Legislature(1999 - 2000)
05/14/1999 01:40 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSSB 100(FIN)-REIMBURSEMENT FOR PUBLIC DEFENDER CHAIRMAN KOTT announced the next order of business is CSSB 100(FIN), "An Act relating to the payment by indigent persons for legal services and related costs." Number 0325 DOUG WOOLIVER, Administrative Attorney, Office of the Administrative Director, Alaska Court System, informed the committee that SB 100 was introduced at the Alaska Supreme Court's request. Therefore, Mr. Wooliver said he would provide the testimony on SB 100. Senate Bill 100 amends the current public defender reimbursement statute so that anyone who receives public defender services would fall within the reimbursement provisions. Currently, for those people represented by the public defender, only those convicted of crimes reimburse the public defender. Under this legislation, anyone who receives those services would reimburse which is similar to what people who hire private counsel have to do. MR. WOOLIVER explained this provision was before the legislature in 1993. In that year, the Alaska Supreme Court had legislation introduced which requested several changes to the public defender statutes. This provision requiring public defenders to be reimbursed for people not convicted was part of that legislation but was not adopted, although the rest of the bill did pass. Subsequent to that request in 1993, Legislative Budget and Audit did an audit of the public defender system, making several recommendations. One of the recommendations, Mr Wooliver said, "Was, quote, 'that the statute and court rules be amended to assess judgment against public counsel defendants not on the basis of if convicted, but rather on the mere fact that services were provided.'" He noted Alaska's court system has made the other requested rule changes and, therefore, is now coming back with the final piece of what Legislative Budget and Audit requested, the amendment to the statute. MR. WOOLIVER noted that although this makes indigent defendants similar to non-indigent defendants in that they have to repay their defense costs, there are some significant differences. For instance, a person represented by the public defender only pays a portion of the fees set out in Criminal Rule 39, which should be in the committee packets. Additionally, because this is a civil judgment, a person is entitled to all of the defenses he/she would receive (indisc.) Alaska Exemptions Act [AS 09.38]. Furthermore, there are certain things which can't be attached in order to collect these fees. He indicated that a person could petition the court to have those fees reduced, eliminated completely, or put on a monthly payment schedule. Therefore, there are safeguards, both under the rules and under the statutes, so that people who are indigent wouldn't be driven further into poverty because of ruinous defense costs. Mr. Wooliver noted that the fees are a fraction of what a private attorney would charge and, as mentioned, there are ways to reduce them. He pointed out that the Senate made several amendments which he offered to review. MR. WOOLIVER mentioned that he would like the committee to consider the following change. He referred to page 2, line 6, of CSSB 100(FIN) which read, "(c) The court shall [MAY] enter a judgment." He noted the original "may" language and explained that the "shall" language is a Senate amendment. The Senate was attempting to address the perception that judges weren't entering these judgments very often. While judges, in fact, almost always enter these judgments. He noted that Alaska's court rule requires that judges enter the judgments. Mr. Wooliver indicated this fact was confirmed through research after the Senate committee hearing. The problem the Senate was attempting to fix doesn't really exist. Therefore, he recommended that "shall" be changed back to "may" because the "shall" language would make it mandatory in all cases. Mr. Wooliver explained, "So, the problem they were trying to fix doesn't really exist, but ... the problem is created with the 'shall' language, is now it's not limited to criminal defendants or juvenile delinquents; it also covers attorneys ... in child need of aid cases, including children who are appointed attorneys in child need of aid cases, the mental commitment proceedings, and other areas that the court may or may not want to impose fees under." Number 0717 CHAIRMAN KOTT recognized the suggestion. He questioned if that would mean the committee should change "may" back to "shall" on page 2, lines 11 and 13. [CSSB 100(FIN), page 2, lines 11 through 14 currently read: ... Upon a showing of financial hardship, the court (1) may [SHALL] allow a person subject to a judgment entered under this subsection to make payments under a payment schedule; and (2) may [SHALL] allow a person subject to a judgment entered under this subsection to petition the court at any time for remission,"] MR. WOOLIVER noted those also were Senate amendments. The Senate was concerned that the "shall" language required a court to take into account a payment schedule or a person's financial situation rather than the discretion not to. Mr. Wooliver suspected the court would take those things into account anyway. He had no preference one way or the other. CHAIRMAN KOTT asked how a petition for remission, reduction, or deferral of the unpaid portion of a judgment or an entire judgment would be entered with the court under this provision in Section 2. He questioned if that person received a public defender and then would be further obligated. Number 0811 MR. WOOLIVER answered anyone can come before the court at anytime and ask that his/her fees be remitted, reduced or scheduled. This does happen. The courts also routinely issue a fee that is less than what is on the schedule in the committee packet. According to the Department of Law and its "collections division," someone who only meets with the public defender for a short period of time, enters a guilty plea, and "that's the end of it," would receive a judgment for something like $50 because there is only a short contact. A person who has a fee and wishes to have it reduced can come to the court and explain his/her situation. The judge can reduce the fee, eliminate it, or allow the person to make payments on a schedule. CHAIRMAN KOTT questioned what the payment would be for one to repay the costs of utilizing the public defender. MR. WOOLIVER reiterated that the court has adopted a schedule of fees under Criminal Rule 39 