HOUSE BILL NO. 317 "An Act 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." 2:08:27 PM REPRESENTATIVE WILSON, SPONSOR, reviewed the bill. She stated that the legislation prohibited law enforcement from seizing property without pressing charges first. She reported that the explanation of changes from the previous version amended Section 09.55 to add a new subsection to abolish "in rem forfeiture" actions and provided for an effective date. She added that all other sections were deleted. 2:09:11 PM AT EASE 2:10:01 PM RECONVENED Representative Kawasaki cited letters of opposition included in the bill packet (copy on file) and assumed they referred to previous versions of the legislation. He related a scenario where a person got stopped for a DUI [Driving Under the Influence] and wondered whether the individual was immediately charged. Representative Wilson responded in the affirmative. She confirmed that the letters referred to previous versions of the legislation. She characterized the bill as "simple." She exemplified a chair and explained that that she "could not arrest the chair and take it to court and expect it to testify." The bill mandated that charges had to be brought against a person and not their property. Representative Kawasaki indicated that civil asset forfeiture was typically used with drug offenses. He asked how the bill would impact civil asset forfeiture. Representative Wilson stated that many forfeiture laws existed and were not affected by the bill. She stated that the specific forfeiture contained in the legislation was a process not currently being used. The bill was initially much larger and encompassed all types of forfeiture but created costly fiscal notes for the affected departments. She commented that she was planning to work with the departments over the interim on the larger version of the bill and address the fiscal note issues. The bill was reduced to only include an idle statue. Representative Gara liked the way the sponsor described the bill. He asked if he could direct a question to an attorney in the room. Co-Chair Thompson answered in the affirmative. He mentioned an email from the Department of Law (DOL) [Cori Mills - dated April 12, 2016] (copy on file) that was distributed to members. Co-Chair Thompson indicated he had received an email that stated that DOL had concerns about the bill and suggested amendment language. JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF LAW, relayed that the original bill was much larger and tried to change a number of statutes. Concerns developed regarding certain measures and the bill was scaled back to the single provision. He reported that the Criminal Division did not file charges against property and did not have any problems with bill. He noted that criminal charges were filed against an individual and if property was associated forfeiture actions would be taken. The civil division had identified some concerns during the process of revising the fiscal note. KENT SULLIVAN, ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF LAW, understood the intent of the bill. He stated concerns about potential unintended consequences in civil law. He shared that he practiced civil litigation for roughly 20 years that included real property litigation, quiet title actions, condemnation actions, and probate. He communicated that many areas of civil law was involved in "in rem forfeiture" actions, which were actions against property that "might be construed" in some way to "constitute a civil forfeiture." A question remained whether the legislation impacted the types of actions he referenced. He suggested clarification by the courts. He provided a few examples. He pointed out that in Southeast Alaska it was not uncommon for the Department of Natural Resources (DNR) to find unoccupied float houses located on state tide lands. Permits were required for the situation. In the absence of a permit, DNR was authorized to remove the float house. If records identifying an owner or the owner itself was not discovered, DNR needed an avenue to deal with the float house. He revealed that a cause of action against the property itself could be instituted by the courts which granted authority over the property and allowed further notification of potential owners and further authorized the action to proceed against the property. The action granted time for a potential owner to claim the property and prove ownership. If ownership isn't proven or found the court engaged in in rem forfeiture proceedings, which allowed the state to take action disposing of the float house. He stated that in rem forfeiture applied to many other examples of civil law. 2:19:04 PM Mr. Sullivan provided other examples where the forfeiture law applied such as finding abandoned property structures or equipment on an individual's private property or in probate proceeding in the absence of a will or heir where property escheated to the state. In the examples provided the in rem laws allowed the claims to proceed in court against the property. He delineated that state statute allowed a quiet title action but statute did not define all of the parameters of quiet title actions. The details were filled in by common law. He was unsure about the extent of the impact of the bill. The department needed more time to further examine how the bill would impact the issues he discussed. Representative Gara wanted to see the bill move forward and suggested developing appropriate amendment language to assist its adoption. He understood the concern raised by the civil division. He asked for a brief explanation of in rem forfeiture. Mr. Sullivan defined an in rem forfeiture as "a proceeding as against the property as opposed to the person." He informed the committee that there were "many, many instances where it was impossible to get a judgement against the person." 