01/23/2017 01:00 PM House JUDICIARY
| Audio | Topic |
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| Start | |
| HB42 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 42 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 23, 2017
1:32 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Zach Fansler, Vice Chair
Representative Gabrielle LeDoux
Representative David Eastman
Representative Chuck Kopp
Representative Lora Reinbold
MEMBERS ABSENT
Representative Jonathan Kreiss-Tomkins
Representative Louise Stutes (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 42
"An Act relating to seizure of property; relating to forfeiture
to the state; relating to criminal law; amending Rules 3, 4, 11,
12, 16, 32, 32.2, 32.3, 39, 39.1, and 42, Alaska Rules of
Criminal Procedure, Rules 501, 801, and 803, Alaska Rules of
Evidence, and Rules 202, 209, and 217, Alaska Rules of Appellate
Procedure; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 42
SHORT TITLE: FORFEITURE & SEIZURE: PROCEDURE; LIMITS
SPONSOR(s): REPRESENTATIVE(s) WILSON
01/18/17 (H) PREFILE RELEASED 1/13/17
01/18/17 (H) READ THE FIRST TIME - REFERRALS
01/18/17 (H) JUD, FIN
01/23/17 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
REPRESENTATIVE WILSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 42 as prime sponsor.
PETER SANDBERG, Attorney
Garvey, Schubert, Barer
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 42, testified and
offered technical assistance.
JOHN SKIDMORE, Director
Legal Services Section
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 42, answered
questions.
MARK RICHARDS, Executive Director
Resident Hunters of Alaska
Fairbanks, Alaska
POSITION STATEMENT: During the hearing of HB 42, spoke in
support of the legislation.
THESHIA NAIDOO, Legal Director of Criminal Justice
Drug Policy Alliance
Oakland, California
POSITION STATEMENT: During the hearing of HB 42, spoke in
support of the legislation.
KENT SULLIVAN, Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: During the hearing of HB 42, addressed the
Department of Law, Civil Division's concerns.
ACTION NARRATIVE
1:32:19 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:32 p.m. Representatives Eastman, Reinbold,
Kopp, LeDoux, Fansler, and Claman were present at the call to
order.
HB 42-FORFEITURE & SEIZURE: PROCEDURE; LIMITS
1:33:05 PM
CHAIR CLAMAN announced that the only order of business would be
HOUSE BILL NO. 42, "An Act relating to seizure of property;
relating to forfeiture to the state; relating to criminal law;
amending Rules 3, 4, 11, 12, 16, 32, 32.2, 32.3, 39, 39.1, and
42, Alaska Rules of Criminal Procedure, Rules 501, 801, and 803,
Alaska Rules of Evidence, and Rules 202, 209, and 217, Alaska
Rules of Appellate Procedure; and providing for an effective
date."
CHAIR CLAMAN advised that last year, as part of the Criminal
Justice Reform efforts, AS 09.55.700 specifically stated that
common law civil in rem forfeiture actions are abolished if used
instead of a criminal proceeding. He pointed out that
Representative Wilson's HB 42 is a follow up on the
legislature's actions taken last year.
1:34:02 PM
REPRESENTATIVE WILSON, Alaska State Legislature, read the
sponsor statement as follows: [original punctuation provided]
Modern civil forfeiture laws hold that property can be
guilty of a crime and; therefore, may be seized and
forfeited even if the property's owner never faces
criminal charges. For two centuries, American Civil
Forfeiture Law was largely restrained to custom's
enforcement. In the 1980s, Congress and the states
turned to civil forfeiture to combat rampant drug
distribution and organized crime. Civil forfeiture
became a mainstream law enforcement tool and Congress
and the states encouraged its use by allowing law
enforcement agencies to retain the proceedings of
successful property forfeitures. Once authorities
seized private property, the resulting civil
proceeding differs dramatically from the customary
standards of American criminal law.
First, the proceedings target the property, rather
than the owner. Under forfeiture law at the federal
level, and in Alaska, the evidentiary standard
required a preponderance of the evidence, not the
criminal law standard of beyond a reasonable doubt.
Thus, prosecutors needed proof only that it is more
likely than not that the property is tied to crime and
is, thus, forfeitable.
Second, the prosecution need not prove that an owner
used the property to commit a crime or was willfully
blind to its use. As in the case in ordinary criminal
trials in a forfeiture proceeding, the burden falls on
the owner to disprove these facts by demonstrating
that he neither knew of, nor consented to, the
properties illicit use.
Third, property owners in forfeiture cases, unlike
defendants in criminal cases, have no guaranteed right
to counsel. Consequently, if an owner cannot afford
an attorney he must navigate an excessively, lengthy,
and complex legal landscape alone. Oftentimes, the
cost of hiring a lawyer exceeds the value of the
seized property or currency. Hence, a large number of
defendants opt not to retain counsel even though they
can afford the expense. With such low odds of victory
in forfeiture cases, many innocent property owners
simply walk away.
1:36:11 PM
House Bill 42 would require that an individual be
convicted of an actual crime before forfeiture
proceedings can take place, and would protect
guiltless spouses and family members from property
loss as a result of the process. The bill would also
impose transparency and accountability for civil asset
seizures and reduce financial incentives for abuse by
providing that any revenues that do flow back to the
state, as a result of federalized proceedings, are
deposited in the general fund.
