Legislature(1993 - 1994)

04/14/1993 01:00 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
  HB 188:  FORFEITURE OF CERTAIN PROPERTY                                      
  Number 524                                                                   
  CHARLIE COLE, ATTORNEY GENERAL, STATE OF ALASKA, commented                   
  that he had intended to submit legislation this session                      
  modeled on a successful California program which did away                    
  with the necessity of notaries public.  He urged the                         
  committee to look into adopting a similar program in Alaska.                 
  MR. COLE testified in support of HB 188, and said that the                   
  bill was one of the governor's priorities.  He said that the                 
  bill would provide for forfeiture of real property under                     
  certain conditions, and would result in a major, positive                    
  change to the state's forfeiture laws.  He stated that a                     
  great deal of drug activity centered around the illicit use                  
  of real property.  Under present law, he said, real property                 
  could not be forfeited.  He noted that there was a "gaping                   
  hole" in the state's forfeiture laws.                                        
  MR. COLE suggested that the committee change language on                     
  page 6, line 23, of the work draft dated April 12, 1993, to                  
  avoid subjecting a claimant to the heavy burden of proving                   
  that he or she did not have "reasonable cause to believe"                    
  that drug activity was conducted on the real property.  He                   
  recommended deleting the words "or have reasonable cause to                  
  Number 600                                                                   
  MR. COLE stated that currently, forfeiture cases were                        
  handled by the U. S. Attorney, not the state, as the federal                 
  government had greater forfeiture powers for real property                   
  than the state did.  Thus, much of the proceeds of a                         
  successful forfeiture went to the federal government.  He                    
  said that if HB 188 was enacted, the legislature would                       
  supervise and control forfeitures.  If complaints were heard                 
  about abuse of forfeiture powers, the legislature could                      
  restrict the state's authority.                                              
  Number 632                                                                   
  REPRESENTATIVE JAMES said that her question pertained to                     
  both HB 188 and to HB 222, Use of Rented Property/Law                        
  Violations, which she had sponsored.  She said that HB 222                   
  required law enforcement authorities to notify property-                     
  owners if someone other than the property-owner was                          
  arrested.  She asked if authorities had notified a property-                 
  owner of an arrest, but the property-owner did not evict the                 
  tenants, was the property-owner then "knowledgeable" about                   
  the illegal activity and subject to the forfeiture of his or                 
  her property.                                                                
  REPRESENTATIVE JAMES offered an example of a family living                   
  in a rental unit when the husband was indicted.  If the                      
  landlord was notified of the indictment, but did not evict                   
  the tenants, and the wife was later indicted, she asked if                   
  the landlord would be seen as having reason to know that                     
  illegal activity was taking place on the premises.                           
  Number 652                                                                   
  MR. COLE stated that he would have to think about HB 188's                   
  effect on such a situation.  He stated that an indictment                    
  did not mean that a person was guilty.                                       
  Number 669                                                                   
  CHAIRMAN PORTER stated that if an arrest was made and a                      
  person jailed as a result, a person would not be deemed to                   
  "reasonably know" that illegal activity was continuing while                 
  the defendant was in jail.                                                   
  Number 677                                                                   
  MR. COLE commented that most forfeiture situations were                      
  worked out at an administrative level and did not go to a                    
  Number 694                                                                   
  CHAIRMAN PORTER mentioned that the unfortunate reality was                   
  that budgets were so low that prosecutors and law                            
  enforcement officials did not have time to work on marginal                  
  cases.  If officials knew that they could not prove that a                   
  property-owner knew about the illegal activity taking place                  
  on his or her property, they would not pursue the forfeiture                 
  Number 701                                                                   
  REPRESENTATIVE NORDLUND supported the state's efforts in                     
  trying to achieve the forfeiture of property that was used                   
  in the commission of a crime, particularly in the case of                    
  drug offenses.  However, he expressed concerns that HB 188                   
  could negatively impact innocent property-owners.  He said                   
  that the bill could be improved by allowing for forfeiture                   
  only in the cases in which a conviction occurred and/or                      
  there was a showing that the property was materially used in                 
  the commission of the crime.                                                 
  Number 714                                                                   
  MR. COLE asked if the language on page 1, line 11 did not                    
  adequately address Representative Nordlund's concern.                        
