the Department of                                                                    
     Law  on  behalf  of  the recipient  do  not  create  an                                                                    
     attorney-client relationship between  the Department of                                                                    
     Law and  the recipient.   The Department of Law  or its                                                                    
     agent  may  not  settle  a  judgement  for  restitution                                                                    
     without   the  consent   of   the   recipient  of   the                                                                    
     restitution.                                                                                                               
          (i)  An action for damages may not be brought                                                                         
     against the  state or any  of its agents,  officers, or                                                                    
     employees  based on  an action  or omission  under this                                                                    
     section.                                                                                                                   
          (j)  The Department of Law may enter into                                                                             
     contracts  on behalf  of  the state  to  carry out  the                                                                    
     collection procedures of this  section.  The Department                                                                    
     of  Law may  adopt regulations  necessary to  carry out                                                                    
     the  collection procedures  of this  section, including                                                                    
     the  reimbursement  of  attorneys  fees  and  costs  in                                                                    
     appropriate cases.                                                                                                         
                                                                                                                                
     Page 23, lines 19-20:                                                                                                      
          Following "election to"                                                                                               
          Delete "inform the Department of Law of an                                                                            
     election to"                                                                                                               
                                                                                                                                
     Page 22,  line 27:                                                                                                         
          Following "when the"                                                                                                  
          Delete "order"                                                                                                        
          Insert "judgement"                                                                                                    
                                                                                                                                
     Page 23, line 29:                                                                                                          
          Following: "settle"                                                                                                   
          Delete "an order of"                                                                                                  
          Insert "a judgement for"                                                                                              
                                                                                                                                
MS. LUCKY  explained that  Amendment 1  is a  technical amendment                                                               
that will  fix some  inconsistencies found  after portions  of HB
133 was  incorporated into Version L  of SB 105.   In detail, the                                                               
first  section  of  Amendment  1  will specify  that  it  is  the                                                               
defendant who  shall provide  a copy  of the  completed financial                                                               
information  form  to  the   prosecuting  authority;  the  second                                                               
section  of Amendment  1 mirrors  the structure  of the  enabling                                                               
language for  the Department of  Law (DOL)  regarding restitution                                                               
with that  which pertains  to the  Division of  Juvenile Justice;                                                               
the  third  section  of  Amendment  1  fixes  a  typo  containing                                                               
duplicate language; and the fourth and fifth sections of                                                                        
Amendment 1 bring the Division of Juvenile Justice into                                                                         
compliance by replacing references to "order" with "judgement".                                                                 
                                                                                                                                
Number 1867                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG asked whether there were any objections to                                                                       
Amendment 1.  There being no objection, Amendment 1 was adopted.                                                                
                                                                                                                                
Number 1870                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG made a motion to adopt Amendment 2, which read:                                                                  
                                                                                                                                
     Page 1, line 2:                                                                                                            
          Delete "authority of litigants and the court to                                                                     
     comment on the"                                                                                                          
                                                                                                                                
     Page 2, line 1:                                                                                                            
          Delete "Rules 16 and 30"                                                                                            
          Insert "Rule 16"                                                                                                    
                                                                                                                                
     Page 8, lines 7 - 13:                                                                                                      
          Delete all material.                                                                                                  
          Insert a new bill section to read:                                                                                    
        "* Sec.  12.   AS 12.55 is amended  by adding  a new                                                                  
     section to read:                                                                                                           
          Sec. 12.55.151. Court may not reduce or mitigate                                                                    
     punishment  based  on  victim's failure  to  appear  or                                                                  
     testify.   Notwithstanding  another  provision of  law,                                                                  
     when sentencing  a defendant, a court  may not mitigate                                                                    
     or reduce the punishment of  the defendant based on, or                                                                    
     otherwise consider as a mitigating  factor or reason to                                                                    
     impose a  lesser punishment, the  failure of  the crime                                                                    
     victim to appear or testify."                                                                                              
                                                                                                                                
     Page 25, lines 25 - 29:                                                                                                    
          Delete all material.                                                                                                  
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 26, lines 12 - 16:                                                                                                    
          Delete all material.                                                                                                  
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 27, line 1:                                                                                                           
          Delete "and 34 - 37"                                                                                                  
          Insert "34, and 35"                                                                                                   
                                                                                                                                
     Page 27, line 5:                                                                                                           
          Delete "39, and 40"                                                                                                   
          Insert "37, and 38"                                                                                                   
                                                                                                                                