This bill affirms our confidence in local law
enforcement, as well as the most basic tenets of
constitutional law and values. Convicted criminals
will still see the fruits of their crimes confiscated
by the state, but innocent Alaskans can rest easy
knowing they will no longer be deprived of property
without due process.
1:36:57 PM
REPRESENTATIVE WILSON related that HB 42 is about due process
for those individuals not involved in a crime. She said,
contained with the member's packets are diagrams titled "Current
Law," and she described how to navigate the chart, and also
noted there are two different processes for "arrest" and "non-
arrest." She continued that HB 42 attempts to put all
forfeiture laws in one place within the Alaska Statutes.
CHAIR CLAMAN posed a question to attorney Peter Sandberg, noting
the law change approved last year, asked what the bill does and
how it is different from last year's bill.
1:39:28 PM
PETER SANDBERG, Attorney, Garvey, Schubert, Barer, said he had
provided technical legal consultation to Frank Bickford in terms
of making certain the statute was workable. He pointed to the
first entry on the flowchart "Current State Law," and clarified
that the first entry should be AS 16.05.723, Misdemeanor fishing
violations. He explained that in the event a fisherman commits
a violation, the state can seize items up to and including the
vessel for a misdemeanor. He further explained that the
abolishment statute from last year did not erase anything off
the books, it simply read that it was abolished. When a person
is accused of negligently taking fish illegally, vessels, fish,
and tackle are forfeited unless the defendant can prove the fish
were lawfully taken. He said he is unaware whether the state is
still taking vessels under that statute, but as things stand,
currently there is no other prescribed method. He offered that
it does not fit within what is normally thought about how
criminal defendants are punished, in particular, misdemeants.
Mr. Sandberg continued that the items on the far left side of
the flowchart are current statutes, and commented that it is
confusing even for a lawyer in terms of how this is going to
work.
1:42:09 PM
REPRESENTATIVE LEDOUX referred to AS 16.05.723, and posited the
amount of the fine and/or penalty for a person convicted of
negligently taking fish illegally.
MR. SANDBERG answered that under AS 16.05.723 the fine is not
more than $15,000, but the court can force a person to forfeit
any vessel, fishing gear, tackle, or any other device employed
to take the fish commercially.
1:43:22 PM
REPRESENTATIVE LEDOUX surmised that if a person is convicted of
the misdemeanor the highest fine would be $15,000 and yet,
conceivably, the person could lose their fishing vessel which
could be valued upwards of $500,000 for something the state has
said is a misdemeanor of $15,000.
MR. SANDBERG agreed, and he related that the same principle
applies to hunting guides, and various other statutes, in which
a person could negligently "screw up and lose million dollar
airplanes." With regard to the new statute, he opined that no
one is arguing the state shouldn't be able to obtain forfeiture,
and that is not what the statute is designed to do. The idea
behind the new law is to create a single source in which people
can determine how this will apply to them, and provide a
prescribed procedure by which they are protected if their items
should not be forfeited. Although, he said, if the items should
be forfeited, the state can still obtain the items, "they just
have to work a little harder."
1:45:15 PM
CHAIR CLAMAN noted that the chart references negligently taking
fish, and asked whether the standard is criminal negligence or
negligence.
MR. SANDBERG opined that it would probably have to be criminal
negligence because it's a misdemeanor.
1:45:41 PM
REPRESENTATIVE LEDOUX noted that Mr. Sandberg said he provided
Victor Bickford with technical legal advice on these statutes.
She pointed out that Mr. Bickford is a lobbyist and asked the
name of Mr. Bickford's client.
MR. SANDFORD replied the client is Drug Policy Alliance.
CHAIR CLAMAN asked whether it wasn't the Resident Hunters of
Alaska.
MR. SANDBERG opined that Resident Hunters of Alaska are in favor
of this legislation. He explained that Kevin Fitzgerald and he
became involved because many of Mr. Fitzgerald's hunting clients
have lost large items through various violations. Mr. Sandberg
continued that the proposed statutory framework is designed to
simply have a hearing after the conviction. He explained that
he tried to model it off of punitive damages in the civil
context, whereby there is a short hearing quickly after the
conviction. Hopefully, he related, the defendant has the same
lawyer and it is a matter of ascertaining whether the property
is actually tied to the crime so people cannot lose their
property outside of a criminal conviction. The intent of HB 42
is to put all forfeiture statutes in one place with one process
that protects Alaskans while they stand to lose large amounts of
money for rather small violations, he explained.
1:49:05 PM
CHAIR CLAMAN referred to drug cases wherein drugs and cash are
seized, and asked whether under HB 42 the state would need to
have a separate proceeding to seize the cash or, if the state
gets a conviction would it be able to have a forfeiture of the
seized cash in the same hearing.
MR. SANDBERG opined that the cash is simply regarded as another
form of property under the statute.
CHAIR CLAMAN followed up and asked whether the state would have
to institute a second proceeding, or whether it could be dealt
with in the criminal proceeding.
