03/01/2017 01:00 PM House JUDICIARY

         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.]