Legislature(2015 - 2016)HOUSE FINANCE 519
04/12/2016 01:30 PM House FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| SB147 | |
| SCR1 | |
| HB317 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 147 | TELECONFERENCED | |
| + | SCR 1 | TELECONFERENCED | |
| + | HB 317 | TELECONFERENCED | |
| + | TELECONFERENCED |
HOUSE BILL NO. 317
"An Act 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."
2:08:27 PM
REPRESENTATIVE WILSON, SPONSOR, reviewed the bill. She
stated that the legislation prohibited law enforcement from
seizing property without pressing charges first. She
reported that the explanation of changes from the previous
version amended Section 09.55 to add a new subsection to
abolish "in rem forfeiture" actions and provided for an
effective date. She added that all other sections were
deleted.
2:09:11 PM
AT EASE
2:10:01 PM
RECONVENED
Representative Kawasaki cited letters of opposition
included in the bill packet (copy on file) and assumed they
referred to previous versions of the legislation. He
related a scenario where a person got stopped for a DUI
[Driving Under the Influence] and wondered whether the
individual was immediately charged. Representative Wilson
responded in the affirmative. She confirmed that the
letters referred to previous versions of the legislation.
She characterized the bill as "simple." She exemplified a
chair and explained that that she "could not arrest the
chair and take it to court and expect it to testify." The
bill mandated that charges had to be brought against a
person and not their property. Representative Kawasaki
indicated that civil asset forfeiture was typically used
with drug offenses. He asked how the bill would impact
civil asset forfeiture. Representative Wilson stated that
many forfeiture laws existed and were not affected by the
bill. She stated that the specific forfeiture contained in
the legislation was a process not currently being used. The
bill was initially much larger and encompassed all types of
forfeiture but created costly fiscal notes for the affected
departments. She commented that she was planning to work
with the departments over the interim on the larger version
of the bill and address the fiscal note issues. The bill
was reduced to only include an idle statue.
Representative Gara liked the way the sponsor described the
bill. He asked if he could direct a question to an attorney
in the room.
Co-Chair Thompson answered in the affirmative. He mentioned
an email from the Department of Law (DOL) [Cori Mills -
dated April 12, 2016] (copy on file) that was distributed
to members.
Co-Chair Thompson indicated he had received an email that
stated that DOL had concerns about the bill and suggested
amendment language.
JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF
LAW, relayed that the original bill was much larger and
tried to change a number of statutes. Concerns developed
regarding certain measures and the bill was scaled back to
the single provision. He reported that the Criminal
Division did not file charges against property and did not
have any problems with bill. He noted that criminal charges
were filed against an individual and if property was
associated forfeiture actions would be taken. The civil
division had identified some concerns during the process of
revising the fiscal note.
KENT SULLIVAN, ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION,
DEPARTMENT OF LAW, understood the intent of the bill. He
stated concerns about potential unintended consequences in
civil law. He shared that he practiced civil litigation for
roughly 20 years that included real property litigation,
quiet title actions, condemnation actions, and probate. He
communicated that many areas of civil law was involved in
"in rem forfeiture" actions, which were actions against
property that "might be construed" in some way to
"constitute a civil forfeiture." A question remained
whether the legislation impacted the types of actions he
referenced. He suggested clarification by the courts. He
provided a few examples. He pointed out that in Southeast
Alaska it was not uncommon for the Department of Natural
Resources (DNR) to find unoccupied float houses located on
state tide lands. Permits were required for the situation.
In the absence of a permit, DNR was authorized to remove
the float house. If records identifying an owner or the
owner itself was not discovered, DNR needed an avenue to
deal with the float house. He revealed that a cause of
action against the property itself could be instituted by
the courts which granted authority over the property and
allowed further notification of potential owners and
further authorized the action to proceed against the
property. The action granted time for a potential owner to
claim the property and prove ownership. If ownership isn't
proven or found the court engaged in in rem forfeiture
proceedings, which allowed the state to take action
disposing of the float house. He stated that in rem
forfeiture applied to many other examples of civil law.
