02/22/2012 01:00 PM House JUDICIARY

        HB 221 - PUBLIC DEFENDER APPOINTMENT PROCEDURES                                                                     
                                                                                                                                
1:05:38 PM                                                                                                                    
                                                                                                                                
CHAIR GATTO announced  that the first order of  business would be                                                               
HOUSE  BILL NO.  221,  "An  Act relating  to  the appointment  of                                                               
counsel for  persons accused of  crimes; and amending  Rule 39.1,                                                               
Alaska Rules of Criminal Procedure."                                                                                            
                                                                                                                                
1:06:54 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MIKE CHENAULT,  Alaska State Legislature, sponsor,                                                               
explained  that HB  221 addresses  the  issue of  court-appointed                                                               
legal  representation for  those who  cannot afford  an attorney,                                                               
and noted that  it's the Office of Public Advocacy  (OPA) and the                                                               
Public  Defender Agency  (PDA) that  provide such  representation                                                               
and  bear the  cost.    He offered  his  understanding that  some                                                               
who've  claimed  to  be  eligible  for  such  representation  and                                                               
subsequently received it did not truly  qualify, and so HB 221 is                                                               
intended to reduce the cost of such fraud to the state.                                                                         
                                                                                                                                
1:09:01 PM                                                                                                                    
                                                                                                                                
SHARALYN WRIGHT,  Staff, Representative Mike Chenault,  on behalf                                                               
of  the sponsor,  Representative Chenault,  noting that  members'                                                               
packets  contain a  sectional  analysis of  HB  221, offered  her                                                               
understanding  that   the  bill  would  allow   the  court,  when                                                               
determining whether to provide a defendant with a court-                                                                        
appointed attorney,  to also  consider the  defendant's financial                                                               
resources, and would  require the defendant to  complete a signed                                                               
sworn financial  statement subject to the  penalties for perjury.                                                               
These proposed  changes, she  posited, would  allow the  court to                                                               
ensure that funds expended for  court-appointed counsel are being                                                               
spent  in a  responsible manner.   In  conclusion, she  indicated                                                               
that a  fiscal note from the  Alaska Court System (ACS)  would be                                                               
forthcoming,  and that  it  would  address estimated  additional-                                                               
personnel costs.                                                                                                                
                                                                                                                                
MS.  WRIGHT, in  response  to comments  and questions,  indicated                                                               
that the  sponsor is not  interested in  having HB 221  amend the                                                               
Alaska  Rules of  Civil Procedure;  offered her  belief that  any                                                               
fiscal impacts  associated with  the bill  would be  dependent on                                                               
the management and resource-allocation  skills of the departments                                                               
involved; and  reiterated that  the ACS has  not yet  submitted a                                                               
fiscal note for HB 221.                                                                                                         
                                                                                                                                
REPRESENTATIVE CHENAULT offered his  belief that by ensuring that                                                               
court-appointed legal  representation is  only provided  to those                                                               
who truly cannot  otherwise afford it, HB 221  would reduce costs                                                               
to the state.                                                                                                                   
                                                                                                                                
CHAIR GATTO,  in response  to comments  and a  question, observed                                                               
that the  bill specifies that  the defendant shall be  under oath                                                               
and subject to the penalties for perjury.                                                                                       
                                                                                                                                
1:16:14 PM                                                                                                                    
                                                                                                                                
DOUGLAS GARDNER, Director, Legal  Services, Legislative Legal and                                                               
Research  Services, Legislative  Affairs  Agency  (LAA), also  in                                                               
response,  confirmed that  knowingly testifying  under oath  to a                                                               
false statement constitutes the crime of perjury.                                                                               
                                                                                                                                
