Legislature(2015 - 2016)CAPITOL 120
04/14/2015 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB5 | |
| HB126 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 5 | TELECONFERENCED | |
| + | HB 126 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 5-RESTITUTION: PROPERTY AND INCOME LOSS
1:07:07 PM
SENATOR PETER MICCICHE, Alaska State Legislature, said SB 5
strengthens Alaska restitution laws, assists in restoring crime
victims to a pre-offense condition, and protects the property
interests of all Alaskans. According to the 2013 Department of
Public Safety Annual Report, Alaskans suffered over $23 million
in loss due to property crimes, which is up more than 12 percent
since 2011. A fundamental component of Alaska court ordered
restorative justice is making crime victims whole. He explained
that SB 5 addresses a language inconsistency in statutes
speaking to restitution as a provision of sentencing, and the
statutes have a provision of probation resulting in persons and
businesses affected by crime receiving compensation [only] for
loss and victim restitution orders. He noted that SB 5
reconciles this inconsistency under a provision of sentencing
adding a public policy consideration calling for offenders to
compensate victims for damages and injury, including loss of
income. The bill defines loss of income as a total loss of
income a business or person may lose due to not having stolen
property available for the period of time it takes to replace
that property, he stated. The new language directs courts,
while making determinations of loss for restitution, to value
property as the market value of the property at the time and
place of the crime, or a reasonable time after the crime. The
bill amends, as a condition of probation, establishing the same
standard as in AS 12.55.045, and restitution as a condition of
sentencing.
1:09:12 PM
SENATOR MICCICHE pointed out that current inconsistency in
Alaska's restitution laws contributed to a recent Alaska
Appellate Court decision that is problematic to Alaskan and
their property interests. The 9th Circuit Court of Appeals
found in Lori S. Welsh v. State of Alaska, No. A-11197 (2013),
that restitution orders, as a condition of sentencing or
probation, would be restricted to actual damages or loss
suffered by the victim. In that regard, there is no
consideration of the market value of the property or loss of
income to the crime victim. He offered that within his district
there have been a rash of drug related crimes where folks are
looking for money for additional drugs. Within his district, he
described, there is a small water well drilling company and some
folks broke in one night and literally trashed that vehicle for
all of the copper on board, the welding leads, and all the
wiring harnesses. He commented that the company was out of
business for weeks and it was within the portion of the season
with the highest amount of activity. The way the law stands, he
explained, the court is [not] instructed to consider loss of
income in restitution. The bill reconciles that inconsistency
in the restitution orders so that the law clearly considers loss
of income as a real loss to persons and businesses, and the
court should make that consideration when determining
restitution orders. He observes the rights of perpetrators but,
he expressed, prefers to protect the rights of victims higher
with just and fair restitution orders from the courts. He
described SB 5 as a substantial step in that direction.
1:11:17 PM
CHUCK KOPP, Staff, Senator Peter Micciche, Alaska State
Legislature, advised that Section 1 of the bill clearly states
public policy preference that the court consider loss of income
in issuing restitution orders. He reiterated Senator Micciche
in that Sec. 2 adds a new definition for loss of income
specifying the inclusion of the total loss of income that a
business or person suffers as a result of not having this
property available for the period of time it takes to replace
the property. He pointed to Sec. 3 and remarked that it directs
the court when making determinations of loss for restitution to
[include the] value of property as the market value at the time
and place of the crime, or if that cannot be easily ascertained
the cost of replacement. He extends this is taken directly from
AS 11, criminal statutes where the courts determine value under
the criminal law for property so it is the same language
commonality in statute there. He explained that Sec. 4 speaks
to conditions of restitution as a provision of probation and it
makes amended language so that it is consistent with conditions
of restitution for sentencing stating, "the court will determine
the amount of actual damages or loss under the paragraph by
valuing property as the market value of the property at the time
and place of the crime, or if it cannot reasonably be
ascertained the cost of replacement of the property within a
reasonable time after the crime." The language brings in line
the provisions of restitution under sentencing and the
provisions of restitution under probation so that the standard
is the same and the court, in both circumstances, he explained,
can consider the loss of income to businesses and persons in
determining restitution orders. He related that it is not
mandatory as the law declares that the court will consider this.
He reiterated Senator Micciche's comments in that the retail
value in many cases is properly recognized as the replacement
cost, and additionally, it is not just the items stolen but the
cost of project delays and project cancelation. Off road system
[theft or damage] can cost the season and liquidated damages
begin depending upon what is stolen or damaged from the job site
and, he related, how long it takes to replace that property.
There is broad based support for SB 5 from businesses and
persons across Alaska, he opined.
1:14:08 PM
REPRESENTATIVE GRUENBERG asked whether the bill deals with loss
of income and valuation of property.
MR. KOPP answered in the affirmative.