2:19:04 PM
Mr. Sullivan provided other examples where the forfeiture
law applied such as finding abandoned property structures
or equipment on an individual's private property or in
probate proceeding in the absence of a will or heir where
property escheated to the state. In the examples provided
the in rem laws allowed the claims to proceed in court
against the property. He delineated that state statute
allowed a quiet title action but statute did not define all
of the parameters of quiet title actions. The details were
filled in by common law. He was unsure about the extent of
the impact of the bill. The department needed more time to
further examine how the bill would impact the issues he
discussed.
Representative Gara wanted to see the bill move forward and
suggested developing appropriate amendment language to
assist its adoption. He understood the concern raised by
the civil division. He asked for a brief explanation of in
rem forfeiture. Mr. Sullivan defined an in rem forfeiture
as "a proceeding as against the property as opposed to the
person." He informed the committee that there were "many,
many instances where it was impossible to get a judgement
against the person."
2:23:23 PM
Representative Gara did not mean a judgement against a
person. He reiterated Mr. Sullivan's float house example.
He suggested adding the following language: "common law,
civil in rem forfeiture actions are abolished, unless there
has been a final court judgement." He asked whether
everyone's interest was satisfied.
Co-Chair Thompson asked whether Representative Gara
referred to the potential language amendment recommended in
the department's email. Representative Gara replied in the
affirmative and declared that the proposed amendment was
vague.
Mr. Sullivan supposed that the language Representative Gara
was suggesting might work. He was concerned whether a
judgement existed in all instances. He stated in issues
concerning probate proceedings, disclaimers of property,
and disavowing a property a judgement was not given. In
addition, requiring a judgment was putting the last legal
piece of the process first.
2:25:37 PM
Representative Gara suggested the language "without a court
order" instead. Mr. Sullivan agreed that both of the
representative's amendment proposals might work. He
referred to the language proposed in the email:
Sec. 09.55. 700. In rem civil forfeiture actions
abolished. Common law civil in rem forfeiture actions
are abolished if used instead of a criminal
proceeding.
Representative Gara responded that the language sounded
"really vague." He believed that the department's suggested
language required justification why the in rem forfeiture
action was chosen instead of criminal proceedings. He felt
that the language was unclear and his language regarding a
valid court order was more definitive. Mr. Sullivan asked
whether he was suggesting not using DOL's recommended
language. Representative Gara replied in the affirmative.
He contended that his suggested language clarified that the
property could not be seized without a court order. Mr.
Sullivan remarked that he was being asked to respond
quickly. He maintained a concern that the language allowed
a court order in a criminal proceeding and defeated the
intent of the bill. He indicated that if the intent of the
language was to only abolish the use of civil forfeiture
unless there was a court order, the amendment might work.
However, if the intent was to abolish the use of civil in
rem forfeiture even when used in the context of criminal
procedure it would not achieve the desired result.
Representative Gara thought that the bill sponsor's intent
was to eliminate forfeiture without a court order. Mr.
Sullivan deduced that his language "may address the concern
from the civil side" of the issue.
Representative Gara suggested alternative language as
follows: "Common law civil in rem forfeiture actions are
prohibited unless there had been a court order."
2:29:51 PM
Representative Munoz referred to Mr. Sullivan's example of
a house boat. She wondered whether a court order was
necessary to remove the structure. Mr. Sullivan responded
affirmatively. He expounded that a court process similar to
a quiet title action that provided notice to the public
applied.
Representative Gara wondered whether there was any illegal
circumstance where a trooper would seize someone's property
without a court order.
JEFF LAUGHLIN, TROOPER, ALASKA STATE TROOPER (via
teleconference), responded in the negative. He relayed that
troopers never seized any property in the absence of
criminal charges. Representative Gara understood criminal
forfeiture. He was referring to civil cases but was
uncertain how to phrase the question.