  REPRESENTATIVE NORDLUND replied that the language to which                   
  Mr. Cole had referred pertained to property, but not to the                  
  Number 731                                                                   
  MR. COLE responded that language in sections 4 and 7 of the                  
  bill seemed to provide adequate safeguards.  Additionally,                   
  he said that the amendment which he had suggested would go                   
  even further to protect against innocent property-owners                     
  having their property seized.                                                
  REPRESENTATIVE DAVIDSON offered an example in which a person                 
  owned a new home.  That person's grown children returned                     
  home to live with that person, having become involved in                     
  drug trafficking while living away from home.  The person                    
  had always trusted the children, and saw no reason to keep                   
  close track of the children's activities.  As a result of                    
  the drug trafficking, the person's home was seized.  He                      
  asked Mr. Cole to outline the steps that the person would                    
  have to go through in order to ensure that the real property                 
  was not forfeited.                                                           
  Number 766                                                                   
  MR. COLE indicated his belief that it was not difficult to                   
  keep track of activities going on in one's home.  He then                    
  outlined the stages governing Representative Davidson's                      
  hypothetical situation.  He said that the person would very                  
  likely know if an arrest was made, and therefore not need to                 
  learn about the proposed forfeiture when notice of it was                    
  advertised in the newspaper.  He stated that section 4 of                    
  HB 188 provided for public notice of proposed forfeiture                     
  MR. COLE said that the person would then be required to make                 
  a claim under oath, setting out his or her interest in the                   
  property, the date it was acquired, the acquisition price,                   
  and then generally answering the state's allegations of                      
  forfeiture.  If the person did not make a claim, then                        
  forfeiture would be ordered by the court without further                     
  Number 790                                                                   
  MR. COLE stated that section 7, beginning on page 6, line 15                 
  of the work draft, established the standards for a timely                    
  claim.  He said that a person could have property returned                   
  upon proof, by a preponderance of evidence that (1) the                      
  person had a valid interest in the acquired property,                        
  acquired in good faith; (2) he or she did not knowingly                      
  participate in or facilitate the conduct that resulted in                    
  the property being subject to forfeiture; and (3) the person                 
  did not know that another person might engage in conduct                     
  that resulted in the property being subject to forfeiture.                   
  Number 808                                                                   
  REPRESENTATIVE DAVIDSON asked if Mr. Cole was saying that a                  
  person had, in effect, to prove his or her innocence.                        
  MR. COLE replied in the affirmative.                                         
  REPRESENTATIVE DAVIDSON asked about what would happen if a                   
  person missed making a timely claim, due to being out of                     
  state on vacation for six weeks.  He asked Mr. Cole if he                    
  felt that there should be some sort of appeal process                        
  included in HB 188.                                                          
  TAPE 93-60, SIDE B                                                           
  Number 000                                                                   
  MR. COLE replied that similar situations already occurred,                   
  including notification that a bank was going to foreclose on                 
  a house.  He said that HB 188 was no greater danger than                     
  many existing laws, as it included standard and routine                      
  notice periods.                                                              
  Number 022                                                                   
  REPRESENTATIVE DAVIDSON expressed a concern that the                         
  forfeiture process proceeded rather swiftly.                                 
  Number 029                                                                   
  MR. COLE commented that 30 days in which to file a claim was                 
  somewhat generous, in light of other time periods used for                   
  legal proceedings.                                                           
  Number 039                                                                   
  REPRESENTATIVE GREEN mentioned that section 7 appeared to                    
  violate "innocent until proven guilty" constitutional                        
  Number 052                                                                   
  MR. COLE responded that there were no constitutional                         
  problems in HB 188, in his opinion.  He said that there were                 
  many provisions in civil law which placed the burden of                      
  proof on the citizen.  He gave the Internal Revenue Code as                  
  an example.  He noted that the basic presumption of                          
  innocence was with regard to the commission of a crime.  He                  
  asked how law enforcement officials could prove that a                       
  property-owner knew about illegal activity occurring on his                  
  or her real property.  He said that it was not unreasonable                  
  to impose the burden of proof on the property-owner.                         
