Legislature(2017 - 2018)GRUENBERG 120

03/22/2017 01:00 PM JUDICIARY

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Audio Topic
01:04:21 PM Start
01:05:00 PM HB42
02:00:09 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 42 FORFEITURE & SEIZURE: PROCEDURE; LIMITS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
         HB 42-FORFEITURE & SEIZURE: PROCEDURE; LIMITS                                                                      
                                                                                                                                
1:05:00 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  reported  that  the  United  Fishermen  of  Alaska                                                               
submitted  a  letter  of support,  dated  3/1/2017,  directed  to                                                               
Chairman  Matt Claman.   He  related that  the United  Fishman of                                                               
Alaska subsequently  asked that  the letter  be withdrawn  due to                                                               
errors and misconceptions contained within that letter.                                                                         
                                                                                                                                
1:06:14 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KREISS-TOMKINS moved  to adopt  CSHB 42,  Version                                                               
30-LS0193\U, as the working document.   There being no objection,                                                               
Version U was before the committee.                                                                                             
                                                                                                                                
1:07:01 PM                                                                                                                    
                                                                                                                                
JOHN  SKIDMORE,   Director,  Legal  Services   Section,  Criminal                                                               
Division,  Department  of  Law  (DOL),  offered  that  Version  U                                                               
addresses  the  concerns  of  the Department  of  Law  (DOL)  and                                                               
provides clarity to the law.                                                                                                    
                                                                                                                                
MR.  SKIDMORE   explained  that  Sections  1-7,   are  conforming                                                               
amendments that point  back to the new  procedures being codified                                                               
for forfeiture procedures, of which  will be discussed in Secs. 8                                                               
and 10.                                                                                                                         
                                                                                                                                
MR. SKIDMORE  referred to Sec.  8, and  advised that it  adds the                                                               
following  statutes:  AS  12.35.200,  12.35.210,  and  12.35.220.                                                               
Continuing, he  explained that AS 12.35.200  codifies protections                                                               
for  property  by  requiring  a court  order  to  seize  property                                                               
subject  to forfeiture,  as  opposed to  simply  evidence in  the                                                               
case.  The  procedures put in place for the  court order requires                                                               
appropriate probable cause in order  to believe that the property                                                               
to be  seized was in  fact subject  to forfeiture.   He explained                                                               
that the only way  it would not require a court  order was if the                                                               
property was seized  incident to a lawful arrest, if  there was a                                                               
previous judgement  for that  property, or  if there  was concern                                                               
the property was subject to destruction.                                                                                        
                                                                                                                                
1:09:45 PM                                                                                                                    
                                                                                                                                
MR.  SKIDMORE  explained  that AS  12.35.210  requires  that  the                                                               
property be kept by the  custodian for the law enforcement agency                                                               
seizing the  property in a  manner that  protects its value.   In                                                               
the  event the  property was  ultimately returned  to the  person                                                               
from whom  it was taken, it  would still be worth  the same value                                                               
as at the time it was seized.                                                                                                   
                                                                                                                                
MR.  SKIDMORE  advised that  AS  12.35.220  allows the  owner  of                                                               
seized property to  request return of the  property under certain                                                               
conditions, such  that the person is  able to prove they  are the                                                               
lawful owner, the  property is not subject to  forfeiture, and it                                                               
is not illegal  to possess.  The  only way in which  it would not                                                               
be returned  was if  it was  needed for  evidence in  addition to                                                               
being subject to forfeiture, he said.                                                                                           
                                                                                                                                
1:10:47 PM                                                                                                                    
                                                                                                                                
MR.  SKIDMORE referred  to  Section  9, page  5,  and advised  it                                                               
amends AS  12.36.020(a) which discusses  the return  of property,                                                               
it previously  existed in statute.   He explained that  this bill                                                               
amends  to add  a  couple  of references  to  other statutes,  AS                                                               
12.35.220  previously   discussed  and  AS  12.36.320   would  be                                                               
discussed momentarily.                                                                                                          
                                                                                                                                
1:11:28 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE referred to Section 10,  page 6, and advised it adds                                                               
six   new   statutes:   [AS  12.36.300,   12.36.310,   12.36.320,                                                               
12.36.340,  and  12.36.350].   AS  12.36.300(a)  lays  out  which                                                               
property  is  subject  for  forfeiture  after  conviction  of  an                                                               
offense,  and it  increases the  burden to  clear and  convincing                                                               
evidence  from preponderance  of the  evidence.   AS 12.36.300(b)                                                               
requires that the property be  acquired through the commission of                                                               
the offense,  or directly traceable to  property acquired through                                                               
the commission of the offense,  or it was an instrumentality used                                                               
in the offense.                                                                                                                 
                                                                                                                                