     Page 27, line 7:                                                                                                           
          Delete "and 34 - 37"                                                                                                  
          Insert "34, and 35"                                                                                                   
                                                                                                                                
     Page 27, line 9:                                                                                                           
          Delete "and 38"                                                                                                       
          Insert "and 36"                                                                                                       
                                                                                                                                
MS.  LUCKY explained  that  an amendment  adopted  in the  Senate                                                               
Finance Committee  prohibits comment on whether  a victim chooses                                                               
to  testify or  not.   To forestall  constitutional difficulties,                                                               
Amendment 2 alters the language  to simply clarify that the court                                                               
may  not reduce  or  mitigate punishment  based  on the  victim's                                                               
failure  to appear  or testify,  and  moves this  language to  AS                                                               
12.55, which is the sentencing statute.                                                                                         
                                                                                                                                
Number 1927                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  asked  whether  there  were  any  objections  to                                                               
Amendment 2.  There being no objection, Amendment 2 was adopted.                                                                
                                                                                                                                
Number 1941                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG made a motion to adopt Amendment 3, which read:                                                                  
                                                                                                                                
     Page 2, line 2:                                                                                                            
          Delete "Rule 501"                                                                                                     
          Insert "Rules 402 and 501"                                                                                            
                                                                                                                                
     Page 16, lines 7 - 12:                                                                                                     
          Delete all material and insert:                                                                                       
          "Sec. 24.65.200.  Victims' advocate's privilege                                                                     
     not to testify or  produce documents or other evidence.                                                                  
     Except as  may be  necessary to enforce  the provisions                                                                    
     of  this  chapter,   the  determinations,  conclusions,                                                                    
     thought processes,  discussions, records,  reports, and                                                                    
     recommendations  of  or  information collected  by  the                                                                    
     victims'  advocate or  staff of  the victims'  advocate                                                                    
     are not  admissible in a civil  or criminal proceeding,                                                                    
     and  are not  subject to  questioning or  disclosure by                                                                    
     subpoena or discovery."                                                                                                    
                                                                                                                                
     Page 26, line 10:                                                                                                          
          Delete "Rule 501"                                                                                                     
          Insert "Rules 402 and 501"                                                                                            
                                                                                                                                
     Page 26, line 11:                                                                                                          
          Following "testify":                                                                                                  
               Insert "or produce evidence"                                                                                     
          Following "court":                                                                                                    
            Insert "and precluding admissibility of                                                                             
     certain evidence in certain cases"                                                                                         
                                                                                                                                
MS. LUCKY relayed that Mr. Guaneli,  Department of Law, is of the                                                               
opinion  that  language  currently  in Version  L  regarding  the                                                               
victims'  advocate's privilege  not  to testify  is not  specific                                                               
enough; Amendment  3 is intended  to enumerate  specifically what                                                               
is privileged.                                                                                                                  
                                                                                                                                
Number 2010                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL objected for the purpose of discussion.                                                                  
                                                                                                                                
CHAIR ROKEBERG called an at-ease from 1:53 p.m. to 1:56 p.m.                                                                    
                                                                                                                                
Number 2017                                                                                                                     
                                                                                                                                
DEAN  J.   GUANELI,  Chief  Assistant  Attorney   General,  Legal                                                               
Services  Section-Juneau, Criminal  Division,  Department of  Law                                                               
(DOL), explained  that although  victims' advocates could  not be                                                               
compelled to  testify and neither  could their documents  be used                                                               
as  evidence, current  language  in Version  L  did not  preclude                                                               
someone  from going  after  those records  and  files during  the                                                               
course of civil discovery and  then using the information gleaned                                                               
from them.  Since these  records and files come from confidential                                                               
sources, he said the documents  should remain confidential and be                                                               
contained within  the office.   Amendment 3 clarifies  that these                                                               
documents are  not permissible [as  evidence] in  proceedings and                                                               
are  not subject  to  questioning or  disclosure  by subpoena  or                                                               
discovery.   He opined that  Amendment 3 preserves  the sponsor's                                                               
intent that the confidentiality of these records be maintained.                                                                 
                                                                                                                                
MR. GUANELI also  explained that Rule 402 of the  Alaska Rules of                                                               
Evidence is a general rule  regarding relevant evidence, and that                                                               
the drafter  felt that including  specific reference to  Rule 402                                                               
is necessary  because it is  indirectly changed by the  fact that                                                               
these records are not admissible or subject to questioning.                                                                     
                                                                                                                                