which lays out various fees for various services. CHAIRMAN KOTT noted he did not have a copy, indicating staff would make copies for the committee, and asked Mr. Wooliver to give an idea in monetary terms of what they were discussing. MR. WOOLIVER described that for a misdemeanor trial such as driving while intoxicated the maximum would be $500. The maximum for a first degree murder trial would be $5,000. Most of the misdemeanor fees are $200 to $250. He noted that the amount of the fee depends upon where a person is in the process. For example, a guilty plea before a great deal of work is done on a case could result in a fee of $1,000 for the most serious felony, decreasing from there. He informed the committee that the fee of a trial for a Class B or Class C felony is $1,500. A trial for a Class A or unclassified felony, except for murder, would have a $2,500 fee. Mr. Wooliver noted that most people don't go to trial, but rather plead out at some point prior to trial. For most felonies, a change of plea after someone has been indicted, but before a substantial amount of work has been done carries a $500 fee. These are the types of fees they are looking at. The most someone could pay is $5,000 for a first or second degree murder trial; the least someone would pay is $200 for a misdemeanor change of plea. Most fees are less than $1,000. Number 1024 REPRESENTATIVE GREEN referred to the Senate's insertion of "only" on page 2, line 15. He asked what that adds. [CSSB 100(FIN), page 2, lines 13-15 read: "...; and (2) may [SHALL] allow a person subject to a judgment under this subsection to petition the court at any time for remission, reduction, or deferral of only the unpaid portion of the judgment ..."] MR. WOOLIVER indicated the "only" was inserted because of testimony from the Department of Law's collection division. The collection division said that occasionally it receives an order from a judge ordering the collection division to reimburse a person for some fees that person had paid. Mr. Wooliver explained he hasn't been able to discover exactly why that happens. He suspected there might have been a paperwork problem where someone had his/her fees reduced, but it was not transmitted to the Department of Law. Mr. Wooliver noted it is not a common occurrence; he didn't know for a fact that is actually a problem. The Senate's solution, however, was to insert "only" as a reminder to the court. CHAIRMAN KOTT questioned if someone is asked whether or not he/she wants defense counsel if the person is indigent. MR. WOOLIVER explained that a person would request that counsel be appointed, the courts would determine indigency, and if the person is entitled to publicly-appointed counsel, one would be assigned. Number 1134 CHAIRMAN KOTT asked if someone can pick and choose from a list. He indicated that public defenders, like private attorneys, might vary in quality. MR. WOOLIVER answered no. REPRESENTATIVE GREEN agreed with Mr. Wooliver's point on page 2, line 6, returning "shall" to "may". He added, "But as far as those other changes from 'shalls' to 'may', that also seems like a pretty reasonable approach. Do you have a personal view of what the Senate did there ...?" MR. WOOLIVER, referring to the change of the two "shalls" to "may" on lines 11 and 13, answered that the court has no position on whether those changes are good, but would not have any objection to changing them back. CHAIRMAN KOTT inquired as to whether the judge should be able to allow for the indigent person to make payments or should that be left to the judge's discretion? The "may" language allows the judge's discretion. Noting the person is indigent, Chairman Kott questioned why the person shouldn't be allowed to make payments. He added, "I'd need to hear a compelling argument that would suggest..." MR. WOOLIVER responded he could not think of a compelling argument as to why this shouldn't be "shall." Number 1275 REPRESENTATIVE JAMES indicated this is where her confusion lies. Given that a person is found to be innocent, or at least not found to be a criminal, this says that the court shall enter a judgment to that person for whatever the cost is. Then, depending on how the court feels, the person might be let out of the fee or might be able to make payments. She questioned if returning the language to "shall" would mean that the court would at least look at it and consider the circumstances. One of her problems is that "fairness is fairness" and someone who is not indigent has to pay for an attorney. If a person is indigent, the state has the obligation to provide that person counsel. Representative James believed someone who is not indigent should be in a position not to pay also. In any event, currently someone who is indigent does not have to pay and what is being hoped is that this person will pay. Representative James reviewed her understanding, indicating the person might have been indigent when he/she went in, and at some subsequent time within the next six-year period the person might not be indigent anymore for some reason. It seems to her the person should pay if that is the case. She compared it to the Internal Revenue Service (IRS) which puts a lien on a person who owes taxes and has no ability to pay. This lien stays there for a long period of time; the person can petition and negotiate to get it off, or it stays there until the time goes by and then it falls off. However, during the period of the lien, if the person comes into any money, it gets attached. This seems like it would be a rational approach. Representative James questioned whether there is anything in the state's laws that says they cannot treat everybody alike. Number 1397 MR. WOOLIVER answered everyone is not treated alike in all situations; criminals are treated differently from non-criminals. REPRESENTATIVE JAMES clarified she is speaking of innocent people. MR. WOOLIVER answered, "Right. No, there's nothing that says we - we don't treat them alike." In response to Representative James' first question about what this language change does, he noted Representative James is right. Under the original language the court would be required to either put the payments to a schedule if the person has a hardship, or, he said, "... they are required now to at least listen to the person in order for them to have a hearing to say, 'Look, I can't make these payments.'" Under the Senate changes, the judge would not have to have a hearing and would not necessarily have to put it to a schedule, regardless of (indisc.). REPRESENTATIVE JAMES expressed her preference for the previous language and thinks the committee should change it back. CHAIRMAN KOTT agreed. His biggest concern with the whole issue dates back to the landmark 1960s "Wainright" [Gideon v. Wainright, 372 U.S. 335 (1963)] case which determined that indigent people need to have counsel. With the suggestion that a person would have to pay or buy counsel Chairman Kott wondered if this would create some barriers, even if minimal. For a person with no funds, $5,000 is a very large amount of money. He described the scenario of a person being found innocent and then having to raise $5,000 for a long-term repayment plan probably including interest. He wondered whether this crosses over the fine line from that landmark 1960s case, or is there something more recent. Number 1530 MR. WOOLIVER responded that the U.S. Supreme Court has upheld repayment statutes, requiring those who have been provided with public defender services to repay them. From just a quick "Westlaw (ph)" search, he found that a few states have upheld similar statutes, which required the person to repay even if he/she is not guilty. However, Chairman Kott raises the fundamental public policy question regarding whether to go in this direction or not which is a question for the legislature to resolve. Mr. Wooliver informed the committee that some type of repayment provision for public defender agencies is present in almost every state. REPRESENTATIVE GREEN indicated that this really seems strange because he had been "beaten up pretty badly on the [House] floor" for attempting to attack the problem of public interest litigants, where these litigants do not pay anything. However, an indigent person would be forced to pay. He commented it doesn't seem like the kind of society he would like to belong to. Therefore, he would certainly suggest the language be changed back to "may." Representative Green clarified he was speaking of the change on page 2, line 6. MR. WOOLIVER noted that would not prevent the court from charging someone who is not convicted. However, the return to "may" does not place any mandatory requirement for all public defender appointments. REPRESENTATIVE GREEN agreed; that is his point. Number 1620 REPRESENTATIVE JAMES commented she had liked Representative Green's bill so she has a different attitude. She expressed her belief that everyone should be treated fairly and equally, and the judge should have discretionary decision-making power to determine what is fair in a specific case. Representative James said she has a problem with not charging people, but she has no problem with the court deciding the person should not have to pay. Therefore, that should be examined in every case. Representative James indicated the need for language which would also allow the judge discretionary power to say whether or not this is realistic for a particular person based on the charge against the person and anything else relevant to that case. If that ability isn't available, there is the possibility that someone "just stand-by innocent" who needed attorney representation to get cleared of charges would have to pay. This person should not be jeopardized in the long run. All such considerations should be taken into account and the judge is the only one who can do that. Representative James added, "We can't sit here and draft a piece of legislation that going to make fairness. It's going to have to be determined on a case by case basis." CHAIRMAN KOTT noted he would save his comments for debate. Confirming there were no further questions for Mr. Wooliver, the chairman called the next witness in Juneau forward. Number 1761 WALTER MAJOROS, Executive Director, Alaska Mental Health Board, Department of Health and Social Services (HSS), came forward. He stated the Alaska Mental Health Board is a planning and advocacy organization for people in Alaska who experience mental illnesses. The board believes SB 100 has some potentially, and perhaps unintentional, adverse impacts on people with mental illnesses. Through this legislation this occurs in both the civil and criminal systems. MR. MAJOROS understood the concern about the legislation applying to someone who is not convicted and that person being responsible for fees. However, he does not know that the intention was to also go over to the civil system to deal with issues of a non-criminal nature altogether. Providing an example of how this impacts people with mental illnesses on the civil system side, Mr. Majoros described that many people with mental illnesses experience psychiatric emergencies. When that happens, if people are unable to help themselves and are a danger to themselves or others, or are gravely disabled, it is necessary to enter the system of civil commitment. This is where someone is involuntarily committed - committed against the person's will - to a psychiatric facility to receive evaluation and treatment. Many of these people are indigent and are on social security insurance and/or adult public assistance due to the severity of their disabilities. This legislation would require those people to make payment for the civil commitment process or the representation they received in that process. Clearly, this presents an undue economic hardship on people with mental illnesses who are already marginally able to survive. With regard to the ability to petition for reduction or elimination of fees, the legislation's current drafting would require the individual to petition for reduction of fees and would not allow for judicial discretion regarding those fees. Many with mental illnesses do not have the capacity to petition the court for fee remission, especially those in crisis situations or psychiatric emergencies. To put the total burden on an individual to make that petition in all cases, absent any form of judicial discretion, is not in the interests of people with severe mental illnesses. Furthermore, it doesn't recognize what going through that process would be like for such a person. Therefore, the board would ask the committee to strongly consider whether this legislation should be addressing the civil system at all because it clearly has some severe impact on people with mental illnesses who are being civilly committed. MR. MAJOROS addressed the impact on the criminal side of the equation. He noted there are many people with mental illnesses who are arrested for nuisance-type offenses, although the real need is for community treatment to address these mental health needs. One of the