AS 12.36.300(c)  read that property  is subject to  forfeiture if                                                               
it  is illegal  to possess.   AS  12.36.300(d) read  that a  plea                                                               
agreement can forfeit  property as well.   AS 12.36.300(e) refers                                                               
back  to the  change  in the  law  last year  that  civil in  rem                                                               
proceedings   should  not   be   used  instead   of  a   criminal                                                               
prosecution, and  clarifies that this  is only meant to  apply in                                                               
criminal matters and does not apply to other civil matters.                                                                     
                                                                                                                                
1:13:13 PM                                                                                                                    
                                                                                                                                
MR.  SKIDMORE  referred to  AS  12.36.310,  and advised  that  it                                                               
originally listed all  of the other statutes  that authorized the                                                               
seizure  and  forfeiture  of  property,  and  advised  that  this                                                               
statute  could be  eliminated.    He explained  that  to have  it                                                               
authorized  here  in  AS  12.26.310 and  in  another  place,  the                                                               
criminal division did not want to  be in a situation now where it                                                               
missed one  statute, and  in the future  if legislatures  were to                                                               
decide it wanted  to authorize forfeiture in  a particular place,                                                               
or  eliminate the  ability to  forfeit property  in a  particular                                                               
place, the  criminal division did not  want to have to  go to two                                                               
different  places in  order to  do that,  so this  statute itself                                                               
could be eliminated.                                                                                                            
                                                                                                                                
MR. SKIDMORE  referred to AS  12.36.320, and noted  the remission                                                               
statute was  added in  Sec. 9, and  explained that  the remission                                                               
statute  discusses  the  return  of property  to  innocent  third                                                               
parties.  Remission  means that forfeiture is  forgiven, it comes                                                               
from a U.S.  Supreme Court case in the 1800s.   He explained that                                                               
remission says,  if there  is an innocent  third party,  which is                                                               
someone with  a legal right,  title, or interest in  the property                                                               
they acquired  in good faith,  did not participate in  the crime,                                                               
didn't know  the property would be  used in the crime,  and are a                                                               
bone fide  purchaser of  that property for  fair value,  they are                                                               
able to  have the property  returned to them.   He noted  that AS                                                               
12.36.320  uses  the exact  language  as  in AS  12.36.050,  that                                                               
solely  discusses firearms.   He  explained  that this  remission                                                               
statute, using the same procedure  found in AS 12.36.050, expands                                                               
it  to  all  properties,  and  offered  that  in  the  event  the                                                               
committee preferred, AS 12.36.050 could be eliminated.                                                                          
                                                                                                                                
1:15:40 PM                                                                                                                    
                                                                                                                                
MR.  SKIDMORE  referred to  AS  12.36.320,  and advised  that  it                                                               
provides that  the claim for  remission must be filed  within 120                                                               
days,  the same  as  AS 12.36.050,  and it  also  allows for  the                                                               
property to be bonded out.                                                                                                      
                                                                                                                                
1:15:56 PM                                                                                                                    
                                                                                                                                
MR.  SKIDMORE referred  to  AS 12.36.330,  and  advised that  the                                                               
state is authorized to seek  forfeiture of substitute property if                                                               
the  property  subject  to forfeiture  is  unavailable  for  some                                                               
reason.   It  limits the  substitute property  in being  the same                                                               
value as the property originally forfeited, he said.                                                                            
                                                                                                                                
MR. SKIDMORE  referred to AS 12.36.340,  regarding disposition of                                                               
property requiring that within 30  days of criminal charges being                                                               
declined, the property  is to be returned to  its rightful owner.                                                               
He acknowledged  that it does  not specify all charges,  but that                                                               
is  the appropriate  reading of  this  statute in  that it  would                                                               
require   all  charges   to  be   disposed   of  either   through                                                               
declination, acquittal, or dismissal, of criminal charges.                                                                      
                                                                                                                                
MR. SKIDMORE referred  to AS 12.36.350, and noted  that an annual                                                               
report is required  by law enforcement to provide  others a sense                                                               
of what property  had been seized within the  state and forfeited                                                               
in a particular calendar year.                                                                                                  
                                                                                                                                
1:17:58 PM                                                                                                                    
                                                                                                                                
MR.   SKIDMORE  explained   that  Secs.   11-19  are   conforming                                                               
amendments  to currently  existing statutes  in which  forfeiture                                                               
was authorized for a particular type  of case.  He explained that                                                               
each of those  amendments simply point an individual  back to the                                                               
procedures  in   AS  12.35.200  -   12.35.220  and   12.36.300  -                                                               
12.36.350.                                                                                                                      
                                                                                                                                
MR. SKIDMORE  referred to  Sec. 20, and  explained that  it gives                                                               
the  Court  of  Appeals appellate  jurisdiction  over  forfeiture                                                               
proceedings, which  is appropriate  because the Court  of Appeals                                                               
deals solely with criminal cases.                                                                                               
                                                                                                                                
MR. SKIDMORE explained  that Section 21, deals with  appeals in a                                                               
slightly different manner  in that it allows a party  to appeal a                                                               
judgment  of  the district  court  to  the  superior court  in  a                                                               
forfeiture proceeding.                                                                                                          
                                                                                                                                
