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