HB 42-FORFEITURE & SEIZURE: PROCEDURE; LIMITS  1:20:11 PM CHAIR CLAMAN announced that the final order of business would be HOUSE BILL NO. 42, "An Act relating to seizure of property; relating to forfeiture to the state; relating to criminal law; amending Rules 3, 4, 11, 12, 16, 32, 32.2, 32.3, 39, 39.1, and 42, Alaska Rules of Criminal Procedure, Rules 501, 801, and 803, Alaska Rules of Evidence, and Rules 202, 209, and 217, Alaska Rules of Appellate Procedure; and providing for an effective date." 1:20:53 PM JOHN SKIDMORE, Director, Legal Services Section, Criminal Division, Department of Law (DOL), referred to the Department of Law's document titled "Amendment to HB 42 v. D" [there were numerous provision changes within that document] and Version D of the bill, and explained there are conforming sections, and that the amendment attempts to lay out the following: the procedure by which property can be seized when it is subject to forfeiture; provide for a post seizure hearing; express in statute the forfeiture process; raise the burden of proof from a preponderance of the evidence to clear and convincing evidence; a section discusses what property is subject to forfeiture - for what offenses; a section addresses third party or innocent third parties and the remission process; a statute specifically addresses substituting other property for the piece of property seized; and two sections deal with the disposition of property when charges are no longer relevant, and an annual report to the legislature about forfeited property. MR. SKIDMORE explained that the department attempted to put all of the various concepts within Representative Tammie Wilson's original bill and the department's amendment together, which resulted in the following: eliminating potential confusion between evidence versus property subject to forfeiture; ensuring the statutes outlined therein are consistent with existing case law on how to address forfeiture while adding in a few new things; and that the way in which the department amended the bill should eliminate the need to amend any court rules. 1:24:31 PM REPRESENTATIVE KOPP noted that he went through this amendment in detail with Kaci Schroeder of the Department of Law and the bill sponsor, and he does not have any questions. REPRESENTATIVE REINBOLD noted that she also spoke with the sponsor of the bill and because the sponsor put her blessing on it, Representative Reinbold was happy with it. 1:25:00 PM CHAIR CLAMAN referred to [Page 3 of the amendment] AS 12.35.035, Post seizure hearing. He related that he had previously suggested adding language allowing for the option of posting a bond as security for the asset, and the packet before him does not include that modification of language. MR. SKIDMORE agreed that the bond option has not been added there and he will discuss it further with the sponsor. CHAIR CLAMAN advised that the bill sponsor was fine with his suggestion, and surmised that the Department of Law did not have a problem with such language. MR. SKIMORE responded that posting a bond to have property returned makes sense and the provisions found in proposed statute, AS 12.35.035, are there to ensure that the property goes back to the lawful owner if it wouldn't be illegal for them to possess the property, and it was not needed for evidence. Under those same concepts he said he would not have a problem with it. 1:27:37 PM CHAIR CLAMAN referred to [the amendment] page 6, Sec. 12.36.080, Disposition of seized property [second line], and noted there were previous discussions to change the time limit from 60 days to 30 days. [Chair Claman then realized he did not have the most current version after Mr. Skidmore pointed out that the language currently reads: "(a) Within 30 days".] 1:28:41 PM CHAIR CLAMAN noted he had had a number of conversations as to satisfying the annual reporting requirement with properties where there is a real interest in keeping track of, such as, motor vehicles, airplanes, boats, and snow machines, and he was unsure whether the conversations led to any changes. MR. SKIDMORE advised that the department had not modified anything with regard to the annual reporting requirement itself, and he pointed out that the requirement does not directly impact the criminal division of the department. Although, he remarked, concerns have been expressed by the Department of Public Safety, and he opined that the concept being referred to is found under AS 11.81.900(b)[50], which read as follows: (50) "propelled vehicle" means a device upon which or by which a person or property is or may be transported, and which is self-propelled, including automobiles, vessels, airplanes, motorcycles, snow machines, all-terrain vehicles, sailboats, and construction equipment; MR. SKIDMORE said that that definition appears to encompass those larger item Chair Claman referred to, and informed the committee that the department has not been asked to make those changes. 1:30:56 PM The committee took an at-ease from 1:30 p.m. to 1:32 p.m. 1:32:29 PM CHAIR CLAMAN advised that it was pointed out that the issue about posting a bond for property subject to forfeiture is addressed under Sec. 12.35.035(c) [page 4 of the amendment], which read as follows: (c) The court may order the return of property subject to forfeiture upon the finding that the item has no evidentiary value and establishing that the property own has posted a secured monetary bond equal to the fair market value of the property. CHAIR CLAMAN advised that consistent to what Mr. Skidmore indicated, the language of the property subject to the annual report had not been changed, and it is an ongoing discussion that does not require a resolution today. He opined that there were questions about obtaining the correct information and not creating a burden on the Department of Public Safety, thereby, causing it to spend, potentially, thousands of dollars reporting properties where there is no real interest. 1:33:51 PM REPRESENTATIVE REINBOLD asked for clarification that the money from any of the seized or forfeited property would not be used to pay an attorney bill. MR. SKIDMORE responded that with regard to the proposed amendment before the committee, that was one of the issues the department had a concern with and it was not included in the amendment. Although, he pointed out, the amendment does say that under the post seizure hearing, a person is able to request property be returned if the court would allow the property to be returned. He explained that the law cannot prevent a person from using it in some manner, and it is not a factor the courts consider. From the standpoint of the department, it would be improper for the department to say what they could use the money for if it was appropriate to return it, he said. 1:34:55 PM REPRESENTATIVE FANSLER remarked that he was leery since there are almost 12 full pages of amendments and it appears like some offices have been interacted with regarding those amendments and have a clear understanding of their meaning. He stressed that he certainly did not have that clear understanding at this time. He said he was loath to force those with a clear understanding to have to march through this section-by-section, and he certainly would have appreciated being included in those discussions on the office level if that was the way it was being handled, or doing it all on the public record. He asked for a different procedure in the future. MR. SKIDMORE explained that the legislative offices reached out to the department, it wasn't the department affirmatively going to anyone in particular, because its primary focus has been to work with the sponsor. He said he would be happy to sit down and discuss it further with anyone. 