Number 2156                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  asked whether there  were any  further objections                                                               
to  Amendment 3.    There  being no  objection,  Amendment 3  was                                                               
adopted.                                                                                                                        
                                                                                                                                
Number 2169                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG made a motion to adopt Amendment 4, which read:                                                                  
                                                                                                                                
     Page 16, lines 24 - 26:                                                                                                    
        Delete ", including the governor and lieutenant                                                                         
         governor, when acting with regard to executive                                                                         
     clemency, judges, and magistrates"                                                                                         
                                                                                                                                
MR. GUANELI explained that Version  L defines "justice Agency" to                                                               
include any number of departments,  agencies, offices, et cetera,                                                               
and that  these are the  agencies that the victims'  advocate, in                                                               
his/her  investigative  capacity,  could subpoena  records  from.                                                               
Included in  this list are  the governor and  lieutenant governor                                                               
with regard to  executive clemency, judges, and  magistrates.  He                                                               
opined  that this  language  might lead  to  problems related  to                                                               
separation  of  powers, and  goes  too  far.   Amendment  4  will                                                               
exclude  the offices  of governor  and  lieutenant governor  from                                                               
investigations  by  the victims'  advocate.    In response  to  a                                                               
question, he added that with the  inclusion of "court" on line 20                                                               
of page 16, the language  is broad enough to include magistrates,                                                               
judges,  deputy  magistrates,  supreme   court  justices,  and  a                                                               
variety of judicial officers.                                                                                                   
                                                                                                                                
MS.  LUCKY  noted   that  Senator  Halford  does   not  have  any                                                               
objections to Amendment 4.                                                                                                      
                                                                                                                                
Number 2258                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  asked  whether  there  were  any  objections  to                                                               
Amendment 4.  There being no objection, Amendment 4 was adopted.                                                                
                                                                                                                                
Number 2260                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  made a  motion to adopt  Amendment 5,  which read                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
     Page 14, Line 31:                                                                                                          
          Delete "or"                                                                                                           
                                                                                                                                
     Page 15, line 3, following "rights":                                                                                       
          Insert";                                                                                                              
           (5) a victim counselor concerning a matter                                                                           
     made confidential by AS 18.66.200 - 18.66.250; or                                                                          
          (6) a justice agency concerning records that                                                                          
        lead to the disclosure of a confidential police                                                                         
     informant."                                                                                                                
                                                                                                                                
MR. GUANELI, in support of  Amendment 5, explained that pages 14-                                                               
15 contain a number categories  of persons or agencies that would                                                               
be  exempt  from  having   their  records  subpoenaed,  including                                                               
judges,  justices, magistrates,  and  members of  juries, and  he                                                               
said it was  felt that victims' counselors should  be included in                                                               
this  exemption since  they already  operate under  very detailed                                                               
confidentiality  rules and  because release  of such  information                                                               
would  interfere  in  the   victim/counselor  relationship.    In                                                               
addition, he explained that any  police agency records that might                                                               
lead to  the disclosure of confidential  police informants should                                                               
also  be  included in  the  exemption  because release  of  their                                                               
identities might put them in physical danger.                                                                                   
                                                                                                                                
Number 2346                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  asked  whether  there  were  any  objections  to                                                               
Amendment 5.  There being no objection, Amendment 5 was adopted.                                                                
                                                                                                                                
REPRESENTATIVE BERKOWITZ asked whether  the issue of "subpoenaing                                                               
the  privileged   informational  work  product,"  which   he  had                                                               
previously discussed with Ms. Lucky, has been addressed yet.                                                                    
                                                                                                                                
