Legislature(1999 - 2000)
04/01/1999 08:07 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 100(JUD)
"An Act relating to the payment by indigent persons
for legal services and related costs."
This was the first hearing on this bill in the Senate
Finance Committee.
DOUG WOOLIVER, Administrative Attorney, Alaska Court System
testified that the bill was introduced at the request of
the Alaska Court System. He stated the bill amends the
Public Defender reimbursement statutes by requiring those
who receive public defender services repay the State for at
least a portion of that representation. He noted that
under current law, only those convicted of a crime are
subject to the repayment provision. This bill would expand
the law to require any individual receiving counsel at the
State's expense to contribute to the cost of the
representation whether they are convicted or not. He
pointed out this provision is similar to the situation of
an individual obtaining private counsel who is also
required to pay the cost of the defense regardless of the
outcome.
Senator Sean Parnell interrupted posing a scenario of being
sued as a private party in a civil matter where the
plaintiff lost the case. He asked if, under this bill, he
could then seek to recover from the plaintiff.
Mr. Wooliver responded that public defenders are not
appointed in such civil cases. He clarified that the cases
addressed in this legislation are criminal and delinquency
cases.
Senator Sean Parnell wanted to know if the State brought a
"bad case" against an individual, that individual would
then be required to reimburse the Public Defenders' Agency
(PDA) for their defense under the proposed statute, rather
than having the opportunity to recover the defense costs
from the state.
Mr. Wooliver answered the current system is the same, if
someone is charged with a crime, has enough money to hire
their own defense counsel and is found innocent that
individual is not reimbursed by the State for the cost of
their defense.
Mr. Wooliver reiterated that this bill provides that when
an individual receives benefits from a publicly funded
defense counsel, that individual will repay the defense
counsel, whether they plead guilty, are convicted or the
State defers prosecution.
Mr. Wooliver continued qualifying that many individuals who
receive public defender services do not have the funds to
pay for private attorneys. However, he stated that most
individuals have the ability to pay for a portion of their
defense or will have that ability over time.
This was not the first time this bill has been before the
Legislature, Mr. Wooliver told the Committee. The Alaska
Court System requested this change in 1993 along with some
other changes, he noted. However, he pointed out, the
portion of the resulting bill addressing repayment of
public defender costs was eliminated before the legislation
was adopted. Mr. Wooliver testified that the Division of
Legislative Budget and Audit, during a subsequent audit of
the PDA made the same request. He quoted the audit report
recommending that, "the State statute and court rules be
amended to assess judgement against public council
defendants not on the basis of if convicted, but rather on
the mere fact that services were provided." He noted that
the Alaska Court System had done its part in making the
necessary court rule changes, but stressed that the
legislature needs to make statutory changes before the
repayment requirements can be implemented.
Mr. Wooliver asserted that although this type of repayment
program makes both indigent and non-indigent individuals
liable for defense costs, there are significant
differences.
[TAPE MALFUNCTION]
Mr. Wooliver continued detailing the repayment requirements
for indigent defendants. One difference, he explained, is
that indigent defendants would only have to repay a portion
of the costs of their defense subject to schedules found in
Criminal Rule 39 and Appellate Rule 209. Furthermore, he
pointed out, if repayment would create a financial
hardship, the Court can reduce, remit or defer payment or
establish a payment plan. He assured the Committee that
the cost of the Criminal Rule 39-repayment provision would
not be ruined by the practice of alternate payment plans.
He noted that the repayment system becomes a civil
judgement and therefore protected by the Alaska Exemptions
Act. Because of these protections, he avowed SB 100 would
not drive poorer individuals further into poverty, but
rather it would allow the State to recover a portion of
defense costs from those who have an ability to pay.
Mr. Wooliver noted that the Senate Judiciary Committee had
made several amendments to SB 100; including adding Section
1 to the bill, which restricts the right of an indigent
person to be represented by appointed counsel to the level
and extent required by the US and state constitutions.
Additionally, he stated the Senate Judiciary Committee
"made mandatory entry of a judgement for repayment." He
explained that under current statutes, the Court has the
discretion whether or not to enter a judgement.
The Senate Judiciary Committee also deleted the provision
in the bill that allows for a stay of the judgement pending
an appeal. Mr. Wooliver pointed out that the deleted
language is no longer necessary since the legislation
requires repayment regardless of a guilty or not guilty
verdict.
