03/01/2017 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s): | |
| HB42 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 42 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 1, 2017
1:04 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Zach Fansler, Vice Chair
Representative Jonathan Kreiss-Tomkins
Representative Gabrielle LeDoux
Representative David Eastman
Representative Chuck Kopp
Representative Lora Reinbold
MEMBERS ABSENT
Representative Charisse Millett (alternate)
Representative Louise Stutes (alternate)
COMMITTEE CALENDAR
CONFIRMATION HEARING(S):
Violent Crimes Compensation Board
Jeffrey Michael Stubblefield - Anchorage
Nora Barlow - Anchorage
- CONFIRMATION(S) ADVANCED
Alaska Judicial Council
Lynn Marie Gallant - Anchorage
- CONFIRMATION(S) ADVANCED
HOUSE BILL NO. 42
"An Act relating to seizure of property; relating to forfeiture
to the state; relating to criminal law; amending Rules 3, 4, 11,
12, 16, 32, 32.2, 32.3, 39, 39.1, and 42, Alaska Rules of
Criminal Procedure, Rules 501, 801, and 803, Alaska Rules of
Evidence, and Rules 202, 209, and 217, Alaska Rules of Appellate
Procedure; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 42
SHORT TITLE: FORFEITURE & SEIZURE: PROCEDURE; LIMITS
SPONSOR(s): REPRESENTATIVE(s) WILSON
01/18/17 (H) PREFILE RELEASED 1/13/17
01/18/17 (H) READ THE FIRST TIME - REFERRALS
01/18/17 (H) JUD, FIN
01/23/17 (H) JUD AT 1:00 PM GRUENBERG 120
01/23/17 (H) Heard & Held
01/23/17 (H) MINUTE (JUD)
03/01/17 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
JEFFREY STUBBLEFIELD, Appointee
Anchorage, Alaska
POSITION STATEMENT: As appointee to the Violent Crimes
Compensation Board, discussed his qualifications and answered
questions.
LYNNE GALLANT, Appointee
Anchorage, Alaska
POSITION STATEMENT: As appointee to the Alaska Judicial
Council, discussed her qualifications and answered questions.
JOHN SKIDMORE, Director
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 42, offered
testimony and answered questions.
REPRESENTATIVE TAMMIE WILSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing of HB 42, discussed the
proposed amendments.
ACTION NARRATIVE
1:04:08 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:04 p.m. Representatives Claman, Fansler,
Eastman, Reinbold, and Kopp were present at the call to order.
Representatives Kreiss-Tomkins and LeDoux arrived as the meeting
was in progress.
^CONFIRMATION HEARING(S):
CONFIRMATION HEARING(S):
VIOLENT CRIMES COMPENSATION BOARD
ALASKA JUDICIAL COUNCIL
1:04:50 PM
CHAIR CLAMAN announced that the first order of business would be
confirmation hearings for positions on the Violent Crimes
Compensation Board, Jeffrey Michael Stubblefield and Nora
Barlow; and Lynn Gallant on the Alaska Judicial Council. He
stated that Ms. Barlow will not testify today but he asked that
members review her application and resume as her name would be
forwarded to the joint session of the Senate and House of
Representative for consideration. He noted that Ms. Barlow is
being reappointed for her third term on the Violent Crimes
Compensation Board.
CHAIR CLAMAN opened invited testimony.
1:05:43 PM
JEFFREY STUBBLEFIELD, Appointee, advised he is currently
employed with the Alaska Native Medical Center Neuro Surgery
Clinic and that he submitted his application to the Violent
Crimes Compensation Board.
1:06:33 PM
LYNNE MARIE GALLANT, Appointee, advised she currently works as a
neonatal intensive care nurse at Providence Alaska Medical
Center and that she submitted her application to the Alaska
Judicial Council.
CHAIR CLAMAN closed invited testimony.
1:07:43 PM
REPRESENTATIVE REINBOLD asked Mr. Stubblefield what he was
trying to achieve by serving on this board.
MR. STUBBLEFIELD noted that he had volunteered for open
positions and that his "whole goal" was strictly to help out in
the community and the state in which he lives.