MS LUCKY  noted that  an actual  amendment addressing  that topic                                                               
has  not yet  been  drafted.   She explained  that  she has  made                                                               
inquiries   into   whether   there   is  a   danger   of   having                                                               
attorney/client  communications  subpoenaed   under  the  current                                                               
language in Version L.  She  said that the responses she received                                                               
from the  DOL, the  drafter, and  the majority  counsel indicated                                                               
that the current  language that says, "subject  to privileges the                                                               
witnesses have  in the courts  of this state", would  protect the                                                               
attorney/client  privilege.   She  sought  further comments  from                                                               
Representative Berkowitz, and  also said she would  be willing to                                                               
change this language  if any member had  suggestions for specific                                                               
changes.    She noted  one  such  suggestion  is to  replace  the                                                               
aforementioned  language with  "subject to  privileges recognized                                                               
by  court rule  and statute",  and another  option offered  is to                                                               
insert  language into  AS 24.65.130(c)(4)  that would  include in                                                               
the exclusions  from subpoena the privileged  communications of a                                                               
defendant's  attorney.   She  commented  that  the latter  option                                                               
might be the  more appropriate change since  the current language                                                               
addresses  what   may  be  subpoenaed   by  the   advocate  while                                                               
investigating a  victim's complaint  that he/she has  been denied                                                               
constitutional and statutory rights.                                                                                            
                                                                                                                                
TAPE 01-68, SIDE B                                                                                                              
Number 2480                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ expressed  willingness to  consider the                                                               
former aforementioned option as a conceptual amendment.                                                                         
                                                                                                                                
CHAIR ROKEBERG called an at-ease from 2:08 p.m. to 2:10 p.m.                                                                    
                                                                                                                                
Number 2473                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  made  a  motion  to  adopt  Conceptual                                                               
Amendment 6.                                                                                                                    
                                                                                                                                
MS.  LUCKY  recapped  that  on page  14,  lines  6-7,  Conceptual                                                               
Amendment  6  would  delete  "Subject   to  the  privileges  that                                                               
witnesses  have  in  the  courts"  and  insert  "Subject  to  the                                                               
privileges recognized by court rule and statute".                                                                               
                                                                                                                                
Number 2416                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  asked  whether  there  were  any  objections  to                                                               
adopting  Conceptual  Amendment 6.    There  being no  objection,                                                               
Conceptual Amendment 6 was adopted.                                                                                             
                                                                                                                                
Number 2399                                                                                                                     
                                                                                                                                
BLAIR McCUNE,  Deputy Director,  Central Office,  Public Defender                                                               
Agency  (PDA),   Department  of  Administration,   testified  via                                                               
teleconference  and  suggested  that   out  of  an  abundance  of                                                               
caution, the language  "or an attorney retained by  the person or                                                               
appointed by  the court  to represent the  person" could  also be                                                               
added to  subsection (c)(4) on  page 15, line 3,  after "rights".                                                               
He noted that this would  clarify that an attorney's confidential                                                               
communications with his/her client cannot be subpoenaed.                                                                        
                                                                                                                                
Number 2249                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  made a  motion to  adopt Conceptual  Amendment 7,                                                               
which  would insert  "or an  attorney retained  by the  person or                                                               
appointed by  the court to  represent the person"  after "rights"                                                               
on  page  15, line  3.    There  being no  objection,  Conceptual                                                               
Amendment 7 was adopted.                                                                                                        
                                                                                                                                
MR. McCUNE,  on a  slightly different  point, clarified  that the                                                               
PDA does  not consider itself  to be  a justice agency  under the                                                               
definition  in  Version  L  because  it  is  not  concerned  with                                                               
apprehension,  prosecution, incarceration,  or  supervision.   He                                                               
also noted  that the Office of  Public Advocacy is not  a justice                                                               
agency under this definition either.                                                                                            
                                                                                                                                
REPRESENTATIVE  BERKOWITZ, on  the  point  of another  conceptual                                                               
amendment, suggested  that "this  new bureaucracy" should  have a                                                               
sunset date.                                                                                                                    
                                                                                                                                
MS. LUCKY stated a preference not to include a sunset date.                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ  opined that if the  [Office of Victims'                                                               
Rights] has  a sunset  date, the legislature  will then  have the                                                               
opportunity  to  revisit  the issue  and  determine  whether  the                                                               
sunset should be removed or if other steps need to be taken.                                                                    
                                                                                                                                
REPRESENTATIVE JAMES expressed agreement with this concept.                                                                     
                                                                                                                                
Number 2223                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  made  a  motion  to  adopt  Conceptual                                                               
Amendment 8, which  would provide a sunset date of  July 1, 2005,                                                               
for the [Office of Victims' Rights].                                                                                            
                                                                                                                                
Number 2200                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG objected for the purpose of discussion.                                                                          
                                                                                                                                