1:18:58 PM                                                                                                                    
                                                                                                                                
MR.  SKIDMORE  pointed  to  Secs.   22-28,  and  explained  these                                                               
sections make conforming amendments  for forfeiture, AS 12.35.200                                                               
-  12.35.220 and  AS  12.36.300 -  12.36.350.   These  amendments                                                               
simply  direct folks  back to  the statutes  previously discussed                                                               
which  say  that forfeiture  is  authorized  for those  types  of                                                               
cases, he said.                                                                                                                 
                                                                                                                                
1:19:27 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE referred  to Sec. 29, and advised that  it read that                                                               
the  Act  applies  to  forfeitures  occurring  on  or  after  the                                                               
effective  date  to avoid  confusion  to  cases currently  moving                                                               
through the court system.                                                                                                       
                                                                                                                                
MR. SKIDMORE advised that Sec.  30 provides an effective date [of                                                               
July 1, 2017].                                                                                                                  
                                                                                                                                
1:19:58 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP  referred to Version  U, page 5,  lines 8-10,                                                               
which read as follows:                                                                                                          
                                                                                                                                
          (c) The court may order the return of seized                                                                          
     property subject  to forfeiture  upon finding  that the                                                                    
     item  has no  evidentiary value  and establishing  that                                                                    
     the property  owner has posted a  secured monetary bond                                                                    
     equal to the fair market value of the property.                                                                            
                                                                                                                                
REPRESENTATIVE  KOPP asked  Mr. Skidmore  to imagine  a situation                                                               
wherein  a court  decided  that [an  item]  did have  evidentiary                                                               
value," but  the person seeking  return of the property  was able                                                               
to provide satisfaction to the court  that the item would be kept                                                               
in  storage, photographs  taken, or  a promise  not to  transfer,                                                               
sell, or  otherwise lose track of  the property.  He  said he was                                                               
thinking  of  heavy equipment  as  a  result  of a  DUI  accident                                                               
involving a  drilling rig, and  so "you  have a lot  of equipment                                                               
maybe that's part  of that rig tied up in  a yard somewhere," and                                                               
the  court could  decide that  the agency  could release  it upon                                                               
certain conditions  and that it  does have evidentiary  value and                                                               
put stipulations on that.                                                                                                       
                                                                                                                                
REPRESENTATIVE KOPP paraphrased AS  12.36.070, Return of property                                                               
by hearing, as  follows:  "The court would say  that the property                                                               
-- the court may impose  reasonable conditions upon the return of                                                               
the property  to the owner that  they have to, you  know, keep it                                                               
in some  condition, take photos,  or et cetra," and  related that                                                               
there is  a good example  of that in  the law.   The way  this is                                                               
written, it seems  like it is saying that "the  court has to find                                                               
that it  has no evidentiary value  when ... a literal  reading of                                                               
that, the  court may say,  'Well, it does have  evidentiary value                                                               
so I'm  -- I'm  sorry ...  even with  proper conditions,  I can't                                                               
turn it  back over.'"  He  asked whether Mr. Skidmore  read it in                                                               
the same manner.                                                                                                                
                                                                                                                                
1:22:50 PM                                                                                                                    
                                                                                                                                
MR.  SKIDMORE  said he  was  looking  at  AS 12.36.070,  and  the                                                               
initial part of the statute does  talk about whether or not there                                                               
is  evidentiary  value  to  the  property  that  a  victim  wants                                                               
returned, and it  would not allow the return of  that.  Although,                                                               
he pointed  out, subsection (d)  is possibly  what Representative                                                               
Kopp was  referring to and  paraphrased "if the court  orders the                                                               
return of the  property to the crime victim the  court may impose                                                               
reasonable  conditions  on  the  return.   Those  conditions  may                                                               
include that  the crime  victim retains,  stores the  property so                                                               
that the  property is available  for future court hearings."   He                                                               
explained that the  issue presented in that  scenario is ensuring                                                               
that the  evidence is available  at a criminal trial,  for either                                                               
the  defense or  the  prosecution,  if it  is  important in  that                                                               
trial.  The evidentiary value would  need to be preserved so that                                                               
in returning  it to  [its rightful  owner] there  needs to  be an                                                               
assurance  that  if it  is  returned,  the evidentiary  value  is                                                               
preserved and not compromised by returning it.                                                                                  
                                                                                                                                
1:24:07 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE advised  that in reading this  subsection, he opined                                                               
that Representative Kopp's question  was, would that be possible.                                                               
Mr. Skidmore  explained that his  interpretation was that  if the                                                               
court  made  arrangements  to preserve  that  evidentiary  value,                                                               
whether through  photographs or some  other manner,  the property                                                               
could be returned.   Although, he said, if  the evidentiary value                                                               
cannot be  preserved, the property  should not be returned.   The                                                               
manner in which  this statute was drafted does  not conflict with                                                               
Representative Kopp's concern, he advised.                                                                                      
                                                                                                                                
