Legislature(1999 - 2000)
02/09/2000 01:20 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 9, 2000
1:20 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
Representative Norman Rokeberg
COMMITTEE CALENDAR
HOUSE BILL NO. 318
"An Act relating to property disposal by law enforcement agencies."
- HEARD AND HELD
HOUSE BILL NO. 288
"An Act relating to the creation of an aggravating factor for the
commission of domestic violence in the physical presence of a
child."
- MOVED CSHB 288(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 259
"An Act relating to a parent's eligibility to be represented by the
public defender before and during the probable cause and temporary
placement hearing that is held after the state takes emergency
custody of a child."
- MOVED CSHB 259(JUD) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 318
SHORT TITLE: RETURN FOUND PROPERTY TO FINDER
Jrn-Date Jrn-Page Action
1/26/00 2006 (H) READ THE FIRST TIME - REFERRALS
1/26/00 2007 (H) JUD, FIN
1/26/00 2007 (H) REFERRED TO JUDICIARY
1/31/00 2049 (H) COSPONSOR(S): DYSON
2/09/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 288
SHORT TITLE: CHILDREN WITNESSING DOMESTIC VIOLENCE
Jrn-Date Jrn-Page Action
1/14/00 1923 (H) READ THE FIRST TIME - REFERRALS
1/14/00 1923 (H) HES, JUD
2/01/00 (H) HES AT 3:00 PM CAPITOL 106
2/01/00 (H) Moved Out of Committee
2/02/00 2076 (H) COSPONSOR(S): DYSON, GREEN
2/04/00 2088 (H) HES RPT 4DP 1NR
2/04/00 2089 (H) DP: DYSON, COGHILL, WHITAKER, BRICE;
2/04/00 2089 (H) NR: KEMPLEN
2/04/00 2089 (H) FISCAL NOTE (COR)
2/04/00 2089 (H) INDETERMINATE FISCAL NOTE (ADM)
2/04/00 2089 (H) 2 ZERO FISCAL NOTES (DPS, LAW)
2/04/00 2102 (H) FIN REFERRAL ADDED AFTER JUD
2/04/00 2104 (H) COSPONSOR(S): COGHILL
2/09/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 259
SHORT TITLE: PUBLIC DEFENDER CHILDREN'S PROCEEDINGS
Jrn-Date Jrn-Page Action
1/10/00 1887 (H) PREFILE RELEASED 12/30/99
1/10/00 1887 (H) READ THE FIRST TIME - REFERRALS
1/10/00 1887 (H) STA, JUD, FIN
1/25/00 (H) STA AT 8:00 AM CAPITOL 102
1/25/00 (H) Moved CSHB 259(STA) Out of Committee
1/25/00 (H) MINUTE(STA)
1/27/00 (H) STA AT 8:00 AM CAPITOL 102
1/27/00 (H) Moved CSHB 259(STA) Out of Committee
1/27/00 (H) MINUTE(STA)
1/28/00 2026 (H) STA RPT CS(STA) 5DP 1NR 1AM
1/28/00 2027 (H) DP: JAMES, GREEN, HUDSON, WHITAKER,
1/28/00 2027 (H) OGAN; NR: KERTTULA; AM: SMALLEY
1/28/00 2027 (H) ZERO FISCAL NOTE (ADM)
2/04/00 (H) JUD AT 1:00 PM CAPITOL 120
2/04/00 (H) -- Meeting Canceled --
2/09/00 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE CON BUNDE
Alaska State Legislature
Capitol Building, Room 501
Juneau, Alaska 99801
Telephone: (907) 465-4843
POSITION STATEMENT: Testified as sponsor of HB 318.
KAREN McCARTHY, Legislative Assistant
to Representative Bunde
Alaska State Legislature
Capitol Building, Room 501
Juneau, Alaska 99801
POSITION STATEMENT: Answered questions on HB 318.
DEL SMITH, Deputy Commissioner
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Testified on HB 318, Version D.
DAVID HUDSON, Lieutenant
Division of Alaska State Troopers
Department of Public Safety
5700 East Tudor Road
Anchorage, Alaska 99507-1225
POSITION STATEMENT: Testified on HB 318, Version D; testified in
support of HB 288.
LARRY MEYERS, Director
Income and Excise Audit Division
Department of Revenue
P.O. Box 110420
Juneau, Alaska 99811-0420
POSITION STATEMENT: Testified on HB 318, Version D.
GERALD LUCKHAUPT, Legislative Counsel
Legislative Affairs Agency
Division of Legislative Legal and Research Services
Terry Miller Legislative Office Building
129 Sixth Street, Room 329
Juneau, Alaska 99801-1182
POSITION STATEMENT: As drafter, answered questions on HB 318,
Version D.
DENISE HENDERSON, Staff
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: Presented HB 288 on behalf of sponsor.
DR. ARTHUR HANSEN, Dentist
Chairman, PANDA Coalition for the Dental Society
1329 McGrath Road
Fairbanks, Alaska 99712
POSITION STATEMENT: Testified in favor of HB 288 and the proposed
amendment.
PATTY KALLANDER, Member on the Board of Directors and Volunteer
Cordova Family Research Center
P.O. Box 2272
Cordova, Alaska 99574
POSITION STATEMENT: Testified in support of HB 288 and the
proposed amendment.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
POSITION STATEMENT: Answered questions relating to HB 288.
REPRESENTATIVE JOHN COGHILL
Alaska State Legislature
Capitol Building, Room 204
Juneau, Alaska 99801
POSITION STATEMENT: Testified as the sponsor of HB 259.
HARRY NIEHAUS
P.O. Box 55455
North Pole, Alaska 99705
POSITION STATEMENT: Testified on behalf of the Guardians of Family
Rights in support of HB 259.
MARCI SCHMIDT
(Address not provided)
POSITION STATEMENT: Testified in support of HB 259.
BLAIR McCUNE, Deputy Director
Public Defender Agency
Department of Administration
900 West 5th Avenue, Number 200
Anchorage, Alaska 99501-2090
POSITION STATEMENT: Testified on HB 259 on behalf of the Public
Defender Agency.
ACTION NARRATIVE
TAPE 00-11, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:20 p.m. Members present at the call to order
were Representatives Kott, Green, Rokeberg, Murkowski and Kerttula.
Representatives James and Croft arrived as the meeting was in
progress.
CHAIRMAN KOTT engaged the committee members in a discussion
regarding the possibility of taking a field trip to Arizona to
visit the prison facility.
HB 318-RETURN FOUND PROPERTY TO FINDER
CHAIRMAN KOTT announced the next order of business would be HOUSE
BILL NO. 318, "An Act relating to property disposal by law
enforcement agencies."
Number 0290
REPRESENTATIVE CON BUNDE, Alaska State Legislature, came forward to
testify as the sponsor of HB 318. He said this bill codifies
common sense. He explained that a constituent had found a gun,
turned it in to authorities, then requested that he be given the
gun in the event it was not claimed. He indicated Chairman Kott
had played a major part in drafting previous legislation that said
law enforcement authorities cannot give a gun to someone but must
sell it to a licensed dealer who then resells the gun.
Representative Bunde used a firearm as an example, but pointed out
that this applies to any unclaimed property. The State of Alaska
does not have a procedure for returning found property to the
finder if it is unclaimed, he said. It would be lawful to own that
property.
REPRESENTATIVE BUNDE advised members that the bill encourages
finders to do the responsible thing by turning property in to law
enforcement. If the property has not been used in a crime, isn't
needed for evidence, and is deemed lawful to own after a period of
one year, the finder is able to claim the property. He noted that
representatives of the Department of Public Safety (DPS) who were
involved in solving the initial problem had brought this issue to
the forefront.
Number 0520
CHAIRMAN KOTT said he believes there is a property disposal
division in the state now, although he isn't sure what they do with
property that is stolen or turned into the state; nor is he sure
how it is disposed of or whether there is any revenue generated.
He wondered what would happen if a large-screen television were
turned in to the state, for example.
REPRESENTATIVE BUNDE said he isn't sure. He pointed out that if it
occurs within a municipality, this law would not apply.
Number 0593
KAREN McCARTHY, Legislative Assistant to Representative Con Bunde,
Alaska State Legislature, indicated Larry Persily, Deputy
Commissioner, Department of Revenue (DOR), had informed her that
this bill would not impact the DOR at all.
CHAIRMAN KOTT asked if the bill extinguishes the rights of the true
owner of the property after one year.
REPRESENTATIVE BUNDE said he would defer to the DPS. He then
suggested that if the property is held for one year and no criminal
action is filed, there is no way for the state to hold the person
harmless. If an incredibly valuable item is returned to the
finder, and if the original owner files a criminal action, it seems
to him this would become a civil claim.
REPRESENTATIVE GREEN said he doesn't believe this bill addresses
the issue if the finder obtains the item illegally.
Number 0680
REPRESENTATIVE BUNDE stated that if property is taken from someone
illegally, it cannot be legally owned.
REPRESENTATIVE GREEN speculated that this may be enough to protect
someone.
REPRESENTATIVE CROFT said it seems firearms are treated
differently. He referred to an unspecified document, then listed
three options for dealing with firearms: declare the weapon as
surplus and give it to the Department of Administration (DOA); use
it with the DPS; or destroy it, if it is determined unsafe. He
wondered whether this provision encompasses the firearm example.
REPRESENTATIVE BUNDE said that is the intent. He believes the
difference is that it would be property claimed by the finder. In
contrast, he thinks Representative Croft is addressing unclaimed
property. He added, "And remember that bill was modified, that
there's a further step of disposal, and that has to be sold to a
licensed dealer."
CHAIRMAN KOTT interjected, "I think that's fairly accurate, having
been the sponsor of that piece of legislation."
Number 0849
REPRESENTATIVE BUNDE brought attention to the proposed committee
substitute (CS) for HB 318, Version D (1-LS1294\D, Luckhaupt,
2/8/00). In response to the chairman's request, he addressed the
changes in Version D. He referred to page 1, lines 8 and 9, and
noted the change from two years to one year, which makes it
consistent with other statutes. On page 2, lines 3 through 6, is
an inclusion which allows law enforcement to continue to dispose of
property. He suggested this might address Representative Croft's
previous concern.
Number 0900
REPRESENTATIVE GREEN made a motion to adopt Version D of HB 318 (1-
LS1294\D, Luckhaupt, 2/8/00) as a work draft. There being no
objection, Version D was before the committee.
REPRESENTATIVE MURKOWSKI wondered what the rationale is for
changing from two years to one year. She said she assumes this is
okay with the DPS.
REPRESENTATIVE BUNDE deferred to Del Smith, Deputy Commissioner,
Department of Public Safety.
Number 0960
DEL SMITH, Deputy Commissioner, Department of Public Safety (DPS),
came forward, noting that Lieutenant David Hudson from Fairbanks
was online to answer questions. He discussed the incident
Representative Bunde had mentioned. Someone had found a weapon and
turned it in to the Alaska State Troopers. Six months later, the
person wrote the agency asking whether he could have the weapon
back if no one had claimed it. Initially, a letter was sent to the
person saying no; the DPS was relying on AS 12.36.040 in doing
that. Mr. Smith paraphrased a portion of the statute, which reads:
... the property shall be held for two years. If the
property is not claimed within two years of the date it
comes into the possession of a law enforcement agency,
the property shall be disposed of as provided in AS
12.36.030(b).
MR. SMITH explained that he was being particular sensitive, not
wanting to violate what the legislature had intended about
firearms. When the matter came to his attention again, he reviewed
it and concurred with his earlier decision. However, the more he
thought about it - with the gun languishing 16 months in the
evidence locker of the Alaska State Troopers - the more he
questioned it. That particular weapon they had traced back to
1971, to the Caribou Wards store in Mountainview, which no longer
exists. It was a BATF [Bureau of Alcohol, Tobacco and Firearms]
trace, with no report of its ever being stolen or purchased by a
private individual. There was absolutely no record available
regarding it.
MR. SMITH explained the dilemma. He'd figured it was unclaimed.
However, a gentleman had found it, brought it to the DPS, and was
now claiming it. Mr. Smith said he therefore took what he presumed
to be a common-sense approach. About a month ago, he'd directed
the gun's release to this gentleman under the theory that it was
claimed by him, the DPS could find nobody else, and it made little
sense for the state to continue to hold it. Mr. Smith referred to
a letter sent by the troopers; he said in looking at the statutes,
it seemed clear to them that they couldn't give the gun back to the
claimant. Mr. Smith added, "And I told the sponsor it didn't seem
very clear to me at all when I looked at it." He proposed that it
be clarified a little. He would object to long-term storage of
found property and evidence in police lockers, he pointed out,
because the process is cumbersome and it is difficult to store
items. Although the DPS would like to move stored items along as
fast as reasonably prudent, he doesn't know whether it should be
one or two years, or even three; he suggested that is a call for
the legislature.
MR. SMITH said, regarding an original owner making a claim after
the DPS gets rid of property, that he suspects that could have
happened under current law if a person had come in two years after
the fact. Responding to a scenario posed by Chairman Kott, he said
he finds it pretty doubtful that people would burgle a safe, bring
those items to the police department, report that they had found
them, and try to in some way launder through the found property
system to get clearer title to it. He added, "It could be that you
had already reported it to the police department, which would make
it problematic when they showed up. And certainly, if we found out
that they had come about it in another way, unless the statute of
limitations had run on that particular crime, we certainly could
prosecute."
Number 1215
REPRESENTATIVE GREEN referred to Mr. Smith's firearm example and
asked how it would be handled. For example, is an "all points
bulletin" issued? Or is the department sophisticated enough to
hold property as evidence and keep it until one year after the
final adjudication of the case?
MR. SMITH responded that he hopes the DPS is sophisticated enough.
In the Alaska Public Safety Information Network (APSIN), "locates"
can be placed on particular items. In his example, the firearm was
run through APSIN by serial number and description.
Number 1315
CHAIRMAN KOTT posed a different example:
A couple of kids are out Friday night looking for some
alcoholic beverage, so they break into somebody's house.
And while they're in there, unbeknownst to them, they
come across a Rolex watch ... They take it, not knowing
the value of it. They depart, and during the departure,
the silent alarm goes off, and the police are responding,
so they throw the watch on the lawn and just continue
walking. They're not caught with any goods. A couple
days later, the guy that's the owner of the house in
which the watch was thrown onto his lawn ... finds the
watch. He turns it in, and after a year, I guess, he
would get it back. But let's say there is a number of
those burglaries that are occurring, and you're able to
tie those two kids into the whole scheme of things. What
is the remedy for the department to then go out and
acquire that watch as evidence, being, now, that it is,
I suppose, the rightful owner's hands, based on the law
as it would currently be written?
Number 1380
MR. SMITH asked if Chairman Kott was referring to charging the kids
with burglary after the year has passed.
CHAIRMAN KOTT responded:
Let's say the investigation goes on for a year and a
half. And finally you're able to tie ... those kids to
the burglaries that are occurring, and they admit, "Yeah,
I stole a watch at this house; it was a Rolex." Somebody
else found it. They turned it in after a year. They got
it back. The rightful owner here - me - let's say I want
my watch back, but it's two years later down the road.
What remedy do I have? And what remedy do you have to
acquire that watch as evidence in your prosecution?
MR. SMITH said he would go to the individual who turned it in,
subpoena the person to whatever litigation was involved, and try to
prosecute the kids. The watch would be needed as evidence. There
are many different approaches, he said. It would muddy up who
ultimately gets the watch - the person who lost it originally or
the person who found it. He suspects the court would provide some
direction, he said. He is not sure it is a decision that law
enforcement should be making.
Number 1448
REPRESENTATIVE CROFT agreed that it is a confusing set of statutes.
He again voiced concern about giving a clear direction on the
firearm example. He pointed out that AS 12.36.060 says "a deadly
weapon shall be disposed of by the commissioner of [Public] Safety
under this section." He said he doesn't see how authority is given
under that specific section. He suggested there would be a general
unclaimed property provision and then a very specific section on
firearms, which would say that a firearm shall be disposed of in
one of three ways: make the weapon surplus; give the weapon to
DPS; or destroy the weapon. He asked whether a cross-reference is
needed.
MR. SMITH indicated that issue had occurred to him. As stated
previously, he was hypersensitive to the gun issue. He believes
the sections Representative Croft mentioned refer to forfeiture.
The firearm is forfeited and becomes the property of state. In
this particular circumstance, however, the gun was found property,
not forfeited. He sees a difference between found property and
that which is forfeited.
Number 1604
REPRESENTATIVE CROFT said he'd thought a deadly weapon was being
referred to, but he noted that the section states "a deadly weapon
other than a firearm forfeited to the state under". He said he'd
perhaps ask Tamara Cook or the drafter for an opinion. He then
said he'd like to have it clean so that it applies, and it seems to
apply to everything but firearms cleanly in this bill. He would
like to ensure that the reference is correct on firearms, he
concluded.
CHAIRMAN KOTT indicated that would be fairly simple to do.
Number 1671
REPRESENTATIVE GREEN asked if it has been Mr. Smith's experience
that people readily turn in items other than firearms, such as
coins and jewelry. He wondered if people turn in these items
because they think they will ultimately get title to them.
MR. SMITH pointed out a recent Juneau incident involving a man who
found $25,000-plus in cash and turned it in. He thinks there is a
chance people might not turn items in, but it has been his
experience that people do turn in items.
REPRESENTATIVE GREEN wondered about an inoperative antique gun that
is valuable, for instance. He asked if it would be handled
according to the provisions outlined for firearms.
MR. SMITH stated his belief that there was an exception relative to
antique firearms when this issue was considered a couple of years
ago. Whether or not the gun is inoperative, the department
considers the safety of the firearm. He noted that if the gun is
deemed valuable, it would not be destroyed because it offers some
value to the state.
Number 1787
DAVID HUDSON, Lieutenant, Division of Alaska State Troopers,
Department of Public Safety, testified via teleconference from
Fairbanks. He expressed his belief that the bill has a positive
intent of making citizens honest in the sense that if they find
property and recognize that it might be of value to someone else,
they would turn it into law enforcement. One concern, as pointed
out by DPS Deputy Commissioner Smith, is with evidence and holding
facilities across the state, and the amount of property in those at
any one time. Lieutenant Hudson said he hadn't seen the proposed
CS. However, if he understands correctly, they are looking at
possibly changing AS 12.36.040 to also read "one year."
LIEUTENANT HUDSON told members that from his experience, when
dealing with burglaries, thefts and other issues, several things
come up. One is the recovery of property that was probably stolen
in a crime. Although the state may prosecute defendants who have
stolen property, the perpetrators don't reveal everywhere that they
have stole from; the state ends up with property that probably was
stolen, but for which the owner is unknown, especially if the owner
doesn't report it stolen for whatever reason. The DPS holds that
property for a period of time until it is destroyed. Lieutenant
Hudson said he doesn't know the what the right answer is, but he
thinks one year would probably be adequate. He stated, "We would
try to cross-reference our documentation and our crimes across the
state through our APSIN computer system to determine if someone had
reported it stolen. And obviously we would attempt to return it if
we could determine who that person was. So, that does become a
problem for us in that regard." He indicated he isn't sure that
the time limit or year value would change or eliminate that one way
or the other.
LIEUTENANT HUDSON pointed out that someone who turns in property to
the Alaska State Troopers may not want it, even if it isn't claimed
by the rightful owner. So then what would the DPS do? He suggested
that the bill allow the DPS the capability or authority to destroy,
sell or otherwise dispose of the unclaimed property, utilizing the
appropriate methods already in legislation under standard operating
procedures. Removing the property from the custody of the DPS
after one year would assist them in that regard.
Number 1953
LIEUTENANT HUDSON brought up another issue not addressed by the
bill: unusual or large items that were found. He cited horses as
an example, explaining that in past instances, the DPS has released
that property to someone other than the owner until the owner could
be located. He explained:
We have some legislation already on the books which kind
of allows us to do that in regards to property from
someone who's deceased. It doesn't, obviously, address
found property. But in Title 12.65 ... it allows law
enforcement to have someone take temporary custody who is
willing to preserve property until such time the
legitimate person responsible can be found. So, that's
something else we would like to have considered in regard
to just making this bill a little more usable for law
enforcement.
Number 2022
REPRESENTATIVE GREEN asked whether the state inventories such
property so that when the year is up, a "tickle" system brings it
to attention and the finder is notified. Or would it be up to the
finder to come back in a year and start begging for the property?
LIEUTENANT HUDSON said that system is not presently set up. With
regard to evidence in a crime that has been adjudicated, a person
who has property stolen will normally contact the law enforcement
agency. The agency will be in general contact with the person to
provide some idea of when the person will get his or her property
back. He continued:
But that's something that we would need to do in this
particular case, is when we file the police report
initially and got the information - of where the property
was found, who found it, how can we locate them over a
period of time, what's their mailing [address] and
telephone numbers and work address and things of that
nature - then we would have to set up, as you indicated,
some sort of a tickler where after twelve months or
thirteen months or whatever time frame as we went through
our evidence procedures and went through our property,
that we would then make a note that it's time to call
this person and see if they want this back or what else
we can do to eliminate it from our holding facility.
REPRESENTATIVE GREEN wondered if that process would become a
burden.
LIEUTENANT HUDSON said it would be a little extra work, but he
thinks that would be overcome by the fact that the agency could
cleanly and legitimately remove the items from its property rooms.
REPRESENTATIVE CROFT noted that the bill doesn't say people need to
indicate to the DPS whether they want found items. He said that
like Representative Green, he doesn't want the department to have
to search out everything. He asked whether the cleaner procedure
would be that a person indicates at the time that if the original
owner isn't found, he or she wants the item. Only in those cases
would the DPS need to go searching for the finder after 12 months.
LIEUTENANT HUDSON said he thinks that would easier.
REPRESENTATIVE CROFT referred to the horse issue. He inquired
under what authority property can be released to private
individuals. In Version D, he pointed out, it states in Section 2,
"a private individual obtains property of another that is lost, ...
the individual delivers that property to a law enforcement agency".
Representative Croft indicated it does not cover when property is
not delivered. He asked Lieutenant Hudson if he wants clearer
authority in that regard.
Number 2170
LIEUTENANT HUDSON said it would be very beneficial.
Number 2190
LARRY MEYERS, Director, Income and Excise Audit Division,
Department of Revenue, came forward to testify. He said the
division runs the unclaimed property program.
CHAIRMAN KOTT asked how the system works. When there is unclaimed
property after a certain period of time, is it turned over to Mr.
Meyers' division and then sold?
MR. MEYERS answered that the unclaimed property statutes only
address holders in the ordinary course of business and would not
deal with lost property found in these examples. The division
deals with entities such as insurance companies and banks.
Number 2230
REPRESENTATIVE GREEN asked Lieutenant Hudson whether the scenarios
he had heard would be a burden to the Alaska State Troopers. He
asked:
If, in one of the scenarios that you heard, Lieutenant,
would it be a burden on you? The property's turned over
to you and the year ... is over; and does this ... give
title and so that the original owner in Representative
Kott's scenario comes back and says, "Hey, I found out
about this thing and it's mine, but it has been released
to the finder, and the finder's out of the state now"?
Do we get into any kind of a donnybrook, or does the
title pass at the time it goes back to the finder?
LIEUTENANT HUDSON explained that is a legal issue he is not
prepared to answer. He indicated if something like that came up in
civil litigation it could occur later. It is difficult to decide
where something like that ends, he added.
Number 2290
REPRESENTATIVE KERTTULA said she had a similar question for the
drafter, Gerald Luckhaupt, Legislative Counsel, Legislative Legal
and Research Services. She pointed out that the bill states that
the new person shall be the owner. She doesn't know where that
leaves the original owner. She asked Mr. Meyers if he has
encountered a situation like this, and she further asked how the
department handles it.
MR. MEYERS said the department does an extensive search in which
the original owner has to provide proof of ownership. He clarified
that the department does not normally have a conflict in claims,
but if there are problems, they are adjudicated through the civil
courts.
Number 2351
GERALD LUCKHAUPT, Legislative Counsel, Legislative Affairs Agency,
Division of Legislative Legal and Research Services, came forward
to answer questions on Version D.
REPRESENTATIVE CROFT referred to AS 12.36.060, which read in part:
(a) A deadly weapon, other than a firearm or ammunition,
forfeited to the state under AS 12.55.015(a)(9), unless
remitted under AS 12.36.050, shall be disposed of by the
commissioner of public safety under this section.
REPRESENTATIVE CROFT indicated his understanding that the
"forfeited under AS 12.55.015(a)9" is the part that relates to
something having been used in a crime.
MR. LUCKHAUPT said because it pertains to forfeitures, it would not
apply outside of forfeiture situations unless they were to talk
about disposing of it in another section.
Number 2401
REPRESENTATIVE CROFT pointed out that the disposal of forfeited
deadly weapons is mentioned in the title, but the text simply says
a "deadly weapon shall be disposed of by the commissioner of public
safety under this section." Between those two, it says "other than
one forfeited to the state," but that is in an "other" clause.
MR. LUCKHAUPT replied that a deadly weapon other than a firearm or
ammunition forfeited to the state under this shall be forfeited. He
explained:
You know, the whole point of this bill: firearms are
going to be excluded. I tried to massage this as best I
could, this whole idea. We just dealt with this in '96,
and it was a very trying piece of legislation to work on
then, in trying to keep everybody happy around the state,
all the municipal police departments and everything. And
so, we finally came [up] with this way to keep them happy
by exempting them out of this whole thing, as long as
they pass an ordinance that met two little requirements
that we put in statute. And then we didn't care what
they did.
Now, with this, I tried to deal with this finder
situation, and ... I'm just trying to get DPS - or any
municipal department that follows this, that has not been
smart enough to adopt their own ordinance, so they don't
have to use the state statutes here - I'm just saying,
"Get them out of the property business, allowing them a
way to release it to the finder."
Number 2471
REPRESENTATIVE CROFT asked what happens to a firearm or other
deadly weapon under AS 12.36.060 and Version D.
MR. LUCKHAUPT answered that the law enforcement agency, after one
year, considers the person who found the firearm to be the true
owner and has to return it to that person if it is legal for that
person to possess.
REPRESENTATIVE CROFT indicated it still seems mandatory, as AS
12.36.060 says "shall be disposed of under this section."
TAPE 00-11, SIDE B
Number 0001
MR. LUCKHAUPT read from AS 12.36.060(a). He said this section
applies only to the disposal of deadly forfeited to the state. He
noted that a couple of other statutes allow forfeitures.
REPRESENTATIVE CROFT specified that this is forfeiture to the state
under AS 12.55.015.
MR. LUCKHAUPT agreed, pointing out that references to this section
in other places direct the DPS to follow this section, which could
be done in another statute.
REPRESENTATIVE CROFT indicated he didn't want to make any more
changes than necessary.
MR. LUCKHAUPT clarified that this could be out there somewhere. He
said this wasn't the easiest bill to work on.
Number 0045
REPRESENTATIVE CROFT surmised, then, that the way to read AS
12.36.060 is that it only applies to deadly weapons that are used
in the actual commission of a crime, which is the (a)(9) portion.
MR. LUCKHAUPT concurred. He pointed out that a provision in AS
18.65.340 deals with the disposal of firearms. That was inserted
due to objections to the Department of Administration's policy, for
a time, of destroying all firearms. That was a bill in 1997 to
require all state agencies to sell firearms that are safe and legal
to possess.
REPRESENTATIVE CROFT suggested, then, that that would not be
problematic with this idea before the committee because that [AS
18.65.340] would say, "or unclaimed" somewhere.
MR. LUCKHAUPT clarified that it comes into play under [AS
18.65.]030(b)(2)(A). If the owner is unknown or cannot be found,
the state resorts to AS 18.65[.030], which requires the state to
sell firearms that are safe or legal to possess.
REPRESENTATIVE CROFT commented that if the state is required to
sell the firearm, then the state cannot give it back to the person
who found it.
MR. LUCKHAUPT reiterated that would be the case only if the true
owner cannot be found. "And they can because we say the finder is
the true owner here," he added. "We get them out of the whole
thing by just coming up with this legal fiction to allow the law
enforcement agency to give this back to the finder."
Number 0123
REPRESENTATIVE CROFT referred to AS 18.65.340, which says, in part:
"The state may only dispose of forfeited, surplus, or recovered but
unclaimed, firearms and ammunition by sale or trade to a federally
licensed firearms dealer." Indicating that is the statute
previously passed by the chairman, he said it isn't clear. It
seems that this is not forfeited or surplused; it is recovered but
unclaimed. There is a statute that discusses what to do with
recovered but unclaimed things. However, this says that recovered
but unclaimed guns must be sold.
MR. LUCKHAUPT said that [the firearm] would not be unclaimed
anymore, under this legislation. They will be able to identify an
owner. If the person does not want the gun, then it is sold under
AS 18.65.340. If the person wants the gun, the statute says that
person is the owner and the gun has to be given to that person.
This provides a way to give the gun to the finder, which is what
seemed to have been done in the example provided anyway. He
pointed out that common property law, which Alaska follows, says
that a person who finds abandoned or lost items has a greater right
to possess those items than any other person.
REPRESENTATIVE CROFT expressed the desire to make it clear that DPS
can do this, however. He pointed out that the bill says "when the
true owner does not claim the property within a year," which seems
to mean recovered but unclaimed. By operation of this statute, and
appropriately so, a new owner is declared.
MR. LUCKHAUPT clarified that that section does not come into play
unless AS 12.36.030 directs the use of that section. He explained
that AS 12.36.030 does not come into play because the property is
claimed by the person that found the weapon. "So, the only way we
get there is if .030 tells us to go there," he added.
REPRESENTATIVE CROFT disagreed, saying that when a person brings in
a gun, he or she has no claim beyond a request to be called in 12
months, at which point there could be a property interest.
However, he or she claims no property interest now. Having just
found it, the person cannot claim any ownership. Representative
Croft said he doesn't believe the word "claim" gets the state out
of the operation of these statutes.
Number 0270
REPRESENTATIVE KERTTULA referred to AS 12.36.060, which begins as
follows: "(a) A deadly weapon, other than a firearm or ammunition,
forfeited to the state". She pointed out that AS 12.36.060 does
not apply to the situation because the second comma brings it back
into the regular sentence; it is not a subordinate clause.
REPRESENTATIVE GREEN related his understanding that when 364 days
have passed, the agency still has possession of the weapon.
However, on day 365 it becomes the property of the finder and there
is a claimant. It is no longer unclaimed.
REPRESENTATIVE CROFT suggested at that point there is more than a
claimant; there is an owner. He said Mr. Luckhaupt makes a decent
argument, although it is not as clear as it should be. He pointed
out the difficulty in reconciling the language that says a
recovered but unclaimed firearm may only be disposed of by sale,
and the statute that says a recovered but unclaimed items goes to
the person who found it after a year. He indicated he would rather
make it clear.
REPRESENTATIVE GREEN indicated he believes the two are compatible,
although perhaps clarification could be added.
REPRESENTATIVE CROFT agreed with Representative Kerttula about the
comma. He also agreed with Mr. Luckhaupt's and Representative
Kerttula's description. However, a mandatory statute says firearms
can only be disposed of in certain ways. He restated the need to
define what they are talking about: recovered but unclaimed
property, or property that has no owner by operation of this new
language. He added, "The things that you must sell are these, and
it doesn't include things that are recovered by somebody by
operation of the one-year law."
Number 0421
MR. LUCKHAUPT countered that this statute being added in [AS
12.36].030 says it is not unclaimed; it says there is an owner. He
added, "And if that person wants it, he gets it. If he doesn't
want it, then they sell it."
REPRESENTATIVE CROFT noted that the existing statute uses the
language "the true owner does not claim," which is similar to the
language "recovered but unclaimed." He believes that it is
defining this and contradictorily tying the hands as far as what
can be done. He pointed out that the statute does not put it in
terms of a claim that the finder has; rather, it talks about the
claim that the owner has but doesn't exercise. He said they are
talking here about recovered but unclaimed property after a year,
and what happens to it. "And this is talking about recovered but
unclaimed firearms you can't do anything with but sell," he added.
He indicated he'd defer to the committee or Mr. Luckhaupt.
Nonetheless, he again expressed concern about the clarity. He
pointed out that Lieutenant Hudson had expressed the need for more
clarity on the agency's authority to allow animals or other large
found property to remain in third-party possession. He asked
whether that could be written.
Number 0519
MR. LUCKHAUPT replied, "I can do whatever you want." He restated
that the finder of property has a greater right to the property
than anyone else; if the property is abandoned, the finder owns it.
That is common law property, applied in Alaska all these years, and
applied in virtually every state. Furthermore, the Office of the
Attorney General has issued opinions on this, to the Department of
Natural Resources (DNR) and the DPS, over the years.
MR. LUCKHAUPT also pointed out that a criminal statute instructs
people to return whatever property they find to the true owner or
to tell a policeman. Traditionally, law enforcement agencies have
taken that property into possession. Regardless of whether the
found item is a horse, cash or a lamp, public agencies have a
better way of communicating to the public that they have found
property, and a better way of storing it. He believes a member of
the public who finds property has a duty to maintain that property
against everyone but the true owner, and to protect it. He
suggested this may be placing a burden on a finder who doesn't want
that burden.
REPRESENTATIVE CROFT interjected that he was not suggesting that
the finder be forced to take the item; it is all going to be
voluntary. He noted the need to allow for some third-party
possession, however, because the DPS may not want to keep a horse
at headquarters, for example.
MR. LUCKHAUPT replied that nothing prevents that. "It's still in
their possession," he added. "They can sit there and put it at the
local stable."
REPRESENTATIVE CROFT emphasized that Lieutenant Hudson had said,
however, that his authority to do that wasn't clear.
Number 0723
CHAIRMAN KOTT said he believes this could be cleared up by
including language that is similar to AS 12.64.105, which provides
for that temporary release of property.
MR. LUCKHAUPT restated that law enforcement already has this
authority. He isn't sure that DPS has physically kept possession,
in a station, of every item recovered over the years. Some things
are too big. For instance, recovered vehicles are sometimes
maintained at towing yards. That leeway is already exercised and
available in the statutes.
CHAIRMAN KOTT posed a situation in which he finds a pig on his lawn
and calls to inform the police. He asked if he would then be
obligated to take care of the pig if the police don't want it.
MR. LUCKHAUPT explained that under common law property laws, if
Chairman Kott places his hands on the pig, then he must take care
of that pig and protect it against everyone but the true owner.
That is the law relating to lost property. One who doesn't want to
get involved shouldn't touch it. In response to Chairman Kott's
comment that he may want a ham, Mr. Luckhaupt pointed out that he
would need to worry about the criminal statute regarding converting
lost, mislaid or abandoned property of another for one's own use.
These laws have worked for years.
MR. LUCKHAUPT commented that conceivably when one finds a quarter
on the ground, that person should report that finding; however, no
one cares. On the other hand, if one finds $10,000, someone should
be told and it should be turned over to a law enforcement agency.
If that $10,000 was stolen out of the finder's home, the finder
would have to repay the true owner that $10,000. This is a burden
on an individual who is trying to help another person, he said.
Traditionally, the burden has fallen on law enforcement.
Number 0917
CHAIRMAN KOTT inquired as to what would happen if the
aforementioned pig brushed up against him; would he be obligated to
take care of the pig in that situation?
MR. LUCKHAUPT answered that as long as Chairman Kott did not
exercise any control over the pig, he would be okay.
CHAIRMAN KOTT reiterated an earlier question in which the rightful
owner of some property found that property more than a year later.
Would the owner of the property have any rights to that property
after a year?
MR. LUCKHAUPT explained that if the property is abandoned, the
owner would lose any right or interest in the property at the time
of abandonment. If the property is merely lost, the owner would
[after a year] still have a right to the return of that property.
The person to whom the property was released wouldn't have
absolutely clear title in that circumstance, but would have a
better title than anybody else in the world except that true owner.
If the property has been misplaced, he indicated, the owner does
not lose title to the property and still has a right to retain that
title. Mr. Luckhaupt said he would have to do more research for
the specifics in this area; he indicated a statute of limitations
in Title 9 would cover this. He informed the committee that a
person who wanted the property back would have to file suit if the
finder did not want to return the property to the owner. The owner
would have to prove that the property was not abandoned.
Number 1140
CHAIRMAN KOTT asked if anyone else wished to testify. There being
no one, he closed the public testimony portion of the meeting. He
noted Representative Bunde's presence and recalled Lieutenant
Hudson's desire to have a more proactive provision in the
legislation. He related that Lieutenant Hudson wanted the finder
to have to tell the law enforcement agency, when turning in the
property, that he/she wanted the property after the year. Without
any such request, the law enforcement agency would not have to
proceed with a "search and destroy mission."
REPRESENTATIVE BUNDE said that was his intent. The responsibility
of establishing the claim belongs to the finder. He clarified that
it was not his intent to place the burden of seeking the finder on
the state. He also felt it to be the finder's responsibility to
contact the proper agency when the one-year waiting period has
ended.
CHAIRMAN KOTT suggested that was basically the testimony given by
Lieutenant Hudson: there is no triggering mechanism that would
highlight that the waiting period is over.
REPRESENTATIVE BUNDE noted the additional cost to the state. He
reiterated that the intent of the bill is to encourage people to
turn in found property with the expectation that it could be
returned to them if the property is not claimed or used in a
criminal case.
CHAIRMAN KOTT recalled Lieutenant Hudson's example of a large
animal that needed to be picked up. Lieutenant Hudson had
expressed the need to have a mechanism available to provide
something - which Chairman Kott felt was similar to AS 12.65.105 -
that provides temporary custody to the person finding it.
REPRESENTATIVE BUNDE said that seems so logical that he would have
difficulty in disagreeing with it.
Number 1356
REPRESENTATIVE JAMES asked if finders who turn in items know that
they have the option to claim the property after a year. It seems
that the law enforcement agency would have some provision to allow
the finder to indicate on paper whether he or she wants the
property. Representative James also posed a situation in which
someone brings in an item that has to be archived. She asked, once
the person turns in the item [to the law enforcement agency],
whether that person would be absolved of any responsibility for
that item.
REPRESENTATIVE BUNDE answered that it was not his intent that one
who finds something would be stuck with it and obligated to care
for it. He pointed out that currently when the troopers receive
items that they cannot maintain or do not have the facilities for,
such as animals or boats, the troopers ask someone to maintain
custody, although that person has the right to refuse.
REPRESENTATIVE JAMES commented that finders, then, would be on
their own.
REPRESENTATIVE BUNDE answered that if the person approached by the
troopers declined to take on custody of the item, then the state
would have to find other ways in which to dispose of the item.
REPRESENTATIVE GREEN said he assumed this law was intended to be
effective at the location of finding. He posed a situation in
which a dog wanders outside of the municipality and no owner is
found. He asked whether that would be addressed under this.
REPRESENTATIVE BUNDE noted that legal advice may be necessary.
However, he interprets that this would be effective at the location
of where the item is found.
REPRESENTATIVE GREEN pointed out that it does not apply in
municipalities; therefore, if a dog were loose, that would be
governed by the Humane Society within the town. If the dog were
outside of the town, however, would the one-year waiting period be
implemented?
REPRESENTATIVE BUNDE explained that if an item is found and someone
wants to establish a claim, the person has to wait a year. He
further explained that if someone finds a dog and does not want the
dog, and if the dog is turned into the authorities, then it is the
responsibility of the authorities. Because there is no claim on
the dog, it does not have to be kept for a year.
REPRESENTATIVE KERTTULA related her belief that animals fall under
a completely different statute.
REPRESENTATIVE BUNDE indicated he didn't know.
CHAIRMAN KOTT proposed that with the will of the committee, he
would draft a couple of changes that he believes the sponsor
concurred with, and move that as a committee substitute, unless the
committee wants the bill back before it.
REPRESENTATIVE KERTTULA and REPRESENTATIVE GREEN both expressed the
desire to review the changes.
CHAIRMAN KOTT announced that the changes would be drafted to
conform with the sponsor's intent, and the bill would be brought
back before the committee at the next hearing. [HB 318 was held
over.]
HB 288-CHILDREN WITNESSING DOMESTIC VIOLENCE
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL NO. 288, "An Act relating to the creation of an
aggravating factor for the commission of domestic violence in the
physical presence of a child." As sponsor of HB 288, he called
upon Denise Henderson to present the bill.
Number 1749
DENISE HENDERSON, Staff to Representative Pete Kott, Alaska State
Legislature, informed the committee that HB 288 would add a new
section to AS 12.55.155(c)(18). Currently, the commission of
domestic violence in the presence of a child is not included as a
determining factor in the sentencing of a perpetrator. This
legislation expands the list of aggravating circumstances to
include the special vulnerability of the children, which would
become a major factor in determining severity of the crime of
domestic violence and the resulting sentence. The bill would allow
the courts to consider these factors to aggravate the severity of
domestic violence when committed in the presence of a child.
MS. HENDERSON reported that she has seen the emotional and
psychological damage that violence in the home has on children.
She believes this legislation is imperative, as it would provide
the court system with a new tool to further the fight against
domestic violence. In working in the juvenile division of the
Albuquerque District Attorney's office, she noted, there was always
one underlying factor of the children in the system: domestic
violence. She informed the committee that since moving to
Anchorage, she has worked at Abused Women's Aid in Crisis, where
once again she observed the damage that domestic violence can cause
to children. Currently a court-appointed advocate with the Office
of Public Advocacy in Anchorage, Ms. Henderson said this
legislation would not only bring awareness to the trauma that
children bear in witnessing domestic violence in the home, but it
would also be instrumental in breaking this ongoing cycle.
Number 1980
DAVID HUDSON, Lieutenant, Division of Alaska State Troopers,
Department of Public Safety (DPS), testified via teleconference
from Fairbanks. He informed the committee that law enforcement
across the state and the DPS support this creation of an
aggravating factor involved with domestic violence in the presence
of a child for a felony crime. He expressed support of anything
the legislature passes to keep offenders off the streets a little
longer and not share the abuse with families and children.
Number 2022
DR. ARTHUR HANSEN, Dentist, testifying via teleconference from
Fairbanks, said he was in favor of HB 288. One of the instigators
of this, he is the Chairman of the PANDA (Prevent Abuse and Neglect
through Dental Awareness) Coalition for the Dental Society. Dr.
Hansen indicated domestic violence will be carried out on a
generational basis because children learn that violence is the way
to solve problems. If children learn this at an early age, it will
remain a part of them and they will repeat it.
DR. HANSEN also expressed support for the proposed change to the
bill that he understands to exist, which is insertion of the
language "or within hearing of the child.". He indicated all
literature points out domestic violence as the starting point of
crime for children. He referred to Bruce Perry (ph) [at Baylor
University], who he said has shown that factors that take place
from 33 [weeks] of gestation through a child's first three years
relate to some people becoming violent. Dr. Hansen commented that
when he sees two adults in a domestic violence situation, he
wonders how they arrived at that point and if they maybe do the
same thing that their parents did; he acknowledged that this
connection is not necessarily true, although all developmental
psychology points to it.
DR. HANSEN explained why dentists are involved in this matter. He
told members that dentists have a code of ethics through the
American Dental Association (ADA), which obligates them to report
all child abuse and neglect. This past October, ADA passed another
resolution mandating that dentists receive education on the subject
of child abuse and neglect; Dr. Hansen informed the committee that
he chairs the program that does that. He said the Dental Society
is involved because dentists see these patients. Dr. Hansen urged
the committee to pass this legislation. He mentioned the need to
think about parent training, parent education and anger management
training that could be required along with the judge's sentencing.
Furthermore, there should be consideration with regard to where the
aforementioned training would come from.
TAPE 00-12, SIDE A
Number 0001
PATTY KALLANDER, Member on the Board of Directors and Volunteer,
Cordova Family Research Center (CFRC), testified via teleconference
from Cordova, indicating she is a trained legal advocate for
victims of domestic violence and an adult survivor. She pointed
out that statistics show that growing up in a household with
domestic violence leads to depression, alcoholism, drug abuse,
anger control problems and a high incidence of suicide. She stated
that the proposed amendment is an important one to add to HB 288.
She requested clarification about the term "physical presence,"
however, and wondered if that included being in another room from
where the domestic violence was taking place. She explained that
she was diagnosed with post traumatic stress syndrome years ago, as
were all of her siblings; they have all dealt with depression,
alcoholism and drug abuse. Therefore, she informed the committee,
she is in favor of HB 288.
Number 0260
MS. HENDERSON noted that there is a proposed amendment to HB 288.
She explained that after the bill was written, it was taken into
consideration that children in another room from where domestic
violence is taking place are affected.
CHAIRMAN KOTT stated that he believes it is just as important if
children are in another room, because it probably has just as much
affect on them as if they were in the same room.
Number 0340
REPRESENTATIVE CROFT made a motion to adopt the proposed amendment,
which read [original punctuation provided]:
The purpose of this amendment is to add to the
aggravating factor in the hearing of a child. The new
aggravating factor would now be "in the presence of or
within hearing of a child"
Specific changes are:
Amend the title. Page 1, line 2 to read..domestic
violence in the physical presence or hearing of a child."
Page 1, line 13 add after the word presence or hearing
Number 0403
REPRESENTATIVE GREEN objected for the purpose of discussion. He
directed a question to Anne Carpeneti, Assistant Attorney General,
and asked whether, when talking about domestic violence in statute,
it is always considered an assault. He further asked whether it is
ever a misdemeanor.
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, responded that it is not always considered an
assault. She affirmed that it could be a misdemeanor.
REPRESENTATIVE GREEN expressed concern that they are elevating a
misdemeanor to a felony by someone hearing domestic violence in
another room.
MS. CARPENETI clarified that it is an aggravating factor. It
applies to sentencing in felony cases and in those cases where
presumptive sentencing applies. They are not elevating a
misdemeanor to a felony. Instead, they are giving more latitude to
the court in sentencing a person in crimes where there has been a
conviction of a felony and a presumptive term applies.
REPRESENTATIVE GREEN gave a hypothetical example where a parent
feels that it is necessary to severely spank a child. He asked:
If the child is younger than 16, could that child or a sibling
bring that up as a domestic violence issue?
MS. CARPENETI responded that a child could report the incident to
the police, who would have to look at the circumstances of the
offense to see if a crime was committed. She pointed out that
generally parents are allowed to discipline their children, and
that includes some corporal punishment. Those lines are tough to
draw and tough to describe. She clarified that HB 288 applies to
people who are being sentenced after they have already been
convicted of felony offenses.
Number 0603
REPRESENTATIVE GREEN withdrew his objection.
CHAIRMAN KOTT announced that without objection, the proposed
amendment has been adopted.
Number 0611
REPRESENTATIVE MURKOWSKI wondered if there is a reason why they are
limiting it to members of the household as opposed to children who
might be at the scene. Although Ms. Carpeneti deferred to the
sponsor, Representative Murkowski asked for her input.
MS. CARPENETI pointed out the cycle of domestic violence where
children see it growing up and think it is acceptable; therefore,
as adults they end up abusing people around them. She explained
that the reason it probably does not apply to any child present is
because that same relationship does not exist, even though it would
be traumatic.
CHAIRMAN KOTT indicated that Ms. Carpeneti's response is one of the
reasons they had narrowed the bill in scope. He explained that
most of the research out there shows that the greatest degree of
trauma and emotional damage is done to the child whose parents were
involved in the domestic violence.
REPRESENTATIVE MURKOWSKI wondered if less weight would be given as
an aggravating factor with regards to the age of the child and the
child's ability to understand what is going on.
MS. CARPENETI responded, "Yes." She explained that the state would
have to prove factors of aggravation with clear and convincing
evidence. The judge is given more discretion to impose a sentence
and can take these matters into consideration. She pointed out
that an altercation may have caused great damage to the infant, who
may have been in the way of items being thrown around.
Number 0898
REPRESENTATIVE GREEN made a motion to move HB 288, as amended, from
the House Judiciary Standing Committee with individual
recommendations and the attached zero fiscal note.
REPRESENTATIVE JAMES pointed out the need for a title change. She
asked whether what the committee had done was sufficient to extend
that amendment to the title.
CHAIRMAN KOTT affirmed that, saying it would be conceptually
ingrained in the title.
REPRESENTATIVE KERTTULA thanked Representative Kott for introducing
HB 288, and thanked his staff for all the work they have done.
Number 0949
CHAIRMAN KOTT noted that his research had revealed the effect of
domestic violence on the business community in the United States is
a loss of between $3 and $5 billion. He announced that without
objection, CSHB 288(JUD) was moved out the House Judiciary Standing
Committee.
HB 259 - PUBLIC DEFENDER CHILDREN'S PROCEEDINGS
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL No. 259, "An Act relating to a parent's eligibility to
be represented by the public defender before and during the
probable cause and temporary placement hearing that is held after
the state takes emergency custody of a child." Before the
committee was CSHB 259(STA).
Number 1003
REPRESENTATIVE JOHN COGHILL, Alaska State Legislature, sponsor,
explained that HB 259 addresses getting counsel to parents who have
to deal with a system that is sometimes very difficult to
understand. Many times a child is taken into protective custody
and there is a statutorily mandated 48-hour hearing. In Anchorage,
he noted, people are previewed to see whether they are indigent,
and then are given counsel before a judge at the 48-hour hearing;
however, that is not always the case. He has proposed a bill,
therefore, that will get counsel to people at that 48-hour hearing,
because once the determination is made that a child needs
assistance, the family enters into a system that is a whole new
world, and they need to understand what is going on at that
juncture. He explained that HB 259 is intended for getting counsel
as easily as possible for people that are in need.
Number 1156
REPRESENTATIVE CROFT made a motion to adopt Amendment 1, which
read:
Page 1, line 6:
Delete "A"
Insert "Subject to the other provisions of this
subsection, a"
Page 1, lines 7-8:
Delete ",pending a determination of indigency,"
Page 1, line 10:
Delete "under this subsection"
Insert "in connection with the hearing"
Page 2, line 2, following "expense.":
Insert "If a person who was represented by the
Public Defender Agency at public expense without a court
order in connection with a hearing held under AS
47.10.142(d) is not later determined to be eligible for
court-appointed counsel at public expense under
applicable laws and court rules, the court shall assess
against the represented parent the cost to the Public
Defender Agency of providing the representation."
CHAIRMAN KOTT objected for the purpose of discussion.
REPRESENTATIVE COGHILL explained that Amendment 1 simply says that
the expense can be prorated back to a person who is found, after
the hearing, to be able to afford it.
Number 1237
CHAIRMAN KOTT withdrew his objection and announced that without
objection, Amendment 1 had been adopted.
Number 1258
HARRY NIEHAUS testified via teleconference from Fairbanks,
specifying that he was speaking on behalf of the Guardians of
Family Rights, in support of HB 259. He referred to page 2, line
7, where it reads, "any income source the person has had for a
period of three years." He asked if it is three years or one year.
REPRESENTATIVE COGHILL indicated it is three years in existing law.
Number 1319
MARCI SCHMIDT testified via teleconference, encouraging the passage
of HB 259. She explained that many parents and other family
members that have entered into the Division of Family and Youth
Services (DFYS) process have felt that they needed representation
during the first hearings. She indicated that a lot of people have
been beguiled into admitting probable cause without knowing what
they are saying. She believes HB 259 would be cost-effective and
would help out in the long run in getting people to cooperate,
getting some cases dismissed and clearing up some workloads.
REPRESENTATIVE GREEN asked Ms. Schmidt whether she believes it
would help or hinder the process to have a notification made that
an attorney will be provided, but that if it is found later that
the person can afford the attorney, that person will be charged for
the service.
MS. SCHMIDT indicated that she doesn't think it will hinder the
process. She explained that it is very hard to find a private
attorney in child-in-need-of-aid (CINA) cases, which are long,
expensive and dragged out. She said it would be cost-effective and
also might encourage privatized attorneys to come forward and
represent a client. She added that currently it is about $10,000
to get an attorney in the private sector.
Number 1460
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage. He
pointed out that his agency had submitted a fiscal note with an
analysis. His agency believes that they could start earlier in
cases, which is better; it is important to have some leeway in
their duties here, however, and the words "may be represented" are
very important to them. Mr. McCune noted that conflicts of
interest are tricky in these cases; the agency may sometimes have
to sort out a conflict before determining whether to represent
someone. He added, "And also I think we have to be careful we take
the most serious case in order to save money and time down the
road."
MR. McCUNE advised members that his agency doesn't anticipate doing
additional work on those cases. He stated, "We'd be working sooner
and hopefully get things resolved quicker, but I can't promise 24-
hour-a-day coverage and unlimited resources devoted to this. But
within our resources, I think getting parents representation sooner
in these cases is a good idea." Mr. McCune expressed agreement
with the amendment adopted. As far as eligibility and recoupment
of costs, he said that is up to the legislature. He added:
Of course, we don't want to represent people who are
financially able to hire their own attorneys. We can
recommend some attorneys. I know in Anchorage there are
some attorneys who do take these cases and charge maybe
a little less than the previous speaker said, but I know
in other areas of the state it is difficult. But if we
find somebody who's presumptively eligible - in other
words, somebody who has currently received some public
assistant or has had counsel appointed for them in the
past - I think we'd feel real comfortable going ahead and
representing them without a determination of indigency.
Number 1602
CHAIRMAN KOTT wondered if the zero fiscal note is derived from the
assumption that few indigent people will have to be accommodated or
if the assumption is that the few numbers out there will be
absorbed in the current budget.
MR. BLAIR responded:
What I anticipate is that the people who we would work
with under this would be people who we would eventually
be appointed to represent in the course of business the
way things usually are going under the current
legislation. ... We could represent people we would
eventually be appointed to represent, but start with them
earlier. And that's my assumption.
CHAIRMAN KOTT requested clarification on the fiscal note analysis
where it reads, "The Public Defender Agency does not anticipate any
fiscal impact from this legislation if it is amended so that we are
not obligated to represent non-indigent parents."
MR. BLAIR responded that the language was in the analysis before
the committee substitute (CS) was adopted for HB 259. He said he
would proofread it better and take the language out.
CHAIRMAN KOTT wondered how much discretion the Public Defender
Agency has in representing the people that are in these type of
cases.
MR. BLAIR replied that the answer is none. He explained that once
they are appointed by the court to represent the person, unless
there is a conflict of interest or some reason for them to
withdraw, the agency will take the case.
CHAIRMAN KOTT, noting that there were no further testifiers, closed
public testimony.
Number 1765
REPRESENTATIVE CROFT made a motion to move CSHB 259(STA), as
amended, with individual recommendations and the attached zero
fiscal note from the committee. There being no objection, CSHB
259(JUD) was moved out of the House Judiciary Standing Committee.
ADJOURNMENT
Number 1794
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 3:23 p.m.
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