Legislature(2017 - 2018)GRUENBERG 120
03/27/2017 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB123 | |
| HB42 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 123 | TELECONFERENCED | |
| += | HB 42 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 42-FORFEITURE & SEIZURE: PROCEDURE; LIMITS
1:48:16 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 42, "An Act relating to seizure of property;
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."
CHAIR CLAMAN advised that this was the fourth hearing on the
bill, and last week the committee adopted a committee substitute
[Version U] as the working document wherein John Skidmore walked
the committee through the bill. He then described the amendment
procedure.
CHAIR CLAMAN further advised that he had submitted Amendments 1-
4, and passed the gavel to Vice Chair Fansler.
1:49:12 PM
CHAIR CLAMAN moved to adopt Amendment 1, Version 30-LS0193\U.11,
which read as follows:
Page 5, lines 8 - 10:
Delete all material and insert:
"(c) Before ordering the return of seized
property subject to forfeiture, the court
(1) must find that
(A) the item has no evidentiary value; or
(B) the parties have reached an agreement
or stipulation that preserves the evidentiary value of
the property or maintains the evidentiary integrity of
the property; and
(2) may require the property owner to post
cash or a secured monetary bond in an amount up to the
fair market value of the property."
REPRESENTATIVE EASTMAN objected for purposes of discussion.
1:49:38 PM
The committee took a brief at ease.
1:50:29 PM
CHAIR CLAMAN advised that Amendment 1 responds to a discussion
during the last hearing regarding [Sec. 12.35.220(c), Version
U,] page 5, [lines 8-10], which read as follows:
(c) The court may order the return of seized
property subject to forfeiture upon finding that the
item has no evidentiary value and establishing that
the property owner has posted a secured monetary bond
equal to the fair market value of the property.
CHAIR CLAMAN explained that subsection (c) addressed the topic
of returning seized property to the owner of that property, and
addressed that sometimes evidence has no evidentiary value, yet
other times the evidence has continuing evidentiary value.
There are ways in which to reach an agreement allowing the value
of the evidence to be shown in court without the evidence, for
example, pictures of the item if the defendant waived any
objection to not having the evidence present.
CHAIR CLAMAN further explained that the courts have the option
of asking the owner of the property to post a monetary bond, up
to the value of that property, in the event the property was not
returned at the end of the case.
1:52:08 PM
REPRESENTATIVE EASTMAN asked the sponsor's thoughts regarding
Amendment 1.
CHAIR CLAMAN noted that Representative Tammie Wilson had advised
his office that she was comfortable with "all of these
amendments."
1:52:47 PM
BARBARA BARNES, Staff, Representative Tammie Wilson, Alaska
State Legislature, advised that the sponsor had no objection to
Amendment 1.
VICE CHAIR FANSLER asked whether that was true with the other
offered amendments.
MS. BARNES replied that some of the amendments are obviously
somewhat duplicative, but the sponsor had no objection to the
amendments.
1:53:28 PM
REPRESENTATIVE EASTMAN withdrew his objection. There being no
objection, Amendment 1 was adopted.
1:53:56 PM
CHAIR CLAMAN moved to adopt Amendment 2, Version 30-LS0193\U.6,
which read as follows:
Page 6, following line 2:
Insert new bill sections to read:
"* Sec. 10. AS 12.36.060(a) is amended to read:
(a) A deadly weapon, other than a firearm or
ammunition, forfeited to the state under
AS 12.55.015(a)(9), unless remitted under AS 12.36.320
[AS 12.36.050], shall be disposed of by the
commissioner of public safety under this section.
Under this subsection, the commissioner of public
safety
(1) may declare a weapon surplus and
transfer it to the commissioner of administration;
(2) may, if the weapon is suitable for law
enforcement purposes, training, or identification,
retain the weapon for use by the Department of Public
Safety or transfer the weapon to the municipal law
enforcement agency making the arrest that led to the
forfeiture;
(3) shall destroy a weapon that is unsafe
or unlawful.
* Sec. 11. AS 12.36.060(c) is amended to read:
(c) A firearm or ammunition forfeited to the
state under AS 12.55.015(a)(9), unless remitted under
AS 12.36.320 [AS 12.36.050], shall be disposed of as
provided in AS 18.65.340."
Renumber the following bill sections accordingly.
Page 20, following line 22:
Insert a new bill section to read:
"* Sec. 31. AS 12.36.050 is repealed."
Renumber the following bill sections accordingly.
REPRESENTATIVE REINBOLD objected for purposes of discussion.
1:54:04 PM
CHAIR CLAMAN explained Amendment 2 as follows:
Prior to what is in Sec. 12.35.220, which is pages 4
and 5 of the -- of the CS. That provides a mechanism
for all property to be returned, not just firearms.
And, 12.36.060 is a specific provision that relates to
the return of firearms. And so, the purpose of this
amendment -- the purposes of this amendment is to add
Sec. 320, which we just referenced, to the remission
of firearms, and then later in the section, we repeal
Sec. 12.36.050 that was the specific provision
relating to remission of property. And that's
probably not the most clear description of what this
does.
1:55:40 PM
REPRESENTATIVE EASTMAN asked Chair Claman to explain Sec.
12.36.320 because the amendment basically replaces Sec.
12.36.050 with Sec. 12.35.220.320, and Sec. 12.35.320 doesn't
appear in the amendment."
CHAIR CLAMAN further explained Amendment 2, as follows:
So, .320 -- .320 is the provision that provides for
the remission of forfeited property, as well as seized
property. And, 12.36.050, which is what you see on
the last page of Amendment number 2, is a separate
provision in the statutes -- it's a separate provision
in the statute that relates to the remission of
forfeited property. And, the analysis of -- showed
that we were actually now, by enacting the portion
that is the 12.36.320, we are essentially doing the
same thing that takes place in 12.36.050, but
expanding the scope of the return of forfeited
property. And so, the advice from Legislative Legal
was that keeping 12.36.050 duplicated what we were
doing in 12.36.320. And then -- and then what goes on
in 12.36.060 is now replacing 12.36.050 with
12.36.320, which is what we are enacting.
