Legislature(2013 - 2014)BELTZ 105 (TSBldg)

02/19/2014 01:30 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 110 RETURN OF SEIZED PROPERTY TELECONFERENCED
Heard & Held
+= SB 128 ELECTRONIC BULLYING TELECONFERENCED
Heard & Held
+= SCR 2 ACQUIRE TONGASS NATIONAL FOREST LAND TELECONFERENCED
Scheduled But Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
                SB 110-RETURN OF SEIZED PROPERTY                                                                            
                                                                                                                                
1:34:02 PM                                                                                                                    
CHAIR  COGHILL announced  the consideration  of  SB 110."An  Act                                                               
relating to the  authority of the victims' advocate  to request a                                                               
hearing  for  the  release  to   a  crime  victim  under  certain                                                               
conditions  of  certain   property  in  the  custody   of  a  law                                                               
enforcement agency."                                                                                                            
                                                                                                                                
1:34:14 PM                                                                                                                    
SENATOR DYSON  explained that the  bill addresses the  issue that                                                               
property  that is  seized as  evidence of  a crime  often is  not                                                               
returned to the victim after  the case has been adjudicated. This                                                               
is contrary to the goal of  restorative justice, which is to make                                                               
the victim whole.  In 2012 legislation was  passed that expedited                                                               
this process, but  since then he's been asked to  revise a few of                                                               
the details. He deferred to Mr. Kopp to explain the changes.                                                                    
                                                                                                                                
1:36:02 PM                                                                                                                    
CHUCK  KOPP,  Staff,  Senator  Fred Dyson,  sponsor  of  SB  110,                                                               
explained  that in  2012  the  Department of  Law  issued a  memo                                                               
expressing  uncertainty  about  the intent  regarding  who  would                                                               
request,  on behalf  of the  crime victim,  a hearing  before the                                                               
court if  the law  enforcement agency decided  not to  return the                                                               
victim's  seized  property. The  Department  of  Law thought  the                                                               
Office  of Victims'  Rights  (OVR) was  supposed  to request  the                                                               
hearing in  that circumstance. The  Court Rules  Analyst reviewed                                                               
the   committee  testimony   and  concluded   that  it   was  the                                                               
responsibility of  the law enforcement  agency or  the Department                                                               
of  Law to  ask for  the hearing  if the  agency decided  against                                                               
giving the property back to the crime victim.                                                                                   
                                                                                                                                
Everyone agreed  that it  would be  helpful to  amend the  law to                                                               
give the victim  advocate the authority to come  before the court                                                               
and ask  for the  hearing if the  law enforcement  agency doesn't                                                               
act upon the request within the deadline set in statute.                                                                        
                                                                                                                                
MR. KOPP provided the following sectional analysis:                                                                             
                                                                                                                                
     Section  1   amends  AS  12.36.070  by   adding  a  new                                                                    
     subsection (f)  to provide that the  Office of Victims'                                                                    
     Rights may request a hearing  before the court if a law                                                                    
     enforcement agency  fails to  act within 10  days after                                                                    
     receipt  of  a  request  from the  Office  of  Victims'                                                                    
     Rights on behalf of a crime  victim who is the owner of                                                                    
     property to either a) return  the property to the crime                                                                    
     victim  or b)  request a  hearing before  the court  to                                                                    
     determine  if the  property shall  be  released to  the                                                                    
     crime victim.                                                                                                              
                                                                                                                                
     Section 2  amends AS  24.65.115 extending  authority to                                                                    
     the  Office of  Victims'  Rights to  request a  hearing                                                                    
     before the court under AS 12.36.070(f).                                                                                    
                                                                                                                                
MR.  KOPP noted  that the  Court System,  OVR, and  DOL requested                                                               
another  small   amendment  and  the  sponsor   agrees  with  the                                                               
suggestion.                                                                                                                     
                                                                                                                                
1:39:23 PM                                                                                                                    
CHAIR  COGHILL noted  that Anne  Carpeneti, Quinlan  Steiner, and                                                               
Taylor Winston were available to testify.                                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI  recalled the earlier legislation  and asked                                                               
if this issue came up at  the time or was something the committee                                                               
didn't contemplate during the process.                                                                                          
                                                                                                                                
MR.  KOPP replied  it was  a  missed opportunity  in the  initial                                                               
legislation.                                                                                                                    
                                                                                                                                
CHAIR  COGHILL asked  Mr.  Kopp  if he  could  speak  to how  the                                                               
process works once the advocate requests a hearing.                                                                             
                                                                                                                                
MR. KOPP  explained that  the current law  provides that  a crime                                                               
victim may  request through the  Office of Victim's  Rights (OVR)                                                               
the return  of their property  that was seized as  evidence. Once                                                               
OVR determines that the claim is  valid, it files that request on                                                               
behalf of the  crime victim. The law enforcement  agency then has                                                               
10 days  to return the property  or request a hearing  before the                                                               
court  to determine  if the  property should  be released  to the                                                               
crime victim.  The law states  the jurisdiction of the  court and                                                               
establishes  the  burden  of  proof as  a  preponderance  of  the                                                               
evidence  for both  the  crime victim  showing  ownership of  the                                                               
property and  the objecting  party proving  the property  must be                                                               
retained by the  agency. The law further established  that if the                                                               
court decided  to return  the property to  the crime  victim, the                                                               
court  could put  conditions on  the return  of that  property to                                                               
maintain the evidentiary integrity of the property.                                                                             
                                                                                                                                
SB 110 builds  on the original law by giving  the victim advocate                                                               
the authority  to request the hearing  from the court if  the law                                                               
enforcement agency failed to act in the required amount of time.                                                                
                                                                                                                                
1:44:50 PM                                                                                                                    
SENATOR WIELECHOWSKI read AS 12.36.070(a)  and (b) and questioned                                                               
where  the problem  arises. Subsection  (a) provides  a mandatory                                                               
investigation  by OVR  and subsection  (b) says  that, within  10                                                               
days of  the request under  (a) and following  reasonable notice,                                                               
the agency shall request a hearing before the court.                                                                            
                                                                                                                                
ANNE  CARPENETI, Assistant  Attorney General,  Criminal Division,                                                               
Legal Services Section, Department  of Law (DOL), Juneau, Alaska,                                                               
replied  she   wasn't  familiar   with  any  problems   with  the                                                               
procedure,  but  this  is  a  failsafe  because  law  enforcement                                                               
agencies aren't accustomed to requesting  hearings. The Office of                                                               
Victims' Rights has already investigated  the matter, so it makes                                                               
sense  that OVR  also should  have the  authority to  request the                                                               
hearing from the court.                                                                                                         
                                                                                                                                
MR. KOPP added that the intention  of the bill is to clarify that                                                               
"law  enforcement  agency" included  the  Department  of Law  and                                                               
would be  the entity  that would request  the hearing  before the                                                               
court. To Senator Wielechowski's  question, he directed attention                                                               
to the  letter in the packets  from Mr. Winston, the  director of                                                               
the Alaska Office  of Victims' Rights. The  letter identifies the                                                               
problem and states that SB 110 provides a resolution.                                                                           
                                                                                                                                
1:48:45 PM                                                                                                                    
SENATOR WIELECHOWSKI maintained that  the AS 12.36.070(b) already                                                               
requires  the victims'  rights agency  to go  to court  within 10                                                               
days.                                                                                                                           
                                                                                                                                
MS. CARPENETI responded she interprets  the term "agency" to mean                                                               
the  law enforcement  agency that  has custody  of the  property,                                                               
which is  why it's good  to specifically  allow OVR to  request a                                                               
hearing too.                                                                                                                    
                                                                                                                                
SENATOR WIELECHOWSKI  said his interpretation  is that  there's a                                                               
law already on the books and it's not being enforced.                                                                           
                                                                                                                                
MS. CARPENETI agreed there is a  duty set out in statute, but the                                                               
culpable mental  state would probably  be difficult  to establish                                                               
if anybody were to bring a cause of action based on that.                                                                       
                                                                                                                                
1:50:23 PM                                                                                                                    
CHAIR  COGHILL  questioned  whether the  "agency"  referenced  in                                                               
Section 1 of the bill refers to the public safety agency.                                                                       
                                                                                                                                
MS. CARPENETI  replied she  reads it  that way,  but it's  a good                                                               
clarification.                                                                                                                  
                                                                                                                                
MR. KOPP suggested the court speak to the matter.                                                                               
                                                                                                                                
1:51:20 PM                                                                                                                    
NANCY MEADE, General Counsel,  Administrative Staff, Alaska Court                                                               
System, Anchorage,  Alaska, agreed  with previous  testimony that                                                               
the issue in the bill is  that it requires the agency holding the                                                               
seized property  to file  a request for  a hearing,  and agencies                                                               
aren't equipped to  do that. The clarification in SB  110 is that                                                               
it  gives somebody  with  expertise standing  to  go enforce  the                                                               
intent  of  the legislation  that  [passed  in 2012].  The  court                                                               
believes this clarifies the process.                                                                                            
                                                                                                                                
CHAIR COGHILL asked if the  current statute was unworkable and in                                                               
need  of modification  or if  the  exception provided  in SB  110                                                               
addresses the problem.                                                                                                          
                                                                                                                                
MS. MEADE  said she  didn't have  a position  on what  the better                                                               
practice would  be but  the bill would  address the  problem. She                                                               
continued to  say that the court  has a form on  its website that                                                               
agencies can  use to file a  request for a hearing,  and the fact                                                               
that it hasn't been  used much in the last two  years might be an                                                               
indication  that the  agencies aren't  equipped to  do that.  The                                                               
court's perspective is  that leaving the provision  in statute is                                                               
streamlined, and  it would work  to add the victims'  advocate as                                                               
an alternative.                                                                                                                 
                                                                                                                                
SENATOR WIELECHOWSKI continued to point  out that this is already                                                               
a statutory  mandate and the  agencies aren't following  the law.                                                               
He expressed concern  about creating an exemption  as proposed by                                                               
the bill, and  suggested that one alternative would  be to impose                                                               
a fine on the agency if it doesn't comply.                                                                                      
                                                                                                                                
MR. KOPP  said there was this  discussion two years ago,  and the                                                               
definition of "law enforcement agency"  is found in paragraph (2)                                                               
of Sec.  12.36.090. He paraphrased  the following  definition and                                                               
stated that  the primary  role of  the Department  of Law  is the                                                               
enforcement of the criminal law. He  said DOL is part of that law                                                               
enforcement agency  and there  was never a  discussion in  any of                                                               
the committee hearings that DOL  would be the legal entity asking                                                               
for the hearing.                                                                                                                
                                                                                                                                
        (2) "law enforcement agency" means a public agency                                                                      
     that  performs as  one of  its  principal functions  an                                                                    
     activity  relating  to  crime prevention,  control,  or                                                                    
     reduction  or  relating  to   the  enforcement  of  the                                                                    
     criminal  law;   "law  enforcement  agency"   does  not                                                                    
     include a court.                                                                                                           
                                                                                                                                
MS. MEADE clarified that she  didn't know if agencies have fallen                                                               
down on their  duty or if agencies haven't asked  for hearings in                                                               
courts because no citizens have  taken advantage of this statute.                                                               
She also  clarified that  her reading  of the  statute is  that a                                                               
victim would not  need to appear and be involved  in the hearing;                                                               
the victim's advocate would represent the victim.                                                                               
                                                                                                                                
CHAIR COGHILL  asked if  the Department  of Law  would reasonably                                                               
know that  an application  for the return  of property  should be                                                               
made.                                                                                                                           
                                                                                                                                
MR. KOPP  replied the practice of  any police agency would  be to                                                               
discuss  with  the  prosecuting   attorney  whether  or  not  the                                                               
property can  be released.  Once the  prosecutor knows  a request                                                               
has been  made, there is  a deadline to  act on that  request. If                                                               
the prosecutor knows  that they cannot release  the property, and                                                               
they cannot come  to some agreement with the  party interested in                                                               
the property within the 10-day  period, that agency would request                                                               
it before the  court. They would be the legal  entity and the law                                                               
enforcement agency  requesting. All police departments  have that                                                               
relationship with the Department of  Law when it comes to turning                                                               
over property in a pending criminal case because it's evidence.                                                                 
                                                                                                                                
CHAIR COGHILL asked  if he'd given any thought  to clarifying the                                                               
shared  responsibility   between  the   police  agency   and  the                                                               
Department  of Law  and the  right  of the  victim's advocate  to                                                               
appeal.                                                                                                                         
                                                                                                                                
MR. KOPP replied  the court reviewed the  committee testimony [on                                                               
Senate Bill  30] and issued  a memo that  is in the  packets. The                                                               
conclusion  was  that  the  record   is  clear;  it  is  the  law                                                               
enforcement  agency that  is  supposed to  ask  for the  hearing.                                                               
However, this  amendment is needed because  the victims' advocate                                                               
has said this is a problem.                                                                                                     
                                                                                                                                
CHAIR COGHILL  said he'd like  to hear  from a police  agency and                                                               
the victims' rights advocate.                                                                                                   
                                                                                                                                
2:01:23 PM                                                                                                                    
DAISY MAY  BARRARA, representing herself, Bethel,  Alaska, stated                                                               
support for SB 110. She related  that some people living in rural                                                               
areas don't know  that by statute their property  that was seized                                                               
as evidence shall  and will be returned. She also  said she fully                                                               
supports the Office of Victims'  Rights being given the authority                                                               
to intercede on  behalf of an individual for  two reasons: first,                                                               
victims in  the rural area often  are not fluent in  English; and                                                               
second, the  victim's advocate knows and  understands the process                                                               
and  it will  be  more likely  that the  victim  will have  their                                                               
belongings returned.                                                                                                            
                                                                                                                                
2:06:01 PM                                                                                                                    
At ease                                                                                                                         
                                                                                                                                
2:06:08 PM                                                                                                                    
CHAIR COGHILL reconvened the hearing.                                                                                           
                                                                                                                                
2:08:42 PM                                                                                                                    
TAYLOR  WINSTON, Executive  Director, Office  of Victims'  Rights                                                               
(OVR), explained that  she asked the sponsor to  introduce SB 110                                                               
because OVR because of the  confusion about the term "agency" and                                                               
whether it  referred to  OVR or the  law enforcement  agency. The                                                               
court did an  analysis and their interpretation was  that, in the                                                               
statute, the term  "agency" meant the law  enforcement. The court                                                               
did develop  a form  that any  law enforcement  agency throughout                                                               
the  state  could use  to  request  a  hearing, but  the  statute                                                               
doesn't allow  any opportunity for  recourse if the  agency fails                                                               
to act. That's been a problem.                                                                                                  
                                                                                                                                
The Office of  Victims' Rights has found that  victims are unable                                                               
to  get any  further going  through OVR  than a  request for  the                                                               
information.  She  described  a  particular case  that  has  been                                                               
pending  for  eight  months.  The statute  says  "shall"  but  it                                                               
doesn't  mean  much when  the  agency  -  whether it's  a  police                                                               
department or the  DOL - makes a decision that  it isn't going to                                                               
file for  a hearing, she said  Currently, OVR isn't able  to file                                                               
anything with  the court  to move the  process along,  and nobody                                                               
really  knows when  the law  enforcement agency  fails to  comply                                                               
with  the law,  because  there isn't  any  court oversight  until                                                               
there's been a request or a filing.                                                                                             
                                                                                                                                
MS. WINSTON said that SB 110  provides a mechanism for the Office                                                               
of  Victims' Rights  to file  a request  for a  hearing with  the                                                               
court  if the  law enforcement  agency or  the Department  of Law                                                               
fails to  do so. Then  the court  can determine what  will happen                                                               
with the evidence.                                                                                                              
                                                                                                                                
2:13:47 PM                                                                                                                    
CHAIR COGHILL asked, according to the  court rule, if the cost of                                                               
getting the property back is borne  by the agency alone or shared                                                               
by the victim advocate, if they're involved.                                                                                    
                                                                                                                                
MS. WINSTON  explained that  what OVR undertakes  on behalf  of a                                                               
victim is a  free service. She didn't know what  the court may or                                                               
may not charge, but if the court  were to charge a filing fee her                                                               
assumption is that OVR would assume that cost.                                                                                  
                                                                                                                                
SENATOR WIELECHOWSKI asked how many  requests for assistance have                                                               
been made to OVR under this statute.                                                                                            
                                                                                                                                
MS. WINSTON answered four.                                                                                                      
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if OVR  has sufficient  resources if                                                               
this bill were to pass.                                                                                                         
                                                                                                                                
MS. WINSTON answered yes.                                                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI  suggested that OVR  hire an attorney  to do                                                               
the first couple of filings and  track the charges, and then make                                                               
a request  if the agency doesn't  comply with the law.  That will                                                               
send  a message  to agencies  statewide that  they should  comply                                                               
with the law, he said.                                                                                                          
                                                                                                                                
CHAIR COGHILL noted that the sponsor had an amendment.                                                                          
                                                                                                                                
2:18:51 PM                                                                                                                    
MR. KOPP  explained that  the court  approached the  sponsor with                                                               
suggested  language that  has been  approved by  OVR and  DOL. It                                                               
adds  qualifying language  to subsection  (f) in  Section 1  that                                                               
states:                                                                                                                         
                                                                                                                                
     If the  victims' advocate requests  a hearing  from the                                                                    
     court  under this  subsection, the  victims' advocate's                                                                    
     appearance in the hearing is  limited to advocating for                                                                    
     the victim  only for  the return  of the  property; the                                                                    
     victims' advocate would not be  deemed an intervenor or                                                                    
     party  for any  other purpose  absent further  order of                                                                    
     the court.                                                                                                                 
                                                                                                                                
CHAIR  COGHILL  suggested  the sponsor  bring  the  amendment  on                                                               
Friday.                                                                                                                         
                                                                                                                                
SENATOR  DYSON  said he'd  distribute  the  amendment before  the                                                               
hearing.                                                                                                                        
                                                                                                                                
2:21:14 PM                                                                                                                    
CHAIR COGHILL  announced he  would hold SB  110 in  committee for                                                               
further consideration. Public testimony remained open.                                                                          

Document Name Date/Time Subjects
SB 128 Sponsor Statement.pdf SJUD 2/19/2014 1:30:00 PM
SB 128
SB 128 Cyberbullying Fact Sheet.pdf SJUD 2/19/2014 1:30:00 PM
SB 128
SB 128 Letter of Support Briscoe.pdf SJUD 2/19/2014 1:30:00 PM
SB 128
SB 128 Louisian HB 1259.pdf SJUD 2/19/2014 1:30:00 PM
HB1259
SB 128
Letter of Support - NFIB.PDF SJUD 2/19/2014 1:30:00 PM
SB 110
Letter of Support - Office of Victims' Rights.pdf SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110 Court System Memo - June 2012.pdf SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110 Dept of Law Report - March 2013.PDF SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110 Section Analysis.pdf SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110 Sponsor Statement.pdf SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110-LAW-CRIM-02-14-14.pdf SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110-DOA-OPA-02-14-14.pdf SJUD 2/19/2014 1:30:00 PM
SB 110
SB 110-DOA-PDA-02-14-14.pdf SJUD 2/19/2014 1:30:00 PM
SB 110