MR. SANDBERG answered that the cash would be part of that
subsequent one-day proceeding if the state wanted to keep it,
and it is not a problem if the state wants to seize it as
evidence. At that point, this allows people to attempt to get
some of the cash back to pay for their legal defense fees. He
continued that if the state wants to keep the cash, it must show
that the cash is reasonably tied to the crime from which the
person is convicted.
CHAIR CLAMAN surmised that under this legislation, the state, in
addition to the criminal conviction process would need to file a
separate proceeding to forfeit the $25,000 cash found next to
the cocaine.
1:51:11 PM
MR. SANDBERG clarified that the state would not have to file a
separate proceeding in that sense, and explained that after
seizing the cash the state would have to give the person warning
that it believes the cash is proceeds of an illegal activity for
which forfeiture is possible. He explained the state would hold
the cash until after the trial and if the person is convicted
there would be a hearing immediately afterwards. At which
point, if the state showed that the money was actually tied to
the crime, as opposed to being an inheritance or whatever, the
state would be allowed to keep the money.
1:52:07 PM
REPRESENTATIVE REINBOLD pointed to the Constitution of the State
of Alaska, [Article I], Sections 7, and 14, due process and
search and seizures, respectively, and asked whether HB 42 will
handicap Alaska's law enforcement, especially having to do with
drugs, and whether law enforcement has weighed in.
MR. SANDBERG replied, as follows:
What we certainly don't think this will handicap
either police officers, or prosecutors in being able
to get these items. I suppose it's possible that,
probable, that they will tell you something else. The
objections that I've seen so far, at least I don't
think are consistent with how they, in the past, have
said they actually operate. And one of the kind of
disturbing things that we've seen so far is they are
still defending the use of civil in rem forfeiture
while, you know, it was abolished last year. So, I
don't want to put words in their mouth for you. But,
I assume that they won't like this change.
MR. SANDBERG advised that the point of the change is not whether
or not it will make it harder for the police to take items from
people, but rather to provide a workable system that any Alaskan
can review and determine what they need to do and how to do it
if they believe their property was improperly taken.
1:54:30 PM
REPRESENTATIVE REINBOLD emphasized that she wants to know the
opinions of drug enforcement and law enforcement because Alaska
has a massive heroin and opioid problem and, yet a portion of
the bill makes it harder to confiscate and prosecute. She
advised she does support the streamlining of policy for the
benefit of Alaskans, but she does not want one more loophole
with regard to Alaska's serious drug issues.
REPRESENTATIVE WILSON responded to Representative Reinbold that
the legislation is about the person who wasn't involved in the
crime. She used the example of a roommate borrowing her car to
go to the store, and instead robs a liquor store using her car,
is arrested, and items are seized because it was all part of
robbing the liquor store. Representative Wilson explained that
under current law, she must be able to prove she had no
knowledge that her roommate intended to rob the liquor store.
This legislation puts it back onto law enforcement to show that
she was aware [her roommate was using her car to rob the liquor
store]. The legislation offers a process to get her property
back, without a lengthy proceeding and hiring an attorney, if it
cannot be proven she had anything to do with the robbery.
CHAIR CLAMAN advised that individuals from the Department of Law
(DOL), and the Alaska State Troopers are available to testify.
REPRESENTATIVE REINBOLD indicated that she understands the
rhetorical question, and pointed out there is active organized
crime in Alaska.
1:57:46 PM
JOHN SKIDMORE, Director, Legal Services Section, Criminal
Division, Department of Law (DOL), said he is available to
answer questions.
CHAIR CLAMAN requested a brief perspective of DOL's view on the
bill.
MR. SKIDMORE advised that DOL supports the concept of
consolidation of forfeiture statutes. Although, he explained,
there are issues with the drafting of other provisions in the
bill. He advised he met with Representative Wilson and intends
to continue working with her to address concerns. He then
referred to the chart titled "Current State Law" and noted that
AS 16.05.732 reads that there is seizure and no requirement for
a conviction, but that fails to reference the statute requiring
a conviction before forfeiture can occur, AS 16.05.190,
Disposition of equipment. He referred to a portion half way
through AS 16.05.190, and he read: "'Upon the conviction of the
offender,' that's when you get to actually forfeit the
property." The requirement of the conviction, he explained, is
something that DOL believes is found for most of the statutes.
He said he just received the chart and could not speak to
whether there were additional omissions or inaccuracies in the
chart, but from the Criminal Division's perspective, convictions
should be obtained before property should be forfeited in a
criminal case.
2:00:13 PM
MR. SKIDMORE explained that due to concerns this bill has the
potential to impact forfeitures in civil proceedings, Mr.
Sullivan is available to testify. He offered the example of a
"flop house or an abandoned boat," and noted that the state must
actually take possession of the boat to remove it as a nuisance
because it impedes navigation or traffic on the waterways. This
is not a criminal case, it is a separate civil proceeding and,
he opined, people do not want to influence that.
MR. SKIDMORE related that while the bill discusses forfeiture,
the criminal division has concerns it could be interpreted to
not only impact forfeiture proceedings, but also seizures. Mr.
Skidmore continued as follows:
A quick example is the notion that individuals would
be able to get their property back before a criminal
trial occurred, even if that property was evidence in
the case.