MS. LUCKY,  in response  to questions,  explained that  Version L                                                               
has three different effective dates.   The first effective date -                                                               
the immediate  effective date  - deals  with the  regulations and                                                               
receiving money  from forfeited permanent fund  dividends (PFDs).                                                               
The second effective date of July  1, 2002, relates to the Office                                                               
of Victims'  Rights, which  won't be up  and running  until then.                                                               
The third effective, which  addresses the restitution provisions,                                                               
will be  January 1, 2002.   She  mentioned that the  fiscal notes                                                               
total  a little  over $500,000.   She  reiterated that  she would                                                               
prefer not  to have a sunset  date, but added that  a sunset date                                                               
of 2006 would  at least allow the [Office of  Victims' Rights] to                                                               
operate for a full four years.                                                                                                  
                                                                                                                                
REPRESENTATIVE  BERKOWITZ said,  "That'd  be fine;  I would  take                                                               
that as a friendly amendment."                                                                                                  
                                                                                                                                
Number 2152                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  announced  that   the  amendment  to  Conceptual                                                               
Amendment 8  would result in a  sunset date of July  1, 2006, for                                                               
the  provisions pertaining  to [the  Office of  Victims' Rights].                                                               
There being  no objection, the amendment  to Conceptual Amendment                                                               
8 was adopted.                                                                                                                  
                                                                                                                                
REPRESENTATIVE  JAMES opined  that  a sunset  date  would not  be                                                               
injurious to  the legislation, and  that it makes  rational sense                                                               
to provide a sunset date.                                                                                                       
                                                                                                                                
CHAIR ROKEBERG  maintained his objection to  Conceptual Amendment                                                               
8, as amended.                                                                                                                  
                                                                                                                                
Number 2079                                                                                                                     
                                                                                                                                
A roll  call vote was  taken.  Representatives James,  Meyer, and                                                               
Berkowitz  voted   for  Conceptual   Amendment  8,   as  amended.                                                               
Representatives   Coghill   and   Rokeberg  voted   against   it.                                                               
Therefore, Conceptual Amendment  8, as amended, passed  by a vote                                                               
of 3-2.                                                                                                                         
                                                                                                                                
MR.  GUANELI, in  response to  questions  regarding a  memorandum                                                               
from the drafter  pertaining to Section 6, said  he believed that                                                               
Version L, as drafted, is  constitutional.  He surmised that what                                                               
the legislature  is saying via Section  6 is that the  money that                                                               
was  the defendant's,  but as  a result  of some  conduct of  the                                                               
defendant, will  now go to the  victim, and that an  equal amount                                                               
will  be owed  to  the state.    He opined  that  this is  proper                                                               
legislative action  and does not  constitute an  appropriation as                                                               
is  posited by  the drafter  in his  memorandum.   He noted  that                                                               
although current  statute allows  for bail to  be forfeited  if a                                                               
defendant violates the  conditions of bail, the  statute does not                                                               
stipulate where the  funds go.  As matter of  practice, he added,                                                               
the funds have  been going to the general fund  (GF), but nothing                                                               
in  statute precludes  the legislature  from directing  forfeited                                                               
money elsewhere.   He remarked  that the incident referred  to in                                                               
the memorandum  involved fines owed  to the state but  which were                                                               
then  paid  to  private  organizations,   whereas  Section  6  is                                                               
referring  to  money  owned  by the  defendant  but  which,  upon                                                               
forfeiture, is directed  by the legislature to go  to the victim.                                                               
He opined that language in Section  6 does not create a dedicated                                                               
fund problem.                                                                                                                   
                                                                                                                                
CHAIR ROKEBERG noted that the  state has a compelling interest to                                                               
ensure  that victims  are receiving  restitution,  and said  that                                                               
"this"  is  one  way  to  secure that.    He  opined  that  [this                                                               
compelling  interest]  would  supersede any  interpretation  that                                                               
Section 6  is referring to  a dedicated  fund.  The  courts would                                                               
simply be holding  the funds in trust and then  issuing it to the                                                               
victim as form of restitution.                                                                                                  
                                                                                                                                
MR.  GUANELI  confirmed  this;  it  would  be  another  mechanism                                                               
similar  to   what  the  courts  currently   do  when  collecting                                                               
restitution.                                                                                                                    
                                                                                                                                
Number 1901                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ,  referring to  the Eighth  Amendment of                                                               
the U.S.  Constitution addressing excessive bail,  noted that the                                                               
defendant is being required to  pay bail twice in these instances                                                               
of  forfeiture, [once  to the  defendant, and  then again  to the                                                               
state].   He asked whether  there has  been any analysis  done on                                                               
this point.                                                                                                                     
                                                                                                                                