Mr. Wooliver stated that the Senate Judiciary version of
the bill clarifies the language relating to the court's
discretion on repayment, by stating "only the unpaid
portion of a judgement can be reduced, remitted or
deferred." A section of the bill was also deleted in the
committee substitute, according to Mr. Wooliver, that had
allowed the court to remit or reduce the balance owed on a
judgement or change the method of payment that would impose
a manifest hardship. However, he noted the provision
remains that allows an individual to petition the court in
times of hardship for a reduction of payment.
Amendment #1: This amendment adds a new section to AS
18.85.120 to read:
(e) Judgements entered under (c) of this section shall
be imposed pursuant to trial and appellate court
schedules adopted by the supreme court in consultation
with the Public Defender Agency and the Office of
Public Advocacy. The schedules shall be reviewed at
least biannually and, when appropriate, adjusted to
reflect changes in the cost of representation. The
trial court schedule shall include provisions to
impose additional costs in cases where paid expert
witnesses are called on behalf of the defendant.
Senator Dave Donley moved for adoption. Co-Chair John
Torgerson objected for purpose of discussion.
Co-Chair John Torgerson referred to a letter dated March
16, 1999 addressed to Senator Robin Taylor from Mr.
Wooliver (copy on file) that answered some questions raised
by the Senate Judiciary Committee. The first question
reads, "Are the Criminal Rule 39 fees for the repayment of
public defender representation in addition to other costs
such as travel?" The letter replies, "No. If a court enters
a civil judgement against a person to pay for defense
costs, that judgement is the full extent of his or her
liability for that representation. No additional fees are
added for travel or other expenses." The second question
answered in the letter asks, "When were the Criminal Rule
39 fees last amended?" The response is, "The fees were
adopted in 1992 and have not been amended."
Co-Chair John Torgerson pointed out that this amendment
directs the courts to review the fee schedules and
biannually adjust the rates for charge-backs based on
consultation with the PDA and the Office of Public Advocacy
(OPA). Co-Chair John Torgerson noted that the current rates
are seven years old and he felt the rates should remain
current with the amount budgeted to provide the services.
He added that the amendment also directs the courts to
include the costs paid for expert witnesses in the balance
due. Currently, he stated, the state covers the entire cost
of expert witnesses for the defense.
Co-Chair John Torgerson did not include the matter of
travel cost reimbursement in the amendment. He said this is
because he was advised that if reimbursement were required
for travel costs, there could be a conflict with the equal
protection rights of those who had to travel farther
distances.
Mr. Wooliver concurred with the comments on Amendment #1
given by Co-Chair John Torgerson. He restated the
provision requiring the court to biannually review the fee
schedule and to make necessary revisions to reflect the
actual costs incurred by the PDA and the OPA.
Mr. Wooliver explained when the cost repayment rules were
initially adopted the fee schedule was based on the
projected cost rather than the actual costs. The original
rules also took into account that most of the repayment
funds came from the Permanent Fund dividend, according to
Mr. Wooliver. The revised statute will require the court to
take into account extra-ordinary costs for expert
witnesses.
Co-Chair John Torgerson commented that the bill drafter had
some concerns relating to the wording of the amendment. Co-
Chair John Torgerson explained that the state statutes have
a different interpretation of the court's fee schedules and
therefore, if the amendment is adopted, the drafter should
be given latitude to clean up language while staying within
the intent.
Senator Dave Donley moved to conceptually amend the motion
to allow the bill drafter to conform the language of the
amendment to existing statute and the court schedules.
Without objection Amendment #1 as conceptually AMENDED was
ADOPTED.
Senator Sean Parnell asked how the repayment requirements
affect court-ordered restitution. He wanted to know what
priority is given to the judgement for attorney fees and if
restitution is given a lower priority. He referred to the
garnishment of Permanent Fund dividends.
Mr. Wooliver replied that public defender costs is sixth on
the debt repayment priority list using the Permanent Fund
dividend. He explained that the public defender costs are
considered a debt owed to the State Of Alaska. Child
Support, restitution, college loans and court fines are
some of the debts that have a higher priority, according to
Mr. Wooliver.
BARBARA BRINK, Director, Public Defender Agency, Department
of Administration testified via teleconference from
Anchorage. Her comments focused on page 1 lines 12 and 13
of the committee substitute, that changes the level of
representation required by the PDA. She stated that
existing statute requires public defenders to perform their
duties at the level and to the extent as an individual
could expect who retains private council. The language
adopted in the Senate Judiciary committee substitute states
that representation by a public defender must be provided,
".at the level and to the extent required under the United
States Constitution and the Constitution of the State Of
Alaska." She wanted to make sure there was no misperception
of this change. She did not want this Committee or any
other legislature to think this language change will reduce
the level of service the PDA is required to give and that
consequent budget needs will decrease. She stressed that
the PDA duties are constitutionally defined and she
emphasized that the state definition of the effective
assistance of council is no different than the federal
definition. In her opinion, the main point of the
constitutional right to council is so that as a nation, and
Alaska as a state, does not create a two-tiered system of
justice - one justice system for the rich and one system
for the poor. She asserted, "The duties and obligations of
a lawyer to ethically, zealously and effectively represent
their client don't depend on whether they are retained or
appointed." She referred to a letter she sent on March 19,
1999 (copy not on file) and said she would not repeat the
comments she made in that letter.
DIANE WENDLANT, Assistant Attorney General, Collections and
Support, Civil Division, Department of Law testified via
teleconference from Anchorage that her section of the
department is responsible for collecting the repayment
fees.
Co-Chair John Torgerson noted that with the adoption of
Amendment #1, changes will need to be made to the
Department of Law fiscal note. He anticipated that the
biannual revision of the fee schedule and the reimbursement
for expert witnesses would increase the revenue generated.
Ms. Wendlant agreed there would be an increase but she
could not speculate on the exact amount.
Senator Dave Donley asked Ms. Wendlant to provide him with
suggestions on how to increase collections, whether through
statutory changes, or other changes to make the collection
process easier for the department.
Senator Sean Parnell was troubled by the underlying policy
allowing a party to bring action against another party and
even if the first party fails to win, the second party must
bear the cost of defense. He noted that in civil
proceedings, a prevailing defendant is allowed to recover a
portion of the attorney fees. He understood that the
criminal system is different but he wanted to know why the
state is allowed to bring a criminal action against someone
and that citizen must bear the costs if he or she acquitted
or the charges are dropped.
Mr. Wooliver responded that the costs the defendants are
bearing are the cost of the services provided by the State.
He noted that defendants who hire an attorney have to pay
for the services provided by the private council as well.
Senator Sean Parnell pointed out that in the case of public
defenders, the state brought the charges and the state is
charging for defense against those charges. He qualified
that in America, citizens pay for services, but argued that
citizens are also allowed to recover a portion of attorney
fees in civil cases when there is a failure to convict. He
wanted to know why this wasn't practiced in criminal cases
as well as civil cases.
Mr. Wooliver replied that the legislature could make a
policy decision to not charge those defendants who are not
convicted. He pointed out that the majority of the cases
affected by this legislation are not ones where the
defendant is brought to trial and found not guilty. Most of
these cases, he said, involve deferred prosecutions,
failure to meet the 120-day Rule or the State drops the
charges for a variety of reasons. However, he emphasized,
if the legislature wanted, and if the state could afford
it, it could establish a system of charge-backs, where the
State would refund attorney fees to defendants not
convicted. He noted that the charge-backs would apply to
private attorney fees as well as absorbing the costs of
public defenders. However, he stressed that the Court
feels that all criminal defendants should pay their
attorney fees.
Senator Dave Donley reinforced Mr. Wooliver's argument
saying there should be no discrimination between rich or
poor. He believed all defendants should pay for the
service according to their ability. He also noted there are
many reasons why a guilty person is not convicted, citing
the 120-day rule, technical reasons, lack of resources to
prosecute, inadmissibility of evidence or admissions, etc.
It particularly troubled him that judges may appoint
counsel regardless of the monetary status of the
individual. Regarding the differences between civil and
criminal actions, he pointed out that there are different
standards and that the state has a higher burden of proof.
He told the Committee that there is a safeguard against
wrongful prosecution in existing law so if the State was
out of line and did not have grounds to prosecute the
defendant could initiate a civil action and recoup defense
costs.
Senator Dave Donley offered a motion to report from
Committee, CSSB 100(FIN). Without objection it was reported
out with individual recommendations and accompanying fiscal
notes from the Department of Law, $68.9 and the Alaska
Court System, zero.
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