1:24:58 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KOPP  referred  to  that section,  and  noted  it                                                               
appears to  be asking the court  to make a finding  that the item                                                               
has no  evidentiary value.   The language  he was  just proposing                                                               
there,  he explained,  is that  the court  is able  to look  at a                                                               
preponderance of the evidence that  the property must be retained                                                               
by  the  agency  for  evidentiary purposes  or  otherwise  impose                                                               
reasonable conditions to preserve the  property.  He said that as                                                               
long  as  the  committee  is  dealing  with  this  draft,  it  is                                                               
something  that could  be  caught now  to make  sure  it's not  a                                                               
problem for the court later on.                                                                                                 
                                                                                                                                
1:25:49 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN referred to Sec. 8,  AS 35.200(c), page 4, lines 11-                                                               
12,  and  noted this  may  be  an area  in  which  to propose  an                                                               
amendment on Monday.                                                                                                            
                                                                                                                                
1:26:17 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP referred to  AS 12.36.320(a)(4), page 7, line                                                               
5, which read as follows:                                                                                                       
                                                                                                                                
             (4) was a bona fide purchaser for fair                                                                             
     value.                                                                                                                     
                                                                                                                                
REPRESENTATIVE KOPP  offered that it  adds a qualifier  for those                                                               
who  would be  able to  receive  remission of  property, and  the                                                               
fourth qualification  is a  bone fide  purchaser for  fair value.                                                               
He asked Mr.  Skidmore that if a person had  received property as                                                               
a  gift   or  inheritance  whether  paragraph   (1)  covers  that                                                               
scenario, page 6, lines 30-31, which read as follows:                                                                           
                                                                                                                                
          (1) holds a legal right, title, or interest                                                                           
     in the property seized, acquired in good faith;                                                                            
                                                                                                                                
1:27:02 PM                                                                                                                    
                                                                                                                                
MR.  SKIDMORE  advised  that in  speaking  about  property  being                                                               
transferred as a gift or  inheritance, the question is whether it                                                               
was  gifted  or left  to  someone  in  inheritance to  avoid  the                                                               
forfeiture.   Paragraph (1)  read "...  acquired in  good faith,"                                                               
and if it is  inherited or gifted in good faith  and not to avoid                                                               
the  forfeiture,  then  there  is  no  problem.    Although,  for                                                               
example,  in  the event  a  defendant's  daughter was  gifted  an                                                               
airplane to avoid forfeiture after  the commission of a crime [is                                                               
not  in good  faith].   He related  that it  is fact  driven, and                                                               
opined  that  Representative  Kopp's   concern  is  addressed  by                                                               
paragraph (1), on page 6.                                                                                                       
                                                                                                                                
1:28:37 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  said that  she understands  Mr. Skidmore's                                                               
good faith  response in terms of  a gift, but she  was unsure she                                                               
understood it in  terms of an inheritance wherein  someone has to                                                               
die.   She asked whether that  means if they make  out their will                                                               
prior to  being indicted  the devisee  inherits the  property and                                                               
everything is  good.  On  the other hand,  if the will  is signed                                                               
after that indictment, that is not good.                                                                                        
                                                                                                                                
MR.  SKIDMORE clarified  that in  an  inheritance situation  this                                                               
issue is  exceedingly rare  because it  would require  someone to                                                               
die and they would have had  to give the property to someone else                                                               
to  avoid  it   from  having  been  forfeited.     Generally,  he                                                               
commented, if someone  died prior to the conviction,  the case is                                                               
dismissed  because  the  criminal  division  does  not  prosecute                                                               
people who are dead.                                                                                                            
                                                                                                                                
1:30:29 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX humorously asked  whether he was absolutely                                                               
firm  that the  criminal division  doesn't prosecute  people that                                                               
are dead.                                                                                                                       
                                                                                                                                
MR. SKIDMORE responded  that in his 20 years  of experience, that                                                               
decision is "pretty firm."                                                                                                      
                                                                                                                                
1:30:43 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN related  his  understanding that  if  a person  was                                                               
convicted of  a criminal  offense and  their appeal  was pending,                                                               
and  during  the pendency  of  the  appeal  they died,  then  the                                                               
conviction would be dismissed as well.                                                                                          
                                                                                                                                
MR.  SKIDMORE  responded  that  is  a  possibility  because  when                                                               
discussing a case on appeal,  the criminal division would look at                                                               
the issue  being taken  up on  appeal as to  whether or  not that                                                               
issue would provide legal clarity  and significance for the state                                                               
as a whole going forward.  He  said he was aware of cases wherein                                                               
the  state  abandoned the  appeal  after  someone died,  thereby,                                                               
undoing the conviction  and undoing any forfeiture  that had been                                                               
ordered.    Although,  he  related, he  could  also  conceive  of                                                               
scenarios  in  which  the  state  knew the  person  died  and  it                                                               
continued to pursue the appeal  and not for sanctions against the                                                               
person who committed  the crime, but rather to  answer a question                                                               
of  law.   He pointed  out that  he could  not imagine  the state                                                               
seeking property if it was just  trying to get clarification on a                                                               
point of law.                                                                                                                   
                                                                                                                                