  MR. COLE stated that a property-owner would not find it                      
  difficult to prove that he or she did not know about the                     
  illegal activity.                                                            
  Number 109                                                                   
  REPRESENTATIVE NORDLUND asked Mr. Cole to offer his opinion                  
  on restricting HB 188's provisions to those situations in                    
  which a conviction occurred.                                                 
  Number 118                                                                   
  MR. COLE replied that Representative Nordlund's suggestion                   
  was an intermediate step, one on which he did not choose to                  
  express an opinion.  He said that it would result in a less-                 
  strict law.                                                                  
  CHAIRMAN PORTER asked Mr. Dean Guaneli, from the Department                  
  of Law's Criminal Division, to compare HB 188 with federal                   
  forfeiture requirements.                                                     
  ADMINISTRATOR, DEPARTMENT OF LAW, testifying via telephone,                  
  stated that he believed that a conviction was not a                          
  prerequisite  for forfeiture in any jurisdiction.  He said                   
  that a conviction was definitely not a requirement under                     
  current Alaska forfeiture law.  He said that the problem                     
  with basing forfeiture on conviction was that lack of a                      
  conviction did not prove a defendant's innocence.  Often, he                 
  said, a conviction did not occur due to suppression of                       
  evidence, invalid search warrants, or police mistakes.                       
  MR. GUANELI expressed an opinion that the state should still                 
  be able, in certain circumstances, to go after property used                 
  in the commission of a drug offense, even if no conviction                   
  resulted.  He noted that forfeiture was viewed as a                          
  proceeding which was separate and apart from a criminal                      
  case; therefore, the outcome of the criminal case should                     
  have no bearing on the forfeiture proceeding.                                
  Number 185                                                                   
  REPRESENTATIVE NORDLUND mentioned concerns which had been                    
  raised regarding the state seizing a cruise ship, if drugs                   
  were found aboard.                                                           
  Number 196                                                                   
  MR. GUANELI stressed that the state would take reasonable                    
  actions with regard to forfeitures.  He said that the state                  
  had found evidence of drug dealing on cruise ships in the                    
  past, and had taken no actions against the ship owners.  He                  
  added that drug dealers used Alaska Airlines jets to convey                  
  drugs to Alaska on occasion, and the jets were not seized by                 
  the state.  He reiterated the Attorney General's comment                     
  that most forfeiture cases would be worked out at the                        
  administrative level.                                                        
  MR. GUANELI mentioned that if the state had evidence that a                  
  girlfriend or other associate of a drug trafficker was                       
  listed on a title or deed in order to protect certain                        
  assets, the state would aggressively pursue forfeiture of                    
  the property.  On the other hand, he said, if a parent or                    
  wife knew nothing of drug trafficking occurring in their                     
  home, there was no point in the state pursuing forfeitures.                  
  He said that the whole point behind forfeiture laws was to                   
  make people take care of the property that they owned, so                    
  that it was not used in drug dealing.                                        
  MR. GUANELI said that forfeiting an Alaska Airlines jet, or                  
  a cruise ship, or the assets of a lending institution would                  
  not further the purposes of forfeiture laws.  He reiterated                  
  the Chairman's comment that the state did not have time to                   
  pursue marginal forfeiture cases.                                            
  Number 245                                                                   
  MR. COLE expressed his opinion that if a cruise ship captain                 
  knew that his or her vessel was being used for drug                          
  trafficking, then the state ought to seize the ship.                         
  Number 273                                                                   
  REPRESENTATIVE DAVIDSON commented that operators were not                    
  necessarily owners.  He asked Mr. Cole what protections HB
  188 offered to property-owners.                                              
  MR. COLE replied that HB 188 included lien protections in                    
  section 7, on page 6, line 19.                                               
  Number 284                                                                   
  RAY BROWN, representing the ALASKA ACADEMY OF TRIAL LAWYERS,                 
  testified in support of forfeiture laws, but stated that he                  
  had many concerns about HB 188.  He urged the committee to                   
  make substantial changes to the bill before passing it out                   
  of committee.  He predicted that HB 188 would make lawyers                   
  rich, and only benefit the entity which received the                         
  proceeds from successful forfeitures.                                        
  MR. BROWN stated that only those who could afford to                         
  litigate civil forfeitures would have an opportunity to                      
  regain their property; less-affluent citizens would simply                   
  lose their property, even if they were innocent of any                       
  wrongdoing, because they could not afford to litigate                        
  forfeiture issues.  He argued that if law enforcement                        
  officials had a monetary incentive to seize assets of                        
  significant value, then such forfeiture matters would not be                 
  worked out administratively.  He called HB 188 extremely                     
  MR. BROWN stated further that a cruise ship company might                    
  have no idea that a particular crew member was running a                     
  drug trafficking operation out of one of the company's                       
  ships.  But, according to the Attorney General, if the                       
  company did not know of the operation, but the ship's                        
  captain did, the company's vessel should be forfeited.  He                   
  commented that the state merely had to get an indictment or                  
  establish probable cause to make a prima facie showing that                  
  the property was forfeitable.  He said that it was extremely                 
  easy for the state to get an indictment.                                     
