Legislature(2015 - 2016)CAPITOL 106
01/26/2016 08:00 AM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB243 | |
| SB9 | |
| HB217 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 243 | TELECONFERENCED | |
| + | SB 9 | TELECONFERENCED | |
| *+ | HB 217 | TELECONFERENCED | |
HB 243-CRIM. CONV. OVERTURNED: RECEIVE PAST PFD
8:09:28 AM
CHAIR LYNN announced that the first order of business was HOUSE
BILL NO. 243, "An Act relating to the permanent fund dividend;
and relating to a permanent fund dividend for an individual
whose conviction has been vacated, reversed, or dismissed or for
an individual who has been pardoned because of innocence and
wrongful conviction."
[CHAIR LYNN passed the gavel to Vice Chair Keller.]
8:09:40 AM
VICE CHAIR KELLER noted that there was a committee substitute
available, and he asked the bill sponsor's staff to explain the
changes that would be made by it. He noted there were people
available to testify.
8:10:57 AM
DANEEN TUCK, Staff, Representative Bob Lynn, Alaska State
Legislature, presented HB 243 on behalf of Representative Lynn,
prime sponsor. She said many people mistake HB 243 as a bill
written for "the Fairbanks Four," but she explained it was the
Fairbanks Four who brought attention to the lack of any law that
would [allow a permanent fund dividend for] an individual whose
conviction had subsequently been overturned, dismissed, or
vacated. She said the sponsor worked during the interim so that
this oversight would be corrected.
MS. TUCK, in response to the prime sponsor, discussed the
changes the aforementioned committee substitute would, if
adopted, make to the original bill version. The first change
was the removal from the bill title, and anywhere within the
original bill, references to an individual who has been pardoned
and references to "pardoned because of innocence and wrongful
conviction". Ms. Tuck explained, "The reason for those removals
is that if you pardon somebody, then you're asking the governor
to make a finding of innocence. We did not want to do that,
because the parties who were pardoned could possibly still have
committed the crime, and those are not the ones that we were
looking for; we were looking for ones that the courts had
overturned, dismissed, vacated, or reversed their cases."
MS. TUCK pointed out specific language [in the original bill
version] that would be deleted [under the committee substitute]:
"pardoned", from page 1, line 14; "pardon under (i)(2) of this
section", from page 2, line 4; the language on page 2, lines 5-
7, which read as follows:
(k) When a permanent fund dividend is paid
under (i) of this section, the department shall also
pay interest at the rate specified in AS 45.45.010
from the date each dividend would have been paid if
the individual had been eligible.
MS. TUCK explained it was found that throughout the history of
the permanent fund dividend (PFD), no interest had ever been
paid out. She offered a scenario wherein parents did not apply
for their child's PFD, but within 60 days of turning 18, that
child could apply. She said, "Even those types of Alaskans
would not get any interest." She indicated that the language
was taken out in the interest of fairness.
MS. TUCK said the next change was [the deletion of Section 2,
the language of which] she said is on page 2, lines 9-11 [of the
original bill], which read as follows:
(k) The Department of Corrections shall
provide an application for a permanent fund dividend
to any individual in the custody of the Department of
Corrections who requests an application, regardless of
the eligibility of the individual.
MS. TUCK explained that the sponsor determined the language
should be deleted after discussing the issue with the Department
of Corrections and finding out "how bad it's handled."
8:15:03 AM
CHAIR LYNN, regarding the deletion of references to the word
"pardon", explained that people are not pardoned unless they
were originally found guilty, and the bill is about people who
are innocent. He echoed Ms. Tuck's statement that the proposed
legislation was not being introduced to benefit the Fairbanks
Four, but for all situations where a mistake was made and a
correction needs to be made such that everyone can be treated
equitably. He said a person could lose one year of the PFD or
eighteen years, and he stated his belief that "there are others
out there also who could fall under the parameters of this
bill." He offered his understanding that "vacated" means "the
thing never happened at all."
8:16:30 AM
REPRESENTATIVE GRUENBERG directed attention to the phrase, "An
Act relating to the permanent fund dividend", in the bill title.
He said, "Unless we want it to be used for anything that
somebody may think of, we really do need to narrow that down or
it will be caught at some point and used."
VICE CHAIR KELLER offered his understanding that Representative
Gruenberg was remarking upon the broad nature of the bill title
and warning that it could result in "too broad of a range of
amendments" as the bill goes through the legislative process.
REPRESENTATIVE GRUENBERG responded, "Yes."
