Legislature(2015 - 2016)BELTZ 105 (TSBldg)
04/16/2016 09:00 AM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB147 | |
| HB308 | |
| HB317 | |
| HB126 | |
| SB182 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 147 | TELECONFERENCED | |
| += | HB 308 | TELECONFERENCED | |
| + | HB 317 | TELECONFERENCED | |
| + | HB 126 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 182 | TELECONFERENCED | |
HB 317-NO COMMON LAW CIVIL IN REM FORFEITURE
9:59:43 AM
CHAIR MCGUIRE announced the consideration of HB 317. She noted
this is the first hearing, CSHB 317(FIN) is before the
committee, and there is a proposed Senate committee substitute.
REPRESENTATIVE TAMMIE WILSON, Alaska State Legislature, Juneau,
Alaska, sponsor of HB 317, explained that version P amends
Alaska's civil asset forfeiture laws clarifying that private
property may not be permanently taken from individuals
suspected, but not charged or found guilty, of committing
crimes.
10:00:23 AM
SENATOR COGHILL moved to adopt the Senate CS for CS for HB 317,
labeled 29-LS1380\P, as the working document.
SENATOR COSTELLO objected to hear changes.
10:00:56 AM
REPRESENTATIVE WILSON explained that Section 1 of version P
deletes the language in Sec. 09.55.700 relating to prohibiting
common law civil in rem forfeiture except by court order. It
inserts, "Common law civil in rem forfeiture actions are
abolished if used instead of a criminal proceeding."
She related that the Department of Law agreed to this portion of
the original bill. The intent is to close the statutory loophole
where law enforcement can seize private property before charging
an individual with a crime. She said DOL agrees this is the
right language.
SENATOR COSTELLO removed her objection.
CHAIR MCGUIRE said this bill addresses a concern about the small
erosion of the Fourth Amendment right against unreasonable
seizure. She asked Senator Wielechowski if he had any concerns
with the bill.
10:02:45 AM
SENATOR WIELECHOWSKI asked if the court has a position, and
noted the representative in the audience shook her head in the
negative. He asked if there was any opposition to the bill.
REPRESENTATIVE WILSON said not now that it's a civil matter.
SENATOR WIELECHOWSKI asked the the Department of Law's (DOL)
position on the bill.
10:03:56 AM
KENT SULLIVAN, Assistant Attorney General, Civil Division,
Department of Law, said neither the Civil Division nor the
Criminal Division have concerns with HB 317 as currently
drafted. Originally the bill seemed to focus on forfeitures used
in conjunction with criminal proceedings and the concern was
about unintended consequences because civil forfeitures also
occur pursuant to the common law that uses in rem jurisdiction
against property. His understanding is that the current language
satisfies those concerns.
SENATOR WIELECHOWSKI asked when in rem forfeitures are used.
MR. SULLIVAN replied in rem actions are relatively rare outside
of criminal proceedings but they do happen both within DOL and
the private sector. A partition action and a float house located
on state land are good examples. DOL wanted to make sure, if the
owner couldn't be located, that it could seize the float house
to do something with it and not be affected by this change in
statute. The Senate CS satisfies the concern.
SENATOR WIELECHOWSKI asked if there is a way the state could
take action against a derelict float house on state property if
the bill is enacted.
MR. SULLIVAN said it doesn't affect the state's ability if the
bill is enacted as currently drafted.
SENATOR WIELECHOWSKI asked if this will make it more difficult
for the state to take action in certain cases.
MR. SULLIVAN answered no.
SENATOR WIELECHOWSKI asked for an example of how this would
apply in a quiet title action.
MR. SULLIVAN explained that the property itself can be sued in
quiet title actions to affect the property boundaries. For
example, two neighbors can sue over the strip of land separating
the two driveways, arguing how the strip should be configured
and who ought to be the owner. It's a civil in rem action.
Initially the concern was that while quiet title actions are
statutory, not all the law that addresses how that law proceeds
is statutory. Common law is relied upon for a large part of how
those actions occur so DOL wanted to make sure that common law
as to those civil in rem proceedings is not done away with. As
currently drafted, HB 317 does away with that concern.
SENATOR WIELECHOWSKI asked how it avoids the problem.
MR. SULLIVAN said it's because it's a civil proceeding. The bill
seeks to abolish going after property in criminal instances
instead of going after the person.
10:10:53 AM
REPRESENTATIVE WILSON agreed with the explanation and expressed
appreciation for the work that takes care of the intent without
having unintended consequences.
SENATOR COGHILL summarized his understanding of the bill.
MR. SULLIVAN confirmed that civil in rem forfeiture associated
with criminal activity will have to happen either with a court
order or through statute alone.
SENATOR COGHILL stated agreement with the bill and sponsor.
CHAIR MCGUIRE found no further questions and solicited a motion.
10:12:52 AM
SENATOR COGHILL moved to report the Senate CS for CS for HB 317,
labeled 29-LS1380\P, from committee with individual
recommendations and attached zero fiscal note(s).
CHAIR MCGUIRE announced that without objection, SCS CSHB
317(JUD) is reported from the Senate Judiciary Standing
Committee.
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