1:08:28 PM
REPRESENTATIVE EASTMAN asked Ms. Gallant to speak to why she
chose this specific appointment as opposed to other boards and
commissions with vacant positions.
MS. GALLANT responded that immediately following law school, her
husband clerked for Judge James Arnold von der Heydt, who was
one of the initial people setting up the Alaska Judicial
Council. She said was always aware of its function and found it
somewhat unusual because growing up in the State of Maine, the
public did not have any input over who was appointed to the
judiciary. Since Governor Bill Walker requested public
participation, she said she decided to give it a try.
1:10:14 PM
REPRESENTATIVE KOPP asked what she sees as the proper role of a
judicial council member.
MS. GALLANT replied that the proper role is to evaluate the
qualifications and professionalism of the candidates so Alaska
has the most qualified candidates. She noted that she is aware
of discussions over whether to increase the number of public
members on the judicial council, thereby, providing more public
input than the attorneys. She related that it should remain
that attorneys of this state have an equal voice over who is
presented to the governor for consideration because as
professionals, they need to practice under that candidate.
Also, she opined, part of the role of the judicial council is to
review how well the candidate presents a legal argument and
determine whether they can look at both sides of the equation,
especially if considering someone for the Alaska Superior Court
or the Alaska Supreme Court.
1:12:44 PM
REPRESENTATIVE KOPP noted that Ms. Gallant is a newborn
intensive care nurse which, he described, as a demanding job,
and as a former member of the judicial council he was surprised
at the workload of the council. He added that the members
travel probably 12-13 weekends a year, it requires significant
preparation time, and he asked whether she is up for the
workload.
MS. GALLANT answered that she reviewed some of the judicial
council's prior work, and that she works part-time and tends to
work every other weekend. She is aware that most of the
judicial council meetings, over the next year, will be Monday
through Friday and she can shift her work schedule around to
accommodate that. She added that she teaches classes possibly
every other month so if she has enough notice she can work her
professional life around her judicial council commitment. She
said she is not very concerned about the amount of work that
needs to be done and is interested in getting into it, it is an
extension of when she worked on municipal elections together
with being more involved in the democratic process, which she
fully enjoys.
1:15:39 PM
REPRESENTATIVE KOPP said he has no doubt that with her demanding
professional background she can manage being on the judicial
council. He referred to her past political involvement and
asked whether she would be able to set that aside as a council
member. He warned that she doesn't want her role as a council
member to also be a lightening rod politically, and that she
wants to be seen as someone who is disinterested in a particular
outcome.
MS. GALLANT responded that this question may be in reference to
the op-ed pieces she wrote regarding the judicial council during
the prior election. That being said, she advised that she came
to that position from her own personal knowledge of the initial
actions and for the judicial council due to her lifelong
relationship with Judge von der Heydt. She stated that she is
willing to step back, set that aside, and evaluate what was
going on in front of her.
CHAIR CLAMAN offered to Ms. Gallant that there are many busy
people on the council and if they don't schedule ahead, no one
will make any of the meetings so there will opportunities to
plan ahead.
1:18:35 PM
REPRESENTATIVE FANSLER thanked both applicants for their desire
to perform public service and serve the state.
REPRESENTATIVE REINBOLD agreed.
1:18:50 PM
CHAIR CLAMAN pointed out that periodically there are discussions
about the makeup of the Alaska Judicial Council, and some
suggest that it should be constitutionally expanded, although,
its members would probably say that whether or not the voters
change the number of members, they will continue to serve.
1:19:24 PM
REPRESENTATIVE FANSLER said the House Judiciary Standing
Committee has reviewed the qualifications of the governor's
appointees and recommends that the following names be forwarded
to a joint session of the Senate and House of Representative for
consideration: Nora Barlow and Jeffrey Stubblefield to the
Violent Crimes Compensation Board; and Lynne Gallant to the
Alaska Judicial Council. This does not reflect intent by any of
the members to vote for or against these individuals during any
further sessions for the purposes of confirmation.