  MR. BROWN commented that if an indictment established a                      
  prima facie showing, then people who could not afford to                     
  litigate a forfeiture action would lose their property.  He                  
  stated his opinion that a conviction should not be necessary                 
  for the state to seize property.  He mentioned that children                 
  hid many things from their parents.  He said that, under HB
  188's provisions, if a parent had sent a child with a drug                   
  problem to a rehabilitation facility, and that child                         
  returned home, a parent could potentially be found to have                   
  reason to know that his or her child was selling drugs.                      
  MR. BROWN said that if a child was selling marijuana out of                  
  his or her room, and was indicted for that offense, a parent                 
  who could not afford to hire an attorney to defend him- or                   
  herself could lose his or her home.  He commented that                       
  HB 188 placed an unfair burden on people.  He stated that                    
  allowing law enforcement agencies and prosecutors to keep                    
  the proceeds from forfeiture cases provided too great of an                  
  incentive for seizures.  He asserted that parts of HB 188                    
  were unconstitutional.                                                       
  MR. BROWN said further that the bill's requirement regarding                 
  filing claims on one's seized property violated Fifth                        
  Amendment rights.  He commented that currently, when the                     
  state handed over forfeiture cases to the federal                            
  government, the proceeds were shared between the federal                     
  government, the state, and local law enforcement agencies.                   
  He stated that HB 188 should not change that situation.  Or,                 
  he said, it might result in several agencies scrambling to                   
  forfeit assets in order to receive the proceeds.                             
  CHAIRMAN PORTER noted that Mr. Brown's comments about                        
  current sharing of proceeds were correct.  He indicated his                  
  understanding that under HB 188's provisions, proceeds would                 
  go into the state's general fund, not to specific agencies.                  
  Number 460                                                                   
  MR. BROWN said that it was his understanding that proceeds                   
  would go directly to the agencies responsible for the                        
  seizures, but said that he might be wrong.  He indicated his                 
  support for the proceeds being deposited into the general                    
  fund instead.  He praised law enforcement officials in                       
  Alaska, but expressed concern that if a big enough incentive                 
  to seize property existed, forfeiture authority might be                     
  MR. BROWN commented that lending institutions would probably                 
  object to HB 188, as it would require them to prove that                     
  they had no knowledge that illegal activities were occurring                 
  on real property for which they had lent money.  He said                     
  that the only people who would praise the bill would be                      
  lawyers who would be hired to represent people whose                         
  property had been seized.  He said that HB 188 invited                       
  Number 489                                                                   
  REPRESENTATIVE JAMES asked Mr. Brown to clarify his opinion                  
  regarding law enforcement abuse of HB 188.                                   
  MR. BROWN mentioned that he used to live in a condominium                    
  where a neighbor was a crack dealer.  He stated that there                   
  was very little that could be done about these people,                       
  because probable cause could not be established to enter the                 
  premises.  He said that, under HB 188, the same situation                    
  existed for a banker, who had heard that someone to whom he                  
  or she had lent money for a car was a drug dealer.  He said                  
  that the banker or a landlord could risk a libel suit by                     
  seizing the automobile, or evicting tenants.  He said that                   
  HB 188 put tenants, lienholders, and bankers in a ridiculous                 
  Number 529                                                                   
  REPRESENTATIVE JAMES asked if HB 188 did not protect liens.                  
  Number 532                                                                   
  MR. BROWN replied in the affirmative.  He offered a                          
  hypothetical situation in which a banker had lent a person                   
  money with which to buy a car.  In the eighth month that the                 
  person was making payments on the car, the banker learned                    
  that the person was using the car for drug dealing.  "What                   
  would the banker do?" he asked.  The banker technically had                  
  knowledge of the illegal activity and its relationship to                    
  the car, he said.                                                            
  Number 538                                                                   
  CHAIRMAN PORTER mentioned the Attorney General's                             
  recommendation that language on page 6, line 23 of the                       
  April 12, 1993 work draft, "or have reasonable cause to                      
  believe" be deleted.  He asked Mr. Brown if he believed that                 
  the situation that he had just described would meet the test                 
  of knowledge.                                                                
  Number 545                                                                   
  MR. BROWN said that if the forfeiture was litigated, then it                 
  would not meet the knowledge test.  However, if a person was                 
  arrested and indicted, the forfeiture would still have to be                 
  litigated.  A property-owner would probably win such a case,                 
  although it would cost him or her a great deal of money in                   
  legal fees.                                                                  
  Number 552                                                                   
  CHAIRMAN PORTER asked Mr. Brown how he would propose to fix                  
  HB 188.                                                                      
  Number 555                                                                   
  MR. BROWN responded that consensus should be reached among                   
  the Department of Law, the Public Defender Agency, the                       
  Office of Public Advocacy, and the criminal defense bar on                   
  how to amend HB 188 so that it was palatable to all parties.                 