1:16:58 PM                                                                                                                    
                                                                                                                                
QUINLAN  STEINER,  Director,   Central  Office,  Public  Defender                                                               
Agency   (PDA),  Department   of   Administration  (DOA),   after                                                               
mentioning that HB 221 would  directly impact appointments to the                                                               
PDA, said  the bill's proposed  changes are consistent  with some                                                               
of the  recommendations the PDA  has made in previous  years with                                                               
regard to  requiring a  signed sworn  financial statement  in all                                                               
cases so  as to ease  the audit  process that ensures  only those                                                               
who  truly qualify  are appointed  an attorney.   In  response to                                                               
questions,  he  characterized  the  bill's  proposed  changes  as                                                               
important;  offered  his   understanding  that  interpreters  are                                                               
provided  by  the  court  to   clients  not  fluent  in  English;                                                               
acknowledged  that  the term  "financial  statement"  as used  in                                                               
existing Rule 39.1(e)  of the Alaska Rules  of Criminal Procedure                                                               
is  a  very   broad  term,  but  surmised   that  such  broadness                                                               
facilitates   compliance   with    statute,   court   rule,   and                                                               
administrative  rule;  explained  that Alaska's  court  rules  do                                                               
provide  guidelines regarding  financial resources  and estimated                                                               
legal-representation   costs  for   purposes  of   determining  a                                                               
person's  inability to  pay; noted  that currently,  the client's                                                               
pertinent  information  is  sometimes  provided  in  writing  and                                                               
sometimes  it's  just  entered  into  the  record  verbally;  and                                                               
posited  that   HB  221's  proposed  changes   would  bring  some                                                               
consistency  to the  appointment  process which  could, in  turn,                                                               
result in fewer appointments.                                                                                                   
                                                                                                                                
MR. STEINER,  in response to  further questions, said  he assumes                                                               
that  the court  already has  a  process in  place for  assisting                                                               
illiterate  clients,   and  acknowledged  that  the   bill  could                                                               
potentially,  but  not  necessarily, slow  down  the  appointment                                                               
process undertaken  by the  court.  However,  if the  bill slowed                                                               
that process down significantly, then that could be of concern.                                                                 
                                                                                                                                
1:23:50 PM                                                                                                                    
                                                                                                                                
RICHARD  ALLEN,  Director,  Anchorage Office,  Office  of  Public                                                               
Advocacy (OPA), Department of  Administration (DOA), [with regard                                                               
to  the   aforementioned  court-rule  guidelines   pertaining  to                                                               
estimated  legal-representation  costs,]  pointed  out  that  the                                                               
amount varies depending  upon the type of case;  for example, the                                                               
estimated legal-representation  cost for  a misdemeanor is  a lot                                                               
less than it is for a class A or unclassified felony.                                                                           
                                                                                                                                
CHAIR  GATTO,  after ascertaining  that  no  one else  wished  to                                                               
testify, closed public testimony on HB 221.                                                                                     
                                                                                                                                
1:25:37 PM                                                                                                                    
                                                                                                                                
NANCY  MEADE, General  Counsel, Administrative  Staff, Office  of                                                               
the  Administrative Director,  Alaska  Court  System (ACS),  said                                                               
that the ACS has some concerns  with HB 221, but would be working                                                               
with  the sponsor  to address  those concerns.   As  the bill  is                                                               
currently written,  implementation could  be problematic  for the                                                               
ACS because at some initial  appearances, there can be between 30                                                               
and 60  different parties coming  before the court, with  a great                                                               
majority   of  those   parties  qualifying   for  court-appointed                                                               
representation, and with  much of the information  used in making                                                               
those determinations  being provided  verbally.   Currently there                                                               
are three instances  in which a person  can presumptively qualify                                                               
for  court-appointed  legal  representation without  any  further                                                               
investigation by  the court into  the person's inability  to pay:                                                               
if  the  person is  already  receiving  state or  federal  public                                                               
assistance  benefits;  if the  person's  gross  annual income  is                                                               
below  federal  poverty-level  amounts;  or  if  the  person  had                                                               
applied  for and  received court-appointed  representation within                                                               
the previous  [12 months].   Presumptively qualifying  for court-                                                               
appointed  legal  representation  under  one  of  those  criteria                                                               
happens in a great majority  of cases, with, again, the necessary                                                               
information having been provided verbally.                                                                                      
                                                                                                                                
MS. MEADE relayed that if  those people who currently only needed                                                               
to provide the necessary information  verbally had instead had to                                                               
provide  it in  writing -  and the  existing financial  statement                                                               
form provided by  the ACS is four pages long  - the ACS estimates                                                               
that it  would have taken  each person an additional  20 minutes,                                                               
or  longer, to  fill out  the form,  and he/she  might have  also                                                               
required assistance from ACS personnel.   Although changes to the                                                               
bill could  change its fiscal impact  on the ACS, under  the bill                                                               
as currently written, the ACS  would require additional personnel                                                               
to  help people  fill out  the necessary  forms, since  currently                                                               
only the courts in Anchorage  and Fairbanks have the personnel to                                                               
assist such people.  The ACS  understands the problem the bill is                                                               
meant to  address, she relayed, and  so will be working  with the                                                               
sponsor and  the PDA to  come up with [legislation]  that assists                                                               
the audit  process, thereby increasing  accountability -  the ACS                                                               
doesn't want to  be appointing legal representation  to those who                                                               
don't deserve it.                                                                                                               
                                                                                                                                