MR.  GUANELI  surmised that  these  instances  would have  to  be                                                               
considered on a case-by-case basis.   For example, if bail is set                                                               
at $1 million and the  defendant violates the conditions of bail,                                                               
then having to pay $2  million might be considered inappropriate,                                                               
but  in the  normal circumstance,  he offered,  judges have  wide                                                               
discretion  to set  an amount  of  bail.   Therefore, he  opined,                                                               
without  looking at  a  specific  case, one  could  not say  that                                                               
Section 6  falls under the  excessive bail provision of  the U.S.                                                               
Constitution.                                                                                                                   
                                                                                                                                
REPRESENTATIVE BERKOWITZ  pointed out that language  in Section 6                                                               
mandates that a matching amount of  the forfeited bail be paid to                                                               
the  state.    He  noted that  this  raises  questions  regarding                                                               
process;  he  opined   that  it  could  be   problematic  from  a                                                               
constitutional perspective.                                                                                                     
                                                                                                                                
MR. GUANELI  posited that  everyone would agree  that if  bail is                                                               
set at $500, and the defendant has  to pay $500 to the victim and                                                               
$500 to  the state for a  violation of bail conditions,  it would                                                               
not be  considered unconstitutional.   He  acknowledged, however,                                                               
that as the amount of bail  rises, there may be other issues that                                                               
have  to be  resolved, and  that there  may be  a point  when the                                                               
courts  say, "We  can  not constitutionally  do  what this  says;                                                               
we'll pay  the victim what  the victim is  due."  He  pointed out                                                               
that the victim would not get  the entire amount of the forfeited                                                               
bail  unless there  were damages  up to  that amount;  the victim                                                               
would  only get  the amount  ordered for  restitution.   He added                                                               
that a judge  might then determine that it would  be excessive to                                                               
pay the state an amount that matched the forfeited bail.                                                                        
                                                                                                                                
REPRESENTATIVE JAMES asked whether Section 6 stipulates this.                                                                   
                                                                                                                                
MR. GUANELI  said that he did  not know that it  did, but offered                                                               
that it  was the only  interpretation that really makes  sense in                                                               
the context of  collecting restitution; the victim  is only going                                                               
to get what he/she is due  for damages, which would be determined                                                               
at a restitution hearing.                                                                                                       
                                                                                                                                
REPRESENTATIVE   BERKOWITZ    said   that   according    to   his                                                               
recollection, "You can  only impose [a] bail  [amount that's] ...                                                               
reasonably necessary  to secure  the defendant's  appearance, and                                                               
bail should  be based on  the defendant's flight risk  and danger                                                               
to  the  community."   He  posited  that  in essence,  Section  6                                                               
proposes a third and fourth criteria for imposing bail.                                                                         
                                                                                                                                
Number 1708                                                                                                                     
                                                                                                                                
MR. GUANELI offered  that on the one hand, there  is the question                                                               
of how much  bail the court should impose to  begin with to allow                                                               
the person to get  out of jail.  He pointed out  that bail is not                                                               
imposed with any regard to  how much the victim's restitution is.                                                               
It is  only if  the defendant later  violates the  conditions [of                                                               
bail]  that  the  question  of where  forfeited  bail  should  go                                                               
arises.  He opined that if  the forfeited bail can go towards the                                                               
victim's restitution,  it should.   The  question of  the overall                                                               
penalty  that  the  defendant  is subject  to,  he  asserted,  is                                                               
something that is  taken up at sentencing  along with restitution                                                               
orders, bail forfeitures, and other  types of forfeitures, all of                                                               
which must be done on a case-by-case basis.                                                                                     
                                                                                                                                
MR. McCUNE commented  that after careful review of  Section 6, he                                                               
did not see a problem with it.   After the bail is forfeited in a                                                               
criminal case,  he explained,  it's lost to  the defendant.   The                                                               
defendant  or the  bail bondsman  can  ask for  remission of  the                                                               
forfeiture, which he  said he assumes is taken  into account, but                                                               
if the remission fails and the  money's forfeited, it's gone.  He                                                               
pointed  out that  the victim  doesn't get  a windfall  since the                                                               
language says, "the court shall  apply the cash or other security                                                               
to an  order that the  defendant pay  restitution"; consequently,                                                               
if the forfeited  amount is $1 million but  the restitution order                                                               
is $500, only $500 goes to the victim.                                                                                          
                                                                                                                                
