Legislature(1997 - 1998)
04/15/1998 01:12 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 122 - PRISONERS: LITIGATION & DEBTS Number 1470 CHAIRMAN GREEN announced the next bill to come before the committee was HB 122, "An Act relating to prisoner litigation, post-conviction relief, an judgments against prisoners' accounts; amending Alaska Rule of Administrative Procedure 10(e), Alaska Rule of Appellate Procedure 502(b), Alaska Rule of Civil Procedure 26, and Alaska Rule of Criminal Procedure 35; and providing for an effective date." He asked Anne Carpeneti to come forward to present her comments on HB 122. Number 1500 ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, said HB 122 ties up the loose ends of a couple pieces of legislation that passed in 1995. The first was a fairly comprehensive bill that addressed finality of judgments and discouraged recreational litigation by people who had been convicted and were incarcerated. It required prisoners who filed lawsuits against the state to pay at least a portion of the filing fee that other litigants are required to pay when bringing a cause of action. It did so by requiring prisoners to submit a statement of their financial position and then to at least pay a filing fee of 20 percent of the average in their prisoner account or of the average deposits. She stated that piece of legislation has worked very well to discourage baseless, frivolous litigation brought by prisoners. She explained that Section 1 of HB 122 requires the prisoner to list on a financial statement any money in accounts outside the prison. Usually a prisoner declares they have no money and the judge then looks at the computer generated printout of the prisoner's account activity sent by the prison with the application. The court is required by statute to select either the average in the prisoner's account or of the average deposits, whichever is higher. She stated it's been as low as one cent and in fact, an application for exemption from the filing fee was dismissed because the one cent wasn't paid. MS. CARPENETI further stated the second legislative bill that passed the legislature in 1995 dealt with DNA evidence, making it easier to use DNA evidence in a criminal prosecution. At the same time, the legislature adopted a DNA data bank which required people convicted of a felony crime against a person to submit to testing either orally or by a blood test. In practicality, the Department of Public Safety freezes the samples which allows for screening of the DNA sample at a later date if the department wishes to do so. She noted it costs about $1,000 to send the samples out of state for testing, but she didn't know the cost for testing in-state. Number 1730 REPRESENTATIVE CROFT inquired if there was any difference in reliability between the oral and the blood samples. MS. CARPENETI said she didn't believe so, but the law passed in 1995 gave the option to the person taking the test. MS. CARPENETI continued with the sectional analysis of HB 122 and said Section 2 corrects an oversight in the legislation passed in 1995. It should read the automatic disclosure provisions under Civil Rule 26. She added, "In the meantime, the court system has actually put in Civil Rule 26 - has provided that automatic disclosure does not apply to prisoner litigation under AS 09.19, but it doesn't hurt to have it in here in case they should change their mind." In Section 3, the definition of "litigation against the state" is expanded for purposes of the filing fee to make it clear that it relates not only to appeals from civil actions, but different sorts of appellate reviews that are available as well. The prisoners are somewhat creative in calling their action something other than an appeal, so language was added for clarification. MS. CARPENETI further explained the language "an alleged violation of a person's constitutional rights" has been added in Section 3. She said, "These don't tend to be related to prison conditions like overcrowding or sending you outside or treatment or visitation. What they are, are generally a person will claim an action by the state - for example, the police in a search or something or an arrest violating constitutional rights even though it did not affect their original charge and conviction - so we've included that as part of the definition of litigation against the state." MS. CARPENETI said Section 4 adopts a class A misdemeanor. She explained there was no provision for enforcing the DNA data bank when the legislation was passed so if a person refuses to submit to DNA testing, there is no means to require the person to do so. She said, "There are several different ways of doing that here in the