Co-Chair Thompson agreed that everyone was familiar with
forfeiture that was unreasonable and thought that the bill
was attempting to address the issue. He provided an example
of someone driving through a state with a lot of cash in
order to purchase a car. The individual was stopped by
police and the money was seized on the suspicion of drug
dealing. He guessed that a similar situation had not
happened in Alaska.
2:33:10 PM
Co-Chair Thompson OPENED public testimony.
2:33:26 PM
Co-Chair Thompson CLOSED public testimony.
Co-Chair Thompson wanted additional clarification from DOL.
2:33:58 PM
AT EASE
2:37:57 PM
RECONVENED
Representative Wilson MOVED to ADOPT Conceptual Amendment 1
that would delete the word "abolished" and inserted
"prohibited unless there is a court order." There being NO
OBJECTION, it was so ordered.
Representative Kawasaki suggested that the title needed to
change.
2:39:12 PM
AT EASE
2:40:07 PM
RECONVENED
Co-Chair Thompson stated that the conforming language would
apply to the title.
Co-Chair Thompson reviewed the fiscal notes. He noted the
new zero fiscal note for the Department of Administration
(DOA) appropriated to Legal and Advocacy Services allocated
for the Office of Public Advocacy and the new zero fiscal
note for the Department of Administration (DOA)
appropriated to Legal and Advocacy Services allocated for
the Public Defender agency. He mentioned the new zero
fiscal note for DOL appropriated for Administration and
Support allocated to Office of the Attorney General and
finally, the indeterminate fiscal note from the Department
of Public Safety (DPS) appropriated for Statewide Support
and allocated to the Commissioner's Office.
Representative Munoz MOVED to REPORT CSHB 317 (FIN) as
amended out of committee with individual recommendations
and the accompanying fiscal note(s).
CSHB 317 (FIN) was REPORTED out of committee with a "do
pass" recommendation and with two new zero fiscal notes
from the Department of Administration, one new zero fiscal
note from the Department of Law, and one new zero fiscal
note from the Department of Public Safety.
Co-Chair Thompson reminded members that formal decorum was
necessary during committee. He reviewed the agenda for
later in the afternoon of the same day.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB147 Summary of Changes 040416.pdf |
HFIN 4/12/2016 1:30:00 PM |
SB 147 |
| SB147 Sectional Analysis 040416.pdf |
HFIN 4/12/2016 1:30:00 PM |
SB 147 |
| SB147 Governor Transmittal Letter.pdf |
HFIN 4/12/2016 1:30:00 PM |
SB 147 |
| 02_SCR1_CivicsEd_TaskForce_SponsorStatement.pdf |
HFIN 4/12/2016 1:30:00 PM |
SCR 1 |
| 10_SCR1_US Citizenship Civics Test-2 Page.pdf |
HFIN 4/12/2016 1:30:00 PM |
SCR 1 |
| 09_SCR1_CivicsEd_TaskForce_OtherStatesLaws_Summary.pdf |
HFIN 4/12/2016 1:30:00 PM |
SCR 1 |
| 08_SCR1_FactsAboutCivicsLiteracy.pdf |
HFIN 4/12/2016 1:30:00 PM |
SCR 1 |
| 07_SCR1_CivicsRenewalNetwork_Article.pdf |
HFIN 4/12/2016 1:30:00 PM |
SCR 1 |
| 06_SCR1_ACTA_Roosevelt_Survey.pdf |
HFIN 4/12/2016 1:30:00 PM |
SCR 1 |
| SCR 1 Article Atlantic Educ Age of Trump.pdf |
HFIN 4/12/2016 1:30:00 PM |
SCR 1 |
| HB 317 DLAW email Re HB 317 legal concerns.pdf |
HFIN 4/12/2016 1:30:00 PM |
HB 317 |