  He expressed his concern over the burden of proof contained                  
  in HB 188, as well as the fact that the bill could hurt                      
  innocent people.                                                             
  MR. BROWN mentioned that a New York law held that real                       
  property could not be forfeited unless it contributed                        
  directly and materially to the commission of a specified                     
  serious felony offense.  Also, he said, there had to be                      
  knowledge and complicity.                                                    
  Number 584                                                                   
  MR. GUANELI agreed with Mr. Brown in that he was in favor of                 
  forfeiture laws.  He also agreed with an ACLU position paper                 
  which noted that forfeiture laws were a useful and powerful                  
  tool in the war against drugs.  He said that HB 188 was                      
  designed to take the profit out of drug dealing, therefore                   
  serving as a deterrent.  He responded to Mr. Brown's                         
  contention that HB 188 was unconstitutional, as it would                     
  require a defendant to disclose information about his or her                 
  defense, or perhaps incriminate him-or herself before trial.                 
  Number 599                                                                   
  MR. GUANELI noted that the Alaska Supreme Court had said                     
  that the preferred procedure, if a defendant would have to                   
  disclose something about his or her defense, or would have                   
  to incriminate him- or herself in a forfeiture proceeding,                   
  was to postpone the forfeiture proceeding until after the                    
  criminal case was resolved.  Therefore, he said that Mr.                     
  Brown's concern was invalid.  He asserted that HB 188 was                    
  not unconstitutional.  He said that to contend that HB 188                   
  would cause innocent property-owners to lose their property                  
  was overstating the case.                                                    
  MR. GUANELI reminded the committee members that the state                    
  already had a forfeiture law which contained most of the                     
  provisions included in HB 188.  He stated that Alaska's                      
  forfeiture laws were not used often, because they were not                   
  as adequate as federal forfeiture laws.  He noted that the                   
  state often used the federal system to accomplish much of                    
  what HB 188 would allow the state to do itself.  He                          
  commented that the state was interested in seizing                           
  greenhouses in which marijuana was grown, as well as                         
  buildings which were built and used solely for drug                          
  Number 628                                                                   
  MR. GUANELI indicated that the state was not interested in                   
  pursuing the forfeiture of the family home of someone whose                  
  adult child sold cocaine on one occasion in that house.  He                  
  said that prosecutors would not bother to pursue cases                       
  involving innocent property-owners.  He commented that                       
  HB 188 started with the current Alaska drug forfeiture law,                  
  and made some specific changes to it.  The bill, he said,                    
  would permit forfeiture of real property, and would permit                   
  prosecutors to trace drug money to property purchased with                   
  that money.                                                                  
  MR. GUANELI indicated that HB 188 would require that                         
  forfeiture proceeding costs be paid by the drug dealers.                     
  Additionally, he said that HB 188 allowed the court to seize                 
  non-related assets of a drug dealer, in the event that the                   
  dealer destroyed related assets, or moved them out of the                    
  jurisdiction.  He stated that HB 188 was designed to prevent                 
  drug dealers from hiding the assets from their business in                   
  coin collections, works of art, etc., and to take the profit                 
  out of drug dealing.  He said that the bill was not designed                 
  to run roughshod over innocent people.                                       
  MR. GUANELI commented that HB 188 resolved some ambiguities                  
  in Alaska forfeiture laws, which the courts had noted.  He                   
  called the members' attention to his written summary of what                 
  HB 188 did to protect innocent property-owners.  Under                       
  current Alaska law, he said, a car, boat, or plane could be                  
  forfeited unless a lending institution proved that it was                    
  not knowledgeable of the vehicle's involvement in drug                       
  activity.  An Alaska Supreme Court case held that there was                  
  a very strict test for allowing property to be forfeited.                    
  MR. GUANELI said that the Supreme Court had held that if,                    
  prior to parting with property, the lienholder did not know                  
  or have reasonable cause to believe that the property would                  
  be used to violate the law, or that the violator had a                       
  criminal record or a reputation for committing certain                       
  crimes, property could be forfeited.  He commented that                      
  HB 188 reversed that court opinion and said that it was not                  
  enough to show that a bank knew of a borrower's drug dealing                 
  reputation, nor was it enough to show that a bank knew of a                  
  borrower's criminal record.                                                  
  MR. GUANELI stated that HB 188 provided that a bank had to                   
  know or have reasonable cause to believe that an offense                     
  would occur.  He said that HB 188 offered significant                        
  protection to lending institutions.                                          
  TAPE 93-61, SIDE A                                                           
  Number 000                                                                   
  MR. GUANELI, in response to an earlier question from                         
  Representative James, said that if a landlord was notified                   
  of a drug offense after it had occurred, that landlord could                 
  not be reasonably expected to know what had occurred before                  
  he or she had knowledge of the offense.  He added that if a                  
  landlord was unable to evict a tenant, it was inappropriate                  
  that forfeiture of the real property occur.  He reiterated                   
  his statement that HB 188 was designed to deter drug                         
  dealers, and that seizing property of innocent-owners and                    
  lending institutions did not further that purpose.                           
  Number 034                                                                   
  REPRESENTATIVE DAVIDSON stated that Alaska had a forfeiture                  
  law, which some people contended did not go far enough.  He                  
  said that everyone wanted to take property from those who                    
  had acquired it through illegal means.  But, it seemed to                    
  him that Mr. Guaneli was saying, "Trust me -- we do not want                 
  to go after innocent people."  The fact was, he asserted,                    
  that sometimes innocent parties had their property seized                    
  and HB 188 would require those innocent people to prove that                 
  they did not have any knowledge of the illegal activity.  He                 
  had not heard any guarantees that innocent people's property                 
  would not be seized.                                                         
  Number 072                                                                   
  MR. GUANELI commented that the state now used federal law to                 
  accomplish much of what HB 188 would allow the state itself                  
  to do.  One benefit of HB 188, he said, was that the state                   
  would assert control over forfeiture cases, instead of                       
  handing that control over to the federal government.  He                     
  noted that any law could be abused, but said that HB 188                     
  contained protections not found in federal forfeiture laws.                  
  He mentioned the "60 Minutes" program regarding federal                      
  forfeiture law, and stated that HB 188 would result in a                     
  different way of handling such cases.                                        
  Number 089                                                                   
  MR. GUANELI said that if money was seized under current                      
  Alaska law, officials were required to present evidence to a                 
  judge within 48 hours, connecting the money to drug dealing.                 
  If that evidence was not brought forth, he said, the money                   
  had to be returned to its owner.  He stated that there was                   
  apparently a requirement under federal law that, in order                    
  for a person to file a claim for seized property, he or she                  
  had to put up a 10% bond.  He noted that there was no such                   
  requirement under Alaska forfeiture law.                                     
  MR. GUANELI commented that HB 188 was an attempt to make                     
  Alaska law workable, so that the state could avoid using                     
  federal forfeiture laws.                                                     
  Number 191                                                                   
  REPRESENTATIVE DAVIDSON asked Mr. Guaneli if the impetus for                 
  HB 188 had come from the governor, or the attorney general,                  
  or himself.                                                                  
  Number 196                                                                   
  MR. GUANELI replied that forfeiture bills had been before                    
  the legislature for the past six years.  Previous bills were                 
  much broader than HB 188, he noted.  He stated that the                      
  impetus for HB 188 had been the attorney general.                            
  Number 215                                                                   
  REPRESENTATIVE DAVIDSON commented that, if HB 188 was                        
  introduced in order to bring forfeiture proceeds to the                      
  state instead of to the federal government, then it sounded                  
  as if incentive issues were at play.                                         
  Number 222                                                                   
  REPRESENTATIVE JAMES noted that she would feel more                          
  comfortable if, in cases of titled property in which the                     
  name on the title was different from that of the accused                     
  party, property-owners would be presumed innocent until                      
  proven otherwise.                                                            
  Number 244                                                                   
  MR. GUANELI mentioned that large-scale drug dealers were                     
  very adept at hiding their property and holding it in such a                 
  way as to prevent its forfeiture.  He said that if the                       
  legislature enacted a bill which in essence instructed                       
  people on how they ought to structure the titles on their                    
  property, criminals would do whatever they needed to do to                   
  place their property under others' names in order to prevent                 
  its forfeiture.  He said that such an amendment would place                  
  a heavy burden of proof on the state, merely because of a                    
  specific name on a title.                                                    
  Number 271                                                                   
  REPRESENTATIVE NORDLUND asked if Mr. Brown had any response                  
  to Mr. Guaneli's comments.  He indicated that he would like                  
  to see the state have the ability to seize real property,                    
  but wanted to see protections included in HB 188.                            