bill. One, it creates a class A misdemeanor for a person who is convicted of a crime for which they have to submit to a test to refuse when asked to submit to the test by somebody working for the state. And again, it applies to persons convicted of felonies against the person except for custodial interference. Actually, it also applies to juveniles 16 years of age or older who are found to be delinquent based on an act which would be a crime under AS 11.41. The bill also gives the court the authority to order as a part of a sentence a person who is convicted of one of the crimes, it requires submission of a sample to make it part of the sentencing order." MS. CARPENETI explained, "The bill also provides that if a person is given probation after conviction of one of these offenses, a condition of probation has to be that he or she submit to testing and also as a condition of parole." So, if this legislation passes, the court is required to order submission to testing as a condition of the sentence, condition of probation, the parole board has to order it as a condition of parole and it's a crime if the person doesn't submit to the testing. MS. CARPENETI said Sections 8 and 9 of HB 122 are clarification language for Title 16. She explained there has been litigation recently about whether or not the parole board can revoke parole of a person who has not gone to a court-ordered rehabilitation program before the person is actually paroled. The argument has been made that a person isn't a parolee until released. This language makes it clear that a parole board can, before a person is released, revoke good time, parole or mandatory parole for that reason. Section 9 is a technical amendment for AS 33.16.220. MS. CARPENETI explained that Section 10 limits the time that a person can file a notice of appeal in a criminal case or appeal of a sentence to 60 days after the last extension of time. She noted the department has an amendment to make it clear this doesn't deal with extensions of time requested by the person and granted by a court, but rather validation of an act after there has been no request for an extension of time. Number 2319 REPRESENTATIVE CROFT said Section 10 caused him some concern because it seemed like it was a special rule for "these jailhouse suits". MS. CARPENETI responded that it applies to an appeal of a conviction or sentence; it's not like a "jailhouse" piece of litigation where a prisoner is filing a civil lawsuit against the state alleging that his rights have been violated. It applies to convictions and sentences and the purpose is to have some finality in terms of sentences and convictions. She noted that as part of the legislation that was passed in 1995, the legislature limited Appellate Rule 521 to do this very thing. REPRESENTATIVE CROFT asked if that was the subject of the Court of Appeals case? MS. CARPENETI said yes, it was the Ozenna Case. She added the state argued in Ozenna that the court should apply the 60-day limit to Appellate Rule 502, but it didn't. The court said if the legislature had .... TAPE 98-61, SIDE A Number 0001 REPRESENTATIVE ROKEBERG made a motion to adopt CSHB 122(JUD), Version 0-GH0055\B, Luckhaupt, dated 3/10/98. There being no objection, that version was before the committee. REPRESENTATIVE CROFT asked why Appellate Rule 521 didn't apply in the Ozenna Case? Number 0072 MS. CARPENETI said Appellate Rule 521 amends the rule allowing an extension of time in the interest of justice and Appellate Rule 502 provides for an extension of time for good cause shown. She added that Appellate Rule 521 was limited to 60 days after the deadline and the department is requesting that Rule 502 be amended so the two rules agree. She said, "It's the same rationale - at a certain point, you have to depend on the finality of judgments and sentences and if you can't file a notice of appeal within 60 days after the last deadline has passed, maybe you ought to think about doing something else." REPRESENTATIVE BERKOWITZ asked Ms. Carpeneti to repeat the two standards of Appellate Rule 502 and 521. MS. CARPENETI replied that 521 basically is in the interest of justice and 502 is for a good cause shown. REPRESENTATIVE BERKOWITZ asked what the distinction was between the two standards. MS. CARPENETI replied, "Well, for good cause shown is usually a lawyer saying, 'Well, I couldn't file this because I didn't know about it; I didn't hear; I didn't get notice of appeal or it got lost in my desk' or something like that. There was a good reason why it couldn't be filed. If there is no good reason, then you look to 502 and you say, "well, I may have goofed up as a lawyer, but don't do this to my client because he