board's main goals has been to decriminalize mental illness. He expressed embarrassment that the current largest provider of mental health services is the state Department of Corrections and correctional facilities. He explained that people who do not have their medications or are not being stabilized with the community, often commit minor offenses and end up in the Department of Corrections. The board is actively involved in attempting to reverse that process. The board has assisted with setting up a mental health court in Anchorage, a jail diversion program which diverts mentally-ill offenders from the correctional system into community-based services. The board seriously believes the legislation in its current form could hurt its efforts to move mentally-ill people out of correctional settings into community-based settings. MR. MAJOROS pointed out that once again in the criminal system, the onus would be placed on the individual to make the petition independently to reduce or eliminate the fees. Again, an economic burden would be placed on people with mental illnesses, and their ability to live successfully within the community would be threatened. Mr. Majoros emphasized the board does not believe the bill's intent was to apply to this population on either the criminal or civil side, and certainly not in all or nothing type situations. He expressed approval of the discussion regarding the possibility of returning the judicial discretion for these cases; the board agrees that judicial discretion is the appropriate way to deal with these cases. Mr. Majoros requested the committee closely examine whether it is the legislation's intent to look at the civil side at all, or if it is mainly to address people on the criminal side who are not convicted. He believed that is perhaps an unintended consequence, but noted there is a potentially severe impact to mentally-ill people on both the civil and criminal sides. Number 2070 REPRESENTATIVE JAMES asked for an example of a case in a civil court. MR. MAJOROS described an example in which a mentally-ill person is not taking his/her medications or whose need for medication changes and he/she starts hearing voices. Perhaps, the voices begin telling him/her to kill someone. If the person started to take actions in that direction or began talking to people about that then there would be the civil commitment statute, Title 47, which allows mental health professionals and peace officers to initiate proceedings that would have him/her involuntarily evaluated in a hospital setting in order to determine whether he/she is suffering from a mental disorder and needs to be detained against his/her will to be stabilized. REPRESENTATIVE JAMES questioned if that person would be represented by counsel in that process. MR. MAJOROS answered yes. REPRESENTATIVE JAMES questioned, then, wouldn't counsel petition the court for that person if this is in the person's best interest, or would the person receive a guardian ad litem. She asked who would be the responsible person in that individual's life. MR. MAJOROS replied that he is not exactly sure regarding the procedural issue of whether the individual could use the public defender to petition for those costs to be waived. This would seem to be an apparent of conflict interest situation because the fees are due to the public defender and they would also be petitioning for a waiver. Perhaps, Mr. Wooliver could speak to that more directly. Number 2123 MR. WOOLIVER understood that a person is not entitled to a public defender to petition the court to have those fees reduced. He clarified that the fees do not actually go to the public defender, but are collected by the Department of Law's collections division. REPRESENTATIVE JAMES surmised, in the specific example being discussed, that if a person never used the public defender in the first place they would not fall under this. MR. WOOLIVER agreed that is correct, but pointed out that people subject to involuntary commitments are entitled to public defender representation so they could and would be generating fees. REPRESENTATIVE JAMES concluded that people could not use the public defender to petition the court regarding the fees. MR. WOOLIVER agreed; it was his understanding that a person is not entitled to a public defender at the subsequent hearings about the fees. REPRESENTATIVE JAMES asked if a person is charged to be mentally ill and was put away for awhile would have a responsible individual as representation or would the person have to represent himself/herself. MR. WOOLIVER answered, "If they were, they would most likely have some type of a guardian that ... could take of that issue." CHAIRMAN KOTT called an at-ease from 4:06 p.m. to 4:18 p.m. Number 2194 ROBERT BUTTCANE, Administrative Juvenile Probation Officer, Youth Corrections State Central Office, Division of Family and Youth Services, Department of Health and Social Services, came forward in Juneau. As has already been stated, the department has some concerns over SB 100. The current Senate legislation [CSSB 100(FIN)] would adversely impact virtually all of the client constituencies within the Department of Health and Social Services. These constituencies include children, mentally-ill persons, children and families involved in adoption proceedings, alcoholism treatment commitment cases and others. The department believes Mr. Wooliver's proposal to give the court the discretionary authority to impose these judgments to be the most direct fix. That way the judiciary would have the discretion to impose those payment judgments where it is still appropriate. When it is clearly not practical at the outset, the court would not then be under an obligation to make those judgments. Therefore, the department would favor the amendment to change "shall" to "may" on page 2, line 6. He noted that the change would still allow the court to impose judgments against certain delinquency cases. That would not be a problem for the department in view that some juvenile delinquents would also be treated much like the adult offenders which is appropriate in certain cases. However, he indicated the preference is to allow the court to make the distinction of whether or not to impose a judgment for a public representative, after considering all of the factors in a case. REPRESENTATIVE GREEN indicated there were two other previously discussed Senate amendments on lines 11 and 13. Representative Green asked if Mr. Buttcane felt a return to the original wording would be to the benefit of the