So, in -- in broad terms what Amendment 2 does is it
takes on a specific provision as to one type of
property in 12.36.050, and replaces it with what is
now .320 that is broader in scope for the return of
property.
1:57:50 PM
REPRESENTATIVE KOPP offered his understanding of Amendment 2 as
follows:
It takes the explanation offered currently in
12.36.050, of the findings of fact that are necessary
for a forfeited weapon to be returned. And, it takes
those same findings of fact and it says these are
necessary for any property to be returned to avoid
duplicative -- not duplicative - that's sound like
false, but duplicate references in the law, not just a
section just for weapons, but for any property that's
sought to be returned to the owner. 12.36.320 in this
bill covers all property including weapons, and so
it's a -- Legal's way of expanding that standard we
have for owners to get guns back, to all property.
1:58:58 PM
REPRESENTATIVE LEDOUX pointed out as follows:
We don't seem to have 12.36.050, I don't think is
actually in this new bill. But, I guess I'm just
wondering if the -- if that's the reason -- if .050 is
everything except weapons, then why don't we just add
weapons to .050, instead of making .050 everything
except weapons. Maybe it would be just easier to
include weapons in .050 -- undo the exclusion.
REPRESENTATIVE KOPP advised Representative LeDoux that the
intention was not to exclude weapons from AS 12.36.050, which
was solely about remitting a weapon. He said that the amendment
said that those findings of fact, that have to be made by the
court to give that back to the owner, apply to all property that
an owner claimed interest, that's the standard that had to be
met for the property to be returned.
2:00:35 PM
REPRESENTATIVE LEDOUX pointed out that AS 12.36.050 relates to
weapons, but it doesn't relate to all weapons and asked whether
it just relates to a firearm or ammunition.
REPRESENTATIVE KOPP answered that it is just related to guns.
REPRESENTATIVE LEDOUX suggested making AS 12.36.050 relate to
all deadly weapons rather than including two sections for it.
2:01:39 PM
CHAIR CLAMAN offered the following:
The goal in .320 is not -- is to expand it, not just
to firearms and deadly weapons, to all property. So
it isn't a question of -- we would need -- well, first
Leg Legal did not seem to want to do it with .050, but
-- that's the first part of the answer. But, the
second part of the answer is that .320 would expand it
to all types of property. The areas that are very
concerned in forfeiture being planes, boats,
automobiles, they would be covered by .320, and not --
and because they cover all those kinds of property
would also apply to firearms and deadly weapons.
Whereas, .050 is a much more limited rescission of
property statute. So, I think Leg Legal -- I think
the way they started was, they started drafting a
section for rescission of property about boats,
planes, and automobiles. And then in the course of
working on it, we realized that there was a statute
about guns, and that we should remove that statute
about guns and all put it into what was being drafted
for the bill. That was probably the sequence that led
us where we are.
2:02:55 PM
REPRESENTATIVE REINBOLD asked that Legislative Legal and
Research Services describe the workings of Amendment 2.
VICE CHAIR FANSLER asked whether there was other discussion,
outside of the Legislative Legal and Research Services question,
regarding Amendment 2.
2:03:37 PM
REPRESENTATIVE EASTMAN asked the following:
So, under Amendment 2, the section that we're dealing
with here in Sec. 10, does specifically deal with
deadly weapons and, we're simply bringing .320, which
isn't -- doesn't one -- at least one of the amendments
for the bill do something to change .320? Or, are we
simply saying .320 is great as is, unamended,
unchanged, and now we want it to cover deadly weapons
also?"
2:04:18 PM
VICE CHAIR FANSLER opined that Amendments 4 and 6 speak to AS
12.36.320. He then held Amendment 2, and moved the committee to
Amendment 3.
CHAIR CLAMAN moved to adopt Amendment 3, Version 30-LS0193\U.4,
which read as follows:
Page 6, line 7:
Delete "under AS 12.36.310"
Insert "that provides for forfeiture by law,
regulation, or ordinance"
Page 6, line 10:
Delete "under AS 12.36.310"
Insert "that provides for forfeiture by law,
regulation, or ordinance"
Page 6, lines 24 - 26:
Delete all material.
REPRESENTATIVE EASTMAN objected for purposes of discussion.
2:04:59 PM
CHAIR CLAMAN referred to Amendment 3, and advised that part of
what was recommended in the bill was to no longer provide a list
of every single offense with a forfeiture provision within Title
12.36. He explained as follows:
But instead, just make a reference to laws and
regulations that involve forfeiture, and by adding
language that doesn't list the offenses, which was --
a list of offenses is under AS 12.36.310. If there
was just a reference to the statutes themselves, then
there is no longer a need to have AS 12.36.310 where
the statutes would be listed separately. Which would
tend to create lots of revisor's bills in the years
ahead if we were supposed to list every -- every
offense that had a -- was subject to forfeiture. So
that, the purpose in trying to reduce the number of
words in the statutes was to just reference offenses
that had forfeiture provisions, and take out AS
12.36.310, and that is the purpose of Amendment 3.
REPRESENTATIVE REINBOLD surmised that this had nothing to do
with "the lists being collected of -- the lists that they took,"
it's simply listing the laws, regulations, ordinances.
CHAIR CLAMAN answered in the affirmative.
2:06:31 PM
REPRESENTATIVE EASTMAN withdrew his objection. There being no
objection, Amendment 3 was adopted.
2:06:50 PM
CHAIR CLAMAN moved to adopt Amendment 4, Version 30-LS0193\U.9,
which read as follows:
Page 7, line 5, following "fair":
Insert "market"
Page 7, following line 8:
Insert a new subsection to read:
"(c) The court may order the remission of
property conveyed by
(1) inheritance to an individual who was
not a party to the offense resulting in forfeiture; or
(2) gift from a person other than the
defendant."