REPRESENTATIVE  JAMES   pointed  out   that  under   the  current                                                               
language,  it  appears  that  once the  bail  is  forfeited,  the                                                               
defendant would then  be ordered to pay the exact  same amount to                                                               
the state, and  that this seems to her to  be doubling the amount                                                               
of bail.                                                                                                                        
                                                                                                                                
MR. GUANELI, in response, explained  that the process outlined in                                                               
Section 6  would work thus:   If a  defendant has to  post $5,000                                                               
bail and owes $1,000 restitution  to the victim, the total amount                                                               
is $6,000.   Upon forfeiture of the bail, $1,000  would go to the                                                               
victim  first and  the remaining  $4,000  would go  to the  state                                                               
general  fund  (GF).   The  state  would  then enter  a  separate                                                               
judgment of  $1,000 to  be paid  to the state  for the  amount of                                                               
bail  still owed.   In  this way,  a defendant  who violates  the                                                               
conditions of bail  still pays a total of $6,000,  but the victim                                                               
gets paid restitution  first.  He added that since  the victim is                                                               
the first payee, the state,  then, is responsible for going after                                                               
any amount still owed for forfeited bail.                                                                                       
                                                                                                                                
REPRESENTATIVE JAMES likened it to a  lien that the victim has on                                                               
the forfeited bail.                                                                                                             
                                                                                                                                
MR. GUANELI agreed, and added  that the victim has first priority                                                               
for receiving the money.                                                                                                        
                                                                                                                                
CHAIR  ROKEBERG  said  that  it  certainly seems  to  be  to  the                                                               
public's benefit  and in the  state's best interest to  make sure                                                               
that  restitution  is  paid  to  the  victim  before  the  GF  is                                                               
increased.                                                                                                                      
                                                                                                                                
Number 1430                                                                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL   opined  that  Section  6   still  needs                                                               
clarification; he  said it still  looks like the  defendant could                                                               
end up paying more than the amount of restitution due.                                                                          
                                                                                                                                
REPRESENTATIVE  BERKOWITZ   suggested  deleting   "forfeited  and                                                               
applied" from page 5, line 9, after "amount".                                                                                   
                                                                                                                                
MS.  LUCKY  concurred  that  doing  so  would  clarify  that  the                                                               
separate  order is  not referring  to the  forfeited amount,  but                                                               
only to the amount of restitution.                                                                                              
                                                                                                                                
Number 1292                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG indicated  that he would treat  that suggestion as                                                               
a  motion   from  Representative  Coghill  to   adopt  Conceptual                                                               
Amendment  9, which  would delete  "forfeited  and applied"  from                                                               
page  5, line  9,  after  "amount".   There  being no  objection,                                                               
Conceptual Amendment 9 was adopted.                                                                                             
                                                                                                                                
Number 1233                                                                                                                     
                                                                                                                                
REPRESENTATIVE  JAMES  moved to  report  the  HCS for  CSSB  105,                                                               
version  22-LS0219\L,  Luckhaupt,  4/11/01, as  amended,  out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal notes.   There being  no objection, HCS CSSB  105(JUD) was                                                               
reported from the House Judiciary Standing Committee.                                                                           
                                                                                                                                
Number 1224                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  announced that  the committee  needed to  adopt a                                                               
House Concurrent Resolution to change the title of SB 105.                                                                      
                                                                                                                                
Number 1212                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES  made a motion  to adopt the  proposed House                                                               
Concurrent Resolution,  version 22-LS0909\A,  Luckhaupt, 4/11/01,                                                               
as a work draft.  There being no objection, it was so ordered.                                                                  
                                                                                                                                
Number 1203                                                                                                                     
                                                                                                                                
REPRESENTATIVE  JAMES   moved  to   report  the   proposed  House                                                               
Concurrent  Resolution, version  22-LS0909\A,  Luckhaupt, out  of                                                               
committee  with  individual  recommendations.    There  being  no                                                               
objection, the  House Concurrent  Resolution [which  later became                                                               
HCR  18]   was  reported  from   the  House   Judiciary  Standing                                                               
Committee.                                                                                                                      
                                                                                                                                
[HCS CSSB 105(JUD) was reported from committee.]                                                                                
                                                                                                                                

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