Legislature(2013 - 2014)
03/31/2014 02:30 PM House JUD
| Audio | Topic |
|---|---|
| Start | |
| SB110 | |
| SB186 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 110-RETURN OF SEIZED PROPERTY
VICE CHAIR LYNN announced that the first order of business would
be CS FOR SENATE BILL NO. 110(JUD), "An Act relating to the
authority of the victims' advocate to request a hearing for the
release to a crime victim under certain conditions of certain
property in the custody of a law enforcement agency."
2:31:49 PM
SENATOR FRED DYSON, Alaska State Legislature, said SB 110
probably looks familiar. A bill went through last year to
facilitate the process of returning property to victims, and he
feels that it should never have needed to be done. Authorities
ought to be giving innocent people back their property as soon
as possible, he opined. He said that last year's bill provided
a process for a victim to get property back after the
authorities had completed a chain of custody, but people have
told him that the process was not working well with some
authorities. He noted that SB 110 is a modification that gives
the victim advocate the authority to go and get the property
back. The bill gives an agency or a person who has the victim's
interest at heart the authority to pursue those interests and
get the property returned, he explained.
2:33:55 PM
CHARLES KOPP, Staff, Senator Fred Dyson, stated that in 2012 the
legislature passed SB 30, which established a process in Title
12 of the Alaska Code of Criminal Procedure for property crime
victims to petition the court for relief in recovering their
property that was held as evidence. This was brought to the
attention of the bill's sponsor by numerous businesses-
particularly small businesses-and individuals who had had
property seized and had no recourse other than suing the state
to get their property back. He said SB 30 put a process in
place for the crime victim to petition a law enforcement agency
through a victim's advocate to have the property returned. The
petition went through the victim's advocate because advocates
are very familiar with the Code of Criminal Procedure and
Chapter 36 of Title 12, which deals with the disposition of
recovered and seized property.
2:35:53 PM
MR. KOPP said the victims' advocate would review the laws of
evidence and see if the victim was eligible to take back
property. Once the advocate petitioned the law enforcement
agency, the agency would have 10 days to either return the
property or to request a hearing before the court to determine
if the property should be released to the crime victim. "We
thought that was all going well," he said, but there was a
misunderstanding. The Department of Law requested clarification
whether it was the law enforcement agency that was supposed to
be asking the court for the hearing, rather than the victims'
advocate, he stated. After the clarification request came from
Mr. [Richard] Svobodny [Deputy Attorney General, Department of
Law] in March 2013, the court system researched the testimony
and said that there was no question that the law enforcement
agency was the entity to request the hearing for the return of
property. The victims' advocate requested that he or she be
given the authority to request the hearing in addition to the
law enforcement agency, which would empower the crime victim, he
explained.
2:38:18 PM
MR. KOPP said that SB 110 improves the standing of the crime
victim by allowing the victims' advocate to directly appeal to
the court for the hearing if the law enforcement agency does not
do it within the deadline prescribed under existing law. The
bill is very brief, he noted. Section 1 just adds a new
subsection (f) to return the property by hearing and to provide
that the Office of Victims' Rights may request a hearing before
the court if the law enforcement agency fails to act within ten
days after receiving the request. Section 2 just amends Title
24, which is the victims' advocate authorizing language.
VICE CHAIR Lynn passed the gavel to Chair Keller.
2:41:05 PM
REPRESENTATIVE GRUENBERG said SB 110's purpose is to give the
victims' advocate standing to file a motion with the court for a
hearing to get the victim's property back. He asked if the
sponsor would have any problem with allowing the victims,
themselves, to file that motion. He said he could see a
situation where there is an acrimonious divorce and some
property is removed and found, and there would not be a reason
for an advocate to file.
2:42:45 PM
MR. KOPP said the bill amends Title 12, which is the Code of
Criminal Procedure and would not pertain to a divorce court
property hearing. It specifically pertains to crime victims, he
added. The reason why the request is to go through the Office
of Victims' Rights is because the victim advocate is trained in
the law to know all of the procedures and different rules that
come into play depending on the crime. Additionally, it could
open a floodgate for individuals to make requests without
knowing the legal process, he said. "It kind of acts as a
gatekeeper," he said.
2:46:10 PM
REPRESENTATIVE LEDOUX expressed doubt that the effect would be
to open up the floodgates, and she noted that at times there is
both a criminal prosecution and a civil suit. It would make a
lot of sense to also allow a victim's counsel to ask for a
hearing, she stated, and the counsel would be as knowledgeable
as the victims' advocate.
MR. KOPP said that the counsel to parties can always ask the
court outside of this law, and SB 110 allows an unrepresented
crime victim, working through the Office of Victims' Rights, to
request the court for a hearing. The judge can make the
determination if the victim has more of a right to the property
than there is a need for the state, the defense, or another
third party to keep hold of it. The issue might be better
understood by looking at the context of the entire AS 12.36.070,
Return of Property by Hearing, which already has a process in
place, he said. "Your question is already envisioned in the
entirety of the law," he stated. A civil suit will come under
civil law, he explained. There is nothing to prevent counsel
from asking the court for a return of property. Under SB 110,
if no criminal case is pending regarding the property, the
hearing shall be before a district or superior court where the
property is located. If it is a criminal case, it will be the
court of jurisdiction, he explained. At the hearing, the party
that is objecting to the return of the property will state the
reason on the record. He said the court may order the return of
the property if the crime victim, by the preponderance of the
evidence, provides satisfactory proof of ownership and the party
that objects fails to prove, by a preponderance of the evidence,
that the property must be retained for evidentiary purposes.
2:51:17 PM
MR. KOPP said that if the court orders the return of the
property to the crime victim, the court may impose reasonable
conditions on the return, such as requiring that the victim
retain the property to be available for future court hearings or
requiring photographs of the property.
2:52:01 PM
REPRESENTATIVE LEDOUX said she is really confused, and perhaps
someone from the Department of Law or the court system can help.
She said she is muddling through the civil rules. In a civil
case, Rule 24, persons claiming the right to property can
intervene, "but, as far as I know, just because somebody has an
attorney in a civil suit, that doesn't allow that attorney to
intervene, as the law stands now, in the criminal action, and it
would be the criminal action that we're talking about here."
2:53:13 PM
SENATOR DYSON said this mostly has to do with evidentiary
property. What has happened is that there would be a suspected
crime with property seized and held for evidence, "and months
and years will go by and it doesn't get returned," he stated.
It has always been in the statutes that as soon as property has
been analyzed and evidence has been gathered, it should be
returned to the rightful owner. He said that the prosecutor has
often said, "No, we might need it." Or there may be appeals, so
the property sits in an evidence locker or yard. Remedy always
was for the victim of a crime to go get counsel and go into
court to try to get property back. He said he has about six
cases where that has not worked, and that is why he came up with
a process in 2012. It has been working, "but they've come back
to us and said please clarify this bill, and I could spend the
afternoon telling you horror stories, but that's what it's
about."
2:54:48 PM
REPRESENTATIVE LEDOUX said she has experienced this and thinks
it is a great idea. She suggested that some people may choose
not to use a victims' advocate and would rather call their
counsel to intervene to get property back.
2:55:39 PM
SENATOR DYSON said, "That's always been true, it's still true,
and it still hasn't worked."
MR. KOPP said the option that Representative LeDoux is referring
to has always been in the law, and it has been ineffective.
This gives someone who does not have counsel that opportunity as
well, he added.
NANCY MEADE, General Counsel, Alaska Court System, Department of
Administration, said there is no way to intervene in a criminal
case; criminal cases are a state prosecuting authority against a
defendant. Civil cases have a means for intervening, and the
court weighs whether the non-party has an interest in the suit.
She surmised that what the sponsor was speaking of is an
instance where a law enforcement agency is holding property, and
a victim who has an attorney (for other purposes or for this
purpose) would file a case that is not an intervention in that
criminal case, but the victim has standing to say that the
troopers are keeping his or her car that was stolen. It would
be a separate action, she explained.
2:57:16 PM
REPRESENTATIVE LEDOUX surmised that without SB 110, a person
with an attorney has to file a separate case, and SB 110 will
allow the victims' advocate to intervene in the criminal case.
"My concern is maybe we should also let the lawyer for the other
side, as well as the victims' rights advocate, whoever the
victim chooses to have represent them, be able to intervene in
this criminal case."
2:58:09 PM
MS. MEADE pointed out that the standing that is granted to the
victims' advocate under Section 1 of the bill is very limited.
It is just to ask for the hearing and to advocate for the return
of the property-the advocate is not granted intervener status.
REPRESENTATIVE GRUENBERG said that "this tail could wag the dog"
in some cases. There could be a very valuable jewel and a lot
of money involved. He further opined that there are many good
judges in Alaska, and a judge should be qualified to decide
whether to allow an unrepresented person in a given case to
[file] or to direct the person to the Office of Victims' Rights.
If a person has an attorney, that attorney may have more time
and more familiarity than the victims' rights lawyer, he said.
"I don't see any down side in giving the judge the opportunity
to entertain a motion," he stated. If it were considered to be
an intervention motion, it would be for a limited time and a
limited purpose simply for the release of the property. He gave
the scenario of a stolen good being claimed by two people in a
divorce situation.
3:00:55 PM
MS. MEADE said she would have to think a little about
Representative Gruenberg's comments. She noted that the
Department of Law would have a view on whether there should be
others who are allowed to intervene even for a limited purpose
in a criminal case because of time frames and confidentiality
issues. She said the sponsor's goal is limited just to victims,
and the Office of Victims' Rights has not said that there is not
time to handle the work.
REPRESENTATIVE GRUENBERG referenced a memo to Ms. Meade from
Adam Keller about the meaning of "agency" as it appears in the
bill. He asked if there should be an amendment to the
definitional statute.
3:03:01 PM
MS. MEADE said that the memo was prepared by her request
regarding SB 110 to clear up confusion from SB 30 in 2012 as to
which agency could ask for the hearing. She said she did not
think that the definition of the word, agency, was unclear, it
was just which agency the legislation referred to [which was the
law enforcement agency]. It is now Senator Dyson's intent to
let the Office of Victims' Rights also have the standing to
request the hearing.
CHAIR KELLER closed public testimony.
The committee took an at-ease from 3:04:32 PM to 3:06:44 PM.
3:06:44 PM
REPRESENTATIVE LEDOUX said she is not offering an amendment
because it is a good bill, and it was late in the session.
REPRESENTATIVE LYNN moved to report CSSB 110(JUD) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSSB 110(JUD) was
reported from the House Judiciary Standing Committee.
3:07:14 PM
The committee took an at-ease from 3:07:14 PM to 3:08:17 PM.
3:08:17 PM
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