Reletter the following subsection accordingly.
REPRESENTATIVE LEDOUX objected.
2:06:57 PM
CHAIR CLAMAN referred to the committee packet and explained that
[Conceptual Amendment 1 to] Amendment 4 was provided by the
Department of Law. Chair Claman moved to adopt [Conceptual
Amendment 1 to] Amendment 4. There being no objection,
[Conceptual Amendment 1 to] Amendment 4 was adopted.
2:08:24 PM
The committee took a brief at ease.
2:08:54 PM
CHAIR CLAMAN explained that Amendment 4, as amended, spoke to
concerns regarding AS 12.36.320, remission of forfeited
property, and this was a change to AS 12.36.320. He reminded
the committee there was concern regarding someone who receives
property by gift or inheritance, and how that would impact the
analysis of whether the owner could receive their property.
Within discussions at the Department of Law, he said, it became
apparent the committee was focused on what happened to gifted
property before a crime occurred. He referred to his previous
example of the gift of his grandfather's favorite pistol being
stolen from his house and used in a crime, and said that is an
example of the pre-crime transmission of property. Although, he
noted, the Department of Law was concerned about post-crime
transfer of property wherein people transfer property to conceal
the property and avoid its forfeiture for a variety of reasons.
In addressing both the pre-crime transfer of property by gift or
inheritance, as well as not allowing that to be a basis upon
which one could avoid forfeiture of property for post-crime
transfers of property, [Conceptual Amendment 1 to] Amendment 4
addressed those issues, he said.
CHAIR CLAMAN pointed out that the first thing that happens in
Amendment 4, [Sec. 12.36.320(a)(4)], page 7, line 5, which read:
(4) was a bona fide purchaser for fair
value.
CHAIR CLAMAN advised that the drafters realized the term more
commonly used was fair market value, and "market" was added into
paragraph (4), as follows:
(4) was a bona fide purchaser for fair
market value.
2:11:31 PM
CHAIR CLAMAN advised that new subsection (c) was added, and
would be positioned before the current subsection (c). He
explained that this subsection (c) was designed to address
concerns with inheritance and gifts, and it incorporated
[Conceptual Amendment 1 to] Amendment 4. He further explained
that the concern from the Department of Law was that even in the
gift situation, it was important to that the concepts in
paragraphs (1), (2), and (3) be added into the gift and
inheritance language, regarding legal right to the property, did
not knowingly participate in the commission of a crime, and did
not know that the property was used in the commission of a
crime. The new subsection (c) provides that first, the court
would have to find by a preponderance of the evidence that AS
12.36.320(a)(1)(2)(3), but not paragraph (4) are proven by a
preponderance of the evidence. The court would then have the
option that it "may order" the remission of the property if the
property was conveyed by gift or inheritance, he offered. There
was a note in the gift that it must come from a person other
than the defendant, he pointed out.
CHAIR CLAMAN explained that that was an effort to address the
gift and inheritance situation, and also the concerns directed
at both the pre-crime and post-crime gift and inheritance
issues.
2:13:38 PM
REPRESENTATIVE EASTMAN advised that he was not entirely sure how
[Conceptual Amendment 1 to] Amendment 4 was beneficial, and
asked Chair Claman to speak specifically to the amended portion.
CHAIR CLAMAN responded that the concern the Department of Law
raised was that circumstances could arise in which a person
could gift property for the purpose of concealment. For
example, he said, his mother gifts him a car, he then loans the
car to a friend who he knows is a bit of ne'er-do-well, and that
the person has a tendency to commit crimes in vehicles. In that
situation, he should not qualify as an innocent owner and
receive his property back because he was foolish enough to loan
it to that ne'er-do-well friend. He noted that [Conceptual
Amendment 1 to] Amendment 4 added in paragraphs (1), (2), and
(3), meaning that he had to show that he was the equivalent of
an innocent owner and not gaming the system.
2:15:22 PM
REPRESENTATIVE EASTMAN noted that [Conceptual Amendment 1] ended
with an ellipsis punctuation, and asked what language takes the
place of the ellipsis.
CHAIR CLAMAN advised that "if the court finds" language would
come just after subsection (c), which would read as follows:
(c) If the court finds by a preponderance of the
evidence that AS 12.36.320(1), (2), and (3), are
proven, the court may order the remission of property
conveyed by
CHAIR CLAMAN explained that he handwrote a comma and a lower
case "t" on the face of Amendment 4, [to include Conceptual
Amendment 1] because Amendment 4 originally read with a capital
"T", as follows:
(c) The court may order the remission of property
conveyed by
REPRESENTATIVE EASTMAN advised that he understood.
2:16:33 PM
REPRESENTATIVE REINBOLD noted that [Conceptual Amendment 1] read
as follows:
If the court finds by a preponderance of the evidence
REPRESENTATIVE REINBOLD asked the reason for the language "by a
preponderance of the evidence," and whether that was the highest
level of evidence.
CHAIR CLAMAN explained that the language was tracking the
language in AS 12.36.320(a), and further explained that "beyond
a reasonable doubt" is the highest standard, "clear and
convincing evidence" is the next highest standard, and
"preponderance of the evidence," is typically the civil
standard. In terms of evidentiary findings those are the only
three standards involved.
2:17:36 PM
REPRESENTATIVE KOPP advised that he supports Amendment 4, and
then referred to [Sec. 12.36.320(b)], page 7, lines 6-7, which
read as follows:
(b) Upon a showing that the person is entitled to
relief under (a) of this section, ...
REPRESENTATIVE KOPP offered testimony as follows:
So, it seems to me that all of Amendment 4 could be
just dropped in right there, "the court may order that
..." and then you go right -- right down through this
-- this amendment, "the court may order" because you -
- because (a) has to be proven. We've just said it in
line (b) [sic], "Upon a showing the person is entitled
to relief under (a)" that's what we're saying in this
Amendment 4, as amended. "under (a) of this section"
and then go right into Amendment 4, the court may
order the remission of property conveyed by (1), (2),
and then what we have there in (b) now should be
number (3). And that to me, seems like it would just
flow logically and we wouldn't have broken up showing
things that have to be proved under (a) first, under
two different subsections.