HSS patients. MR. BUTTCANE answered in the affirmative; that would require the court to take a look at each case and then make that determination and consideration which makes sense. Number 2318 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union (AkCLU), testified next via off-network teleconference from Anchorage. Ms. Rudinger noted this is a very important issue from a civil liberties standpoint, commenting that she had faxed each House Judiciary Standing Committee member a copy of the AkCLU's position paper on SB 100. With Chairman Kott's confirmation that the AkCLU's position paper has been distributed, Ms. Rudinger did not address the constitutional arguments. MS. RUDINGER commented the committee heard earlier that the U.S. Supreme Court has upheld recoupment formula which is true. In Fuller v. Oregon [417 U.S. 40 (1974)] the Supreme Court upheld the recoupment formula, but the defendant was at least convicted of something which was critical in that case. The AkCLU's biggest opposition, not only constitutionally but in terms of public policy, is the fact that it applies to people who are wrongfully hailed into court in the first place, or when the charges are dropped, or when people are found not guilty for whatever reason. Ms. Rudinger stated this is really offensive and from the discussion, she sensed that some of the committee members agreed. She pointed out that the Supreme Court has not examined a recoupment formula that applies to people who were not convicted of a crime. Therefore, it is not known what the Supreme Court would do in such a case. However, there is instructive language in the Fuller decision where the court points out all the reasons Oregon was correct when it exempted acquitted defendants from the scope of its recoupment statute. She discussed the many serious reprecussions, such as stress and a damaged reputation and loss of a job and lost hours defending himself/herself, this would impose on someone who is not convicted. The state can already recoup money from people who are convicted or plead guilty to some wrongdoing. Therefore, there is a real fairness problem here. MS. RUDINGER informed the committee of a case, Fitch v. Belshaw, 581 F.Supp. 273 (1984), that was brought up after Fuller. Oregon had passed a statute that applied to acquitted indigent defendants. In this case, the plaintiffs won and the statute was struck down. She noted that the case did not go up on appeal. In this case, the judge did not say that recoupment statutes applying to innocent people or acquitted defendants are always unconstitutional. "The judge was able to strike it down on narrower grounds and still found Sixth Amendment and Equal Protection violations. That statute had some defects that are also present in Senate Bill 100." Ms. Rudinger pointed out that Fitch is the only district court case in the Ninth Circuit that she has found and there is no Ninth Circuit case. Therefore, the Fitch case is instructive. She identified the defects as the lack of any specific standards for courts to use when deciding who can afford to pay and who can't. Even if the word "shall" to "may" is changed on line 6, problems remain with the court, without any standards, being allowed to decide on whether someone should pay for the costs of defending themselves against phony charges. TAPE 99-70, SIDE B Number 0001 MS. RUDINGER continued by pointing out that SB 100 does not include any assurances, as was the case with the Oregon statute, "that a defendant who is unable to make payment could demonstrate the reason they can't make payments has nothing to do with some deliberate disobedience of a court order or some bad faith. They need to be able to demonstrate that, because if it has nothing to do with deliberate disobedience and it really is financial hardship, then the standards for criminal justice as well as the dicta in Fuller versus Oregon indicate that this person should not have to pay to defend themselves when they weren't convicted of anything." Practically speaking, what is being discussed here is taking poor people's permanent fund dividend (PFD) checks which is how most of the money is collected for court-appointed attorneys' fees. Under SB 100, if someone is poor, wrongfully accused and found innocent, the government will still take money from that person's PFD. She posited the question: "Why not just say that if you are poor you don't get a PFD because the state needs to pay for taking care of you and providing lawyers for you when they want to bring you up on false charges? There's something really wrong here." Number 0138 MS. RUDINGER pointed out other problems. In smaller communities in Alaska, often the person making decisions about who to charge with a crime is the local police not a legally-trained district attorney. The district attorney's office in the larger cities is able to screen out cases which lack merit or have legal problems. In smaller jurisdictions, the police make these decisions, file the paperwork with the court, counsel is appointed and the paperwork is sent to the DA who covers that area. Upon review of a case, the DA may simply dismiss the charges, but by then the person has already needed to use the public defender. This occurs often enough that there should be concern about the fairness of SB 100 in this context. Ms. Rudinger expressed concern that SB 100 would require a wrongly accused person to pay for legal representation even if the defense filed a motion to dismiss, or the court dropped the charges, or if the charges were a mistake of a rural police officer. She indicated that the state should pay for mistakenly bringing the charges. MS. RUDINGER turned to the possible scenario of a defendant refusing representation and wishing to represent himself/herself in court. In such a situation, the court would still appoint counsel against the person's will. Upon discussing this with one of the attorneys on the AkCLU's legislative committee, the attorney noted such a situation is rare. She explained the court's justification for appointing counsel against a person's will is that the potential pro se defendant does not know the rules of evidence and would not be able to conduct himself/herself according to the court's rules of decorum. However, Ms. Rudinger indicated the real reason the courts would force such a defendant to have a public defender is to make things run more smoothly and more conveniently for the court. She questioned whether it is fair to appoint a lawyer against a person's will and then make the