VICE CHAIR KELLER noted that the bill sponsor would like the
bill to be moved from committee today, but said he is hesitant
to do so. He said that determination would be made after
getting the questions of the committee on the table.
8:17:31 AM
REPRESENTATIVE VAZQUEZ suggested deleting "relating to the
permanent fund dividend; and" from page 1, line 1, so that the
title would read: "An Act relating to a permanent fund dividend
for an individual whose conviction has been vacated, reversed,
or dismissed."
8:18:01 AM
VICE CHAIR KELLER clarified that the committee needed to adopt
the committee substitute as a working document before it could
entertain amendments to it.
8:18:25 AM
REPRESENTATIVE GRUENBERG moved [to adopt the proposed committee
substitute (CS), Version 29-LS1279\G, Martin, 1/25/16, as a work
draft]. There being no objection, Version G was before the
committee.
8:18:43 AM
REPRESENTATIVE VAZQUEZ, in response to Vice Chair Keller,
reiterated her suggested amendment, and stated her support of HB
243. She said she had been concerned about the interest rate
and the pardon provision, but both provisions would be deleted
under Version G.
8:19:59 AM
REPRESENTATIVE GRUENBERG said, "That's an excellent amendment."
Notwithstanding that, he suggested that the committee "wait and
see what the final bill looks like, in case something else
changes."
8:20:16 AM
VICE CHAIR KELLER said he was inclined to "let this one soak a
little bit." He then questioned why a law is needed to make
this change rather than addressing the issue within the court
system. He said he thinks there are questions about "the
ownership." He said he is not certain whether "these things are
untested in court." He asked whether the people that have been
wronged have gone to court to ask for relief.
8:21:01 AM
CHAIR LYNN responded that as far as the Fairbanks Four are
concerned, they were trying to get their sentencing vacated and
"this is just part of that." He expressed his surprise that the
administration had not come forward to address the issue. He
reiterated his focus was on fairness. He opined that the issue
needs to be addressed and resolved.
8:21:51 AM
The committee took a brief at-ease at 8:22 a.m.
8:22:49 AM
VICE CHAIR KELLER suggested there may be testifiers available
who could answer his questions.
8:22:57 AM
REPRESENTATIVE TALERICO said he would like to ask someone with a
legal knowledge about a situation in which a judgement may have
been vacated, but where there are other charges involved.
CHAIR LYNN offered his understanding that "vacated" means
"nothing happened whatsoever."
REPRESENTATIVE GRUENBERG inquired as to how much "this" would
cost the Permanent Fund Division.
MS. TUCK said she did not have the answer at present.
8:24:28 AM
VICE CHAIR KELLER opened public testimony on HB 243.
8:24:52 AM
MARY ELLEN BEARDSLEY, Assistant Attorney General, Commercial and
Fair Business Section, Civil Division (Anchorage), in response
to Vice Chair Keller, suggested a criminal attorney would be
better equipped to answer questions regarding HB 243.
8:25:38 AM
HILARY MARTIN, Attorney at Law, Legislative Legal and Research
Services, Legislative Affairs Agency, responded to a previous
question as to why legislation is necessary to address the
issue. She said under current statute a person is not eligible
to receive a PFD if he/she has been incarcerated as a result of
conviction of a felony or sentenced as a result of a felony.
She continued:
You're ineligible for one year, and there's nothing
that would let [the Department of] Revenue look back
and decide if the conviction was gone that they should
get these back PFDs. And so, you just need something
in statute to allow that process to happen, because
they were ineligible at the time the ineligibility was
set, and there's nothing currently in statute to
change that.
8:27:14 AM
VICE CHAIR KELLER said if he experienced a PFD being held back
wrongfully, he would be indignant about it. He said it seems
like there are fundamental constitutional protections that would
be in place when addressing the issue of ownership. He offered
his understanding that Ms. Martin had said that the ownership
does not happen because of this law, because it's the act of
being incarcerated that disqualifies a person.
8:27:51 AM
REPRESENTATIVE GRUENBERG asked if the bill sponsors were
prepared to answer why the bill is necessary.
8:28:58 AM
RICHARD ALLEN, Director, Office of Public Advocacy (OPA),
Department of Administration, testified on behalf of OPA in
support of HB 243. He said Alaska is one of a minority of
states that does not have "a compensation bill," which he
explained is a bill that would pay people who were proven to be
wrongfully incarcerated a sum of money per each year they were
incarcerated. He said, "It seems to me that the least we can do
is give them back their dividends that they would have received
had they not been in jail." He said OPA thinks HB 243 is common
sense legislation. He concurred with Ms. Martin that
legislation is necessary, because currently there is no vehicle
to provide those people with the back dividends. He said he
supposed people could sue in court to get the money back, but he
opined this is a better way to address the issue.
