Legislature(1999 - 2000)

03/15/1999 01:44 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
            SB 100-REIMBURSEMENT FOR PUBLIC DEFENDER                                                                            
                                                                                                                                
SENATOR DONLEY said he was excited to see this legislation                                                                      
introduced. In 1995, he drafted a related measure in an attempt to                                                              
hold down the costs associated with the Public Defender Agency.                                                                 
                                                                                                                                
SENATOR DONLEY said one of the reasons Public Defender costs are                                                                
high in Alaska is the statutory requirement that a person being                                                                 
represented by the Public Defender should be provided with the same                                                             
level of representation as a person independently retaining an                                                                  
attorney. SENATOR DONLEY's proposal deleted that provision and                                                                  
mandated that Public Defenders would be provided "at the level and                                                              
to the extent required under the United States Constitution and the                                                             
Constitution of the State of Alaska."                                                                                           
                                                                                                                                
Number 099                                                                                                                      
                                                                                                                                
MR. DOUG WOOLIVER, representing the Alaska Court System, thanked                                                                
the committee for introducing the bill that requires all criminal                                                               
defendants to pay a portion of the state-funded representation they                                                             
receive. Currently, only those convicted of crimes are required to                                                              
repay this cost; SB 100 would expand the payment requirement to all                                                             
people who receive state-funded representation. This change was                                                                 
suggested by an audit conducted by Legislative Budget and Audit.                                                                
                                                                                                                                
MR. WOOLIVER said this bill treats indigents more like non-                                                                     
indigents. According to a schedule set out in statute, indigents                                                                
pay only a portion of the actual cost associated with their                                                                     
representation. In cases of economic hardship, the court can defer                                                              
or remit these costs and, therefore, the bill will not drive                                                                    
indigent people further into poverty. The bill would make those who                                                             
can, pay a portion of their costs.                                                                                              
                                                                                                                                
Number 155                                                                                                                      
                                                                                                                                
SENATOR TORGERSON asked if the court takes into account the                                                                     
Permanent Fund Dividend (PFD). MR. WOOLIVER replied it does, and                                                                
can even order defendants to apply for a PFD.                                                                                   
                                                                                                                                
SENATOR TORGERSON asked what happens if a person fails to apply for                                                             
their PFD even after a court order. MR. WOOLIVER replied the person                                                             
is held in contempt of court.                                                                                                   
                                                                                                                                
SENATOR HALFORD asked why the bill allows a judge to stay                                                                       
enforcement of a (monetary) judgement during the appellate process.                                                             
CHAIRMAN TAYLOR replied this law probably was already in place,                                                                 
along with the requirement that only those persons convicted had to                                                             
pay part of their costs. He no longer sees a reason to have this in                                                             
the bill. MR. WOOLIVER agreed.                                                                                                  
                                                                                                                                
Number 215                                                                                                                      
                                                                                                                                
SENATOR HALFORD moved as Amendment #1 to delete the sentence on                                                                 
line 7 that reads:                                                                                                              
     "Enforcement of a judgement under this subsection may be                                                                   
     stayed by the trial court or the appellate court during                                                                    
     the pendency of an appeal of the person's conviction."                                                                     
                                                                                                                                
Without objection, Amendment #1 passed.                                                                                         
                                                                                                                                
SENATOR DONLEY asked MR. WOOLIVER how often the court fails to                                                                  
enter a judgement against people who use Public Defender services.                                                              
MR. WOOLIVER was not sure. SENATOR DONLEY said he would like a                                                                  
judgement entered in every case. If a person can show economic                                                                  
hardship, the court could then reduce or stay the judgement.                                                                    
                                                                                                                                
Number 242                                                                                                                      
                                                                                                                                
SENATOR DONLEY moved as Amendment #2 to replace the word "may" on                                                               
page 1, line 5 with the word "shall." Without objection, Amendment                                                              
                                                                                                                                
MR. WOOLIVER said he thinks the discretion offered by the word                                                                  
"may" is not commonly exercised. SENATOR DONLEY remarked that was                                                               
good, and this change makes the statute more consistent with the                                                                
court rule.                                                                                                                     
                                                                                                                                
MS. DIANE WENDLANDT, supervisor of the collections unit of the                                                                  
Department of Law, commented on the fiscal aspect of the bill. She                                                              
answered SENATOR DONLEY's earlier question by testifying that                                                                   
judgements are ordered in approximately 51% of convicted cases. The                                                             
fiscal note is based on fees assessed on an additional 2,300 cases                                                              
and equals approximately $224,000 in revenue. However, under SB
100, the waiver rate for judgements may increase. The cost to                                                                   
implement the bill is estimated at $26,000. She said her office                                                                 
also deals with remands (refunds), when they are ordered by the                                                                 
court.                                                                                                                          
                                                                                                                                
CHAIRMAN TAYLOR asked why the court would ever refund money under                                                               
the new form of the bill that requires payment from all. MS.                                                                    
WENDLANDT replied the court sometimes refunds money taken from a                                                                
PFD and, "We're in a position where we do what the court tells us                                                               
. . . "                                                                                                                         
                                                                                                                                
SENATOR HALFORD suggested the committee make that provision more                                                                
clear. CHAIRMAN TAYLOR remarked, "They've already got the entire                                                                
exemption statute . . . you have to have someone earning $38,000 or                                                             
40-some-thousand a year before you can execute on them . . . "                                                                  
                                                                                                                                
Number 342                                                                                                                      
                                                                                                                                
SENATOR TORGERSON suggested changing the word "shall," on page 1,                                                               
line 9 and line 11, to "may." He moved this change as Amendment #3.                                                             
Without objection, Amendment #3 was adopted.                                                                                    
                                                                                                                                
SENATOR TORGERSON asked if this would require a court rule change.                                                              
MR. WOOLIVER said the court rules applicable to this provision are                                                              
substantive, not procedural, and only reflect the statute.                                                                      
                                                                                                                                
Number 398                                                                                                                      
SENATOR HALFORD suggested strengthening the wording in line 13. As                                                              
Amendment #4, he moved to insert the word "only" to page 1, line                                                                
13, before the phrase "the unpaid portion . . . " Without                                                                       
objection, Amendment #4 was adopted.                                                                                            
                                                                                                                                
CHAIRMAN TAYLOR moved Amendment #5: place a period at the word                                                                  
"judgement" on page 1, line 13, and delete through the phrase                                                                   
"immediate family" on page 2, line 1. Without objection, Amendment                                                              
                                                                                                                                
Number 420                                                                                                                      
                                                                                                                                
SENATOR DONLEY explained an old piece of legislation he had drafted                                                             
in 1995 that eliminates the current standard of providing a public                                                              
defender "to the same extent as a person retaining an attorney is                                                               
entitled." He said this standard has been used in cases to provide                                                              
multiple public defenders for one individual. This amendment would                                                              
eliminate that language in the current law and replace it with a                                                                
standard requiring "what is required by the U.S. Constitution and                                                               
the State Constitution." He moved as Amendment #6 the incorporation                                                             
of his old legislation, marked 9-LS1072\A, into SB 100 to achieve                                                               
that goal. He noted the change may require the use of the more                                                                  
general title of the old legislation. Without objection, Amendment                                                              
                                                                                                                                
SENATOR HALFORD commented that he is aware of a judge in one                                                                    
community who appoints counsel for people because there is no                                                                   
private attorney in town. He wondered if this could be "cured" in                                                               
this bill. SENATOR DONLEY predicted there might never be private                                                                
counsel in this community since people are being represented for                                                                
free. CHAIRMAN TAYLOR said the question is really the definition of                                                             
the word "indigent." He thought, depending on the magnitude of the                                                              
case, most people could be considered indigent. SENATOR HALFORD                                                                 
added that even a certain Anchorage developer with a tremendous                                                                 
cash flow could prove he was indigent.                                                                                          
                                                                                                                                
Number 465                                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR announced a committee substitute for SB 100 would                                                               
be before the committee Wednesday. SENATOR HALFORD said he would                                                                
appreciate any refinement of the definition of indigent possible.                                                               
                                                                                                                                
MR. WOOLIVER noted that the court has just adopted several changes                                                              
regarding the indigence standard, suggested in the recent                                                                       
Legislative Budget and Audit review. He suggested the committee                                                                 
look at those changes that attempt to standardize the appointment                                                               
of public defenders.                                                                                                            
                                                                                                                                
MR. WOOLIVER explained that if a person is found not to be                                                                      
indigent, they can either drop the public defender or retain them                                                               
at full price (not the Rule 39 schedule fee).                                                                                   
                                                                                                                                
Number 490                                                                                                                      
                                                                                                                                
SENATOR TORGERSON asked who sets and adjusts the fees under Rule 39                                                             
and if the fees include an area cost differential. MR. WOOLIVER                                                                 
replied it is currently a flat rate and he is not certain when it                                                               
was last adjusted. He stated he would inform the committee after                                                                
researching the question.                                                                                                       

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