REPRESENTATIVE GRUENBERG offered his concern regarding valuation
of property in that the bill requires the court to value the
property "at that amount, using that standard," which is
different from just requiring the court to take into account the
loss of income. He questioned whether the intent is to require
the court to use that measure of value, and pointed out there
different methods of valuing property, such as, the cost of
replacement or, in the area of income producing property to
value it as stolen income producing property that was stolen,
which would be similar to dealing with loss of income. Another
method in reviewing the value of similar properties could be
that someone shoots an unreplaceable prized animal, but would be
[evaluated] as similar animals. He suggested that the sponsor
may consider giving the court discretion in making
determinations. Representative Gruenberg referred to [page 2],
lines 16, 28-19, and suggested the following language: "value
property at the market value," thereby substituting "as" for
"at." Connected with that, the term normally used at the law is
the "fair market value" and he recommended using the term as it
is in the law. One of the really harsh rules is when a person
is insured and their car is totaled, it is valued on a basis
that is not the replacement cost but much less, he remarked.
CHAIR LEDOUX asked that Representative Gruenberg stay with
issues related to SB 5.
1:18:39 PM
SENATOR MICCICHE responded that this bill language is permissive
and does not dictate the method of valuation as each case will
differ depending upon the circumstances. He advised that the
intent of the bill is that not every Alaskan can go to Costco
and purchase a new generator [that day] as it may have to be
shipped on a $2,000 flight across the Inlet. He offered a
scenario of someone in a boat, stealing a generator, is then
caught, and the thief does not owe the victim for a $1,000
generator - they owe the victim for a $3,000 generator. The
intent of the bill is that the court consider the actual cost of
that object at the site at the time [of theft] and, pointed out
that the bill is permissive enough to not steer the court on how
it will value each item, rather that the actual value of the
item is considered.
REPRESENTATIVE GRUENBERG suggested that rather than requiring
[the court] to value it, add the language crafted at the
beginning of the bill.
1:19:59 PM
MR. KOPP replied that this issue came up in the other body and
the language on page 1, lines 14-15, is clearly permissive as it
reads, "In determining the amount and method of payment of
restitution or compensation, the court shall take into account
..." He offered the language does not tell the court ...
REPRESENTATIVE GRUENBERG argued that it deals with loss of
income, the suggestion he previously made deals with damage or
loss of restitution.
MR. KOPP explained that the entire section deals with
restitution orders and sentencing, a predecessor to Sec. 2,
which is permissive. It reads that a public policy favors
requiring criminals to compensate for damages and injury,
including loss of income. He offered that loss of income is
internally consistent in that section as it is stated later in
the same section with respect to someone who might steal
commercial fishing gear, set net gear, drift gill net gear, or
trolling gear that the court will consider loss of income in
that consideration, "again, consider loss of income." He
pointed out that the reference to "considering" is consistent
"taking into account" is consistent throughout the statute and
is something that is not a new concept, and highlighted it as a
public policy priority.
1:21:49 PM
CHAIR LEDOUX related that the time for amendments has passed and
she will not slow down the bill at the end of the session for an
amendment which could have been made and been introduced to the
House Judiciary Standing Committee in compliance with the 24-
hour rule.
REPRESENTATIVE GRUENBERG pointed out that he does not believe
that subsection (o) is limited to loss of income.
MR. KOPP submitted that market value is a well-defined term in
criminal law under AS 11.46.980, which is the same standard used
by the courts to determine property valuation with respect to
thefts and burglary in property crimes.
1:23:06 PM
REPRESENTATIVE CLAMAN opined that as a statistical matter the
public defender would say that 80-85 percent of criminal
defendants are public defender eligible and usually do not have
a lot of money. He questioned whether this changes the court's
fundamental obligation to make a determination about the ability
to pay or set restitution schedules consistent with how much
money the defendant can actually earn. He advised he supports
restitution and also does not like the idea of creating debtor's
prisons or sending people back to prison because they can't pay.
He asked how the bill impacts the obligation of the ability to
pay.
SENATOR MICCICHE explained that current Alaska law does not
allow a person in prison solely due to the inability to pay
under AS 12.55.051(a) and (c). He offered that perpetrators of
a crime usually have no idea of the ultimate value of the damage
and his goal is to get the perpetrator out of prison as quickly
as possible, turn their lives around, and be put on a reasonable
restitution payment plan. He further offered that AS
12.55.051[(c)] reads:
... If, at a hearing under this subsection, the
defendant proves by a preponderance of the evidence
that the defendant will be unable through good faith
efforts to satisfy the order requiring payment of the
fine or restitution, the court shall modify the order
so that the defendant can pay the fine or restitution
through good faith efforts ...
SENATOR MICCICHE pointed out there is no potential for a
debtor's prison in Alaska law, and no value to the victim even
when retrieving cents on the dollar. He opined that it largely
represents the expectation of the perpetrator to do their best
to provide restitution to the victim.
1:26:01 PM
REPRESENTATIVE CLAMAN submitted that a generator could be
running for 10-years before being stolen and the old generator
is worth less than $500, but the practical reality of locating a
10-year old replacement is hard to imagine. He surmised this
bill allows the court make the determination of [replacement]
value.
SENATOR MICCICHE responded he has faith that common sense will
prevail.
CHAIR LEDOUX opened public testimony.
1:28:00 PM
CHRIS NETTLES, President, GeoTek Alaska, Inc., said he is
testifying on behalf of the National Federation of Independent
Business, and as primary owner of GeoTek Alaska. He pointed out
how important it is to a business to strengthen restitution
laws, and offered that within his business a snow machine was
stolen from an off-road site, and fortunately it was stolen
after the project had been completed. However, he said, had the
machine been stolen before the project, his business would not
only have undergone the cost of replacing the snow machine, but
the cost of getting another one to the site. On top of that
issue, a company may be under contracts and standby costs, and
suffer liability or loss due to not meeting the contract time.
When reviewing the cost of an item or damage performed by a
perpetrator, it is not just the cost for that item as there are
many other costs possibly included for one item that is
essential to a project. It is important that victims receive
restitution from perpetrators, if possible, he expressed.
CHAIR LEDOUX closed public testimony after ascertaining no one
further wished to testify.
1:31:44 PM
NANCY MEADE, General Counsel, Administrative Staff, Alaska Court
System, [Advised she is available to answer questions.]
REPRESENTATIVE GRUENBERG offered his concern regarding Sec. 3-4
of the bill and opined that subsection (o) which will be added
in Sec. 3, would not be limited to a determination of loss of
income language at page 1, "requiring the court to take that
into account." He further opined the new subsection (o) would
not be permissive but would require the court to value the
property at the fair market value.
MS. MEADE responded that the legal interpretation of the bill is
something the court system does not normally provide as it would
be a better question for Legislative Legal and Research
Services. She offered that from the court system's point of
view, this does clarify how to apply some currently inconsistent
statutes, which the court can easily apply. At restitution
hearings there are currently arguments and discussion brought
forth regarding valuation of property, she explained. This bill
offers more guidance for the court which, she noted, is
something the judges appreciate and reiterated it clarifies some
inconsistencies. She did not see a problem with courts applying
it as written, she remarked.
1:34:16 PM
STACI SHROEDER, Assistant Attorney General, Legal Services
Section, Department of Law, asked Representative Gruenberg to
briefly restate the question.
REPRESENTATIVE GRUENBERG turned to Sec. 3, and asked whether
that subsection would only apply to property involved in loss of
income. He opined it is a standalone section under restitution
and compensation, AS 12.55.045, not all of which involves income
producing property or property involved in the loss of income.
He surmised that subsection (o) applies to income producing
situations and non-income producing situations.
1:35:42 PM
MS. SCHRODER answered that she reads subsection (o) as applying
to the entire statute and not being limited in clarifying how
the court should value property.
REPRESENTATIVE GRUENBERG agreed that it is just not a factor to
be taken into consideration, but "in a non-income situation the
court would have to value it at that method." He opined it is
not all bad, but there may be other ways the court would want to
have some leeway.
REPRESENTATIVE KELLER pointed out that is not necessarily bad as
it applies to all restitution compensation.
1:36:38 PM
The committee took an at-ease from 1:36 to 1:38 p.m.
1:38:50 PM
CHAIR LEDOUX referred to the discussion of whether or not there
is a grammatical error on [page 2], lines 16, 28-29, which read:
... shall value property as the market value of
the property ...
CHAIR LEDOUX submitted that the sponsor does not believe it is a
grammatical error.
SENATOR MICCICHE pointed out that when reading the whole
sentence "the court shall value property ..." which is taking
the value and valuing it "as" the market value of the property.
He said that "at" the market value of the property would be
looking at one singular item. The bill says, "it is valued as
the market value of the property," and he does not see it as a
grammatical error as it fits, it went through the Department of
Law, and Legislative Legal and Research Services, who all agreed
that is the correct language, and for all intents and purposes
it is fully functioning as written.
1:40:02 PM
REPRESENTATIVE KELLER moved to report SB 5, labeled 29-LS0109\H,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, SB 5 moved
from the House Judiciary Standing Committee.
1:40:28 PM
The committee took an at-ease from 1:40 to 1:44 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 5 ALCAN Engineering Support.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 2011 - 2013 Alaska Property Loss Summary.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 AGC Support.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 AS 11.46.980 Determination of Value.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 Crime Index Offense Summary 2009-2013.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 Fiscal Notes.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 NFIB Support.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 Orion Marine Group Support.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 State Chamber Support.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 Welsh Appellate Opinion.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 Welsh Case Brief and Commentary.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB5 Section Analysis.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB5 Sponsor Statement.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| HB0126A.pdf |
HJUD 4/14/2015 1:00:00 PM |
HB 126 |
| HB0126E.pdf |
HJUD 4/14/2015 1:00:00 PM |
HB 126 |
| HB126 SECTIONAL ANALYSIS - ver E.docx.pdf |
HJUD 4/14/2015 1:00:00 PM |
HB 126 |
| HB126 Sponsor Statement.pdf |
HJUD 4/14/2015 1:00:00 PM |
HB 126 |
| Memo 15-101.dla.pdf |
HJUD 4/14/2015 1:00:00 PM |
HB 126 |
| HB 126 - ACMJ Presentation V4.pdf |
HJUD 4/14/2015 1:00:00 PM |
HB 126 |