SB 110-RETURN OF SEIZED PROPERTY  VICE CHAIR LYNN announced that the first order of business would be CS FOR SENATE BILL NO. 110(JUD), "An Act relating to the authority of the victims' advocate to request a hearing for the release to a crime victim under certain conditions of certain property in the custody of a law enforcement agency." 2:31:49 PM SENATOR FRED DYSON, Alaska State Legislature, said SB 110 probably looks familiar. A bill went through last year to facilitate the process of returning property to victims, and he feels that it should never have needed to be done. Authorities ought to be giving innocent people back their property as soon as possible, he opined. He said that last year's bill provided a process for a victim to get property back after the authorities had completed a chain of custody, but people have told him that the process was not working well with some authorities. He noted that SB 110 is a modification that gives the victim advocate the authority to go and get the property back. The bill gives an agency or a person who has the victim's interest at heart the authority to pursue those interests and get the property returned, he explained. 2:33:55 PM CHARLES KOPP, Staff, Senator Fred Dyson, stated that in 2012 the legislature passed SB 30, which established a process in Title 12 of the Alaska Code of Criminal Procedure for property crime victims to petition the court for relief in recovering their property that was held as evidence. This was brought to the attention of the bill's sponsor by numerous businesses- particularly small businesses-and individuals who had had property seized and had no recourse other than suing the state to get their property back. He said SB 30 put a process in place for the crime victim to petition a law enforcement agency through a victim's advocate to have the property returned. The petition went through the victim's advocate because advocates are very familiar with the Code of Criminal Procedure and Chapter 36 of Title 12, which deals with the disposition of recovered and seized property. 2:35:53 PM MR. KOPP said the victims' advocate would review the laws of evidence and see if the victim was eligible to take back property. Once the advocate petitioned the law enforcement agency, the agency would have 10 days to either return the property or to request a hearing before the court to determine if the property should be released to the crime victim. "We thought that was all going well," he said, but there was a misunderstanding. The Department of Law requested clarification whether it was the law enforcement agency that was supposed to be asking the court for the hearing, rather than the victims' advocate, he stated. After the clarification request came from Mr. [Richard] Svobodny [Deputy Attorney General, Department of Law] in March 2013, the court system researched the testimony and said that there was no question that the law enforcement agency was the entity to request the hearing for the return of property. The victims' advocate requested that he or she be given the authority to request the hearing in addition to the law enforcement agency, which would empower the crime victim, he explained. 2:38:18 PM MR. KOPP said that SB 110 improves the standing of the crime victim by allowing the victims' advocate to directly appeal to the court for the hearing if the law enforcement agency does not do it within the deadline prescribed under existing law. The bill is very brief, he noted. Section 1 just adds a new subsection (f) to return the property by hearing and to provide that the Office of Victims' Rights may request a hearing before the court if the law enforcement agency fails to act within ten days after receiving the request. Section 2 just amends Title 24, which is the victims' advocate authorizing language. VICE CHAIR Lynn passed the gavel to Chair Keller. 2:41:05 PM REPRESENTATIVE GRUENBERG said SB 110's purpose is to give the victims' advocate standing to file a motion with the court for a hearing to get the victim's property back. He asked if the sponsor would have any problem with allowing the victims, themselves, to file that motion. He said he could see a situation where there is an acrimonious divorce and some property is removed and found, and there would not be a reason for an advocate to file. 2:42:45 PM MR. KOPP said the bill amends Title 12, which is the Code of Criminal Procedure and would not pertain to a divorce court property hearing. It specifically pertains to crime victims, he added. The reason why the request is to go through the Office of Victims' Rights is because the victim advocate is trained in the law to know all of the procedures and different rules that come into play depending on the crime. Additionally, it could open a floodgate for individuals to make requests without knowing the legal process, he said. "It kind of acts as a gatekeeper," he said. 2:46:10 PM REPRESENTATIVE LEDOUX expressed doubt that the effect would be to open up the floodgates, and she noted that at times there is both a criminal prosecution and a civil suit. It would make a lot of sense to also allow a victim's counsel to ask for a hearing, she stated, and the counsel would be as knowledgeable as the victims' advocate. MR. KOPP said that the counsel to parties can always ask the court outside of this law, and SB 110 allows an unrepresented crime victim, working through the Office of Victims' Rights, to request the court for a hearing. The judge can make the determination if the victim has more of a right to the property than there is a need for the state, the defense, or another third party to keep hold of it. The issue might be better understood by looking at the context of the entire AS 12.36.070, Return of Property by Hearing, which already has a process in place, he said. "Your question is already envisioned in the entirety of the law," he stated. A civil suit will come under civil law, he explained. There is nothing to prevent counsel from asking the court for a return of property. Under SB 110, if no criminal case is pending regarding the property, the hearing shall be before a district or superior court where the property is located. If it is a criminal case, it will be the court of jurisdiction, he explained. At the hearing, the party that is objecting to the return of the property will state the reason on the record. He said the court may order the return of the property if the crime victim, by the preponderance of the evidence, provides satisfactory proof of ownership and the party that objects fails to prove, by a preponderance of the evidence, that the property must be retained for evidentiary purposes. 