HB 42-FORFEITURE & SEIZURE: PROCEDURE; LIMITS
1:20:11 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 42, "An Act relating to seizure of property;
relating to forfeiture to the state; relating to criminal law;
amending Rules 3, 4, 11, 12, 16, 32, 32.2, 32.3, 39, 39.1, and
42, Alaska Rules of Criminal Procedure, Rules 501, 801, and 803,
Alaska Rules of Evidence, and Rules 202, 209, and 217, Alaska
Rules of Appellate Procedure; and providing for an effective
date."
1:20:53 PM
JOHN SKIDMORE, Director, Legal Services Section, Criminal
Division, Department of Law (DOL), referred to the Department of
Law's document titled "Amendment to HB 42 v. D" [there were
numerous provision changes within that document] and Version D
of the bill, and explained there are conforming sections, and
that the amendment attempts to lay out the following: the
procedure by which property can be seized when it is subject to
forfeiture; provide for a post seizure hearing; express in
statute the forfeiture process; raise the burden of proof from a
preponderance of the evidence to clear and convincing evidence;
a section discusses what property is subject to forfeiture - for
what offenses; a section addresses third party or innocent third
parties and the remission process; a statute specifically
addresses substituting other property for the piece of property
seized; and two sections deal with the disposition of property
when charges are no longer relevant, and an annual report to the
legislature about forfeited property.
MR. SKIDMORE explained that the department attempted to put all
of the various concepts within Representative Tammie Wilson's
original bill and the department's amendment together, which
resulted in the following: eliminating potential confusion
between evidence versus property subject to forfeiture; ensuring
the statutes outlined therein are consistent with existing case
law on how to address forfeiture while adding in a few new
things; and that the way in which the department amended the
bill should eliminate the need to amend any court rules.
1:24:31 PM
REPRESENTATIVE KOPP noted that he went through this amendment in
detail with Kaci Schroeder of the Department of Law and the bill
sponsor, and he does not have any questions.
REPRESENTATIVE REINBOLD noted that she also spoke with the
sponsor of the bill and because the sponsor put her blessing on
it, Representative Reinbold was happy with it.
1:25:00 PM
CHAIR CLAMAN referred to [Page 3 of the amendment] AS 12.35.035,
Post seizure hearing. He related that he had previously
suggested adding language allowing for the option of posting a
bond as security for the asset, and the packet before him does
not include that modification of language.
MR. SKIDMORE agreed that the bond option has not been added
there and he will discuss it further with the sponsor.
CHAIR CLAMAN advised that the bill sponsor was fine with his
suggestion, and surmised that the Department of Law did not have
a problem with such language.
MR. SKIMORE responded that posting a bond to have property
returned makes sense and the provisions found in proposed
statute, AS 12.35.035, are there to ensure that the property
goes back to the lawful owner if it wouldn't be illegal for them
to possess the property, and it was not needed for evidence.
Under those same concepts he said he would not have a problem
with it.
1:27:37 PM
CHAIR CLAMAN referred to [the amendment] page 6, Sec. 12.36.080,
Disposition of seized property [second line], and noted there
were previous discussions to change the time limit from 60 days
to 30 days.
[Chair Claman then realized he did not have the most current
version after Mr. Skidmore pointed out that the language
currently reads: "(a) Within 30 days".]
1:28:41 PM
CHAIR CLAMAN noted he had had a number of conversations as to
satisfying the annual reporting requirement with properties
where there is a real interest in keeping track of, such as,
motor vehicles, airplanes, boats, and snow machines, and he was
unsure whether the conversations led to any changes.
MR. SKIDMORE advised that the department had not modified
anything with regard to the annual reporting requirement itself,
and he pointed out that the requirement does not directly impact
the criminal division of the department. Although, he remarked,
concerns have been expressed by the Department of Public Safety,
and he opined that the concept being referred to is found under
AS 11.81.900(b)[50], which read as follows:
(50) "propelled vehicle" means a device upon
which or by which a person or property is or may be
transported, and which is self-propelled, including
automobiles, vessels, airplanes, motorcycles, snow
machines, all-terrain vehicles, sailboats, and
construction equipment;
MR. SKIDMORE said that that definition appears to encompass
those larger item Chair Claman referred to, and informed the
committee that the department has not been asked to make those
changes.
1:30:56 PM
The committee took an at-ease from 1:30 p.m. to 1:32 p.m.