person pay for the counsel when he/she is acquitted. MS. RUDINGER noted that SB 100 also creates a potential for abuse. There could be situations in which a police officer could bring false charges against a person, who happens to be poor. That poor person would have no recourse to receive court-appointed counsel without the risk of financial damage. Therefore, a coercion factor would happen in these situations. Some people would be so afraid of fighting these charges that they would rather just plead out and settle quickly in order to avoid a lengthy case in which the public defender's fees would build up. She questioned how these people, who may have been brought into court wrongfully, are supposed to maintain confidence that they have the right to go to their court and ask the court to not make them pay. She indicated that these people may not understand the process or may be intimidated by everything that has happened to them; therefore, it would be incorrect to assume such people would take the initiative and petition the court about the legal fees. In effect, these people would be coerced into pleading out even if they had done nothing wrong. Therefore, Ms. Rudinger urged the committee to follow its gut instinct on this. "If something seems unfair, it's because it is in this case." Number 0275 REPRESENTATIVE JAMES expressed that her concern that this affects everyone the same way. There are cases where people's lives were ruined by a false accusation. If a person is on the line between indigency and non-indigency, the financial damages for representation by counsel to the person who is not indigent may be even more devastating to that person than to someone who is indigent. Representative James said she is for fairness, but isn't certain that some kind of discretionary decision-making process over this shouldn't be a good thing. MS. RUDINGER agreed that people who do not qualify for public defenders and do have to hire private defense counsel are put at great hardship. No matter a person's economic status, being wrongfully brought up on charges is a great hardship. She suggested if the desire is treat everyone equally, then reimbursing people brought up false charges might be considered. Ms. Rudinger emphasized that this is about people who are clearly indigent, although she acknowledged the gray area along this line that Representative James is concerned may be arbitrary or somehow unfair. Of those who are acquitted or found not guilty, Ms. Rudinger believed the financial hardship falls more heavily on the person who is indigent and needed a public defender. "There is just no getting around that." REPRESENTATIVE ROKEBERG interjected his disagreement, commenting on the redistribution of income. REPRESENTATIVE JAMES described a scenario in which an indigent person may have a job, may not have a car, may not necessarily have a family; while, the person just over the indigency line may have a car and be making car payments and may have a low-paying job. The indigent person might have a struggle making the payment, but might have some cause to plead with the court to get out of the fee or set up a payment schedule. The person over the line does not have that option. She surmised that the only option the person over the line probably has is to voluntarily spend more on an attorney to sue the state in order to not have to pay. That could result in the person losing his/her car, job, et cetera. Now this person is even below the indigent person who the state helped. MS. RUDINGER agreed; there is that gray area near the line where people can be hurt. Perhaps, the legislature wants to provide more people the option to get court-appointed counsel. She noted that in order to provide due process for people affected by this, as a minimum, the courts need specific standards to use when determining whether someone is financially able to make restitution. For a person who has been found not guilty or whose charges have been dropped, Ms. Rudinger indicated that having the court demand reimbursement adds insult to the injury. She questioned, "Do we want more people to be treated unfairly by expanding the scope of who needs to make restitution or do we want fewer people to be treated unfairly and maybe want to think about raising the bar in terms of -- or at least setting down specific standards for who can be ordered to make restitution." Number 0470 REPRESENTATIVE GREEN asked, "Are you more concerned with the ... possibility of amending Section 2, are you concerned with the 'shall' there or are you, as you've alluded to earlier, ... that any time someone is brought up on charges and not found guilty that the state made a mistake." He also asked if sometimes there is a difference between whether someone is guilty, or there has been a mistake, or the person was simply found not guilty but may have still done something to cause this action to be brought. Representative Green continued, asking if Ms. Rudinger is "opposed to any time the state brings an action and loses; there should be no charges? Or only that there should be an ability for the court to determine?" He indicated the last question, could be very problematic. MS. RUDINGER answered, regarding Representative Green's question about the possible language change, that "shall enter a judgment" is the more offensive language from a civil liberties standpoint. The permissive standard, "may" standard, is less offensive. From a public policy standpoint, the AkCLU feels that people who are acquitted or whose charges have been dropped should not have to repay the cost of a public defender (PD) when the person haa already qualified as indigent; therefore, qualified for a PD. Perhaps some people are more innocent than others, but the fact is that either the government did not have enough evidence to get a conviction or the government just made a mistake. In either case, these people have already suffered greatly. Ms. Rudinger said, "I don't think that you can draw this distinction: Under our system of justice, "not guilty" means "not guilty" and we let it go at that. I don't think you want to start tinkering with that." MS. RUDINGER understood the second part of Representative Green's question to speak to the hardship on the legislature with regard to developing standards for courts to apply in determining whether someone is able to pay. However, that is exactly the defect found in the Oregon statute, that it was lacking those standards, which lead to Judge Panner striking down that statute as unconstitutional. "Under due process, there must be standards for courts to apply." Additionally, there must be notice to the defendant as well as an opportunity to be heard. Ms. Rudinger commented that earlier a good point was raised indirectly regarding that defendants do not have the right of a public defender to argue on the defendants' behalf in financial hardship type hearings. Perhaps, this should be revisited; she was unsure as to whether this would be a conflict of interest since the court is collecting the money. Ms. Rudinger drew attention to this possible lack of a right to a lawyer for a person who might be mentally ill, have some other kind of deficiency or incapacity to argue on his/her own behalf, or who could be too afraid to even try because he/she has already lost faith in the system, et cetera. Ms. Rudinger reiterated that this runs the risk of indirectly, unintentionally urging people to plead out, plead guilty, which will disproportionately impact poor people as opposed to those who are not poor. CHAIRMAN KOTT asked if that had answered Representative Green's question. REPRESENTATIVE GREEN replied no, and commented that he is not going any further. MS. RUDINGER commented that she thought she had answered his question. Number 0685 REPRESENTATIVE ROKEBERG expressed his frustration, noting he has had an opportunity to read the AkCLU position paper. He appreciated the desire for fairness. Ensuring that people's constitutional right of representation is absolutely paramount. However, he did not understand the concept that an individual who can pay for counsel has to pay whether innocent or not, while the court says a higher value must be given to the fact that an innocent poor person should receive payment for counsel. Representative Rokeberg commented that the logic, someone has greater rights if he/she is indigent than if he/she is part of the working poor, is beyond his understanding. It seems that, as a matter of policy, the working poor of this country are paying for the freight for these people who are abusing the system, in large part, today. For many in this country, using and working the system is a way of life. He stressed that this is one area he is aware of where the courts do not even do enough "interrogatories (ph)" to determine whether a person qualifies before a public defender is appointed. MS. RUDINGER said she shared his frustration that any time anybody is wrongfully held up on charges that person, regardless of that person's financial status, is greatly inconvenienced by the government and unfairly so. As the committee is aware, the legislation asks the legislature to make a decision whether poor people have to repay the government for the costs of their defense. Such a financial order would fall most heavily on those with the least money which is the issue here. She acknowledged that any innocent person, wrongly brought up on charges has been unfairly treated. However, should poor people who don't have a choice in their lawyer, who are acquitted, pay a portion of those attorney fees. While a person who can afford it, at least has the choice of who represents them. REPRESENTATIVE ROKEBERG emphasized that he did not understand the distinction that someone who is poor receives free counsel while someone who is part of the working poor has to pay for it whether guilty or innocent. MS. RUDINGER commented that goes back to Gideon v. Wainwright, a 1963 U.S. Supreme Court decision. REPRESENTATIVE ROKEBERG stressed that it is illogical. Even if it is a Supreme Court decision, it is not fair. MS. RUDINGER responded she certainly thinks he has a right to disagree with the Sixth Amendment. REPRESENTATIVE ROKEBERG rebutted that he was not disagreeing with the Sixth Amendment nor was he disagreeing with the right to counsel. Representative Rokeberg noted he had questioned why is it as a matter of public policy that the poor get a better deal than the people who are paying taxes which isn't fair at all. REPRESENTATIVE JAMES noted Ms. Rudinger's earlier comment regarding indigent people's permanent fund dividend checks being seized for this purpose. Representative James said, "That going up, quite a ways up, from indigency if a person has to pay it -- probably, they have to give up their permanent fund dividend too. So, it goes a long ways up the scale, so there is some unfairness there and I don't know what to do about it." She agreed that everyone is guaranteed counsel, and it is not appropriate to charge those who were wrongfully accused. However, some people should not be able to get away with it while others do not. Number 0947 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified next via off-network teleconference from Anchorage. Mr. McCune stated, in preface to his remarks, that the Public Defender Agency is very cautious about testifying and making remarks about the fees legislation for public defender services because of any possible conflict of interest that could arise. He described the way the fees are collected: there is a judgment set up by the court and then the fees are collected by the Office of the Attorney General or a section of the Department of Law. The agency does not collect the fees itself. The fees go into the state's general fund; they do not go directly into the agency's budget. Mr. McCune indicated he thinks this is a good way to handle this to avoid any kind of adversarial relationship with a client in the middle a case. With the agency's caution in testifying on fees legislation voiced, Mr. McCune expressed support for the idea of not having mandatory fees for any kind of child in need of aid case or civil case where the agency represents people. He indicated the agency is concerned about the child in need of aid cases and mental health commitment cases, where the agency represents clients. Mr. McCune believed the court does have some authority in juvenile delinquency cases. MR. McCUNE referred to the change from current statutory language, "Upon the person's conviction", et cetera, on page 2, line 6, and commented that this is just something that did not occur to the agency when they were talking in the Senate. It was generally restricted to criminal cases which he felt was appropriate and where the emphasis on picking up fees should lie. Mr. McCune noted there is a case involving attorneys' fees in child in need of aid cases, "Cooper versus State and it's found at (indisc.) Pacific Reporter, ... 638, page 174." Mr. McCune indicated that it would not be appropriate to have attorneys' fees charged in any way in child in need of aid cases. Currently, in most civil cases, under Civil Rule 82 the prevailing party can get attorney's fees from the other party even if the other party is the state. Therefore, he expressed the need not to change that - where a prevailing party in a child in need of aid case could ask for attorney's fees from the state. The reason is that, as the court said in Cooper, there are strong policy considerations. Child in need of aid proceedings are intended to promote important public interest and welfare of children. Because of this, the agency certainly wants to support Mr. Buttcane's position that attorneys' fees for public defenders should not be collected in civil cases. Mr. McCune noted the agency is also supportive of some way to provide mentally-ill people help in petitioning the court to be able to be relieved from fee payment. MR. MCCUNE described the way the process currently works. Generally, the court sends a judgment or notice of intent to impose a judgment for public defender fees to the person at his/her last known address. A court form is attached to that notice which can be filled out, expressing why he/she thinks a lower fee or no fee should be paid. The agency does not assist people in filling out those forms because of conflict of interest problems and because the rule says the person is not entitled to public defender representation for that part of the case. The agency passes the forms along if people request them, but goes no further. Mr. McCune said he thinks it is quite good to have some discretion in the courts to allow the court to decide when fees should be imposed and the amount of fees that someone realistically can pay. He indicated that often the courts look at restitution to the victim first if there is a conviction. Other items considered are the support of the convicted person's children and counseling fees. Mr. McCune explained that often a person is placed on probation and required to attend substance abuse, mental awareness type counseling, receive assessments, et cetera which can be expensive. He indicated the judges would prefer to see people pay for those services rather than returning to the court with the excuse that he/she cannot do those things because of the need to pay their attorneys' fees. Number 1307 MR. McCUNE informed the committee the Senate changed one other section; on page 1, lines 12 and 13. The representation would be at the level and to the extent required by both the state and federal constitutions. Although it will not change the agency's operations, the agency is somewhat concerned that there is no reference to statutes, court rules, bar association and ethical rules as also coming into play in how the agency does its job. Mr. McCune concluded by offering to answer any questions. REPRESENTATIVE ROKEBERG questioned what the current threshold is where some repayment is sought under court rules from some of the public defender clients. He asked if it varies with the type of case, or the person's income threshold. MR. McCUNE understood Representative Rokeberg to be inquiring as to what is indigent. The Anchorage court system and all the larger court locations have a pretrial services department which makes that determination. The agency does not question clients, whether someone is indigent is decided by the courts through their pretrial services and indigency screening. Referring to Representative Rokeberg's mention of the "working poor," Mr. McCune commented that, depending on the charge, almost everyone is indigent. If a person is looking at representation for a first degree murder case, he/she would face a very large up-front cash payment. In such a case, the court suggests that the person try to find a lawyer. If the person can't find a lawyer, the court would require the Public Defender Agency to keep track of the hours it works on the case. That person then would be charged at an hourly rate for the agency's services which would be more than the Rule 39 or Rule 209 rate. REPRESENTATIVE ROKEBERG commented, "Interesting to note that Mr. McCune's point is hire a lawyer, become indigent." Number 1501 REPRESENTATIVE MURKOWSKI referred to the current statutory language to be deleted on page 2, beginning at line 8, "ENFORCEMENT OF A JUDGMENT UNDER THIS SUBSECTION MAY BE STAYED BY THE TRIAL COURT OR THE APPELLATE COURT DURING THE PENDENCY OF AN APPEAL OF THE PERSON'S CONVICTION." Representative Murkowski added, "And I guess if it has been eliminated, you're going ahead and you're executing on your judgment and then you are found out at the ... higher appellate level that in fact your conviction's been overturned. What would the procedure be ... to just handle all that?" MR. McCUNE explained that currently, if a person is convicted at the trial court level, the person can request a stay of the attorney's fees order pending appeal. If the person then wins the case on appeal, his/her conviction is vacated and set aside as is the order for attorney's fees. He believed the language is included in order to give the court a chance to have the order on attorney's fees stayed pending the appeal, if someone appeals. Of course, as the legislation has been changed and no longer says "Upon the person's conviction" and if the court wants this change to also apply to people who are acquitted, receive not guilty verdicts, or whose convictions are vacated - then there wouldn't be reason for the stay because the person would still have to pay no matter what happened on the appeal. REPRESENTATIVE MURKOWSKI clarified her question. She posed a situation in which one is an executing a judgment and then the conviction is reversed; that person has paid out and their permanent fund dividend has been attached. She asked, procedurally, how difficult would it be to stop everything, and return it? MR. McCUNE indicated that language would be reinserted if the legislation were to be changed so that people who are found not guilty, or whose cases are vacated upon appeal would not have a fee. Number 1720 CHAIRMAN KOTT confirmed no one else wished to testify on SB 100 and announced the public testimony was closed. He stated his intention to hold SB 100 over, based on the testimony heard. Chairman Kott noted the legislation needs additional work before moving out of the committee. He referred to copies of the mentioned Pacific Reporter case, Cooper v. State, that were provided to the committee members for their review. With that, SB 100 was held over.
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