2:18:51 PM
CHAIR CLAMAN noted that the issue driving Amendment 4 was the
issue of gifts and inheritance, of which subsection (b) doesn't
address.
REPRESENTATIVE KOPP argued that it would if that language was
inserted there, "the court may order" and just taking Chair
Claman's language there, right after the word "section," on page
7, line 7. He then read as follows:
the court may order the remission of property conveyed
by (1) inheritance to an individual who is not a party
to the defense resulting in forfeiture; (2) gift from
a person other than the defendant; or, (3) would be
...
2:19:59 PM
JOHN SKIDMORE, Director, Legal Services Section, Criminal
Division, Department of Law (DOL), responded to Representative
Kopp's suggestion by advising that the problem with trying to
fold what was happening with Amendment 4 in with subsection (b),
Version U, was that subsection (b) addressed the fact there was
a posting of money for the property when it had released it. He
related that that was a different concept than what was in
Amendment 4, in that Amendment 4 attempted to address the
ability for property to be returned if it was an inheritance or
a gift, and there had not been the concerns raised in paragraphs
(1) - (3) of subparagraph (a).
REPRESENTATIVE KOPP further argued that he was not convinced
because it logically flowed perfectly, as all four would drop
right in there. He said, "You have to find (a), and just like
what you have said, the court ordering an amount equal to the
value of the person's interest be paid to the person, or that
the property be released to the person, (a) must be found,
(a)(1), (2), and (3), must be found, so (a)(1), (2), and (3),
must be found for all of your amendment too."
2:22:00 PM
VICE CHAIR FANSLER noted the purchasing an item less than fair
market value, that was not a gift, would automatically
disqualify someone from receiving their property. For example,
he offered, parents sold their daughter a car for an extremely
reduced price, and it was not quite a gift even though it was
not purchased at fair market value. Then, he said, someone
takes that car and uses it in the commission of a crime and now
the daughter can't get it back because she fell into the
Netherlands.
MR. SKIDMORE responded that his scenario would not be a problem
because the concerns presented during the last committee hearing
dealt with that bone fide purchaser for fair value. Amendment 4
said that a person had to comply with paragraphs (1), (2), and
(3), but not paragraph (4). The fair market value was no longer
an issue for the court to decide if the person had legal right
or interest in the property. For example, his uncle sold him a
Ferrari for $50, Mr. Skidmore now held legal right to the car
even though he didn't pay fair market value under paragraph (1).
Mr. Skidmore then loaned his Ferrari to his friend, Jeff, not
knowing Jeff would use it in the commission of a crime. Mr.
Skidmore could still get his Ferrari back because he had no
reason to know the car would be used in the commission of a
crime, thereby, not having to establish now that he paid fair
market value. Amendment 4, he explained, was designed to
eliminate that rationale of the fair market value having to be
established.
2:24:40 PM
VICE CHAIR FANSLER referred to Amendment 4, page 1, lines 6-9,
which read as follows:
(c) the court may order the remission of property
conveyed by
(1) must be an inheritance to and individual
who was not a party to the offense resulting in
forfeiture; or
(2) gift from a person other than the
defendant.
VICE CHAIR FANSLER said those are now two new requirements
replacing paragraph (4).
2:24:58 PM
MR. SKIDMORE answered that when his uncle allowed Mr. Skidmore
to purchase the Ferrari for $50, a certain aspect of that
remained a gift. He explained that a gift does not have to be,
"I give it to you and you don't pay me anything for it. A gift
is that I'm giving you something for which I haven't gotten fair
market value." Therefore, even when he paid less than fair
market value, that was still a gift from his uncle. He
explained that Amendment 4 does not add two of them, it is one
or the other because the "or" is used on Amendment 4, page 1,
line 8.
VICE CHAIR FANSLER offered a scenario wherein an item was not
intended to be a gift, such as a person conducting a yard sale
who unknowingly sold a valuable antique gun to a person for a
small price that was not a gift.
MR. SKIDMORE referred to AS 11.46.980, market value of the
property at the time and place in which the crime occurred,
which was actually discussing the value of the property stolen.
He offered that if everyone knew absolutely everything there was
to know about that piece of property at the time it was sold, it
was "I, as the seller, think that I'm getting a fair return for
the property that I have," and if he didn't realize the item's
true value, that was the fair market price.
2:27:57 PM
VICE CHAIR FANSLER, noted that the next scenario was more for
the committee to consider, and referred to Amendment 4, page 1,
line 9, which read as follows:
(2) gift from a person other than the
defendant,"
REPRESENTATIVE FANSLER said that the defendant gifts "this" to a
person 20 years earlier, and later steals it in the commission
of a crime. In that situation, the person was an innocent party
who held legal title, did not knowingly participate in the
commission of a crime, and did not have reasonable cause to
believe, and the person still could not receive it back because
it was the defendant that gifted it to the person.
MR. SKIDMORE offered his response as follows:
I think I understand the proposition that you are
suggesting that a defendant gifts property to another
person and then obtains that property to use in the
commission of a crime. And, the person to whom they
gifted it to, you are suggesting, the state's going to
seek forfeiture from that person simply because the
defendant took it back to use it in a crime. To me,
it's not that it was given to you by the defendant, to
me, what matters are subsections [sic] (1), (2), and
(3). That the person actually had the property -- had
legal right to the property, that they didn't
knowingly participate in the commission of the
offense, and they did not know or have reason to
believe that the property would be used to commit a
crime. That's actually the exact same language to go
back to the previous discussion the committee had
about eliminating the statute that dealt only with
weapons. Those same three concepts are the exact same
three concepts that are in that other statute. Those
are the exact same three concepts that are found in
statute that we want to make sure that when the person
is using whatever property it is in the commission of
a crime, a person that they took it from or that
loaned it to them, didn't realize how it would be
used. Those are the key elements, not who actually
gave them the property.
