Legislature(1999 - 2000)

04/01/1999 08:07 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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CS FOR SENATE BILL NO. 100(JUD)                                                                                                 
"An Act relating to the payment by indigent persons                                                                             
for legal services and related costs."                                                                                          
                                                                                                                                
                                                                                                                                
This was the first hearing on this bill in the Senate                                                                           
Finance Committee.                                                                                                              
                                                                                                                                
DOUG WOOLIVER, Administrative Attorney, Alaska Court System                                                                     
testified that the bill was introduced at the request of                                                                        
the Alaska Court System.  He stated the bill amends the                                                                         
Public Defender reimbursement statutes by requiring those                                                                       
who receive public defender services repay the State for at                                                                     
least a portion of that representation.  He noted that                                                                          
under current law, only those convicted of a crime are                                                                          
subject to the repayment provision.  This bill would expand                                                                     
the law to require any individual receiving counsel at the                                                                      
State's expense to contribute to the cost of the                                                                                
representation whether they are convicted or not.  He                                                                           
pointed out this provision is similar to the situation of                                                                       
an individual obtaining private counsel who is also                                                                             
required to pay the cost of the defense regardless of the                                                                       
outcome.                                                                                                                        
                                                                                                                                
Senator Sean Parnell interrupted posing a scenario of being                                                                     
sued as a private party in a civil matter where the                                                                             
plaintiff lost the case. He asked if, under this bill, he                                                                       
could then seek to recover from the plaintiff.                                                                                  
                                                                                                                                
Mr. Wooliver responded that public defenders are not                                                                            
appointed in such civil cases. He clarified that the cases                                                                      
addressed in this legislation are criminal and delinquency                                                                      
cases.                                                                                                                          
                                                                                                                                
Senator Sean Parnell wanted to know if the State brought a                                                                      
"bad case" against an individual, that individual would                                                                         
then be required to reimburse the Public Defenders' Agency                                                                      
(PDA) for their defense under the proposed statute, rather                                                                      
than having the opportunity to recover the defense costs                                                                        
from the state.                                                                                                                 
                                                                                                                                
Mr. Wooliver answered the current system is the same, if                                                                        
someone is charged with a crime, has enough money to hire                                                                       
their own defense counsel and is found innocent that                                                                            
individual is not reimbursed by the State for the cost of                                                                       
their defense.                                                                                                                  
                                                                                                                                
Mr. Wooliver reiterated that this bill provides that when                                                                       
an individual receives benefits from a publicly funded                                                                          
defense counsel, that individual will repay the defense                                                                         
counsel, whether they plead guilty, are convicted or the                                                                        
State defers prosecution.                                                                                                       
                                                                                                                                
Mr. Wooliver continued qualifying that many individuals who                                                                     
receive public defender services do not have the funds to                                                                       
pay for private attorneys.  However, he stated that most                                                                        
individuals have the ability to pay for a portion of their                                                                      
defense or will have that ability over time.                                                                                    
                                                                                                                                
This was not the first time this bill has been before the                                                                       
Legislature, Mr. Wooliver told the Committee.  The Alaska                                                                       
Court System requested this change in 1993 along with some                                                                      
other changes, he noted. However, he pointed out, the                                                                           
portion of the resulting bill addressing repayment of                                                                           
public defender costs was eliminated before the legislation                                                                     
was adopted. Mr. Wooliver testified that the Division of                                                                        
Legislative Budget and Audit, during a subsequent audit of                                                                      
the PDA made the same request.  He quoted the audit report                                                                      
recommending that, "the State statute and court rules be                                                                        
amended to assess judgement against public council                                                                              
defendants not on the basis of if convicted, but rather on                                                                      
the mere fact that services were provided." He noted that                                                                       
the Alaska Court System had done its part in making the                                                                         
necessary court rule changes, but stressed that the                                                                             
legislature needs to make statutory changes before the                                                                          
repayment requirements can be implemented.                                                                                      
                                                                                                                                
Mr. Wooliver asserted that although this type of repayment                                                                      
program makes both indigent and non-indigent individuals                                                                        
liable for defense costs, there are significant                                                                                 
differences.                                                                                                                    
                                                                                                                                
[TAPE MALFUNCTION]                                                                                                              
                                                                                                                                
Mr. Wooliver continued detailing the repayment requirements                                                                     
for indigent defendants. One difference, he explained, is                                                                       
that indigent defendants would only have to repay a portion                                                                     
of the costs of their defense subject to schedules found in                                                                     
Criminal Rule 39 and Appellate Rule 209.  Furthermore, he                                                                       
pointed out, if repayment would create a financial                                                                              
hardship, the Court can reduce, remit or defer payment or                                                                       
establish a payment plan.  He assured the Committee that                                                                        
the cost of the Criminal Rule 39-repayment provision would                                                                      
not be ruined by the practice of alternate payment plans.                                                                       
He noted that the repayment system becomes a civil                                                                              
judgement and therefore protected by the Alaska Exemptions                                                                      
Act. Because of these protections, he avowed SB 100 would                                                                       
not drive poorer individuals further into poverty, but                                                                          
rather it would allow the State to recover a portion of                                                                         
defense costs from those who have an ability to pay.                                                                            
                                                                                                                                
Mr. Wooliver noted that the Senate Judiciary Committee had                                                                      
made several amendments to SB 100; including adding Section                                                                     
1 to the bill, which restricts the right of an indigent                                                                         
person to be represented by appointed counsel to the level                                                                      
and extent required by the US and state constitutions.                                                                          
Additionally, he stated the Senate Judiciary Committee                                                                          
"made mandatory entry of a judgement for repayment." He                                                                         
explained that under current statutes, the Court has the                                                                        
discretion whether or not to enter a judgement.                                                                                 
                                                                                                                                
The Senate Judiciary Committee also deleted the provision                                                                       
in the bill that allows for a stay of the judgement pending                                                                     
an appeal. Mr. Wooliver pointed out that the deleted                                                                            
language is no longer necessary since the legislation                                                                           
requires repayment regardless of a guilty or not guilty                                                                         
verdict.                                                                                                                        
                                                                                                                                
Mr. Wooliver stated that the Senate Judiciary version of                                                                        
the bill clarifies the language relating to the court's                                                                         
discretion on repayment, by stating "only the unpaid                                                                            
portion of a judgement can be reduced, remitted or                                                                              
deferred." A section of the bill was also deleted in the                                                                        
committee substitute, according to Mr. Wooliver, that had                                                                       
allowed the court to remit or reduce the balance owed on a                                                                      
judgement or change the method of payment that would impose                                                                     
a manifest hardship. However, he noted the provision                                                                            
remains that allows an individual to petition the court in                                                                      
times of hardship for a reduction of payment.                                                                                   
                                                                                                                                
Amendment #1: This amendment adds a new section to AS                                                                           
18.85.120 to read:                                                                                                              
                                                                                                                                
(e) Judgements entered under (c) of this section shall                                                                          
be imposed pursuant to trial and appellate court                                                                                
schedules adopted by the supreme court in consultation                                                                          
with the Public Defender Agency and the Office of                                                                               
Public Advocacy. The schedules shall be reviewed at                                                                             
least biannually and, when appropriate, adjusted to                                                                             
reflect changes in the cost of representation. The                                                                              
trial court schedule shall include provisions to                                                                                
impose additional costs in cases where paid expert                                                                              
witnesses are called on behalf of the defendant.                                                                                
                                                                                                                                
Senator Dave Donley moved for adoption. Co-Chair John                                                                           
Torgerson objected for purpose of discussion.                                                                                   
                                                                                                                                
Co-Chair John Torgerson referred to a letter dated March                                                                        
16, 1999 addressed to Senator Robin Taylor from Mr.                                                                             
Wooliver (copy on file) that answered some questions raised                                                                     
by the Senate Judiciary Committee. The first question                                                                           
reads, "Are the Criminal Rule 39 fees for the repayment of                                                                      
public defender representation in addition to other costs                                                                       
such as travel?" The letter replies, "No. If a court enters                                                                     
a civil judgement against a person to pay for defense                                                                           
costs, that judgement is the full extent of his or her                                                                          
liability for that representation. No additional fees are                                                                       
added for travel or other expenses." The second question                                                                        
answered in the letter asks, "When were the Criminal Rule                                                                       
39 fees last amended?" The response is, "The fees were                                                                          
adopted in 1992 and have not been amended."                                                                                     
                                                                                                                                
Co-Chair John Torgerson pointed out that this amendment                                                                         
directs the courts to review the fee schedules and                                                                              
biannually adjust the rates for charge-backs based on                                                                           
consultation with the PDA and the Office of Public Advocacy                                                                     
(OPA). Co-Chair John Torgerson noted that the current rates                                                                     
are seven years old and he felt the rates should remain                                                                         
current with the amount budgeted to provide the services.                                                                       
He added that the amendment also directs the courts to                                                                          
include the costs paid for expert witnesses in the balance                                                                      
due. Currently, he stated, the state covers the entire cost                                                                     
of expert witnesses for the defense.                                                                                            
                                                                                                                                
Co-Chair John Torgerson did not include the matter of                                                                           
travel cost reimbursement in the amendment. He said this is                                                                     
because he was advised that if reimbursement were required                                                                      
for travel costs, there could be a conflict with the equal                                                                      
protection rights of those who had to travel farther                                                                            
distances.                                                                                                                      
                                                                                                                                
Mr. Wooliver concurred with the comments on Amendment #1                                                                        
given by Co-Chair John Torgerson.  He restated the                                                                              
provision requiring the court to biannually review the fee                                                                      
schedule and to make necessary revisions to reflect the                                                                         
actual costs incurred by the PDA and the OPA.                                                                                   
                                                                                                                                
Mr. Wooliver explained when the cost repayment rules were                                                                       
initially adopted the fee schedule was based on the                                                                             
projected cost rather than the actual costs. The original                                                                       
rules also took into account that most of the repayment                                                                         
funds came from the Permanent Fund dividend, according to                                                                       
Mr. Wooliver. The revised statute will require the court to                                                                     
take into account extra-ordinary costs for expert                                                                               
witnesses.                                                                                                                      
                                                                                                                                
Co-Chair John Torgerson commented that the bill drafter had                                                                     
some concerns relating to the wording of the amendment. Co-                                                                     
Chair John Torgerson explained that the state statutes have                                                                     
a different interpretation of the court's fee schedules and                                                                     
therefore, if the amendment is adopted, the drafter should                                                                      
be given latitude to clean up language while staying within                                                                     
the intent.                                                                                                                     
                                                                                                                                
Senator Dave Donley moved to conceptually amend the motion                                                                      
to allow the bill drafter to conform the language of the                                                                        
amendment to existing statute and the court schedules.                                                                          
                                                                                                                                
Without objection Amendment #1 as conceptually AMENDED was                                                                      
ADOPTED.                                                                                                                        
                                                                                                                                
Senator Sean Parnell asked how the repayment requirements                                                                       
affect court-ordered restitution.  He wanted to know what                                                                       
priority is given to the judgement for attorney fees and if                                                                     
restitution is given a lower priority. He referred to the                                                                       
garnishment of Permanent Fund dividends.                                                                                        
                                                                                                                                
Mr. Wooliver replied that public defender costs is sixth on                                                                     
the debt repayment priority list using the Permanent Fund                                                                       
dividend.  He explained that the public defender costs are                                                                      
considered a debt owed to the State Of Alaska. Child                                                                            
Support, restitution, college loans and court fines are                                                                         
some of the debts that have a higher priority, according to                                                                     
Mr. Wooliver.                                                                                                                   
                                                                                                                                
BARBARA BRINK, Director, Public Defender Agency, Department                                                                     
of Administration testified via teleconference from                                                                             
Anchorage.  Her comments focused on page 1 lines 12 and 13                                                                      
of the committee substitute, that changes the level of                                                                          
representation required by the PDA. She stated that                                                                             
existing statute requires public defenders to perform their                                                                     
duties at the level and to the extent as an individual                                                                          
could expect who retains private council. The language                                                                          
adopted in the Senate Judiciary committee substitute states                                                                     
that representation by a public defender must be provided,                                                                      
".at the level and to the extent required under the United                                                                      
States Constitution and the Constitution of the State Of                                                                        
Alaska." She wanted to make sure there was no misperception                                                                     
of this change.  She did not want this Committee or any                                                                         
other legislature to think this language change will reduce                                                                     
the level of service the PDA is required to give and that                                                                       
consequent budget needs will decrease.  She stressed that                                                                       
the PDA duties are constitutionally defined and she                                                                             
emphasized that the state definition of the effective                                                                           
assistance of council is no different than the federal                                                                          
definition. In her opinion, the main point of the                                                                               
constitutional right to council is so that as a nation, and                                                                     
Alaska as a state, does not create a two-tiered system of                                                                       
justice - one justice system for the rich and one system                                                                        
for the poor. She asserted, "The duties and obligations of                                                                      
a lawyer to ethically, zealously and effectively represent                                                                      
their client don't depend on whether they are retained or                                                                       
appointed." She referred to a letter she sent on March 19,                                                                      
1999 (copy not on file) and said she would not repeat the                                                                       
comments she made in that letter.                                                                                               
                                                                                                                                
DIANE WENDLANT, Assistant Attorney General, Collections and                                                                     
Support, Civil Division, Department of Law testified via                                                                        
teleconference from Anchorage that her section of the                                                                           
department is responsible for collecting the repayment                                                                          
fees.                                                                                                                           
                                                                                                                                
Co-Chair John Torgerson noted that with the adoption of                                                                         
Amendment #1, changes will need to be made to the                                                                               
Department of Law fiscal note. He anticipated that the                                                                          
biannual revision of the fee schedule and the reimbursement                                                                     
for expert witnesses would increase the revenue generated.                                                                      
Ms. Wendlant agreed there would be an increase but she                                                                          
could not speculate on the exact amount.                                                                                        
                                                                                                                                
Senator Dave Donley asked Ms. Wendlant to provide him with                                                                      
suggestions on how to increase collections, whether through                                                                     
statutory changes, or other changes to make the collection                                                                      
process easier for the department.                                                                                              
                                                                                                                                
Senator Sean Parnell was troubled by the underlying policy                                                                      
allowing a party to bring action against another party and                                                                      
even if the first party fails to win, the second party must                                                                     
bear the cost of defense. He noted that in civil                                                                                
proceedings, a prevailing defendant is allowed to recover a                                                                     
portion of the attorney fees. He understood that the                                                                            
criminal system is different but he wanted to know why the                                                                      
state is allowed to bring a criminal action against someone                                                                     
and that citizen must bear the costs if he or she acquitted                                                                     
or the charges are dropped.                                                                                                     
                                                                                                                                
Mr. Wooliver responded that the costs the defendants are                                                                        
bearing are the cost of the services provided by the State.                                                                     
He noted that defendants who hire an attorney have to pay                                                                       
for the services provided by the private council as well.                                                                       
                                                                                                                                
Senator Sean Parnell pointed out that in the case of public                                                                     
defenders, the state brought the charges and the state is                                                                       
charging for defense against those charges. He qualified                                                                        
that in America, citizens pay for services, but argued that                                                                     
citizens are also allowed to recover a portion of attorney                                                                      
fees in civil cases when there is a failure to convict. He                                                                      
wanted to know why this wasn't practiced in criminal cases                                                                      
as well as civil cases.                                                                                                         
                                                                                                                                
Mr. Wooliver replied that the legislature could make a                                                                          
policy decision to not charge those defendants who are not                                                                      
convicted.  He pointed out that the majority of the cases                                                                       
affected by this legislation are not ones where the                                                                             
defendant is brought to trial and found not guilty. Most of                                                                     
these cases, he said, involve deferred prosecutions,                                                                            
failure to meet the 120-day Rule or the State drops the                                                                         
charges for a variety of reasons. However, he emphasized,                                                                       
if the legislature wanted, and if the state could afford                                                                        
it, it could establish a system of charge-backs, where the                                                                      
State would refund attorney fees to defendants not                                                                              
convicted. He noted that the charge-backs would apply to                                                                        
private attorney fees as well as absorbing the costs of                                                                         
public defenders.  However, he stressed that the Court                                                                          
feels that all criminal defendants should pay their                                                                             
attorney fees.                                                                                                                  
                                                                                                                                
Senator Dave Donley reinforced Mr. Wooliver's argument                                                                          
saying there should be no discrimination between rich or                                                                        
poor.  He believed all defendants should pay for the                                                                            
service according to their ability. He also noted there are                                                                     
many reasons why a guilty person is not convicted, citing                                                                       
the 120-day rule, technical reasons, lack of resources to                                                                       
prosecute, inadmissibility of evidence or admissions, etc.                                                                      
It particularly troubled him that judges may appoint                                                                            
counsel regardless of the monetary status of the                                                                                
individual.  Regarding the differences between civil and                                                                        
criminal actions, he pointed out that there are different                                                                       
standards and that the state has a higher burden of proof.                                                                      
He told the Committee that there is a safeguard against                                                                         
wrongful prosecution in existing law so if the State was                                                                        
out of line and did not have grounds to prosecute the                                                                           
defendant could initiate a civil action and recoup defense                                                                      
costs.                                                                                                                          
                                                                                                                                
Senator Dave Donley offered a motion to report from                                                                             
Committee, CSSB 100(FIN). Without objection it was reported                                                                     
out with individual recommendations and accompanying fiscal                                                                     
notes from the Department of Law, $68.9 and the Alaska                                                                          
Court System, zero.                                                                                                             
                                                                                                                                

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