MR. ALLEN, in response to Vice Chair Keller, recollected that
about 32 states provide that person is paid a set amount per
year for every year that a person was wrongfully incarcerated.
He offered his understanding that the lowest yearly remuneration
is approximately $40,000, while the highest, given by the State
of Texas, is $100,000. He said [William B. Oberly] was
available to testify, and he surmised Mr. Oberly had those
numbers available.
8:32:36 AM
CHAIR LYNN clarified that HB 243 relates only to the PFD issue.
He said there is another issue related to compensation [for
those wrongfully accused], but he emphasized that he wanted to
keep those issues separate.
8:33:15 AM
WILLIAM B. OBERLY, Executive Director, Alaska Innocence Project
(AIP), stated that AIP is a 501(c)(3) nonprofit organization
whose mission is to identify and exonerate wrongfully convicted
individuals in Alaska. He said AIP supports HB 243 because
"it's the right thing to do." When a person is convicted and
the conviction is vacated and the charge is dismissed, it means
the person was wrongfully convicted, which means that the
person's PFD was wrongfully denied him/her during the period of
conviction. He posited that the State of Alaska would want to
correct the wrongful denial of the PFD.
MR. OBERLY continued as follows:
And I think it provides some assistance to people who
get out of jail or out of prison after a wrongful
conviction, who have - in Alaska at this point -
nothing else to ... help them when they get out.
There aren't the services of someone who's correctly
convicted and gets out and is helped by the parole and
probation system; there is no compensation provided
for the wrongfully convicted. So, this would provide
them some ability to get back on their feet. And
really the amount is a pittance compared to what the
cost to the state is of wrongfully continuing to
incarcerate an innocent person.
MR. OBERLY said he agrees with Mr. Allen and [Ms. Martin] that
the reason HB 243 is necessary is that there currently is no
mechanism to correct this injustice. He said AIP had checked
when the Fairbanks Four had been exonerated to see if they could
get their PFDs, and there was no way they could do it under
current statute. He urged passage of HB 243.
8:36:20 AM
REPRESENTATIVE GRUENBERG inquired whether someone incarcerated
out of state would lose his/her residency and, therefore, lose
his/her eligibility for a PFD.
CHAIR LYNN speculated that someone who is incarcerated and sent
to an out-of-state facility is sent out of state against his/her
will.
REPRESENTATIVE GRUENBERG said that may be true, but he noted
there is a specific statute that relates to eligibility for the
PFD for those who are out of state. He said he did not recall
the situation wherein a person is incarcerated [out of state] as
being on that list.
8:37:46 AM
REPRESENTATIVE GRUENBERG referred to probate, and asked whether
a person who had been incarcerated, then subsequently
exonerated, and then dies, would, under the proposed
legislation, be allowed his/her estate to claim the PFD. If so,
he questioned whether it would be necessary to adopt conforming
amendments to Title 13. Further, he questioned whether any
conforming changes needed to be made to the conservator statute
to have someone appointed to help someone unable to handle the
paperwork involved in claiming a PFD.
VICE CHAIR KELLER stated that Representative Gruenberg's
questions were now on the record, and he would give the
appropriate entities time to respond later.
8:39:25 AM
REPRESENTATIVE TALERICO questioned whether the bill language
should be amended to clarify that when there are multiple
convictions [of one individual], all convictions must be
vacated.
CHAIR LYNN offered his understanding that a person who had one
conviction vacated, but still had one or more other current
convictions, would still not be eligible for the PFD because of
the pending conviction(s).
REPRESENTATIVE GRUENBERG mentioned language "on line 11" and
suggested language should be added to include waiting until
after an appeal.
MS. TUCK advised that most of the questions that had been asked
could be answered by Jerry Burnett of the Permanent Fund
Division.
8:42:27 AM
VICE CHAIR KELLER reiterated that the committee would hold the
bill; therefore, Mr. Burnett could choose to defer responses
until the next bill hearing.
8:42:43 AM
JERRY BURNETT, Deputy Commissioner, Office of the Commissioner,
Department of Revenue, introduced Sara Race as the person who
could answer questions about costs.
8:43:29 AM
SARA RACE, Director, Central Office, Permanent Fund Dividend
Division, Department of Revenue (DOR), indicated that the total
for costs over the last 18 years is $159.28.
CHAIR LYNN added, "Per person."
REPRESENTATIVE GRUENBERG clarified that he is not asking about
the administrative cost, but how much the division anticipates
would be distributed to prisoners.