2:30:15 PM
VICE CHAIR FANSLER responded that it makes sense, although, the
gift from a person part gives him a bit of heartburn, but ...
MR. SKIDMORE offered that it was a policy call as to whether or
not to eliminate it, and that it would not change the analysis
for the Department of Law. What remained important were the
first three paragraphs, he said.
2:30:37 PM
REPRESENTATIVE EASTMAN referred to Amendment 4, page 1, line 5,
dealing with "fair market value," and commented that paragraph
(4) was not especially helpful. He then referred to paragraph
(1) "acquired in good faith," and opined that paragraph (4)
simply reestablished that the property was acquired in good
faith.
2:31:37 PM
REPRESENTATIVE LEDOUX referred to [Sec. 12.36.320, remission of
forfeited property], page 7, line 5, and said that [with
Conceptual Amendment 1 to Amendment 4] it currently read as
follows:
(4) was a bona fide purchaser for fair
market value.
REPRESENTATIVE LEDOUX suggested inserting as follows:
(4) was a bona fide purchaser for fair
market value, or inherited the property from an
individual who was not a party to the offense
resulting in forfeiture, or the property was a gift.
CHAIR CLAMAN explained that the language in Amendment 4 was
recommended by the Legislative Legal and Research Services in
dealing with the problem.
REPRESENTATIVE LEDOUX requested a comment from Hilary Martin,
Legislative Legal and Research Services, as to her suggested
language.
2:33:04 PM
HILARY MARTIN, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, Alaska State Legislature,
said that the proposed language could easily be added on page 7,
line 5, because if the committee was keeping preponderance of
the evidence and wanted paragraphs (1), (2), and (3), to apply,
paragraph (4) could be rewritten as follows:
either bona fide purchaser for fair value inherited
the property or was gifted a property to someone other
than the defendant.
2:33:57 PM
REPRESENTATIVE LEDOUX asked whether it would have to read
"inherited the property from -- it was a gift from somebody
other than the defendant," because Mr. Skidmore had advised that
it didn't matter whether it came from the defendant or not.
MR. SKIDMORE stated that Representative LeDoux was correct.
MS. MARTIN said that was a decision for the committee to make,
as she was just relating to the language in Amendment 4.
REPRESENTATIVE LEDOUX noted that it was just a suggestion.
2:34:43 PM
REPRESENTATIVE EASTMAN offered that he understood the
requirement in paragraph (4) dealing with fair market value to
relate directly to whether the property was acquired in good
faith. Paragraphs (1) and (4) more or less accomplish the same
thing, and he asked what would be lost by simply eliminating the
following language, "was a bona fide purchaser for fair market
value."
MS. MARTIN explained that it would just remove the requirement
that the person must have purchased it for fair value, and
paragraphs (1), (2), and (3), would still apply. Again, she
related, that was a decision for the committee as to whether it
wanted to require a bona fide purchaser for fair value.
2:36:01 PM
REPRESENTATIVE EASTMAN surmised that in addition to making it
shorter, it might render a lot of the issues being discussed
today unnecessary to work through.
MR. SKIDMORE explained that the significance of the bona fide
purchaser for fair market value goes to the crux of the issue.
He explained that the committee was focused on the exchange of
property prior to the commission of an offense, and the
prosecutors were more interested in what happened after the
offense had occurred. He offered a scenario of committing a
crime with the antique gun, and after committing the crime he
asked his friend, Fred, to buy the $5,000 gun for $100. There
was nothing that said that was not in good faith, but in
reality, Mr. Skidmore tried to divest himself, give away that
property to someone else so it was no longer subject to
forfeiture, and sold it for far less than its worth. In the
event no one was able to prove Mr. Skidmore sold the property
inappropriately, judgment was passed, the property was not
forfeited, two years later he goes back to Fred and offers
$2,000 for the antique gun, and Mr. Skidmore now has the gun he
was trying to prevent from being forfeited, he offered.
MR. SKIDMORE explained that forfeiture was important and
powerful in law enforcement because a fishing vessel, or
airplane could be altered in a manner as to be used for criminal
circumstances. He then referenced Star Wars, and how Hans Solo
altered the Millennium Falcon to enable him to smuggle goods
into the Millennium Falcon, that is what people do. Criminals
alter airplanes, boats, and other items in such a manner that
the actual value of the item was not as important, but rather
the importance then became that the alternation allowed a
criminal to engage in illegal conduct. Case law discusses
forfeiture, and the value of forfeiture ensures that whatever
item had been altered for illegal purposes was taken out of the
market place and was no longer used for illegal purposes. He
reiterated that when a particular piece of property had been
altered for illegal use and was taken out of the market place,
therein lies its value. He remarked that when discussing the
bona fide purchaser, the division wanted to be certain it was
not a "shell game" where the property somehow slid into someone
else's hands after the crime, and that person claimed they did
not knowingly participate in a crime, and didn't have reason to
believe the property was used in a crime. The division has had
cases in which fishing vessels were altered to hide catches,
airplanes altered for hunting or fishing, which is why the bona
fide purchaser remains important from the law enforcement's
perspective, he said.
2:40:56 PM
REPRESENTATIVE EASTMAN commented that he did not believe the
language in Amendment 4, would limit the ability of the courts
working with information provided by law enforcement, or whether
the fair market value of an item changed when it's modified or
rendered for smuggling purposes. He referred to paragraph (1)
and the language "acquired in good faith," and said there was
nothing in the language that kept an item, returned by the
court, from being sold back to whomever sold it to them in the
first place. "Acquired in good faith" appeared to be the
interest here, and if the prosecutor had established it was a
tool used by smugglers, then possibly the good faith portion
would come into question there, he offered.
REPRESENTATIVE EASTMAN pointed out that he was convinced the
committee should get rid of paragraph (4), thereby, ending many
of the issues being discussed.