1:32:09 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX, in  response  to  Mr. Skidmore's  answer,                                                               
said  "suppose you  wanted the  property."   She referred  to the                                                               
Enron Corporation  scandal and said  she was pretty sure  the man                                                               
was charged, convicted,  appealed, and then died.   His death had                                                               
some  effect on  either a  civil case  being pursued  against him                                                               
hoping to receive  his assets before the shareholders  did, or it                                                               
may have  been a  criminal proceeding, she  opined.   She further                                                               
opined that the  end result was supposed to  have been forfeiture                                                               
of his assets  and when he died everything went  away.  She asked                                                               
whether there  would be cases  in which  the state would  want to                                                               
proceed even if the person was dead due to assets.                                                                              
                                                                                                                                
1:33:56 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE  offered that this  scenario was less  as forfeiture                                                               
and more as restitution.  He  explained that the state would want                                                               
to proceed and  would not abandon its pursuit  of restitution for                                                               
defrauded victims.  He added that  once a person is deceased, the                                                               
state would  seek to collect  it from  that person's estate.   An                                                               
extra  step could  be  taken to  forfeit  it to  get  it, but  he                                                               
pointed out  that is not  necessary.   There are ways  within the                                                               
law  to  ensure  that  justice is  achieved  and  restitution  is                                                               
obtained, and  the statute does  not present a problem  in either                                                               
direction for that, he remarked.                                                                                                
                                                                                                                                
1:34:56 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE FANSLER  referred to  AS 12.36.320(a)(1)(2)(3)(4),                                                               
page  6. Lines  27-31,  and  page 7,  lines  1-5,  which read  as                                                               
follows:                                                                                                                        
                                                                                                                                
          (a) A person seeking remission of the person's                                                                        
     interest  in property  forfeited under  AS 12.36.300  -                                                                    
     12.36.340 shall  prove to the court  by a preponderance                                                                    
     of the evidence that the person                                                                                            
               (1) holds a legal right, title, or interest                                                                      
     in the property seized, acquired in good faith;                                                                            
               (2) did not knowingly participate in the                                                                         
     commission  of  the crime  in  which  the property  was                                                                    
     used;                                                                                                                      
               (3) did not know or have reasonable cause to                                                                     
     believe that the property was  used or would be used to                                                                    
     commit a crime; and                                                                                                        
               (4) was a bone fide purchaser for fair                                                                           
     value.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  FANSLER then  specifically referred  to [page  7,                                                               
line 4], the word "and," and  offered that it appears to indicate                                                               
a person must meet all four of the requirements.                                                                                
                                                                                                                                
MR.  SKIDMORE agreed  that the  word  "and" means  that all  four                                                               
conditions must be  present.  As to how to  interpret a bone fide                                                               
purchaser  for fair  value, he  explained  that in  the event  he                                                               
purchased an item  for fair value, then he paid  someone else for                                                               
it.  Although, when an item is  given as a gift or inheritance, a                                                               
person  cannot  just  give  it  to  someone  else  to  avoid  the                                                               
forfeiture.   It  doesn't prevent  an innocent  third party  from                                                               
seeking to  have the  forfeiture go through  a remission  and the                                                               
property is  not forfeited if  the person asking for  it received                                                               
the property as a gift or through inheritance, he explained.                                                                    
                                                                                                                                
1:37:19 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN  related  a  scenario  of  seeking  return  of  his                                                               
grandfather's  favorite pistol  that had  been given  to him  ten                                                               
years  prior  and he  never  paid  a  penny  for it  because  his                                                               
grandfather bought it many years ago,  but it was stolen from his                                                               
house.   Now, he  remarked, he  is in court  saying he  wants his                                                               
pistol back and, he offered, that  he could see the judge looking                                                               
at this currently drafted statute  and deciding that Chair Claman                                                               
qualified  under  paragraphs  (1)-(3),   but  not  paragraph  (4)                                                               
because  he was  not a  bone fide  purchaser and;  therefore, the                                                               
judge would  not order  remission of this  property.   He related                                                               
that  he  was  unsure  whether  the  currently  drafted  language                                                               
addressed that.                                                                                                                 
                                                                                                                                
