Legislature(1999 - 2000)
03/15/1999 01:44 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.