2:44:20 PM
REPRESENTATIVE REINBOLD noted that whether Amendment 4 was
perfect was yet to be decided, and maintained her objection.
REPRESENTATIVE LEDOUX said she supported the philosophy of the
amendment, but wondered whether the language was correct.
2:45:10 PM
CHAIR CLAMAN noted that Amendment 4 went through a tremendous
number of iterations in coordination with different members of
the committee, the Department of Law, and Legislative Legal and
Research Services. Chair Claman said he recognized that the
amendment might be less than a perfect solution so the committee
could vote down the amendment, and he would continue to work on
it because it was a committee bill.
REPRESENTATIVE LEDOUX reiterated that she was just not
comfortable with the language, and pointed out that the next
committee of referral was the House Finance Committee, and that
committee wanted the House Judiciary Standing Committee to do
the substantive work.
2:46:27 PM
REPRESENTATIVE KOPP referred to Version U, [page 6, lines 27-31
and page 7, lines 1-5], which read as follows:
(a) A person seeking remission of the person's
interest in property forfeited under AS 12.36.300 -
12.36.340 shall prove to the court by a preponderance
of the evidence that the person
(1) holds a legal right, title, or interest
in the property seized, acquired in good faith;
(2) did not knowingly participate in the
commission of the crime in which the property was
used;
(3) did not know or have reasonable cause to
believe that the property was used or would be used to
commit a crime; and
(4) was a bona fide purchases for fair
value.
REPRESENTATIVE KOPP offered testimony as follows:
I think that the sum total of the language of the CS,
Version U, in front of us, as Representative Eastman
has pointed out, it could very -- clearly identifies
that a person seeking remission of the persons
interest. Their interest in the property, you have to
show that you have legal right, title, or interest, so
that's covered. That that person did not knowingly
participate in the commission of the crime in which
property was used, which the Millennium Falcon was
used, that's covered. And, they did not know or have
reasonable cause to believe that the property was
used, or would be used to commit a crime, that's
covered. And then, with the amendment, we get rid of
the problem of the language saying "and, you have to
show that you are a bona fide purchaser for fair
market value." Now, by adding this subsection to say
that -- "the court, in those situations where its
inheritance or a gift, the court may still order the
remission of property, if you were not a party to the
offense resulting in forfeiture, or it was given to
you as a gift from someone other than the defendant."
So, I think if -- we may be a little windy, but I
think we get at something conceptually that arrives us
to protecting people's rights, allowing, certainly,
anybody who can make at least make a case to the court
that they are an innocent party to do so. So, that's
my comment. I think -- still the word "and" on line
4, page 7 troubles me when we are still tying all four
of those things together, "and, was a bona fide
purchaser for fair market value." I'm not sure why we
have to have an "and" there. But, I think -- because
you can certainly have (1) through (3), and (4) not
apply. And still have your legal right, title, or
interest and not have been a bona fide purchaser. So,
but if -- if this new subsection cures that, then --
and it looks to me like it does, it specifically
addresses inheritance and gifts. I'm trying to think
if there was any other way you can get property, tooth
fairy. But, or someone transfers something to you, is
that -- is that a gift? Because someone has
transferred to you, families transfer property to each
other's names, fishermen will transfer permits
sometimes, maybe even boats, I don't know.
2:49:26 PM
REPRESENTATIVE EASTMAN related that he would rather give the
courts some discretion, which was why he was not comfortable
with the current language. He said that in the event an
individual paid greater than fair market value, they wouldn't be
caught up by any of this because it would not be a gift when
paying more than its fair market value.
REPRESENTATIVE LEDOUX pointed out that it was difficult to draft
language in a committee hearing, and suggested appointing a
subcommittee to come back with the appropriate language.
CHAIR CLAMAN noted that the language did not address
Representative Eastman's issue about fair market value, and the
prosecutor's office has problems eliminating the fair market
value language.
2:51:40 PM
REPRESENTATIVE REINBOLD maintained her objection.
A roll call vote was taken. Representative Claman voted in
favor of adopting Amendment 4. Representatives Eastman,
Reinbold, Kopp, Kreiss-Tomkins, LeDoux, Fansler voted against
it. Therefore, Amendment 4 failed to be adopted by a vote of 1-
6.
2:52:25 PM
VICE CHAIR FANSLER then returned the committee to the motion to
adopt Amendment 2, and noted that Representative Reinbold had
asked that Ms. Martin to speak to Amendment 2.
VICE CHAIR FANSLER explained to Ms. Martin that previously Chair
Claman explained Amendment 2, and Representative Reinbold asked
that Legislative Legal and Research Services also explain
Amendment 2.
2:53:34 PM
MS. MARTIN responded that Amendment 2 repealed existing statute
AS 12.36.050, and new Secs. 10 and 11, in the amendment, are
conforming changes. AS 12.36.050 was repealed, and AS 12.36.320
had similar language in the bill. Therefore, she offered, the
reference was updated from AS 12.36.050 to 12.36.320.
REPRESENTATIVE REINBOLD asked Ms. Martin to carefully explain
repealed AS 12.36.050.
MS. MARTIN answered that AS 12.36.050, remission of forfeited
property, specifically discussed remission of a forfeited
weapon. The language under AS 12.36.320, in the bill, was
almost identical, except it covered all property and not just
weapons. She referred to AS 12.36.320(a)(4), bona fide
purchaser for fair value, and noted that it was not a current
requirement under AS 12.36.050.
2:54:56 PM
REPRESENTATIVE REINBOLD surmised that it streamlined the law to
include firearms.
MS. MARTIN reiterated that repealed AS 12.36.050 dealt solely
with weapons, AS 12.36.320 applied to all property, and it would
be fairly duplicative to have both.
REPRESENTATIVE REINBOLD surmised that it expanded the scope of
returned property to include firearms.
MS. MARTIN reiterated that repealed AS 12.36.050 applied solely
to weapons, and the new bill section applies to all property.
2:56:38 PM
REPRESENTATIVE EASTMAN withdrew his objection. There being no
objection, Amendment 2 was adopted.