  CHAIRMAN PORTER asked Mr. Brown to offer specific                            
  suggestions on ways to amend HB 188.                                         
  Number 285                                                                   
  MR. BROWN suspected that when federal forfeiture laws were                   
  written, the U.S. attorney had given the same sort of "trust                 
  me" assurances which the committee was hearing from the                      
  Department of Law.  He said that the committee should not                    
  put a lot of trust into those assurances.  He suggested that                 
  the committee, at a minimum, raise the standard of proof at                  
  least to "clear and convincing evidence," instead of a                       
  preponderance of evidence.                                                   
  MR. BROWN said that in his eleven years as a criminal                        
  defense attorney, he had not found that drug dealers were                    
  terribly sophisticated about hiding their assets.  He also                   
  suggested that the bill require that seized property have                    
  contributed materially and directly to a serious drug                        
  transaction, instead of the loose and tangential                             
  relationship now contained in HB 188.  Also, he said that                    
  defendants and other property-owners should have to know                     
  about, consent to, and otherwise be an accomplice in the                     
  drug activity.                                                               
  Number 332                                                                   
  CHAIRMAN PORTER commented that the state had had a                           
  forfeiture law, excluding real property, on the books for                    
  years.  He asked Mr. Brown if he knew of any cases in which                  
  a person's property was forfeited due to his or her child                    
  selling drugs while using that person's car or airplane.                     
  Number 336                                                                   
  MR. BROWN did not know of any such cases.  However, he said                  
  that HB 188 represented a substantial change in the current                  
  forfeiture laws, for example, the inclusion of real                          
  property, and property traceable to drug offenses.                           
  CHAIRMAN PORTER stated that it was his understanding that                    
  HB 188 did not change the standards for seizing property.                    
  Number 368                                                                   
  REPRESENTATIVE DAVIDSON asked for Mr. Guaneli's comments on                  
  the idea of putting together a group to try to reach                         
  consensus on the forfeiture issue.                                           
  Number 377                                                                   
  MR. GUANELI responded that he had worked with defense                        
  attorneys in the past on legislation.  He expressed an                       
  opinion that there would be deep, philosophical differences                  
  in a working group, over the appropriateness of HB 188.  He                  
  was not confident that putting a working group together                      
  would result in a consensus.  He indicated his willingness                   
  to work with others, however.  He stated that HB 188 was a                   
  very narrowly-crafted bill.                                                  
  Number 402                                                                   
  REPRESENTATIVE DAVIDSON said that it would be useful for him                 
  to have a list of areas where the experts disagreed.                         
  Number 414                                                                   
  CHAIRMAN PORTER mentioned Mr. Brown's concern regarding the                  
  constitutionality of requiring a person to testify against                   
  him- or herself in a forfeiture proceeding, when a criminal                  
  matter was not yet resolved.  He commented that it had been                  
  explained that that would be precluded from occurring.                       
  CHAIRMAN PORTER noted that requiring a preponderance of                      
  evidence or clear and convincing evidence, as was a standard                 
  burden of proof for civil cases, was a policy call for the                   
  committee.  He stated that the committee might be                            
  overlooking the fact that the state already had a forfeiture                 
  law in place; HB 188 merely added real property to that law.                 
  Also, he said that federal forfeiture policies might be more                 
  onerous than that which was proposed in HB 188.                              
  Consequently, he said, passage of HB 188 might result in                     
  more protections for property-owners.                                        
  Number 454                                                                   
  CHAIRMAN PORTER stated that his reading of the bill                          
  indicated that property had to have a direct and material                    
  link to drug activity in order to be forfeited.                              
  Number 466                                                                   
  REPRESENTATIVE DAVIDSON understood that the Alaska Academy                   
  of Trial Lawyers had intended to provide proposed amendment                  
  language to the committee.                                                   
  Number 469                                                                   
  REPRESENTATIVE NORDLUND responded that he had received a                     
  letter from Ms. Christine Schleuss of the Alaska Academy of                  
  Trial Lawyers regarding suggested language, and had                          
  distributed that letter to the committee members.  He said                   
  that he would like to offer an amendment requiring that the                  
  standard of proof be raised to clear and convincing evidence                 
  in cases involving real property.  He did not yet have the                   
  amendment drafted.                                                           
  Number 510                                                                   
  MR. GUANELI stated that the proposed amendment might be                      
  acceptable to him, although he would like to give the idea                   
  some more thought.                                                           
  Number 530                                                                   
  CHAIRMAN PORTER asked the committee members if there were                    
  other specific areas of the bill that they wished to                         
  consider amending.                                                           
  Number 540                                                                   
  MR. BROWN stated that he would like to review proposed                       
  amendments to HB 188.                                                        
  Number 546                                                                   
  REPRESENTATIVE DAVIDSON commented that the Alaska Academy of                 
  Trial Lawyers' letter raised the issue of a prohibition                      
  against state enforcement officers initiating federal                        
  forfeiture proceedings.                                                      
  Number 552                                                                   
  CHAIRMAN PORTER commented that that issue was completely out                 
  of the province of HB 188.                                                   
  REPRESENTATIVE DAVIDSON asked if the committee should be                     
  looking into addressing that issue in another bill.                          
  CHAIRMAN PORTER stated that Representative Davidson could                    
  introduce legislation addressing that issue, if he so                        
  desired.  He did not know of any situations in Alaska that                   
  those testifying on HB 188 feared would occur if the bill                    
  was enacted.  He stated that the state had given prosecutors                 
  and law enforcement officials the same power of arrest and                   
  indictment, and noted that in many cases, arresting a person                 
  for a heinous offense would have a much greater impact on a                  
  person's life than seizing that person's house or car.  Yet,                 
  he said, although a person could be ruined by an improper                    
  arrest, that did not mean that no one should ever be                         
  Number 580                                                                   
  REPRESENTATIVE NORDLUND stated that it was his understanding                 
  that any proceeds from forfeited property would have to go                   
  into the general fund, as the state had a constitutional                     
  prohibition against dedicated funds.                                         
  CHAIRMAN PORTER concurred.  The only way that they would                     
  find their way to state law enforcement agencies or                          
  prosecutors, he said, was through legislative                                
  Number 600                                                                   
  REPRESENTATIVE GREEN asked if the state's current forfeiture                 
  laws required property-owners to prove that their property                   
  was not linked to drug transactions.                                         
  Number 610                                                                   
  MR. GUANELI stated that he understood Representative Green                   
  to ask if current law contained similar protections for                      
  innocent property-owners.  He said that HB 188 expanded                      
  statutory provisions protecting innocent owners.  He                         
  predicted that, under current law, Alaska's courts would                     
  probably interpret existing protections to include those                     
  additional protections provided in HB 188.                                   
  Number 642                                                                   
  REPRESENTATIVE GREEN commented that the difference in                        
  language between HB 188 and existing law seemed to indicate                  
  that a significant change was being made in the law.  He                     
  stated that existing law seemed less burdensome for                          
  property-owners than did the proposed language in HB 188.                    
  He asked if the legislature would be creating a situation                    
  which would be more prone to abuse than the situation                        
  created by existing law.                                                     
  Number 656                                                                   
  MR. GUANELI expressed an opinion that HB 188 provided                        
  greater protection than did existing law.  He indicated that                 
  the Alaska Supreme Court had applied a fairly strict test                    
  regarding the circumstances under which a person would be                    
  considered knowledgeable about a drug offense.                               
  Number 667                                                                   
  CHAIRMAN PORTER asked Mr. Guaneli, Ms. Horetski, Ms.                         
  Schleuss, and Ms. Margot Knuth to craft a committee                          
  substitute which would strike "or have reasonable cause to                   
  believe" on page 6, line 23.  Also, he asked that clear and                  
  convincing evidence be incorporated as the standard for                      
  forfeiture of real property.  He asked that the committee                    
  substitute be ready for the committee's review on Friday.                    
  Number 683                                                                   
  MR. GUANELI stated that he would be out of town through                      
  Friday, but could be available via telephone.                                
  Number 687                                                                   
  CHAIRMAN PORTER announced that the committee would take up                   
  HB 211 next.                                                                 

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