1:32:29 PM
CHAIR CLAMAN advised that it was pointed out that the issue
about posting a bond for property subject to forfeiture is
addressed under Sec. 12.35.035(c) [page 4 of the amendment],
which read as follows:
(c) The court may order the return of property
subject to forfeiture upon the finding that the item
has no evidentiary value and establishing that the
property own has posted a secured monetary bond equal
to the fair market value of the property.
CHAIR CLAMAN advised that consistent to what Mr. Skidmore
indicated, the language of the property subject to the annual
report had not been changed, and it is an ongoing discussion
that does not require a resolution today. He opined that there
were questions about obtaining the correct information and not
creating a burden on the Department of Public Safety, thereby,
causing it to spend, potentially, thousands of dollars reporting
properties where there is no real interest.
1:33:51 PM
REPRESENTATIVE REINBOLD asked for clarification that the money
from any of the seized or forfeited property would not be used
to pay an attorney bill.
MR. SKIDMORE responded that with regard to the proposed
amendment before the committee, that was one of the issues the
department had a concern with and it was not included in the
amendment. Although, he pointed out, the amendment does say
that under the post seizure hearing, a person is able to request
property be returned if the court would allow the property to be
returned. He explained that the law cannot prevent a person
from using it in some manner, and it is not a factor the courts
consider. From the standpoint of the department, it would be
improper for the department to say what they could use the money
for if it was appropriate to return it, he said.
1:34:55 PM
REPRESENTATIVE FANSLER remarked that he was leery since there
are almost 12 full pages of amendments and it appears like some
offices have been interacted with regarding those amendments and
have a clear understanding of their meaning. He stressed that
he certainly did not have that clear understanding at this time.
He said he was loath to force those with a clear understanding
to have to march through this section-by-section, and he
certainly would have appreciated being included in those
discussions on the office level if that was the way it was being
handled, or doing it all on the public record. He asked for a
different procedure in the future.
MR. SKIDMORE explained that the legislative offices reached out
to the department, it wasn't the department affirmatively going
to anyone in particular, because its primary focus has been to
work with the sponsor. He said he would be happy to sit down
and discuss it further with anyone.
1:36:54 PM
REPRESENTATIVE FANSLER stressed he did not want to imply it was
disrespectful, and commented that there is a lot to go through
and maybe he is a slow processor and needs time to think about
unintended consequences and such, but he absolutely wants to be
certain he knows what he is doing when voting. He speculated
that it appears the intention of the committee, at least in the
long term, is to take it up as a committee substitute, of which
he agrees. He asked whether there was already a finalized
amended version because it would be easier to process than
flipping between the lines.
CHAIR CLAMAN explained the idea was to get it all together as a
committee substitute, and that the bill will not be passed out
today because so many changes came from this proposal from the
Department of Law. His plan, he explained, is for the committee
to look at the bill in total, and ask more questions to get a
full understanding of exactly how it will work because he
suffers from the same challenges as Representative Fansler.
REPRESENTATIVE EASTMAN asked whether the sponsor would be
speaking to these amendments.
1:39:22 PM
REPRESENTATIVE TAMMIE WILSON, Alaska State Legislature,
responded to Representative Fansler that when this bill was
brought forward there was much concern from the Department of
Law, the Department of Public Safety, and the Alaska Court
System. All parties discussed what could and could not be
included in the bill, and the Department of Law came back with
the amendment before the committee. She acknowledged that it
deletes parts of the original bill, but it does put all of the
statues together, which is why the bill is so lengthy. She
advised that the issue of ensuring that an innocent party with
seized property have a clear process to have their property
returned to them has been addressed. There will be some sort of
mechanism where the person must prove they own the item, but it
also reverts back to law to explain why it cannot be returned,
she explained.
1:40:39 PM
REPRESENTATIVE WILSON noted that the bigger part is the
reporting portion because the Department of Public Safety
currently does not have a mechanism to "spit out a report."