2:57:05 PM
REPRESENTATIVE KOPP withdrew Amendment 5, labeled 30-LS0193\U.3,
and Amendment 6, labeled 30-LS0193\U.2 [prior to moving to adopt
the amendments].
2:57:19 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 7, Version 30-
LS0193\U.1, which read as follows:
Page 4, line 23, following "property.":
Insert "(a)"
Page 4, following line 25:
Insert new subsections to read:
"(b) If a law enforcement agency has possession
of seized property belonging to a victim of a crime or
to an innocent owner, the law enforcement agency shall
return the property to the victim or innocent owner
not later than 120 days after a defendant has been
charged in the underlying criminal case.
(c) When a law enforcement agency has seized
property but a suspect has not been identified or
charged within 120 days after the seizure, the law
enforcement agency shall inform the owner of the
property that a suspect has not yet been charged and
return the property to the owner if the owner requests
the return of the property. The law enforcement agency
shall, before returning the property to the owner,
require the owner to sign a waiver acknowledging that
return of the property might affect a future
prosecution if a suspect is later identified.
(d) In this section, "innocent owner" means a
person who
(1) holds a legal right, title, or interest
in the property seized, acquired in good faith;
(2) did not knowingly participate in the
commission of the crime in which the property was
used;
(3) did not know or have reasonable cause to
believe that the property was used or would be used to
commit a crime; and
(4) was a bona fide purchaser for fair
value."
Page 6, following line 23:
Insert a new subsection to read:
"(f) Unless a defendant requests inspection or
testing of property not later than 120 days after the
defendant has been charged, the defendant's right to
inspect or test the property is waived."
REPRESENTATIVE FANSLER objected for discussion.
2:57:30 PM
REPRESENTATIVE EASTMAN offered that currently, the legislature
asks law enforcement to focus on convictions, preserving
evidence, and such. Except, there was not a counterbalance to
at least minimize re-victimizing victims of crimes. For
example, a mother had her car carjacked while she was in it with
her daughter, the car was later found and seized as evidence,
which left the mother with no car and no way to get to work.
This situation made the mother's victimization worse than had
the car simply been stolen because the state now had the car,
and she couldn't get the car. Inevitably, victims' rights
stepped in, petitioned the court, and the car was returned to
the mother. It appeared to him, he noted, that the legislature
set up those types of circumstances to continue. In that
regard, he would like to counterbalance the ask the legislature
gave to law enforcement to pursue the conviction with making a
reasonable determination as to whether the conviction was worth
more than the actual injury crime victims suffer. Obviously, he
commented, a win-win would be to ...
CHAIR CLAMAN asked Representative Eastman to focus on the
amendment itself, and not an amendment that is not before the
committee.
3:00:01 PM
REPRESENTATIVE EASTMAN explained that this amendment
specifically set out a reasonable timeline of 120 days, and
after that point, a determination would be made as to whether
the property should go back to the crime victim. He offered
that, currently, the legislature asks law enforcement to not
give property back in these situations, and commented that this
amendment would nudge law enforcement to speed up the process.
3:01:29 PM
MR. SKIDMORE, in addressing the department's concerns and
possible constitutional issues, offered that while he
appreciates returning property back to innocent victims,
Amendment 7 violates the constitution. He referred to Thorne v.
Department of Public Safety, 774 P.2d 1326 (1989), and explained
that Thorne specifically referred back to other Alaska Supreme
Court cases establishing due process rights and the requirement
to preserve evidence until the time of trial. He explained that
Amendment 7 could create substantial problems for the
prosecution in any number of cases. For example, he said, when
he was a prosecutor in Dillingham, they prosecuted a double
homicide in which a 14-year old girl was raped, murdered, and
her body placed in a land dump. It took the prosecutors six
months to [indict the defendant], which was two months longer
than the 120 days. In those circumstances it would have
compromised the prosecutors' ability to file charges and
ultimately bring the responsible person to justice and a
sentence of 99-years. He agreed there is a need to find a good
way to return property to innocent folks, and he argued that
this amendment was not the right way to achieve that goal.
3:03:24 PM
REPRESENTATIVE REINBOLD commented that she understood where Mr.
Skidmore was coming from, but believed Representative Eastman
had an important point because over 2,000 vehicles are stolen.
She described it as outrageous that in the event a car was
stolen, the victim then had no way to get to work and was re-
victimized. She asked Mr. Skidmore for a solution.
MR. SKIDMORE said that he agreed, reiterating that there was a
need to find an avenue to get property back to the innocent
victim, and that the Department of Law has been working on
solving the problem. With regard to vehicles, he pointed out,
not only was it a problem for victims, it was also extremely
expensive for law enforcement to store property. Three years
ago the division implemented the policy of having motions filed,
by either a prosecutor or defense attorney, to have the seized
property returned, and a response was not required by the other
party, and the court would ultimately rule on the property.
Absent that process, he advised, there was a constitutional
problem and the answer is to use the court process.
3:05:07 PM
REPRESENTATIVE REINBOLD said, "I truly believe that you can find
an amendment to this amendment" allowing property to be given
back to the victim, unless the prosecution or defense absolutely
needed that evidence. She said she would back up her colleague,
"and expect, you know, some sort of an amendment to an
amendment" to address this issue before the bill moves forward.
3:05:49 PM
CHAIR CLAMAN instructed Representative Reinbold that the
Department of Law [a separate branch of state government] is not
part of the legislative branch of state government, and the
Department of Law had no obligation to propose amendments. He
reminded her that the committee had been advised that Amendment
7 violated the constitution and the committee could do as it
wished.
REPRESENTATIVE REINBOLD argued that it violated the constitution
in the opposite way.