deserves an appeal' and I think that would be in the interest of justice. I think that's how those two are interpreted." REPRESENTATIVE BERKOWITZ asked if that discrepancy led the court to accept a late filed notice of appeal - because they relied on 502 instead of 521? MS. CARPENETI confirmed that. REPRESENTATIVE BERKOWITZ asked if that happened often? MS. CARPENETI replied yes. REPRESENTATIVE BERKOWITZ questioned the reason for the Department of Law to ratcheted 502 down to the 521 standard instead of the other way around. In other words, why not default to good cause instead of defaulting to interest of justice? MS. CARPENETI replied the department doesn't want to default at all, but wants the rule to say a person has 60 days after the deadline. She added, "The problem if you have a default is you allow -- if you don't make them consistent with each other is that a court will say, 'well, we don't find interest of justice -- I mean we can't do it under 521, but there is good cause under 502' and one of the purposes of the legislation in 1995 and now is to say there are many good reasons why we should stop allowing appeals after deadlines." REPRESENTATIVE BERKOWITZ asked if he was correct that if the court had found there wasn't good cause in Ozenna, the late filed notice would not be been accepted. MS. CARPENETI believed that was correct. REPRESENTATIVE BERKOWITZ added, "So, there had to be this predicate showing of good cause before the court would even entertain a late filed motion. And really what we're doing is trying to determine whether the standard for accepting late motions is going to be good cause or interest of justice." MS. CARPENETI remarked the department's position is that if a person hasn't asked for an extension of time to file within 60 days after the last deadline, there really isn't any good justification for showing good cause. She added there are other ways to go about it. For example, if it can't be appealed that way, a motion for post-conviction relief can be brought. REPRESENTATIVE BERKOWITZ said it seems to him the 60-day period is fixed and that's going to be regardless of good cause. He added, "Jumping over the good cause hurdle is still a hurdle that an applicant has to get by and I'm wondering why even if we're reconciling interest of justice and good cause, there's the 60-day requirement in there." MS. CARPENETI replied that 60 days seemed a reasonable amount of time. She noted the proposed amendment makes it clear that it's validation of an act after the fact. The department doesn't intend this particular section to limit in any way the times that a lawyer or a litigant can come before the judge to request extra time to file an appeal. She reiterated that 60 days seemed like a reasonable amount of time in the balancing between finality of judgments and allowing people to have their day to appeal their conviction or sentence. Number 0569 REPRESENTATIVE CROFT said it seemed to him the 60-day limit should have been put in Appellate Rule 502; that being the good cause exception, but it makes him wonder why it was put in Rule 521. In other words, now it's being added so it's in both 502 and 521. Perhaps a rational argument could be made that it shouldn't have been put in 521, but rather in 502. He added, "We should say there's just no good cause after 60 days, but there still may be an interest of justice overwhelming exception. So, it makes a lot of sense to me to tie the low standard to a 60-day limit. I guess I then start to question why the extreme one - 'the I have no good excuse your Honor, - no good reason why I lost it in my file cabinet but the interest of justice' -- I mean, this is something extraordinary, clear, exculpatory -- why do we put then a 60-day limit on that one?" MS. CARPENETI said in the circumstances Representative Croft is describing - a person has newly discovered evidence that was hidden or lost in a file cabinet - there are other ways a litigant can bring that to the court's attention through post-conviction relief in which a person can do within two years after the conviction. She explained the post-conviction relief provision specifically allows a person to bring a petition for a relief based on newly-discovered evid year from the Appellate decision. REPRESENTATIVE PORTER remarked the last time this bill was before the legislature there had been debate about eliminating the 60-day extension in the first place and the legislature sort of erred on the side of safety to be consistent with the court rule and perhaps a constitutional issue; however, a deadline is a deadline. Number 0812 REPRESENTATIVE PORTER made a motion to adopt Amendment 1 which reads: Page 5, lines 22-26: Following "court," delete all material and insert: "In a matter requesting review of or appealing a criminal conviction or sentence, this rule does not authorize an appellate court, or a superior court acting as an intermediate appellate court, to validate the filing of a notice of appeal, petition for review, or petition for hearing more than 60 days after the expiration of the time specified in the rule or statute, or in the last extension of time previously granted." CHAIRMAN GREEN asked if there was any objection. REPRESENTATIVE CROFT objected for discussion purposes. Number 0833 REPRESENTATIVE BERKOWITZ offered a friendly amendment to Amendment 1 on line 2, following "sentence," insert language akin to "and absent any manifest injustice" or "absent the interest of justice". REPRESENTATIVE CROFT said, "It seems like if the court makes that finding, there was an interest of justice or there was a manifest injustice, then they go to 521 and 521 still says 60 days." He commented that unless the 60-day requirement is deleted in 521, this ends up being sort of a circular track. CHAIRMAN GREEN stated there was a friendly amendment to Amendment 1 on the table. REPRESENTATIVE BERKOWITZ said if there's a necessity for it, he would recommend that language to 521 as well. CHAIRMAN GREEN said that would be addressed as a separate issue. The objection was maintained and he requested a roll call vote on the amendment to Amendment 1 which would insert, "absent the interest of justice" on line 2, following "sentence,". Number 1004 REPRESENTATIVE ROKEBERG asked Ms. Carpeneti to address the amendment to Amendment 1. MS. CARPENETI commented her position is the reason to have this legislation is to provide some finality in terms of judgments and convictions and allowing a person to litigate this will allow a person to bring a motion or file an appeal many months or many years late which is what the department was trying to avoid. She added if 60 days after the last deadline isn't long enough, a person can bring a petition for post-conviction relief, but there has to be some finality in judgments. It's not only good for the system, but in a lot of ways good for defendants who need to start working on their rehabilitation rather than trying to find new ways to bring questions to the court that have already been decided or should already have been filed. REPRESENTATIVE BERKOWITZ said on that point, a defendant has to get in the door first and if the door is closed either because the interests of justice aren't served by allowing an extension or because the 60 days have expired, the door is closed - it doesn't matter. There's a first step the defendant has to take which is filing for a motion to accept late notice or whatever the defendant is filing for and whether it's done under the guise of the interest of justice or because of 60 days, there's still going to have to be a determination by the court at that point. But that's where the door is either opened or closed. Number 1105 REPRESENTATIVE CROFT, speaking against the amendment to Amendment 1, said, "The amendment as we have it says 'this rule' so it's just talking about 502. So without the amendment to amendment - without the language reading 'and absent any manifest injustice' or words to that effect, you could still say under this rule 60 days, you're gone. That still leaves open the idea that whether we should amend 521 to take out the 60 day on that. But I don't think the amendment to the amendment adds anything to the rules." REPRESENTATIVE ROKEBERG confirmed there would be an avenue for a person to pursue if new evidence was discovered after the 60 day limit for appeal. MS. CARPENETI said the procedure is called post-conviction relief and a person has two years from the date of conviction in which to bring matter. REPRESENTATIVE ROKEBERG inquired what happened if new evidence was discovered after five years, such as someone else confessing to the crime. MS. CARPENETI said most likely the person would be out of jail anyway, but there are procedures to deal with that. REPRESENTATIVE CROFT commented, "And I'd just like to very briefly put a conflict on record. I've never practiced any criminal law, but might some time, so for this whole issue - this whole bill and this amendment." CHAIRMAN GREEN asked for a roll call vote on the amendment to Amendment 1. Representative Berkowitz voted for the amendment to Amendment 1. Representatives Bunde, Croft, Porter, Rokeberg and Green voted against it. Therefore, the amendment to Amendment 1 failed by a vote of 1-5. CHAIRMAN GREEN asked if the objection to Amendment 1 was maintained? Representative Croft removed his objection to Amendment 1. There being no further objection, Amendment 1 was adopted. Number 1270 MS. CARPENETI, continuing the sectional analysis, said Section 11 is part of the DNA profile evidence provision that requires the court to include on the judgment that the person is convicted of an offense that requires submission of a DNA sample. Section 12 addresses Criminal Rule 35(b) motions which is a motion for leniency filed by a defendant after the imposition of sentence. She said historically, it does not appeal a sentence; it just asks the court to reconsider the sentence within a certain period of time after the sentence is imposed. In the 1970s, such a motion was required to be filed within 60 days, then it was amended to allow a convicted person to file such a motion within 120 days and HB 201 passed in 1995 allowed the defendant 180 days to file a motion to reduce the sentence at the court's discretion. At this point, the department is asking that a provision be added to Rule 35 that a time limit of 180 days can't be relaxed more than 10 days. She noted that Rule 53 of the Criminal Rules allows a court to relax its rules in the interest of justice and the department's position is that 180 days is really long enough to reduce a sentence in the interest of justice and that 10 days is a sufficient relaxation period. REPRESENTATIVE PORTER asked if Ms. Carpeneti knew what the rationale was for expanding and expanding that time period by court rule? MS. CARPENETI thought the idea was to give the court more time to look back and evaluate whether the application for leniency was well-founded. It would allow the defendant more time to demonstrate their progress. CHAIRMAN GREEN asked if it had been done legislatively each time it was expanded. MS. CARPENETI said it's a court rule, but HB 201 made it 180 days from the original conviction rather than allowing a 35(b) motion after an appeal was decided. It also provided that a judge cannot reduce it below the mandatory minimum, presumptive term or various other legislatively determined sentences. REPRESENTATIVE CROFT asked if the time period changes from 60 days to 120 days to 180 days in Court Rule 35(b) were done by court rule change or legislative action. MS. CARPENETI said she didn't recall the change from 60 days to 120 days, but the change from 120 to 180 days was done by legislative action on the Court Rule. Number 1542 REPRESENTATIVE CROFT inquired if the court system could change the 180 days or the 10 day relaxation period. MS. CARPENETI replied yes, but generally the court system doesn't change court rules that have been legislatively changed. REPRESENTATIVE CROFT asked what authority the court system would have to relax the time period. MS. CARPENETI replied Criminal Rule 53. Number 1615 REPRESENTATIVE CROFT asked, "Is this the only place where we're putting limits on 53's general (indisc.) clause?" MS. CARPENETI believed there were other places in the Criminal Rules and there definitely are in the Appellate Rules that put limits on, but she needed to get back to Representative Croft for Rule 53. REPRESENTATIVE CROFT asked Ms. Carpeneti for clarification on the case where the court extended the time beyond 180 days. MS. CARPENETI replied, "The courts have used 35(b) to -- in fact, in Fairbanks recently there have been several cases that we've appealed - actually we've won on - but judges at the end after the appeal is decided -- the courts have gone back and looked at it and reduced the sentence under this rule. There were several recently out of Fairbanks that we appealed actually and we won on, but it's kind of a waste of time to do that." Number 1674 CHAIRMAN GREEN asked if there were other questions of the witness. Hearing none, he asked the wish of the committee. Number 1687 REPRESENTATIVE ROKEBERG made a motion to move CSHB 122(JUD), as amended, with individual recommendations and attached zero fiscal notes. Number 1699 REPRESENTATIVE BERKOWITZ objected for the purpose of discussion. He said he prefers to hear from both sides on court rule changes. He thought it unfortunate the committee didn't have an opportunity to hear from the defense bar on this issue and he is hopeful that when there are criminal issues in the future, the committee would get the opportunity to weigh and balance fairly. CHAIRMAN GREEN said the meeting was properly noticed. REPRESENTATIVE BERKOWITZ withdrew his objection. REPRESENTATIVE PORTER recalled the Judiciary Committee had gone through this kind of legislation a number of times in years past and had always drawn defense bar testimony. CHAIRMAN GREEN asked if there was further objection to the motion? Hearing none, CSHB 122(JUD) as amended moved from the House Judiciary Standing Committee.