Legislature(1997 - 1998)

04/15/1998 01:12 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                      
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              
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                 
     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              
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            
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                
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            
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              
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.                                                  

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