MS. RACE responded that if a person was released from prison
after 18 years, "that would be the total that would be
administered to that individual."
REPRESENTATIVE GRUENBERG clarified that he wants to know the
total amount that would be coming out of the permanent fund.
VICE CHAIR KELLER asked Representative Gruenberg if he was
asking for an historical figure rather than trying to project
into the future.
REPRESENTATIVE GRUENBERG said he did not think [a projection]
could be made easily.
MS. RACE relayed that the division currently holds a reserve for
paying out dividend money to individuals who have turned 18, and
whose parents did not apply for a dividend. She said last year
the amount was about $900,000 held in a reserve account in
anticipation of those individuals coming forward to collect 18
years of unpaid dividends.
8:46:12 AM
REPRESENTATIVE GRUENBERG suggested that the Department of
Corrections or the Department of Law should be able to determine
how many individuals have been wrongly convicted. He stated
that he does not think it wise to assume that the number and
amount related to the people who have turned 18 has anything to
do with "the prisoners that are in this situation."
8:46:53 AM
MR. BURNETT addressed why the proposed legislation is needed.
He said there is current regulation, which allows a person whose
conviction was vacated to apply within 60 days for a PFD;
however, that is only for people who had previously applied for
that dividend. He named the two reasons someone is eligible to
receive a PFD: he/she meets the residency requirements and
applied during the relevant period. The proposed legislation
would create [an opportunity] for those people who did not
apply. He said the division has already paid dividends to some
of the people who have been vacated in the past, because those
people had previously applied and met the regulations. He
stated that estimating the cost of HB 243 would be complicated,
because some of these people will never apply, some will, and
some already have and have been paid. He said it is perfectly
reasonable for a person not to have applied during an 18-year
period.
8:48:36 AM
MR. BURNETT addressed the previous question regarding people who
are incarcerated out of state. He said currently people who are
in the custody of the state and living Outside - not those
incarcerated, but, for example, children who are getting medical
treatment - maintain their eligibility. He stated, "We see this
as analogous to that; they're ... in the custody of the state
and they no longer will be denied the dividend because they were
incarcerated."
MR. BURNETT, in response to Vice Chair Keller, deferred to Ms.
Race to answer a question about how the division handles people
who are incapacitated and individuals who die during their
eligibility period.
MS. RACE said an estate has a certain amount of time to apply
for the PFD. She said, "We would run something that's very
parallel to that, giving them the opportunity ... [for] their
families to come back to us and go through the same process as
far as determining eligibility."
8:50:22 AM
REPRESENTATIVE GRUENBERG indicated that "most of these people
are fairly unsophisticated legally" and will require legal
assistance to navigate the system. He said, "Otherwise you're
going to have people who have been in jail a long time that are
fairly disoriented, and they're given a few bucks when they get
out and [will be] trying to find themselves and find some work."
He said someone who was wrongfully in jail for 10 years would be
owed $10,000 to $15,000, and one question that will come up will
be pertaining to taxes, which will have to be withheld.
Representative Gruenberg expressed concern that people in this
possible situation would be able to "make use of this." He said
it would take some work to ensure that current statutes are
sufficient. He said there would be some cost involved in this,
and he hoped there would not be a fiscal note. He said he
strongly supports the bill, but would want a legal voice "to be
legally sure that that is intended to cover incarcerated
people."
8:53:10 AM
VICE CHAIR KELLER stated that 2016 is the year when the
legislature's focus is on the budget. He expressed appreciation
to the sponsor for bringing HB 243 forward. He said Alaska has
"the people's natural resources," a portion of which is
monetized into the General Fund; however, more than 25 percent
has been placed into the Alaska Permanent Fund. He said the
ownership of the fund is different from the public common
ownership of the other monetized natural resources. He said
Alaska is unique in this, and the legislature is learning how to
handle the issue.
THEDA PITTMAN brought up AS 15.13, Alaska's campaign disclosure
law.
VICE CHAIR KELLER asked Ms. Pittman if she had an opinion
regarding HB 243.
MS. PITTMAN stated that she supports The Alaska Innocence
Project. She said she was not worried about whether or not she
would receive her own PFD after spending considerable time in
the Lower 48 looking after her nephew, whom she noted is a
Vietnam War veteran.
8:57:35 AM
CHAIR LYNN said the budget is at the top of the list for
consideration this session, but he opined that justice and
fairness are even more important, and that is what HB 243 is all
about. He expressed gratitude for the questions that had been
brought forward.
[HB 243 was held over.]