Although, she pointed out, during this process, it was
discovered that the State of Oregon has a "pretty good system,"
and she was advised last week that the other part of the system
the State of Oregon uses matches Alaska, which would be under
$20,000. She explained that the goal is to not duplicate and
have law enforcement involved in paperwork anymore than
necessary, and it appears they will enter information "right on
the spot that they already have." She said she has no problem
narrowing the list of requested items down because, legally,
certain items will not be returned. Representative Wilson
expressed that she is absolutely in favor of this, it has been
provided to many departments, and she agreed that a sectional of
the committee substitute would be much easier to understand.
1:42:35 PM
REPRESENTATIVE EASTMAN noted that the biggest concern from his
constituents was the ability of government officials to take
property when there was no conviction and the constituent has to
go through forfeiture where it becomes the government's
property. He asked how wide that door is open, or whether it is
closed.
REPRESENTATIVE WILSON answered that it is not closed completely
because that won't happen in one swipe, but it does provide a
process wherein the person can submit a request advising they
had nothing to do with [the crime]. In the event it was proven
that the person may have had something to do with [the crime],
once the defendant is found innocent or convicted, there is
another part of this bill wherein that person now has standing
in front of the same court to have another bite at the apple.
1:44:14 PM
REPRESENTATIVE EASTMAN offered a scenario of a "future wayward
prosecutor" deciding to hold a person hostage by advising the
conviction would be pursued unless the person forfeits their
property, "But, if you give it to me then we're not going to --
you know, prosecute." Obviously, he pointed out, he is not
referring to the Alaska Department of Law, and queried whether
within the statutes that type of situation is possible.
REPRESENTATIVE WILSON responded that tactics can be used while
going through the criminal process and the legislature will
never be able to make a law that stops everything from
happening. Unfortunately, in different places in the country
and sometimes in Alaska, when property has been taken, the
defendant could be told that their guiding license would not be
taken away if the person says they are guilty of the citation.
She related that this bill includes a requirement for reporting
the properties forfeited, which is a huge part of this bill,
because if it's not being reported then there, obviously, is an
issue. She offered that many states do not do any sort of
reporting whatsoever, and it allows things to happen. Again,
she stated, everyone is trying to do the right thing and be
certain justice is brought and that the property rights of the
individuals are protected.
1:46:29 PM
REPRESENTATIVE KOPP reminded the committee that Senate Bill 64,
passed two or three years ago, that made it illegal to forgo
criminal prosecution in lieu of civil forfeiture. Thereby, he
related, telling the Department of Law that they cannot tell a
defendant they will not be prosecuted "if you'll give us this."
This bill allows for a post seizure hearing and the standard to
justify a seizure was raised from a preponderance of the
evidence to clear and convincing evidence that the court can
rule on. The higher standard protects the public, he pointed
out, and the Department of Law must prove to a higher standard
that that property was connected to that crime and that the
property should have been taken as evidence. He described it as
a balance.
REPRESENTATIVE REINBOLD offered that initially she had concerns
with this bill, but Representative Wilson and everyone worked
well together, including the Department of Law and the Alaska
Court System, and she gave "a shout out for the wildlife
troopers who took special time to come to the office."
[HB 42 was held over.]
1:48:59 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 1:48 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Violent Crimes Compensation Board Appointment-Nora Barlow Application and Resume 2.28.17.pdf |
HJUD 3/1/2017 1:00:00 PM |
|
| Violent Crimes Compensation Baord Appointment-Jeffrey Stubblefield Application and Resume 2.28.17.pdf |
HJUD 3/1/2017 1:00:00 PM |
|
| Alaska Judicial Council Appointment-Lynne Gallant Application and Resume 2.28.17.pdf |
HJUD 3/1/2017 1:00:00 PM |
|
| HB042 DoL Amendments to ver D 2.20.17.pdf |
HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 ver D 1.19.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Sponsor Statement 1.19.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Sectional Analysis ver D 1.19.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Forfeiture Flow Chart 1.22.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Current AK Law Forfeiture Flow Chart 1.22.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Forbes Article 1.19.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Heritage Article 1.22.19.PDF |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document Letter of Support RHAK 1.22.17.pdf |
HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Letter NFIB 1.20.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Letter of Support Brown 1.23.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note DCCED-AMCO 1.20.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note DCCED-CBPL 1.20.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note LAW-CRIM 1.21.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note DPS-AST 1.22.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note JUD-ACS 1.22.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |