Legislature(2011 - 2012)BUTROVICH 205
02/17/2011 09:00 AM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB26 | |
| SB61 | |
| SB30 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| = | SB 61 | ||
| = | SB 26 | ||
| = | SB 30 | ||
SB 30-RETURN OF SEIZED PROPERTY
9:16:03 AM
CHAIR WIELECHOWSKI announced consideration of SB 30.
SENATOR PASKVAN moved to adopt the proposed committee substitute
(CS) to SB 30, labeled 27-LS-0344\M, as the working document.
CHAIR WIELECHOWSKI objected for discussion purposes.
SENATOR FRED DYSON, sponsor of SB 30, said the CS is a better
product. It includes provisions that clarify what kinds of
evidence are excluded from being returned. They have also
inserted the Office of Victims' Rights (OVR) as the gate-keeper
for assistance in return of property.
CHUCK KOPP, staff to Senator Fred Dyson, explained that SB 30
provides property owners with a clearly identifiable process to
petition the court for recovery of their property which is being
held as evidence. The CS was drafted in response to concerns
that giving victims a direct voice in those situations may
result in too many requests for hearings. The OVR is willing to
assume an intermediary role in such requests. If a preponderance
of evidence shows that the victim does own the property, OVR
could contact the law enforcement agencies and see if they have
a claim on the property. If OVR believes the victim's claim
exceeds that of the law enforcement agency, it can request the
agency to ask for a hearing. Once that request is received, the
agency has ten days to request a hearing. If a criminal case is
already pending, the hearing will be before the court that has
jurisdiction. If no criminal case is pending, the hearing will
be before the district or superior court where the property is
physically located. The burden of proof is preponderance of
evidence, and the court may impose reasonable conditions on
return of property to the owner. Section 2 of the CS establishes
within Title 24, Chapter 65, the authority for the OVR to
request return of property from a law enforcement agency on
behalf of a victim. A victim is defined as any person who is the
owner of property in the custody of a law enforcement agency.
9:23:43 AM
VICTOR KESTER, Executive Director, Alaska Office of Victims'
Rights (OVR), said the OVR is ready to assist crime victims
attain a mechanism to ask the court for return of their
property. The OVR wants to work with others in a responsible
fashion. They also want to be sure that this proposed statute is
within the boundaries of law and ethics and does not present
challenges. He noted there has been concern this may impede
certain functions of law enforcement. Under the proposed
legislation, the crime victim would come to OVR, OVR would
investigate, and if they determine the victim has a valid claim,
they would ask the agency for a hearing on behalf of the victim.
If the agency fails to return the property, it has to file a
request with the court for a hearing.
CHAIR WIELECHOWSKI said that was also his understanding.
9:26:15 AM
MR. KESTER said his main concern would be the volume of cases.
He believes the legislation is necessary, but if there is a high
volume of requests, a fiscal note might be needed later.
SENATOR PASKVAN asked about victim confidentiality.
MR. KESTER replied the proposed legislation would not alter the
existing broad confidentiality protections for crime victims.
CHAIR WIELECHOWSKI asked about potential concerns over fiscal
impacts.
MR. KESTER answered his preliminary assessment is that it would
not require additional staff. For example, 200 cases during a
fiscal year would have an impact, but he doesn't expect that
many cases. The problem is relatively rare. SB 61 would help
crime victims.
9:31:33 AM
LES SYREN, attorney, stated that his client owns a jewelry store
in Anchorage. In 2007, he received a phone call from the police
in the middle of the night and was asked to come to his store.
The police served a search warrant on the property, and removed
took about $5,000 worth of merchandise from the store, saying
they believed it might be stolen property. A few months later
the attorney asked for return of the property, but he never
heard back from the police. Years went by. His client was never
charged, never told that he was a suspect. This property was
merchandise, and some was actually on lay-away. When people came
in to get their merchandise, the store had to return their
money. Mr. Syren said wrote to the police chief again last week,
but he has not yet heard back. His client is suffering a
financial loss. He doesn't want to see frivolous requests for
return of property, but this one is not. His client has no
relief.
SENATOR PASKVAN asked if the agency has any evidence that the
property belonged to someone else.
MR. SYREN answered not that he knows, but he has heard nothing
from the police.
SENATOR PASKVAN asked when the police have taken property, does
this come within the definition of a crime victim.
MR. SYREN responded that is a very good question. The police
have taken his client's property without telling him why.
SENATOR PASKVAN asked if his client can provide proof of
ownership.
MR. SYREN said he would be glad to.
SENATOR PASKVAN questioned whether this situation would fall
within the definition of a crime victim.
MR. KOPP responded that Section 2 of the committee substitute
says "crime victim" includes any person who is the owner of
property in the custody of a law enforcement agency.
CHAIR WIELECHOWSKI asked if there is dispute over who owns the
property, could OVR be in the position of representing a
criminal.
MR. KOPP explained that vetting would happen during the initial
investigation. Sometimes it can take the police a while to sort
out what happened. These cases are vetted before they make it to
court. OVR would learn the story from the investigation.
9:40:18 AM
CHAIR WIELECHOWSKI said the CS does not appear to give OVR a
decision with regard to filing a case with the court. It appears
to be mandatory.
MR. KOPP replied that the reference on page 2, line 1 to "shall"
request a hearing refers to the law enforcement agency. OVR has
the authority to conduct an investigation and they can ask for a
hearing. Once they do request it, the law enforcement agency has
ten days to request a hearing.
SENATOR DYSON said he appreciates all the questions. He noted
that last year the Alaska Peace Officers Association had
endorsed a similar bill, but this year they had one person on
the board who didn't want to endorse it. He speculated that once
the word gets out that this mechanism exists, the police will be
more vigorous in returning property quickly. Making the victim
whole is a duty.
9:44:59 AM
DOUG WOLVER, Administrative Attorney, Alaska Court System, said
he met with the sponsor's staff and also sent the proposed bill
to several judges for comment. The court is always neutral when
it comes to legislation, but several judges asked what the
standard of proof for ownership would be. The CS clarifies that
it is a preponderance of the evidence. The next question was how
cases that don't get filed as criminal cases in court would be
handled. The CS establishes that either superior or district
court would have jurisdiction.
SENATOR KOOKESH asked Mr. Wolver to clarify how the police would
have the property if they haven't caught the perpetrator.
MR. WOLVER responded they could find it in a pawn shop, or
through a search warrant. He noted that many property crimes
don't get prosecuted.
SENATOR KOOKESH asked if any judges didn't like the bill.
MR. WOLVER said they don't take official positions on
legislation. They don't see as an issue with this bill, but a
request would not normally come to them.
CHAIR WIELECHOWSKI asked if the judges were concerned about the
potential for a flood of claims into the court system.
MR. WOLVER replied he did not hear concern about that from the
judges. He noted that fiscal notes are educated guesses. In this
case, DOL has an undetermined fiscal note. They probably won't
see many cases, but it is hard to know.
SENATOR KOOKESH said if there is a flood of cases then we know
there is a problem.
SENATOR PASKVAN asked if there would be a filing fee involved.
MR. WOLVER said he had not thought of that, but there would
probably just be a motion unless there was no underlying case
involved. In that case, there might be a filing fee.
9:50:19 AM
SENATOR PASKVAN moved to report CS for SB 30, version M, from
committee with individual recommendations and accompanying
fiscal notes.
CHAIR WIELECHOWSKI announced that without objection, CSSB
30(STA) passed from the Senate State Affairs Standing Committee.
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