1:38:36 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE acknowledged that when  it talks about the bone fide                                                               
purchaser, "I honestly  can't tell you that we sat  down and said                                                               
okay, what  about inheritance  what about  gifts."   He continued                                                               
that  they   were  looking  at   transferring  property   in  the                                                               
circumstances encountered  in Alaska,  which is people  trying to                                                               
sell valuable  items to  avoid those  items being  forfeited when                                                               
used  in a  crime or  acquired as  the result  of the  crime they                                                               
committed.    He  explained  that in  order  for  Chair  Claman's                                                               
grandfather's  valuable  pistol  to  have  been  forfeited,  that                                                               
pistol  had to  have  been used  in the  commission  of a  crime.                                                               
Under those circumstances,  he opined that he did  not think that                                                               
necessarily  makes  Chair  Claman  an innocent  third  party  who                                                               
received it  without any  fault of  his own.   That  pistol would                                                               
still be  subject to forfeiture because  it was used in  a crime,                                                               
his grandfather  knew it was  used in  a crime, and  Chair Claman                                                               
didn't acquire  that interest until  sometime later.   He related                                                               
that  under   those  circumstances   he  was   having  difficulty                                                               
fathoming the  various circumstances  members have  described and                                                               
exactly  how  it would  play  out.    He  said that  the  state's                                                               
interest in  forfeiture is only  to ensure that justice  is done.                                                               
In  the event  there were  circumstance in  which the  forfeiture                                                               
didn't  pursue justice,  then he  said he  doesn't see  the state                                                               
pursuing it.   He understands  that the legislature is  trying to                                                               
write the statute  so it doesn't rely on  the state's discretion,                                                               
and that policy call belongs to the committee, he reiterated.                                                                   
                                                                                                                                
1:40:29 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  commented that  if the  legislature wanted                                                               
to rely  totally on  discretion, there  probably wouldn't  be the                                                               
remission portion at all, and  that she does not feel comfortable                                                               
relying  totally  on discretion.    She  said she  can't  imagine                                                               
trying to  meet the criteria  before a  judge when the  person is                                                               
simply not a bone fide purchaser because the item was inherited.                                                                
                                                                                                                                
1:41:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE FANSLER  referred to  AS 12.36.320(a)(4),  page 7,                                                               
line 5, [text previously provided],  and asked whether there is a                                                               
legal definition  of fair value.   He  offered the scenario  of a                                                               
crafty person purchasing  a nice antique pistol at  a flea market                                                               
that is not even  close to the price it should  be, and asked how                                                               
to determine that fair value aspect.                                                                                            
                                                                                                                                
MR. SKIDMORE  responded that  fair value,  fair market  value, is                                                               
the amount  in which  the property would  change hands  between a                                                               
willing buyer and seller.  He  continued that that is Black's Law                                                             
definition,  the   definition  used   in  Alaska   Statutes  when                                                               
discussing the  value of property,  the same manner in  which the                                                               
criminal division  uses when assessing  the element of  a certain                                                               
value to determine whether a crime  is a misdemeanor or a felony,                                                               
and the same  manner in which Alaska courts  would interpret fair                                                               
value.                                                                                                                          
                                                                                                                                
1:42:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  REINBOLD referred  to  AS  12.36.320(a), page  7,                                                               
lines  4-5, [text  previously provided]  and said  that the  word                                                               
"and" must  include paragraph (4) as  well.  She offered  to work                                                               
with  people  to  add  a   friendly  amendment  that  would  read                                                               
"legitimate owner  or bone  fide purchaser of  fair value."   She                                                               
asked whether  that suggestion would  deal with Chair  Claman and                                                               
Representative Fansler's concerns.                                                                                              
                                                                                                                                
CHAIR CLAMAN answered  that he predicts this is an  area in which                                                               
an amendment would  be drafted prior to Friday  afternoon.  There                                                               
is a  general sense on  the committee that when  subsections (1),                                                               
(2), and (3) are satisfied and  subsection (4) is not because the                                                               
person received an  item by gift or inheritance,  that the person                                                               
should have the same protections as the person who purchased it.                                                                
                                                                                                                                
REPRESENTATIVE REINBOLD  explained that  her suggestion  would be                                                               
"legitimate owner."                                                                                                             
                                                                                                                                
1:44:31 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP opined that  Representative Reinbold was onto                                                               
something and suggested  that "or otherwise a  legal recipient of                                                               
the property" would  probably cover it.  That  way, he explained,                                                               
as  long as  the court  found that  the person  was a  "bone fide                                                               
purchaser  for  value, or  otherwise  a  legal recipient  of  the                                                               
property"  it should  encompass every  situation that  would come                                                               
into play.                                                                                                                      
                                                                                                                                
1:45:14 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  noted that she  had seen the  phrase "fair                                                               
market  value"   in  legal  opinions,   and  that   Mr.  Skidmore                                                               
interpreted "fair value" to mean  "fair market value."  She asked                                                               
whether there  was a  nuance in drafting  where "fair  value" was                                                               
used as opposed to "fair market value."                                                                                         
                                                                                                                                
MR. SKIDMORE  explained that  he wasn't  the actual  drafter, but                                                               
the terms  "fair market  value" and  "fair value"  are synonymous                                                               
for him.  In the event  the committee preferred using fair market                                                               
value, that was a policy decision it could make.                                                                                
                                                                                                                                