MS.  MEADE  mentioned  that the  bill's  proposed  changes  could                                                               
result in  additional expenses  and additional  delays associated                                                               
with providing  translator services and assistance  to illiterate                                                               
clients.  In  response to a question, she clarified  that the ACS                                                               
is not opposed to the  concept of having the required information                                                               
be submitted  in writing,  and is  instead merely  concerned with                                                               
the bill's  potential fiscal  impact on the  ACS; again,  the ACS                                                               
would need to  hire additional personnel in  order to accommodate                                                               
the needs  of those who  would be required to  submit information                                                               
in  writing,  and   to  verify  the  accuracy   of  that  written                                                               
information.   Such  accommodation and  verification is  going to                                                               
take  time,  and  the  ACS  would be  bearing  the  cost  of  any                                                               
resultant delays in the process, and  thus a fiscal note from the                                                               
ACS regarding HB 221 would be forthcoming.                                                                                      
                                                                                                                                
1:35:07 PM                                                                                                                    
                                                                                                                                
MS. MEADE, in response to a  question, explained that the PDA has                                                               
a statutory responsibility, with which  it does comply, to report                                                               
to the ACS when it's been  appointed to represent someone whom it                                                               
later learns should not have been provided with a PDA attorney.                                                                 
                                                                                                                                
MR. STEINER concurred,  and, in response to  further comments and                                                               
questions,  provided  information  about   the  process  the  PDA                                                               
currently undertakes in such situations.                                                                                        
                                                                                                                                
MS. MEADE  added that  the ACS does  notify those  seeking court-                                                               
appointed  counsel that  if they  provide  false information,  it                                                               
would be  considered perjury  and they would  then be  subject to                                                               
the penalties  for that  crime.   She acknowledged,  though, that                                                               
she  isn't sure  how that  crime would  then be  prosecuted.   In                                                               
response to a  question, she clarified that the ACS  would not be                                                               
impacted by  Section 1's  proposal to  add the  words, "financial                                                           
resources  and"  to  AS 18.85.120(b),  because  the  ACS  already                                                           
considers such  information when  determining whether  to appoint                                                               
counsel.  The  bill's anticipated fiscal impact on  the ACS would                                                               
result  from Section  2's proposed  direct court  rule change  to                                                               
Rule  39.1(e)   of  the  Alaska  Rules   of  Criminal  Procedure,                                                               
specifically that of requiring  all those seeking court-appointed                                                               
counsel to  complete a signed  sworn financial  statement subject                                                               
to the  penalties for perjury.   Again, currently, when  a person                                                               
is found  to be presumptively eligible  for court-appointed legal                                                               
representation, there  is no further  investigation by  the court                                                               
into the  person's inability to  pay.   She, too, noted  that for                                                               
purposes of determining  a person's inability to  pay for his/her                                                               
legal  representation, Alaska's  court  rules provide  guidelines                                                               
regarding financial resources  and estimated legal-representation                                                               
costs.                                                                                                                          
                                                                                                                                
REPRESENTATIVE KELLER,  having characterized  HB 221 as  a really                                                               
good bill, indicated that the need  for it has been clarified for                                                               
him by Ms. Meade's remarks.                                                                                                     
                                                                                                                                
1:46:08 PM                                                                                                                    
                                                                                                                                
MS.  MEADE, in  response to  comments, reiterated  that a  fiscal                                                               
note from  the ACS  would be  forthcoming shortly,  and mentioned                                                               
that the  ACS is hopeful that  the bill could be  changed at some                                                               
point so  that something other than  the aforementioned four-page                                                               
document could be used.                                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he  supports the  concept of  the                                                               
bill, and expressed  interest in receiving a report  from the ACS                                                               
[if/when] the bill's proposed changes are implemented.                                                                          
                                                                                                                                
CHAIR GATTO relayed that HB 221 would be held over.