2:51:17 PM MR. KOPP said that if the court orders the return of the property to the crime victim, the court may impose reasonable conditions on the return, such as requiring that the victim retain the property to be available for future court hearings or requiring photographs of the property. 2:52:01 PM REPRESENTATIVE LEDOUX said she is really confused, and perhaps someone from the Department of Law or the court system can help. She said she is muddling through the civil rules. In a civil case, Rule 24, persons claiming the right to property can intervene, "but, as far as I know, just because somebody has an attorney in a civil suit, that doesn't allow that attorney to intervene, as the law stands now, in the criminal action, and it would be the criminal action that we're talking about here." 2:53:13 PM SENATOR DYSON said this mostly has to do with evidentiary property. What has happened is that there would be a suspected crime with property seized and held for evidence, "and months and years will go by and it doesn't get returned," he stated. It has always been in the statutes that as soon as property has been analyzed and evidence has been gathered, it should be returned to the rightful owner. He said that the prosecutor has often said, "No, we might need it." Or there may be appeals, so the property sits in an evidence locker or yard. Remedy always was for the victim of a crime to go get counsel and go into court to try to get property back. He said he has about six cases where that has not worked, and that is why he came up with a process in 2012. It has been working, "but they've come back to us and said please clarify this bill, and I could spend the afternoon telling you horror stories, but that's what it's about." 2:54:48 PM REPRESENTATIVE LEDOUX said she has experienced this and thinks it is a great idea. She suggested that some people may choose not to use a victims' advocate and would rather call their counsel to intervene to get property back. 2:55:39 PM SENATOR DYSON said, "That's always been true, it's still true, and it still hasn't worked." MR. KOPP said the option that Representative LeDoux is referring to has always been in the law, and it has been ineffective. This gives someone who does not have counsel that opportunity as well, he added. NANCY MEADE, General Counsel, Alaska Court System, Department of Administration, said there is no way to intervene in a criminal case; criminal cases are a state prosecuting authority against a defendant. Civil cases have a means for intervening, and the court weighs whether the non-party has an interest in the suit. She surmised that what the sponsor was speaking of is an instance where a law enforcement agency is holding property, and a victim who has an attorney (for other purposes or for this purpose) would file a case that is not an intervention in that criminal case, but the victim has standing to say that the troopers are keeping his or her car that was stolen. It would be a separate action, she explained. 2:57:16 PM REPRESENTATIVE LEDOUX surmised that without SB 110, a person with an attorney has to file a separate case, and SB 110 will allow the victims' advocate to intervene in the criminal case. "My concern is maybe we should also let the lawyer for the other side, as well as the victims' rights advocate, whoever the victim chooses to have represent them, be able to intervene in this criminal case." 2:58:09 PM MS. MEADE pointed out that the standing that is granted to the victims' advocate under Section 1 of the bill is very limited. It is just to ask for the hearing and to advocate for the return of the property-the advocate is not granted intervener status. REPRESENTATIVE GRUENBERG said that "this tail could wag the dog" in some cases. There could be a very valuable jewel and a lot of money involved. He further opined that there are many good judges in Alaska, and a judge should be qualified to decide whether to allow an unrepresented person in a given case to [file] or to direct the person to the Office of Victims' Rights. If a person has an attorney, that attorney may have more time and more familiarity than the victims' rights lawyer, he said. "I don't see any down side in giving the judge the opportunity to entertain a motion," he stated. If it were considered to be an intervention motion, it would be for a limited time and a limited purpose simply for the release of the property. He gave the scenario of a stolen good being claimed by two people in a divorce situation. 3:00:55 PM MS. MEADE said she would have to think a little about Representative Gruenberg's comments. She noted that the Department of Law would have a view on whether there should be others who are allowed to intervene even for a limited purpose in a criminal case because of time frames and confidentiality issues. She said the sponsor's goal is limited just to victims, and the Office of Victims' Rights has not said that there is not time to handle the work. REPRESENTATIVE GRUENBERG referenced a memo to Ms. Meade from Adam Keller about the meaning of "agency" as it appears in the bill. He asked if there should be an amendment to the definitional statute. 3:03:01 PM MS. MEADE said that the memo was prepared by her request regarding SB 110 to clear up confusion from SB 30 in 2012 as to which agency could ask for the hearing. She said she did not think that the definition of the word, agency, was unclear, it was just which agency the legislation referred to [which was the law enforcement agency]. It is now Senator Dyson's intent to let the Office of Victims' Rights also have the standing to request the hearing. CHAIR KELLER closed public testimony. The committee took an at-ease from 3:04:32 PM to 3:06:44 PM. 3:06:44 PM REPRESENTATIVE LEDOUX said she is not offering an amendment because it is a good bill, and it was late in the session. REPRESENTATIVE LYNN moved to report CSSB 110(JUD) out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSSB 110(JUD) was reported from the House Judiciary Standing Committee. 3:07:14 PM The committee took an at-ease from 3:07:14 PM to 3:08:17 PM. 3:08:17 PM