1:46:23 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN  referred to  AS 12.35.220(c),  page 5,  lines 8-10,                                                               
which read as follows:                                                                                                          
                                                                                                                                
          (c) The court may order the return of seized                                                                          
     property subject  to forfeiture  upon finding  that the                                                                    
     item  has no  evidentiary value  and establishing  that                                                                    
     the property  owner has posted a  secured monetary bond                                                                    
     equal to the fair market value of the property.                                                                            
                                                                                                                                
CHAIR CLAMAN noted  that his reading of subsection  (c), was that                                                               
after the court  gets past the question of  no evidentiary value,                                                               
that this statute,  as currently drafted, appears  to require the                                                               
court to  order the posting  of a monetary bond  before returning                                                               
the seized  property.  He  asked whether this language  gives the                                                               
court any discretion about a monetary bond requirement.                                                                         
                                                                                                                                
MR.  SKIDMORE responded  that the  only word  within the  statute                                                               
that he see  providing that discretion is the third  word on line                                                               
8, which  is "may."  The  court may order return  of the property                                                               
upon a finding of ...  He said  that he supposed it could be read                                                               
that the  monetary bond wouldn't  necessarily have to  be posted,                                                               
but   that  is   a  policy   call  should   the  committee   seek                                                               
clarification.  The purpose of  the bond in that circumstance, he                                                               
opined,  is   to  say  that   this  property  doesn't   have  any                                                               
evidentiary value so it could  be returned, although the property                                                               
itself could  still be subject  to forfeiture  at the end  of the                                                               
case.  He explained that that  is the purpose of the bond itself,                                                               
and  it  is less  about  the  evidentiary  value and  more  about                                                               
whether  or  not the  property  ultimately  is forfeited  at  the                                                               
conclusion of the case.                                                                                                         
                                                                                                                                
1:48:21 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN referred  to evidentiary  value and  said he  could                                                               
envision a situation  in which there was an agreement  that a car                                                               
had evidentiary  value, but  the defendant  was willing  to waive                                                               
certain  objections in  exchange for  getting the  car back.   In                                                               
that scenario,  pictures would be  taken so that even  though the                                                               
car was  not there, there would  be more than enough  pictures to                                                               
show the car without having  to require that no evidentiary value                                                               
finding.  He asked whether he  was in the realm that Mr. Skidmore                                                               
could imagine, or was he missing something.                                                                                     
                                                                                                                                
1:49:10 PM                                                                                                                    
                                                                                                                                
MR.  SKIDMORE answered  that Chair  Claman was  absolutely within                                                               
the realm.   For example, he  said, many years ago  he handled an                                                               
Anchorage  drive-by   homicide  case  where  two   vehicles  were                                                               
involved  and  one  vehicle  drove  off  shooting  at  the  other                                                               
vehicle.   The vehicle in  which the  person was shot  and killed                                                               
was held, there was a trial that  resulted in a hung jury, and it                                                               
was re-tried  sometime later.   During the intervening  time that                                                               
vehicle was reexamined and the  bullet that actually went through                                                               
the deceased's head  had not previously been located,  and it was                                                               
located during  the re-examination.   He  explained that  that is                                                               
the  sort of  thing  the criminal  division  is always  concerned                                                               
about when  looking at  evidence seized, it  wants to  be certain                                                               
there is no  evidentiary value when people ask for  the return of                                                               
their property.  In response  to Chair Claman's example, he said,                                                               
"Yes, I can conceive of a  situation in which that evidence would                                                               
be  returned."   It would  be in  the event  there was  a way  to                                                               
ensure that  any evidentiary  value was  preserved such  that the                                                               
property  no longer  had the  evidentiary value,  but rather  the                                                               
photographs  or some  other stipulation  was now  the evidentiary                                                               
value.   He  reiterated that  it would  be fact  specific to  any                                                               
given case.                                                                                                                     
                                                                                                                                
1:50:42 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN asked Mr. Skidmore  to speak to the timing                                                               
of events,  under Version U,  where there was a  determination of                                                               
no evidentiary value because there  appears to be little value in                                                               
the state  incurring the costs  of storing  the item.   He asked,                                                               
once  the judge  determined the  property would  be release,  the                                                               
amount of  window space for someone  to secure the bond  and make                                                               
the  request.   He further  asked whether  the determination  was                                                               
made  prior to  someone  initiating a  request  for the  property                                                               
returned.n                                                                                                                      
                                                                                                                                