2:23:23 PM Representative Gara did not mean a judgement against a person. He reiterated Mr. Sullivan's float house example. He suggested adding the following language: "common law, civil in rem forfeiture actions are abolished, unless there has been a final court judgement." He asked whether everyone's interest was satisfied. Co-Chair Thompson asked whether Representative Gara referred to the potential language amendment recommended in the department's email. Representative Gara replied in the affirmative and declared that the proposed amendment was vague. Mr. Sullivan supposed that the language Representative Gara was suggesting might work. He was concerned whether a judgement existed in all instances. He stated in issues concerning probate proceedings, disclaimers of property, and disavowing a property a judgement was not given. In addition, requiring a judgment was putting the last legal piece of the process first. 2:25:37 PM Representative Gara suggested the language "without a court order" instead. Mr. Sullivan agreed that both of the representative's amendment proposals might work. He referred to the language proposed in the email: Sec. 09.55. 700. In rem civil forfeiture actions abolished. Common law civil in rem forfeiture actions are abolished if used instead of a criminal proceeding. Representative Gara responded that the language sounded "really vague." He believed that the department's suggested language required justification why the in rem forfeiture action was chosen instead of criminal proceedings. He felt that the language was unclear and his language regarding a valid court order was more definitive. Mr. Sullivan asked whether he was suggesting not using DOL's recommended language. Representative Gara replied in the affirmative. He contended that his suggested language clarified that the property could not be seized without a court order. Mr. Sullivan remarked that he was being asked to respond quickly. He maintained a concern that the language allowed a court order in a criminal proceeding and defeated the intent of the bill. He indicated that if the intent of the language was to only abolish the use of civil forfeiture unless there was a court order, the amendment might work. However, if the intent was to abolish the use of civil in rem forfeiture even when used in the context of criminal procedure it would not achieve the desired result. Representative Gara thought that the bill sponsor's intent was to eliminate forfeiture without a court order. Mr. Sullivan deduced that his language "may address the concern from the civil side" of the issue. Representative Gara suggested alternative language as follows: "Common law civil in rem forfeiture actions are prohibited unless there had been a court order." 2:29:51 PM Representative Munoz referred to Mr. Sullivan's example of a house boat. She wondered whether a court order was necessary to remove the structure. Mr. Sullivan responded affirmatively. He expounded that a court process similar to a quiet title action that provided notice to the public applied. Representative Gara wondered whether there was any illegal circumstance where a trooper would seize someone's property without a court order. JEFF LAUGHLIN, TROOPER, ALASKA STATE TROOPER (via teleconference), responded in the negative. He relayed that troopers never seized any property in the absence of criminal charges. Representative Gara understood criminal forfeiture. He was referring to civil cases but was uncertain how to phrase the question. Co-Chair Thompson agreed that everyone was familiar with forfeiture that was unreasonable and thought that the bill was attempting to address the issue. He provided an example of someone driving through a state with a lot of cash in order to purchase a car. The individual was stopped by police and the money was seized on the suspicion of drug dealing. He guessed that a similar situation had not happened in Alaska. 2:33:10 PM Co-Chair Thompson OPENED public testimony. 2:33:26 PM Co-Chair Thompson CLOSED public testimony. Co-Chair Thompson wanted additional clarification from DOL. 2:33:58 PM AT EASE 2:37:57 PM RECONVENED Representative Wilson MOVED to ADOPT Conceptual Amendment 1 that would delete the word "abolished" and inserted "prohibited unless there is a court order." There being NO OBJECTION, it was so ordered. Representative Kawasaki suggested that the title needed to change. 2:39:12 PM AT EASE 2:40:07 PM RECONVENED Co-Chair Thompson stated that the conforming language would apply to the title. Co-Chair Thompson reviewed the fiscal notes. He noted the new zero fiscal note for the Department of Administration (DOA) appropriated to Legal and Advocacy Services allocated for the Office of Public Advocacy and the new zero fiscal note for the Department of Administration (DOA) appropriated to Legal and Advocacy Services allocated for the Public Defender agency. He mentioned the new zero fiscal note for DOL appropriated for Administration and Support allocated to Office of the Attorney General and finally, the indeterminate fiscal note from the Department of Public Safety (DPS) appropriated for Statewide Support and allocated to the Commissioner's Office. Representative Munoz MOVED to REPORT CSHB 317 (FIN) as amended out of committee with individual recommendations and the accompanying fiscal note(s). CSHB 317 (FIN) was REPORTED out of committee with a "do pass" recommendation and with two new zero fiscal notes from the Department of Administration, one new zero fiscal note from the Department of Law, and one new zero fiscal note from the Department of Public Safety. Co-Chair Thompson reminded members that formal decorum was necessary during committee. He reviewed the agenda for later in the afternoon of the same day.