3:06:12 PM
REPRESENTATIVE KOPP said he agreed with the sentiment of the
amendment, and reminded the committee that the 2014 legislature
passed AS 12.36.070, Return of property by hearing, which read
as follows:
(a) A crime victim who is the owner of property
not belonging to a law enforcement agency that is in
the custody of the agency under this chapter may
request that the office of victims' rights request
that the agency return the property to the crime
victim. The request under this subsection shall be
filed by the office of victims' rights on behalf of
the crime victim after the office has conducted an
investigation and has concluded that the crime victim
is entitled to the return of the property under the
factors listed in (c) of this section.
(b) Within 10 days after receipt of a request
under (a) of this section and following reasonable
notice to the prosecution, defense, and other
interested parties, the agency shall request a hearing
before the court to determine if the property shall be
released to the crime victim. If the property is being
held in connection with a criminal case, the hearing
shall be before the court with jurisdiction of the
criminal case. If no criminal case is pending
regarding the property, the hearing shall be before a
district or superior court where the property is
located.
(c) At the hearing, a party that objects to the
return of the property shall state the reason on the
record. After a hearing, the court may order the
return of the property in the custody of a law
enforcement agency to the crime victim if
(1) the crime victim by a preponderance of
the evidence provides satisfactory proof of ownership;
and
(2) the party that objects to the return of
the property fails to prove by a preponderance of the
evidence that the property must be retained by the
agency for evidentiary purposes under the provisions
of this chapter or another law.
(d) If the court orders the return of the
property to the crime victim, the court may impose
reasonable conditions on the return. Those conditions
may include an order that the crime victim retain and
store the property so that the property is available
for future court hearings, requiring photographs of
the property to be taken, or any other condition the
court considers necessary to maintain the evidentiary
integrity of the property.
(e) In this section, "crime victim" has the
meaning given to "victim" in AS 12.55.185 .
3:08:04 PM
REPRESENTATIVE KOPP advised that this law was well vetted
through three legislative sessions before enactment, and "it
totally addresses" what Amendment 7 was driving at, and it gave
authority to crime victims to bring it [before the court]. He
related that the problem with setting a 120 day timeline, as Mr.
Skidmore pointed out, certain trials take a long time, sometimes
years. In all types of situations, this statute specifically
allowed a person to petition the court for a hearing to decide
whether the evidentiary value the state was claiming outweighed
the crime victim receiving their property back.
3:09:40 PM
REPRESENTATIVE EASTMAN offered that due to recently passed
legislation, certain cases are not prosecuted for whatever
reason. Vehicles are stolen, he said, and after whatever
process the state went through, the state determined there was a
way to prosecute, yet, decided not to prosecute the case. He
commented that this is all in the backdrop of the system not
working in the manner that "we would like to see it designed
to." Last weekend, in his district ...
CHAIR CLAMAN interjected that while these are interesting
comments, they have nothing to do with Amendment 7, and the 120
day timeline wherein if the property had not been returned, it
must be returned immediately.
REPRESENTATIVE EASTMAN said the second and third portions of the
amendment dealt strictly with situations in which an
unidentified suspect had not been charged, and the state gave
the owner of the property the opportunity to waive their claim
in allowing that property to be used in the prosecution. He
continued that the legislature asked that person to make a
decision on whether or not they want to risk the evidence not
being sufficient to pursue a conviction against the person who
violated their property rights. Which, he commented, appeared
to be a reasonable thing to do, especially in the backdrop of
cases that would not be prosecuted. He argued, there is nothing
unconstitutional about this, although, if there was anything
unconstitutional it may be pursing prosecution of a case in an
unconstitutional manner. There was nothing here that said that
had to happen, but it is known that fewer cases were going to
prosecution which was the reason for Amendment 7, he said.
3:12:49 PM
REPRESENTATIVE REINBOLD noted that she liked the language, "they
shall return it," and she appreciated Representative Kopp's
point about the 2014 legislature. Unfortunately, she said, it
still put the victim in the "mother may I, mother may I, mother
may I have a hearing, mother may I," and asked the Department of
Law to work with her on this issue. She said that the executive
branch doesn't have to work with amendments, but "I can tell you
that it seems like the executive branch is pretty much running
the legislature right now with all the rebuttals, with their
testifying, with their carrying their bills ..."
3:14:20 PM
CHAIR CLAMAN pointed out that her statements were beyond the
scope of this amendment.
REPRESENTATIVE REINBOLD said, "I'm just saying, you guys brought
it up where he doesn't have to help me, you know, write an
amendment," but there are probably one thousand people in the
executive branch working with different members in some way or
another.
CHAIR CLAMAN clarified that he did not say Mr. Skidmore did not
need to work with her, and further clarified that he said Mr.
Skidmore did not need to write the amendment. Chair Claman told
Representative Reinbold to not say that he made statements he
did not make.
3:14:40 PM
REPRESENTATIVE REINBOLD reiterated that victims of crime have a
right to their property, and requested that the committee have a
hearing with regard to the process for returning property.
CHAIR CLAMAN noted that he had been a victim of crime and had
also been a prosecutor. He commented that he would not want to
be the prosecutor who, working with a victim of crime who had
lost a loved one, and have to advise the crime victim that the
case couldn't be prosecuted because that piece of property had
to be given back because the legislature gave law enforcement no
choice. Also, he said, he would not want to be the prosecutor
who had to look into the eyes of the victims and advise that he
lost the case because the legislature determined the property
had to be returned in 120 days.
REPRESENTATIVE REINBOLD argued that that is exactly why she
wants an amendment to Amendment 7, to address extreme
circumstances where the prosecution absolutely needed the
evidence. Although, she said, she doesn't want 2,000 people
unable to able to go to work, lose their jobs, and not feed
their families because the state kept their car. She said, an
amendment was worthy on this amendment.
3:16:20 PM
REPRESENTATIVE FANSLER maintained his objection to adopting
Amendment 7.
REPRESENTATIVE EASTMAN withdrew Amendment 7.
3:16:57 PM
CHAIR CLAMAN noted that the bill would not move from committee
today, and he encouraged every member to communicate with his
office to work on an alternative to Amendment 4.
[HB 42 was held over.]