1:51:44 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE said that he  believed his question was, if property                                                               
was  seized during  an investigation,  whether for  forfeiture or                                                               
initially thought  to be  for evidence,  if the  state determined                                                               
there was  no evidentiary  value in the  property, at  what point                                                               
would  the  property be  returned.    He  responded that  if  the                                                               
property  was  not  subject  to   forfeiture  and  there  was  no                                                               
evidentiary  value,  he  was  unsure   whether  the  state  would                                                               
automatically release the property.   He advised there is another                                                               
statute regarding  property seized  during an  investigation, and                                                               
it  cannot be  removed from  law enforcement's  possession unless                                                               
there  is  a motion  by  the  parties  and the  court  ultimately                                                               
authorizes it.   Take the  example Chair Claman offered  a moment                                                               
ago  in  the  instance  of  that  vehicle,  and  he  offered  the                                                               
following  scenario: Say  for whatever  reason  that vehicle  had                                                               
some evidentiary value  but the state decided it  didn't have any                                                               
value and  returned it to its  rightful owner.  The  defense goes                                                               
to  trial and  advises the  judge  that it  actually wanted  that                                                               
property, yet the  prosecution failed to preserve it  and that it                                                               
had a duty to preserve it under  case law.  The defense then asks                                                               
for a Thorne  [jury] instruction.  Under Thorne  v. Department of                                                           
Public  Safety,  State  of  Alaska,  774  P.2d  1326  (1989)  the                                                             
decision was  that the state  failed to preserve property  in its                                                               
possession;  therefore,  the  defense  was  entitled  to  a  jury                                                               
instruction advising  of the failure  to preserve  that evidence,                                                               
and  that  the jury  could  then  assume  that the  evidence  was                                                               
beneficial to the defense.                                                                                                      
                                                                                                                                
1:53:47 PM                                                                                                                    
                                                                                                                                
MR.  SKIDMORE referred  to the  timeline  question and  explained                                                               
that the  mechanism is  that there  has to be  a motion  with the                                                               
court  before  property seized  in  a  criminal investigation  is                                                               
released.    The  statute  itself says  that  after  the  seizure                                                               
occurred, the party  desiring return of the property  will make a                                                               
motion  at any  time,  and within  45 days  of  having made  that                                                               
motion there has to be a hearing to decide it.                                                                                  
                                                                                                                                
1:54:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN  referred to property with  no evidentiary                                                               
value and  remarked that certainly  the state has an  interest in                                                               
minimizing the  amount of property it  pays in storage fees.   He                                                               
surmised that the  criminal division would wait for  the court to                                                               
take some action releasing the  state from any obligation to hold                                                               
it, and  asked whether  anything would take  place prior  to that                                                               
court action.                                                                                                                   
                                                                                                                                
MR. SKIDMORE  responded that in  the event the state  realizes it                                                               
has property with  no evidentiary value, it would  file a motion,                                                               
the  defense  would  then  advise  that  it  wants  the  property                                                               
preserved for use in the future,  or the defense would not assert                                                               
a claim to the property and would  not assert a claim that it has                                                               
some   evidentiary   value.      After  the   court   makes   its                                                               
determination, the  state would  not be in  the situation  of the                                                               
Thorne [jury]  instruction because  Thorne could not  be asserted                                                           
under  those circumstances.    Therefore,  disposing of  property                                                               
requires a motion from either the  state or some other party, and                                                               
the court to ultimately rule on it.                                                                                             
                                                                                                                                
1:56:09 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN  referred to  the  point  in the  process                                                               
where the  court releases its  interest and the  state determines                                                               
there is no evidentiary value,  and asked the timeline after that                                                               
point.                                                                                                                          
                                                                                                                                
CHAIR CLAMAN  pointed out that the  court has no interest  in the                                                               
property, the interest is with the state.                                                                                       
                                                                                                                                
MR. SKIDMORE replied  that he doesn't know that this  bill puts a                                                               
timeline on  returning the  property.  The  only timeline  in the                                                               
bill  is found  in  the disposition  of  property subsection,  AS                                                               
12.36.340,  [page 7,  lines 20-27],  which is  where charges  are                                                               
declined, dismissed, or an acquittal  on all charges, and in that                                                               
circumstance the property has to be  returned within 30 days.  He                                                               
reiterated that as  to the determination of  no evidentiary value                                                               
and  release,  he was  unsure  the  bill specified  a  particular                                                               
timeframe.   Obviously, he pointed  out, the interest of  the law                                                               
enforcement agency  holding the property  is to stop  holding the                                                               
property  as quickly  as  possible because  it  incurs costs  for                                                               
storage.                                                                                                                        
                                                                                                                                
[The committee treated public testimony as closed.]                                                                             
                                                                                                                                
[HB 42 was held over.]                                                                                                          

Document Name Date/Time Subjects
HB042 Draft Proposed CS ver U 3.21.17.pdf HJUD 3/22/2017 1:00:00 PM
HJUD 3/27/2017 1:00:00 PM
HB 42
HB042 Sectional Summary ver U 3.21.17.pdf HJUD 3/22/2017 1:00:00 PM
HJUD 3/27/2017 1:00:00 PM
HB 42
HB042 Legal Services Memo-Draft Proposed CS ver U 3.21.17.pdf 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 DoL Amendments to ver D 2.20.17.pdf HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
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 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-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-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-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 of Support RHAK 1.22.17.pdf HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
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 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