1:36:54 PM REPRESENTATIVE FANSLER stressed he did not want to imply it was disrespectful, and commented that there is a lot to go through and maybe he is a slow processor and needs time to think about unintended consequences and such, but he absolutely wants to be certain he knows what he is doing when voting. He speculated that it appears the intention of the committee, at least in the long term, is to take it up as a committee substitute, of which he agrees. He asked whether there was already a finalized amended version because it would be easier to process than flipping between the lines. CHAIR CLAMAN explained the idea was to get it all together as a committee substitute, and that the bill will not be passed out today because so many changes came from this proposal from the Department of Law. His plan, he explained, is for the committee to look at the bill in total, and ask more questions to get a full understanding of exactly how it will work because he suffers from the same challenges as Representative Fansler. REPRESENTATIVE EASTMAN asked whether the sponsor would be speaking to these amendments. 1:39:22 PM REPRESENTATIVE TAMMIE WILSON, Alaska State Legislature, responded to Representative Fansler that when this bill was brought forward there was much concern from the Department of Law, the Department of Public Safety, and the Alaska Court System. All parties discussed what could and could not be included in the bill, and the Department of Law came back with the amendment before the committee. She acknowledged that it deletes parts of the original bill, but it does put all of the statues together, which is why the bill is so lengthy. She advised that the issue of ensuring that an innocent party with seized property have a clear process to have their property returned to them has been addressed. There will be some sort of mechanism where the person must prove they own the item, but it also reverts back to law to explain why it cannot be returned, she explained. 1:40:39 PM REPRESENTATIVE WILSON noted that the bigger part is the reporting portion because the Department of Public Safety currently does not have a mechanism to "spit out a report." Although, she pointed out, during this process, it was discovered that the State of Oregon has a "pretty good system," and she was advised last week that the other part of the system the State of Oregon uses matches Alaska, which would be under $20,000. She explained that the goal is to not duplicate and have law enforcement involved in paperwork anymore than necessary, and it appears they will enter information "right on the spot that they already have." She said she has no problem narrowing the list of requested items down because, legally, certain items will not be returned. Representative Wilson expressed that she is absolutely in favor of this, it has been provided to many departments, and she agreed that a sectional of the committee substitute would be much easier to understand. 1:42:35 PM REPRESENTATIVE EASTMAN noted that the biggest concern from his constituents was the ability of government officials to take property when there was no conviction and the constituent has to go through forfeiture where it becomes the government's property. He asked how wide that door is open, or whether it is closed. REPRESENTATIVE WILSON answered that it is not closed completely because that won't happen in one swipe, but it does provide a process wherein the person can submit a request advising they had nothing to do with [the crime]. In the event it was proven that the person may have had something to do with [the crime], once the defendant is found innocent or convicted, there is another part of this bill wherein that person now has standing in front of the same court to have another bite at the apple. 1:44:14 PM REPRESENTATIVE EASTMAN offered a scenario of a "future wayward prosecutor" deciding to hold a person hostage by advising the conviction would be pursued unless the person forfeits their property, "But, if you give it to me then we're not going to -- you know, prosecute." Obviously, he pointed out, he is not referring to the Alaska Department of Law, and queried whether within the statutes that type of situation is possible. REPRESENTATIVE WILSON responded that tactics can be used while going through the criminal process and the legislature will never be able to make a law that stops everything from happening. Unfortunately, in different places in the country and sometimes in Alaska, when property has been taken, the defendant could be told that their guiding license would not be taken away if the person says they are guilty of the citation. She related that this bill includes a requirement for reporting the properties forfeited, which is a huge part of this bill, because if it's not being reported then there, obviously, is an issue. She offered that many states do not do any sort of reporting whatsoever, and it allows things to happen. Again, she stated, everyone is trying to do the right thing and be certain justice is brought and that the property rights of the individuals are protected. 1:46:29 PM REPRESENTATIVE KOPP reminded the committee that Senate Bill 64, passed two or three years ago, that made it illegal to forgo criminal prosecution in lieu of civil forfeiture. Thereby, he related, telling the Department of Law that they cannot tell a defendant they will not be prosecuted "if you'll give us this." This bill allows for a post seizure hearing and the standard to justify a seizure was raised from a preponderance of the evidence to clear and convincing evidence that the court can rule on. The higher standard protects the public, he pointed out, and the Department of Law must prove to a higher standard that that property was connected to that crime and that the property should have been taken as evidence. He described it as a balance. REPRESENTATIVE REINBOLD offered that initially she had concerns with this bill, but Representative Wilson and everyone worked well together, including the Department of Law and the Alaska Court System, and she gave "a shout out for the wildlife troopers who took special time to come to the office." [HB 42 was held over.]