Also, that the property could be returned to an
individual to use to pay for a defense attorney if
they said no other means was necessary to pay for that
defense attorney. And yet, in getting that property
back ... so if I'm the drug dealer, to use the example
that Chair Claman used, if I'm the drug dealer and I
have that cash, I get to say, 'Hey, that $25,000,
that's mine, I need that back to pay for my attorney.'
But, then when it comes time to trial, you're not
allowed to use that statement, that the drug dealer
said that $25,000 was mine. The drug dealer, in fact,
gets to go into trial and say 'I don't know whose
money that is. I don't know anything about that.'
And the state is not allowed to use the statements
made in getting the property returned to say 'Hey,
wait a minute, that's not what you previously said.'
So, those are the sorts of issues that I really don't
think are the intention of Representative Wilson. I
don't think those are the things that she's trying to
go after, but those are the sorts of things in the
bill that we're interested in working with her to try
and correct.
2:02:56 PM
REPRESENTATIVE KOPP noted that the 2014 legislature passed AS
12.36.070, Return of property by hearing. He related that it
addresses a real ongoing problem wherein innocent people's
property is seized, taken as evidence as a result of a criminal
act, and they need their property back to continue running their
business. He continued, there was no avenue in the law for
innocent people to request a hearing with a judge with
jurisdiction in the criminal case to make a ruling and decide
whether the prosecution needed it, or whether the state's
interest was overriding that of the property owner to get it
back. The legislation unanimously passed the legislature, there
has not been any significant fiscal impact, and people now have
a right in the law to request their seized property back when
they are not the criminal defendant themselves, he pointed out.
REPRESENTATIVE KOPP reminded the committee that there is
currently an avenue in the law for some of the cases being
discussed and there has not been a meltdown of the system. He
related that many of the police officers he has spoken with
about this subject advised they would like to return the
property, but a party had objected. Alaska Statute 12.36.070,
requires the person objecting [to the return of the property] to
state the reason on the record, he advised.
REPRESENTATIVE KOPP asked whether there has been a burden on the
DOL in having a process in the law for the return of a person's
property when they are not the defendant.
2:05:31 PM
MR. SKIDMORE responded that the option to have property returned
exists in criminal law, without HB 42 being there. Criminal
Rule 37(c) reads that there is the possibility of a hearing and
having property returned. There is also case law discussing
forfeiture situations where an item is seized and perhaps it is
something the person needs to conduct their living, for example,
a fishing vessel. He continued, case law reads that a fisherman
is entitled to a hearing to advise [the court] they need the
boat to conduct their business and, he commented, such hearings
have occurred and do occur. Those hearings do not create a
burden on the DOL, and certainly no more burden than what should
be there to be certain people's property interests are
appropriately protected, he said.
MR. SKIDMORE pointed out that HB 42 does more than simply
provide the opportunity for a hearing allowing the court to
address the issue, such that the department's additional
concerns led to the fiscal note. He offered that he is hopeful
that in working with Representative Wilson the fiscal note can
be substantially reduced.
REPRESENTAIVE KOPP commented that the bill sponsor is getting at
one of the most fundamental liberties Alaskans have, protection
of property.
2:07:35 PM
REPRESENTATIVE LEDOUX expressed difficulty in accepting the
concept of a crime with a possible $5,000 penalty and the state
can take someone's $500,000 vessel, or other piece of equipment.
She asked whether it would make more sense to have a law that
reads that the penalty is anywhere from "X to XX", whatever is a
reasonable penalty for a violation. She used the example of
person A murdering person B in a home, the home may be seized
because it belongs to person A. But, she asked, what if person
A also had a home down the street that had nothing to do with a
crime, the state would not be able to seize that home. She
suggested looking at what is a reasonable penalty for any crime,
and if it is something the legislature decides is worthy of a
fine of between "zero and $5,000," what's the purpose of
allowing the seizure of the fishing vessel, she asked.
MR. SKIDMORE said a fishing vessel used to catch fish illegally
is the instrumentality by which the crime is committed. As to
whether or not there is an excessiveness to the forfeiture of
the vessel given the maximum penalty, he said there is case law
supporting Representative LeDoux's concept. He related that a
motor vehicle was seized and the question was whether or not the
value of the vehicle exceeded the amount of fine that could have
been imposed. In that case, the court found that the fine was
greater than the value of the motor vehicle and; therefore, it
did not violate the constitution. In the event it did exceed
that amount, it would be an interesting question for the courts
to determine. Mr. Skidmore related that there are many cases in
which the instrumentality used has something unique about it
which allows further illegal acts to be conducted. He referred
to a case wherein a fishing vessel had been specifically
modified to hide illegally taken fish and in that case simply
fining the owner of the vessel would not stop the fisherman from
committing future violations. He explained that the concept is
that if there is something about the vessel that significantly
allows the individual to continue to commit those crimes,
forfeiture has to occur in order to stop it from happening again
in the future. He said he agrees with Representative LeDoux
that forfeiture needs to be used, not as a first resort, but the
last resort. Other steps can be taken and should be pursued,
which is what DOL does in the vast majority of the time and, he
acknowledged occasionally a prosecutor has done something not
quite along the lines of DOL and Mr. Skidmore has dealt with it.
2:12:29 PM
REPRESENTATIVE LEDOUX offered an example of a gambling den in a
house and said if premises A is running a gambling den, the
house could be seized. But, if they also own something in
Minnesota where they were not running a gambling den, it
couldn't be seized. She reiterated that there should be a
statute that reads if a person is doing "X" they can be fined
anywhere to "A to Z." In the event the judge fines them "Z" and
they don't have enough money to pay the fine, then just like any
other case where there is a judgement and the person doesn't
have the money, property can be seized.
MR. SKIDMORE answered that usually the state could not seize
property B if the gambling den was at property A because it
would have to be related to the gambling offense. The only way
law enforcement would be able to get to property B is if they
actually had evidence to show that all of the benefits of the
illegal gambling allowed that person to buy property B, such
that property B would not have been available to that individual
but for their illegal activity. The requirement for prosecution
is to show the connection between the two, and he said he was
unsure the state could seize the other property without showing
that connection. He related that he was certain the state would
not be able to forfeit the property without the connection.
2:14:58 PM
REPRESENTATIVE LEDOUX expressed that that is her point, if they
did something really bad and the state wanted to forfeit a
property, why not just put that in the statute of what the
penalty is going to be. The penalty can be anywhere from "A to
Z" and if they can't pay it, then they are subject to having all
of their properties seized. She asked why make it so that the
gambling den in a nice home is seized by the state, but yet if
the gambling den is in a little shack, the state only gets the
little shack seized.
MR. SKIDMORE related that is a policy call if the legislature
wants to simply have fines and not have forfeiture. However, in
trying to think of all of the possible fact scenarios that might
come up, coming up with an appropriate range and trying to
describe how it might be used could be difficult. During his 18
years as a prosecutor, there have been a vast array of cases and
fact patterns, and it is hard to anticipate what each and every
one of them will be, he said. He opined that forfeiture can be
a tool to say, "Look, we don't know exactly where it's going to
be, but if we require it to be reasonably related, then that
allows itself to adjust to the circumstances that a particular
case presents."
2:16:57 PM
REPRESENTATIVE EASTMAN requested the thought process of how the
department makes decisions on what property to pursue for
forfeiture, and asked whether there is a policy call the
department makes on whether or not to leave property on the
table. For example, a person may be out fishing all day and
have a full boat of legally caught fish and then the fisherman
tries to go after a different fish illegally. He asked whether
the department tries to distinguish between the last fish
obtained illegally.
MR. SKIDMORE advised there is a policy and also case law. He
referred to a case, cited in the case notes in the statutes,
that discusses fish and only those fish of which the person is
convicted of taking illegally can be forfeited. He then moved
to the example of [forfeiting] a fishing vessel and advised that
the facts would be reviewed on a case-by-case basis. Using the
above scenario, in the taking of a small number of fish
illegally, the state would not seize the vessel. Although, the
fact pattern changes if the fisherman has a history [of taking
fish illegally], he said.
2:19:28 PM
REPRESENTATIVE EASTMAN asked, in the event the department
identifies property that can be forfeited, does the department
make a judgment call on whether or not it should based upon
moral reasoning or a desire to appropriately render a punitive
result to someone guilty of a crime. For example, the
department identified that a law was violated and there was
clear justification to forfeit $100 of property, he asked
whether the department views its role as pursing $100 for the
sake of the state, or distinguishes some lesser amount in the
situations because the department believes that may be excessive
even though the department could legally go after the $100.
MR. SKIDMORE answered yes. Prosecutors throughout the history
of the United States have been given discretion to look at the
circumstances and make judgment calls, and prosecutors do that
every day. The only time in which the department wouldn't be
making a judgment call would be a situation where the law
requires the department to forfeit an item. For example, in a
domestic violence case, in the event someone is injured by the
use of a dangerous instrument, current law requires that
instrument to be forfeited, which would be repealed under HB 42,
he explained. In the realm of fishing cases, oftentimes a great
deal of discretion is used, he said.
2:21:35 PM
REPRESENTATIVE FANSLER referred to the discretion discussion and
said he wanted to draw a definitive line between large fishing
vessels worth $500,000 and the lower valued fishing vessels in
his area. He continued that he is an advocate and appreciates
the Department of Law (DOL) continuing to use discretion. He
then asked that Mr. Skidmore drive the point home to Alaska's
rural prosecutors to use that discretion when seizing boats and
nets that families depend upon for their livelihood.
2:22:41 PM
REPRESENTATIVE LEDOUX expressed concern and offered a scenario
wherein a case is not quite a "slam dunk" but there is the
possibility of seizing an item valued more than the fine someone
may incur from pleading guilty. She asked whether the state
would ever offer a deal to the defendant that the item would not
be seized if the defendant pleads.
MR. SKIDMORE surmised that Representative LeDoux was asking
whether the department sometimes offers to forego seizure and
seeking forfeiture of an item in exchange for a person to plead
guilty. He advised that he knows of no case in which anyone in
the department engaged in a negotiation in which they say the
state will forgo seizure. Although, he said he is aware of
cases in which an item may have been seized and as part of the
resolution of a case the department agrees to have an item
returned. He opined that it is not done from a coercive
standpoint, but rather the item was seized as evidence, the
state was not intending to seek forfeiture, and it agreed as
part of the resolution of the case that the item be returned to
the person. He opined that if the case had gone to trial the
state's position would have been that the person would get the
item back as well. He said he could not say that using property
as leverage to get someone to plead has never happened, but
that's certainly not the intent. He clarified that if the
division believes it has a provable case, it negotiates from the
standpoint that it can prove its case and the discussions are
about how to resolve the case to avoid litigation in a way that
is beneficial to both the state and defendant.
2:25:42 PM
REPRESENTATIVE KOPP said he believes the DOL sometimes uses
seizure in lieu of prosecution, such that a case is closed out,
it is dismissed, otherwise set aside, and the property was
forfeited as part of the agreement. He asked whether he was
correct.
MR. SKIDMORE explained that seizure and forfeiture have two
different meanings. He surmised that Representative Kopp was
asking about forfeiture and whether there are cases the
department has resolved wherein it agrees for someone not to
obtain a criminal conviction, but to simply forfeit property
that had been used. He said that has been done with the
rationale that the convictions in certain circumstances would
cause someone to lose their license, such as a commercial guide,
or a fishing permit. The department will engage in that sort of
response in order that there is some penalty for illegal acts,
but the department is also trying to find a way so it's
beneficial and the person doesn't lose their license, he
explained.
2:27:41 PM
REPRESENTATIVE KOPP commented that he is a commercial fisherman
and there is a strict liability in the law wherein there is no
culpable mental state before seizure on the commercial fishing
penalties. He referred to AS 16.05.722(a)(b), which read:
(a) A person who without any culpable mental
state violates AS 16.05.440 16.05.690, or a regulation
of the Board of Fisheries or the department governing
commercial fishing, is guilty of a violation and upon
conviction is punishable by a fine of not more than
...
(b) In addition, the court shall order forfeiture
of any fish, or its fair market value, taken or
retained as a result of the commission of the
violation. ...
REPRESENTATIVE KOPP reiterated that under current law the
fisherman does not have to have a culpable mental state for
fairly significant fines.
2:29:15 PM
MR. SKIDMORE related that when the fish are taken illegally,
having possession of the illegally taken fish is a crime in and
of itself. With strict liability, if it is proven the fish were
taken illegally, the illegally taken fish are not returned to
the fisherman. He agreed there is strict liability but in those
circumstances forfeiture does not occur for a vessel, it is only
the fish.
REPRESENTATIVE KOPP agreed that in those circumstances vessel
forfeiture does not occur, but the fish forfeiture and fair
market value does. He explained there are a host of ways
fishermen can get caught up, for example, another boat cuts a
fisherman's net in half and half of the net drifts over the
line, that is not a crime.
2:31:23 PM
REPRESENTATIVE EASTMAN posited the question of when an attorney
begins to believe there isn't grounds for a prosecution, whether
that triggers the end of the conversation and everything is
finished at that point. He commented that his impression is
that just because an attorney might start to believe there are
not grounds for a case, that doesn't mean the case is over and
done with at that point. He asked whether he was correct.
MR. SKIDMORE asked whether he was referring to a prosecutor or a
defense attorney when not thinking there is a basis for moving
forward.
REPRESENTATIVE EASTMAN explained that in the event Mr. Skidmore
begins to think there are not grounds for a case, whether more
happens after that point.
MR. SKIDMORE answered that if the division does not think there
are grounds to proceed on a prosecution, the case is dismissed
and all of the seized property in evidence is returned whether
subject to forfeiture, or not.
2:33:19 PM
REPRESENTATIVE FANSLER asked Mr. Skidmore to speak more to the
department's fears that there may be possible effects upon
seizures in that possibly HB 42 would allow a person's money
returned to them and possibly used for their criminal defense.
He asked whether Mr. Skidmore has alternative language he may
like to propose.
MR. SKIDMORE advised the department does have alternative
language, but it is not prepared to offer anything today because
he wants to work with the sponsor on this issue. He said that
specifically comes from a provision in the bill [Sec.
12.36.310(e)], page 9, line 11, and lines 16-17, which read:
(e) A court shall grant a claimant's motion if
the court finds that
(3) the property is the only reasonable
means for a defendant to pay for legal representation
in a related criminal or forfeiture proceeding.
MR. SKIDMORE explained that according to the bill's current
language, if the court finds that the seized property is the
only way the defendant can pay for their attorney, that property
shall be returned.
2:35:31 PM
REPRESENTATIVE LEDOUX followed up on Representative Eastman's
question and expressed appreciation that when the department
makes the decision a person is innocent, it will simply drop the
case. She asked what happens when the division has not
necessarily made the decision that a person is innocent, but in
looking at the evidence believes there is a good chance the
state would not win the case even though it believes the
defendant is guilty. Under those circumstances, she asked
whether the state would never make a pact with the defense
attorney about dropping the forfeiture aspect if the defendant
would plead to the misdemeanor.
MR. SKIDMORE responded that her question strikes at the heart of
the criminal division's policy when charging cases, wherein it
believes the evidence will allow the state to prove beyond a
reasonable doubt that the person is guilty. The division does
not charge a case if it believes it does not have the evidence,
and it is not supposed to pursue the case including the
negotiations Representative LeDoux was discussing. He related
it is a higher standard than is set by the Alaska Bar
Association (ABA), or any other legal ethical authority, but
that's the standard the division follows.
2:37:04 PM
REPRESENTATIVE LEDOUX said she understands that may be the
standard when the division begins the prosecution. She
clarified that she would like to know what happens when the
division considers a case a "slam dunk" but when getting closer
to trial decides it may not be a slam dunk, whether the division
would just drop the case.
MR. SKIDMORE responded that the standard the division follows is
that it believes it can prove a case beyond a reasonable doubt,
and the division's screening of cases and decisions to move
forward is its ethical obligation. Although, he related, during
the course of the litigation it discovers additional evidence
suggesting the evidence is not there to prove the defendant
committed the crime, the division's obligation as prosecutors
and the policy of the division is to dismiss that charge and not
try to plead it to something lower.
2:38:43 PM
REPRESENTATIVE REINBOLD asked whether the bill would be heard
again because she would like to put something on the record, and
asked whether Mr. Skidmore would be available.
CHAIR CLAMAN advised that the bill will be heard again and he is
confident Mr. Skidmore will be available.
2:39:55 PM
MARK RICHARDS, Executive Director, Resident Hunters of Alaska,
advised that Resident Hunters of Alaska sent a letter to the
House Judiciary Standing Committee supporting HB 42, and asked
the committee to pass the bill from committee.
REPRESENTATIVE LEDOUX asked whether he was aware of any cases
involving resident hunters wherein the property that had been
forfeited was significantly in excess of a fine that could have
been levied.
MR. RICHARDS answered that the Resident Hunters of Alaska are
aware of some cases with guides and subsistence boats. He
continued that a pilot had his aircraft seized with the wings
taken off and transported, and the person was found innocent.
Unfortunately, he commented, the aircraft was his livelihood and
the aircraft was not available for his use for six months.
2:42:00 PM
REPRESENTATIVE LEDOUX asked whether he was aware of any cases
wherein someone had been offered that their property would be
returned if they plead to something.
MR. RICHARDS responded it was not so much that, but they are
certainly aware of cases where guides will forfeit their
property because they make a consent agreement not to have their
license taken away.
REPRESENTATIVE LEDOUX asked whether, within the purview of not
violating privacy considerations, he could send the House
Judiciary Standing Committee a list of examples of property
being seized wherein the property was worth quite a bit more
than the fine that may have been levied.
MR. RICHARDS said he will look into it and email Representative
LeDoux with the results.
2:43:37 PM
THESHIA NAIDOO, Legal Director of Criminal Justice, Drug Policy
Alliance, read her testimony into the record, as follows:
I work with the Drug Policy Alliance, we're a national
non-profit organization that has worked to reform
asset forfeiture policy for many, many years. And,
together with organizations across the political
spectrum, we have succeeded at rolling back some of
the harshest forfeiture laws in the country.
We are pleased to support HB 42, and would like to
thank Representative Wilson for introducing this
important legislation.
In considering this bill, Alaska is among a growing
number of states to scrutinize the practice of civil
asset forfeiture, which has eroded individual rights
and incentivized the seizure of cash, cars, and other
property, even in the absence of any criminal
wrongdoing.
There is national momentum for reforming the system
with legislation backed by strong bipartisan support.
In fact, in 2016 alone, there were bills that were
introduced in 22 states across the nation. And,
reform that have been -- reforms have been enacted in
the past three years have been signed into law by
Republican governors in states, including: Florida,
Michigan, Maryland, Montana, Nebraska, and New Mexico,
and a whole host of other states. As well as by
Democratic governors in California, New Hampshire,
Minnesota, and other similar states. The growing
left-right coalition calling out this injustice
includes groups as diverse as the ACLU and the Drug
Policy Alliance, the Institute for Justice which is a
libertarian-leaning group, the Heritage Foundation,
American for Tax Reform, (indisc.) Crime, and dozens
of other groups advocating for property rights,
individual rights, and criminal justice reform. This
is an area that has united groups of all political
stripes. The laws that have been implemented at the
state level vary in scope and include comprehensive
proposals to overal -- to overhaul civil forfeiture,
as well as state level procedural reforms to protect
property owners, especially innocent owners, and those
that increase transparency and reporting requirements.
Many of these reforms were enacted despite local law
enforcement opposition.
I'd be happy to answer questions about state law
reforms. I know there is -- we're running into a time
constraint, but I'm also willing to provide follow up
with some testimony after this hearing.
In conclusion, I'd like to respectfully urge committee
members to vote in favor of this important piece of
legislation and protect due process rights of
Alaskans. The bill contains important protections for
property owners that would help ensure the fundamental
fairness of the asset forfeiture system in Alaska. I
will stop there and I'm happy to answer any questions.
2:47:06 PM
KENT SULLIVAN, Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law, said the concerns of
the Civil Division include in rem actions used in a purely civil
context and completely unrelated to criminal proceedings. For
example, he said it would include instances in which property
needs to be named in a lawsuit in order to proceed against that
property, such as quiet title actions, condemnation actions,
probate actions, nuisance property, or abandoned mining
equipment. Those are all in rem proceedings - proceedings
against personal or real property. Oftentimes, he explained,
defendants in those situations can't be identified and the state
will initiate a legal proceeding against the real property. An
issue with this bill is that it is so broad it purports to limit
when in rem forfeitures can happen to a narrow set of
circumstances, he pointed out. It would arguably exclude the
above circumstances and that would be a problem because
obviously the state initiates quiet title actions, condemnation
proceedings often and it wants the ability to pursue abandoned
and nuisance property, and those type of proceedings. He
related that it is important the language of the bill isn't so
broad that it arguably precludes those types of actions. He
related that the civil division and Mr. Skidmore are working
with Representative Wilson's office and recommending changes to
avoid those problems.
2:49:24 PM
CHAIR CLAMAN asked Mr. Skidmore how much time is needed to
provide input to Representative Wilson and ascertain whether she
agrees with the changes.
MR. SKIDMORE answered that they do have language that needs to
be circulated because the Department of Law (DOL) represents
other state agencies, it would probably take a week to pull
together all of their comments and feedback.
CHAIR CLAMAN surmised that holding the bill for two or three
weeks would work for everyone.
MR. SKIDMORE agreed.
2:50:43 PM
REPRESENTATIVE REINBOLD asked Mr. Skidmore to estimate the
percentage of crimes not prosecuted in Alaska.
MR. SKIDMORE related that he has been working on pulling
together those sorts of numbers for the subcommittee hearing on
the budget. He said he does not know the numbers for last year,
but during the prior year the division saw a six percent
increase in cases it had declined for budget reasons. He said
he could not give the committee the numbers today, but he knows
there is a percentage that varies depending upon the level of
the crime and type of crime for the cases that are declined.
2:51:48 PM
REPRESENTATIVE REINBOLD commented that the Department of Law
(DOL) fiscal note appears to be a "win for defense attorneys" if
the defendant is able to get the forfeiture money back to pay
for their defense. In the areas of Anchorage and Eagle River
there have been over 2,000 stolen vehicles, which is a dramatic
increase. She expressed concern that, according to FBI reports,
there is growing number of organized crime, and currently it
appears to be a double-edged sword. For example, she said, her
home is robbed and the offenders use someone else's vehicle to
get to her property to commit a crime. Therefore, it is "their
property versus my property, you know, and they're -- they are
the likely ones at the defense." She opined that the committee
needs to take a step back, for example, "if a vehicle -- a
vessel is being used to take the state's property, the fish, you
know, whose property are we defense. This whole thing about the
constitution." She continued that the committee needs to be
careful of whose property is being discussed, and reiterated
that the bill needs to be slowed down a bit because when
criminal activity affects her property it inhibits her ability
for life, liberty, and the pursuit of happiness because she has
to go through many criminal hearings. She stressed that the
committee needs to identify whether it is the defendant's
property, "or is this the, you know, the other -- the other
end."
REPRESENTATIVE REINBOLD referred to DOL's 12 million fiscal note
over five years and said it will affect murders, drug cases,
child sex exploitation, and sex trafficking. She said she would
like to know whether the fish and game issues, drug enforcement
policies need to be isolated. She related that she does not
want to give people allegedly involved in criminal activity an
upper hand, especially organized crime, and that she looks
forward to listening to Mr. Skidmore and receiving help
understanding the fiscal note.
2:55:41 PM
CHAIR CLAMAN, in response to a prior question of Representative
LeDoux, noted that in federal court it was a common question
when there were people with asset forfeitures at issue. He
continued that the prosecution never brought it up but the
defendants often brought it up and wanted to know if they pled
to such and such an offense would they be allowed to keep the
car. He explained that it never came up with respect to the
cash in that there was a kind of recognition that a big bag of
opioids and $25,000 sitting next to the opioids that the cash
was going with the opioids. The car and a house would come up
when there were large criminal enterprises going on, which
rarely happens in state court, he said.
CHAIR CLAMAN referred to the hypothetical drug case with a bag
of opioids and $25,000 in cash, and said the query was always
with defendants coming and looking for private counsel with the
$25,000 cash. He opined there are a number of ethical issues
about whether a defense attorney could take that $25,000, or
could take the case on a contingency basis wherein the defense
attorney would be paid after the $25,000 was recovered.
2:58:32 PM
CHAIR CLAMAN advised that public testimony was not closed.
[HB 42 was held over.]
2:58:41 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:58 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB042 ver D 1.19.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Sponsor Statement 1.19.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Sectional Analysis ver D 1.19.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Current AK Law Forfeiture Flow Chart 1.22.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Forfeiture Flow Chart 1.22.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Forbes Article 1.19.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Heritage Article 1.22.19.PDF |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Letter RHAK 1.20.17.pdf |
HJUD 1/23/2017 1:00:00 PM |
|
| HB042 Supporting Document-Letter NFIB 1.20.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Letter of Support Brown 1.23.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Letter UFA 3.1.17.pdf |
HJUD 1/23/2017 1:00:00 PM |
|
| HB042 Fiscal Note DCCED-AMCO 1.20.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note DCCED-CBPL 1.20.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note LAW-CRIM 1.21.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note DPS-AST 1.22.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note JUD-ACS 1.22.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |