Legislature(2011 - 2012)BELTZ 105 (TSBldg)

02/28/2011 01:30 PM JUDICIARY

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                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                       February 28, 2011                                                                                        
                           1:35 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Hollis French, Chair                                                                                                    
Senator Bill Wielechowski, Vice Chair                                                                                           
Senator Joe Paskvan                                                                                                             
Senator Lesil McGuire                                                                                                           
MEMBERS ABSENT                                                                                                                
Senator John Coghill                                                                                                            
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 30                                                                                                              
"An Act providing for the release of certain property in the                                                                    
custody of a law enforcement agency to the owner under certain                                                                  
     - HEARD AND HELD                                                                                                           
SENATE BILL NO. 61                                                                                                              
"An Act making corrective amendments to the Alaska Statutes as                                                                  
recommended by the revisor of statutes; and providing for an                                                                    
effective date."                                                                                                                
     - HEARD AND HELD                                                                                                           
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB  30                                                                                                                  
SHORT TITLE: RETURN OF SEIZED PROPERTY                                                                                          
SPONSOR(s): SENATOR(s) DYSON                                                                                                    
01/19/11       (S)       PREFILE RELEASED 1/7/11                                                                                
01/19/11       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/19/11       (S)       STA, JUD                                                                                               
02/03/11       (S)       STA AT 9:00 AM BUTROVICH 205                                                                           
02/03/11       (S)       Heard & Held                                                                                           
02/03/11       (S)       MINUTE(STA)                                                                                            
02/17/11       (S)       STA AT 9:00 AM BUTROVICH 205                                                                           
02/17/11       (S)       Moved CSSB 30(STA) Out of Committee                                                                    
02/17/11       (S)       MINUTE(STA)                                                                                            
02/21/11       (S)       STA RPT CS  4DP 1NR    NEW TITLE                                                                       
02/21/11       (S)       DP: KOOKESH, PASKVAN, MEYER, GIESSEL                                                                   
02/21/11       (S)       NR: WIELECHOWSKI                                                                                       
02/28/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
BILL: SB  61                                                                                                                  
SHORT TITLE: 2011 REVISOR'S BILL                                                                                                
SPONSOR(s): RULES BY REQUEST OF LEGISLATIVE COUNCIL                                                                             
01/24/11       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/24/11       (S)       STA, JUD                                                                                               
02/15/11       (S)       STA AT 9:00 AM BUTROVICH 205                                                                           
02/15/11       (S)       Heard & Held                                                                                           
02/15/11       (S)       MINUTE(STA)                                                                                            
02/17/11       (S)       STA AT 9:00 AM BUTROVICH 205                                                                           
02/17/11       (S)       Moved CSSB  61(STA) Out of Committee                                                                   
02/17/11       (S)       MINUTE(STA)                                                                                            
02/21/11       (S)       STA RPT CS  2DP 3NR    SAME TITLE                                                                      
02/21/11       (S)       DP: WIELECHOWSKI, MEYER                                                                                
02/21/11       (S)       NR: KOOKESH, PASKVAN, GIESSEL                                                                          
02/28/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
WITNESS REGISTER                                                                                                              
SENATOR DYSON                                                                                                                   
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Sponsor of SB 30.                                                                                        
CHUCK KOPP                                                                                                                      
Staff to Senator Dyson                                                                                                          
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Provided information related to SB 30.                                                                   
VICTOR KESTER, Executive Director                                                                                               
Alaska Office of Victims Rights                                                                                                 
POSITION STATEMENT:  Testified in support of SB 30.                                                                           
RODNEY DIAL, Lieutenant                                                                                                         
Alaska State Troopers                                                                                                           
Department of Public Safety (DPS)                                                                                               
POSITION STATEMENT:  Testified that DPS has no concerns with SB                                                               
LES SYREN, Attorney                                                                                                             
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Testified on SB 30.                                                                                      
LON LAM, representing himself                                                                                                   
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Testified on SB 30.                                                                                      
KATHRYN KURTZ, Assistant Revisor of Statutes                                                                                    
Legislative Legal Services                                                                                                      
Legislative Affairs Agency                                                                                                      
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Presented SB 61.                                                                                         
ACTION NARRATIVE                                                                                                              
1:35:22 PM                                                                                                                    
CHAIR  HOLLIS   FRENCH  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order at 1:35  p.m. Present at the  call to                                                               
order  were   Senators  Paskvan,  McGuire  and   French.  Senator                                                               
Wielechowski arrived soon thereafter.                                                                                           
                SB  30-RETURN OF SEIZED PROPERTY                                                                            
1:35:42 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 30.                                                                              
1:36:02 PM                                                                                                                    
SENATOR  DYSON,  sponsor  of  SB  30,  said  the  bill  is  about                                                               
restorative justice.  It is  designed to  enhance the  process of                                                               
returning property to  victims whose property has  been seized as                                                               
a result  of a crime. He  became interested in the  issue after a                                                               
custom boat  builder he knows  lost $40,000 worth  of electronics                                                               
one night. The builder got  about two-thirds of his property back                                                               
by  visiting pawnshops  and through  Craigslist,  but the  police                                                               
seized it as  evidence and he had to  repurchase the electronics.                                                               
To avoid  this situation, he  said, some people don't  report the                                                               
theft of equipment; instead, they repossess it themselves.                                                                      
Several years ago a law was  passed so that a fisherman could get                                                               
his nets  back right  away. However, a  jeweler in  Anchorage has                                                               
been  unsuccessful in  recovering  $3,500 in  inventory that  law                                                               
enforcement seized  more than four  years ago. He noted  a letter                                                               
from the  Home Builder Association  indicating the  same problem.                                                               
The  Office of  Victim Rights  has said  the same  thing. Trooper                                                               
Dial has testified that returning  property in a timely manner is                                                               
not a problem.                                                                                                                  
1:41:07 PM                                                                                                                    
CHUCK KOPP, staff  to Senator Dyson, said  the difference between                                                               
the legislation  introduced last year  and this bill is  that the                                                               
Office of  Victims Rights (OVR)  would act as an  intermediary to                                                               
vet the claims  to ensure they aren't frivolous. If  a person can                                                               
show a claim to property and  the law enforcement agency does not                                                               
show  otherwise, OVR  is able  to request  a hearing.  The agency                                                               
then has 10  days to request the court for  a hearing. This gives                                                               
victims a  voice in the  process and an opportunity  for judicial                                                               
intervention in the event that  there is no resolution in getting                                                               
their property back.                                                                                                            
CHAIR FRENCH said page 2, lines  23-24, defines a crime victim to                                                               
include any  person who is  the owner  of property that's  in the                                                               
custody of  a law enforcement  agency, and  he likes to  call the                                                               
person  that has  property in  the custody  of a  law enforcement                                                               
agency  the defendant.  He asked  if this  definition potentially                                                               
makes all defendants crime victims.                                                                                             
MR. KOPP  explained that they  did that because the  OVR statutes                                                               
don't include the authority to  identify this class of people. If                                                               
a person  was a  suspect or defendant,  OVR could  easily explain                                                               
why they wouldn't request a hearing for return of the property.                                                                 
CHAIR FRENCH said we can trust OVR to know the difference.                                                                      
MR. KOPP  said they've been  doing good advocacy with  respect to                                                               
the law for a number of years.                                                                                                  
SENATOR PASKVAN pointed  out that if the  defendant was asserting                                                               
property  rights, he  or she  would have  to waive  the right  to                                                               
remain silent and that could be a problem.                                                                                      
CHAIR FRENCH said  his concern was that OVR might  be pestered by                                                               
requests from defendants claiming to be a victim.                                                                               
MR.  KOPP  agreed that  could  happen,  but  a defendant  who  is                                                               
charged is  not be able to  get their property back  because it's                                                               
evidence  of a  crime. Also,  with  OVR as  the intermediary,  an                                                               
automatic request isn't filed.                                                                                                  
CHAIR FRENCH  said he  likes the  idea of having  OVR act  as the                                                               
clearing house.                                                                                                                 
1:46:20 PM                                                                                                                    
SENATOR WIELECHOWSKI joined the committee.                                                                                      
SENATOR   DYSON  said   DOL  suggested   including  OVR   as  the                                                               
intermediary to avoid burdening the judiciary.                                                                                  
1:47:02 PM                                                                                                                    
VICTOR  KESTER,  Executive  Director, Alaska  Office  of  Victims                                                               
Rights, said he  was testifying in support of SB  30. It provides                                                               
a mechanism for  crime victims of theft to gain  custody of their                                                               
property in the course of  a criminal prosecution. A crime victim                                                               
may  request a  court  hearing  to seek  release  of  his or  her                                                               
property  that was  recovered by  law enforcement  and was  being                                                               
held  as  evidence. The  OVR  seeks  to work  cooperatively  with                                                               
criminal  justice agencies  and  other  governmental agencies  to                                                               
help crime victims and to promote the interests of justice.                                                                     
CHAIR FRENCH asked if the definition  of "crime victim" on page 2                                                               
might pose a problem when  OVR screens cases and determines which                                                               
to  pursue. He  said  he  would work  with  the  sponsor and  the                                                               
committee, but  he was considering  an amendment that  says, "but                                                               
does not include the defendant in a criminal case."                                                                             
MR.  KESTER said  he would  defer to  the committee,  but OVR  is                                                               
often asked to  make a determination about who it  can and cannot                                                               
help.  There have  been instances  where  defendants have  sought                                                               
assistance  and  OVR  has  said no;  OVR  doesn't  help  criminal                                                               
defendants. He  has confidence that  the OVR advocates  would not                                                               
use  SB 30  as a  way to  help defendants  get property  that law                                                               
enforcement was holding as evidence.                                                                                            
1:51:08 PM                                                                                                                    
CHAIR FRENCH said he would ponder this further.                                                                                 
SENATOR DYSON  said sometimes the  police seize property  when it                                                               
has  nothing to  do with  the crime.  He asked  Mr. Kester  about                                                               
excluding  a defendant's  property if  it wasn't  related to  the                                                               
MR. KESTER  said the purpose of  SB 30 allows a  mechanism for an                                                               
individual  to  address  the  court  if  they  make  a  threshold                                                               
showing. The OVR  functions as a clearing house  to determine who                                                               
meets  that  threshold  requirement.  If law  enforcement  has  a                                                               
position against  the OVR  position, there  is a  mechanism where                                                               
all parties can  go to the court  and ask a judge for  his or her                                                               
1:54:36 PM                                                                                                                    
CHAIR FRENCH  summarized that both  Senator Dyson and  Mr. Kester                                                               
are making the point that if  the definition of "crime victim" is                                                               
inadvertently too  broad, nothing is  automatic. It all  winds up                                                               
in front of a judge.                                                                                                            
MR.  KESTER added  that there  needs  to be  a mechanism  whereby                                                               
people  whose  property wasn't  involved  in  the crime  have  an                                                               
expedited process to  get access to their  property. For example,                                                               
a laptop  may be held  for an  extended period causing  the small                                                               
business owner to be in a bind professionally.                                                                                  
CHAIR FRENCH  asked Trooper  Dial why this  wasn't a  problem for                                                               
the Troopers.                                                                                                                   
1:56:42 PM                                                                                                                    
RODNEY  DIAL, Lieutenant,  Alaska State  Troopers, Department  of                                                               
Public Safety  (DPS) said the  department supports the  intent of                                                               
SB  30 and  has no  concerns.  For at  least 20  years it's  been                                                               
standard practice to promptly return  and dispose of all evidence                                                               
retained  in the  trooper facilities.  In  the few  cases that  a                                                               
person seeks  to have property  returned that the  troopers think                                                               
should be  retained, they contact the  district attorney's office                                                               
to  look  at  other  options, such  as  taking  photographs.  His                                                               
experience  is that  they've found  some resolution  in virtually                                                               
all those situations.  In the last decade the  troopers have made                                                               
a concerted effort to tighten  the evidence facilities and insure                                                               
that evidence is in and out as quickly as possible.                                                                             
1:57:59 PM                                                                                                                    
LES SYREN, Attorney, said he  was representing Lon Lam, a jewelry                                                               
store owner in Anchorage.                                                                                                       
LON LAM,  representing himself, explained that  the police called                                                               
him in the middle of the night  to come to his jewelry store. The                                                               
police seized  about 50  items worth  between $5,000  and $10,000                                                               
because they believed they were related to a burglary.                                                                          
MR. SYREN added  that some of the property was  on layaway so Mr.                                                               
Lam had  to return the money  to his customers. This  occurred in                                                               
May 2007 and despite several  written requests to the police, the                                                               
property has  not been  returned. He has  since learned  that the                                                               
jewelry is evidence  in a criminal case currently  on appeal. His                                                               
clients have nothing to do with  the criminal matter and have not                                                               
been charged,  but the  jewelry in question  somehow ended  up in                                                               
their store and  was seized. He wonders why the  DA couldn't take                                                               
pictures  of the  jewelry  or  whatever was  needed  and let  his                                                               
client get his property back.                                                                                                   
2:03:27 PM                                                                                                                    
CHAIR FRENCH commented  that it was surprising  that the property                                                               
had been  held for over 3.5  years and that there  should be some                                                               
process for resolution.                                                                                                         
2:04:17 PM                                                                                                                    
CHAIR FRENCH closed public testimony  and announced he would hold                                                               
SB 30 in committee.                                                                                                             
                   SB  61-2011 REVISOR'S BILL                                                                               
2:04:36 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 61.                                                                              
2:04:57 PM                                                                                                                    
KATHRYN KURTZ,  Assistant Revisor of Statutes,  Legislative Legal                                                               
Services, said the  revisor's bill is called for  in AS 01.05.036                                                               
and  is  aimed  at  revising rather  than  changing  policy.  The                                                               
purpose  is to  correct  or remove  deficiencies, conflicts,  and                                                               
obsolete provisions and to otherwise improve the statutes.                                                                      
The  bulk  of this  year's  bill  relates to  the  administrative                                                               
director of the  Alaska Court System and makes  the references to                                                               
the  title   of  that  position  consistent.   The  position  was                                                               
established in  the constitution, but  the title was not,  so the                                                               
bill switches  to what  the Court  System prefers  throughout the                                                               
statutes. That  was suggested by  the AG's office. The  bill also                                                               
includes: name changes in five  sections, renumbering of a couple                                                               
of  federal  statutes,  dropped  references  to  Sheldon  Jackson                                                               
College because it is going  away, a few obsolete date references                                                               
and a few other miscellaneous changes.                                                                                          
CHAIR  FRENCH  said   when  he  stressed-tested  a   few  of  the                                                               
references in different  sections they looked okay,  but he would                                                               
like an explanation  for the name change on page  2, Section 4 to                                                               
the  "International  Conference   of  Funeral  Service  Examining                                                               
MS.  KURTZ explained  that  the conference  changed  its name  to                                                               
include "international" in 1997 and  this simply makes the change                                                               
to call them what they call themselves.                                                                                         
CHAIR  FRENCH acknowledged  that when  he Googled  "Conference of                                                               
Funeral Services Examining Boards of  the United States, Inc." he                                                               
found there is a relationship between the two entities.                                                                         
2:07:43 PM                                                                                                                    
SENATOR  WIELECHOWSKI  noted  that the  State  Affairs  Committee                                                               
removed the provision  on vulnerable adults from SB  61 and asked                                                               
if  this committee  should consider  adding  that to  one of  the                                                               
bills on vulnerable adults.                                                                                                     
MS. KURTZ  said after looking  at that section again  she decided                                                               
it  could  conceivably  involve  a policy  change  and  it  would                                                               
therefore  be   more  appropriate  to   make  the  change   in  a                                                               
substantive bill dealing with vulnerable adults.                                                                                
SENATOR  WIELECHOWSKI  pointed  out that  there  are  substantive                                                               
bills dealing with vulnerable adults before this committee.                                                                     
MS. KURTZ said  she couldn't give specific advice  on those bills                                                               
because she wasn't the drafter.                                                                                                 
CHAIR FRENCH asked Senator Wielechowski  to bring the information                                                               
to his staff's attention.                                                                                                       
CHAIR FRENCH questioned  why page 5, line 10 now  says "to report                                                               
annually"  as  opposed to  the  previous  direction "to  annually                                                               
MS. KURTZ explained  that their legal editors'  preference was to                                                               
avoid split infinitives.                                                                                                        
2:10:26 PM                                                                                                                    
CHAIR FRENCH announced he would hold SB 61 in committee.                                                                        
2:10:47 PM                                                                                                                    
There being  no further  business to  come before  the committee,                                                               
Chair French adjourned the meeting at 2:10p.m.                                                                                  

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