HB 221 - PUBLIC DEFENDER APPOINTMENT PROCEDURES 1:05:38 PM CHAIR GATTO announced that the first order of business would be HOUSE BILL NO. 221, "An Act relating to the appointment of counsel for persons accused of crimes; and amending Rule 39.1, Alaska Rules of Criminal Procedure." 1:06:54 PM REPRESENTATIVE MIKE CHENAULT, Alaska State Legislature, sponsor, explained that HB 221 addresses the issue of court-appointed legal representation for those who cannot afford an attorney, and noted that it's the Office of Public Advocacy (OPA) and the Public Defender Agency (PDA) that provide such representation and bear the cost. He offered his understanding that some who've claimed to be eligible for such representation and subsequently received it did not truly qualify, and so HB 221 is intended to reduce the cost of such fraud to the state. 1:09:01 PM SHARALYN WRIGHT, Staff, Representative Mike Chenault, on behalf of the sponsor, Representative Chenault, noting that members' packets contain a sectional analysis of HB 221, offered her understanding that the bill would allow the court, when determining whether to provide a defendant with a court- appointed attorney, to also consider the defendant's financial resources, and would require the defendant to complete a signed sworn financial statement subject to the penalties for perjury. These proposed changes, she posited, would allow the court to ensure that funds expended for court-appointed counsel are being spent in a responsible manner. In conclusion, she indicated that a fiscal note from the Alaska Court System (ACS) would be forthcoming, and that it would address estimated additional- personnel costs. MS. WRIGHT, in response to comments and questions, indicated that the sponsor is not interested in having HB 221 amend the Alaska Rules of Civil Procedure; offered her belief that any fiscal impacts associated with the bill would be dependent on the management and resource-allocation skills of the departments involved; and reiterated that the ACS has not yet submitted a fiscal note for HB 221. REPRESENTATIVE CHENAULT offered his belief that by ensuring that court-appointed legal representation is only provided to those who truly cannot otherwise afford it, HB 221 would reduce costs to the state. CHAIR GATTO, in response to comments and a question, observed that the bill specifies that the defendant shall be under oath and subject to the penalties for perjury. 1:16:14 PM DOUGLAS GARDNER, Director, Legal Services, Legislative Legal and Research Services, Legislative Affairs Agency (LAA), also in response, confirmed that knowingly testifying under oath to a false statement constitutes the crime of perjury. 1:16:58 PM QUINLAN STEINER, Director, Central Office, Public Defender Agency (PDA), Department of Administration (DOA), after mentioning that HB 221 would directly impact appointments to the PDA, said the bill's proposed changes are consistent with some of the recommendations the PDA has made in previous years with regard to requiring a signed sworn financial statement in all cases so as to ease the audit process that ensures only those who truly qualify are appointed an attorney. In response to questions, he characterized the bill's proposed changes as important; offered his understanding that interpreters are provided by the court to clients not fluent in English; acknowledged that the term "financial statement" as used in existing Rule 39.1(e) of the Alaska Rules of Criminal Procedure is a very broad term, but surmised that such broadness facilitates compliance with statute, court rule, and administrative rule; explained that Alaska's court rules do provide guidelines regarding financial resources and estimated legal-representation costs for purposes of determining a person's inability to pay; noted that currently, the client's pertinent information is sometimes provided in writing and sometimes it's just entered into the record verbally; and posited that HB 221's proposed changes would bring some consistency to the appointment process which could, in turn, result in fewer appointments. MR. STEINER, in response to further questions, said he assumes that the court already has a process in place for assisting illiterate clients, and acknowledged that the bill could potentially, but not necessarily, slow down the appointment process undertaken by the court. However, if the bill slowed that process down significantly, then that could be of concern. 1:23:50 PM RICHARD ALLEN, Director, Anchorage Office, Office of Public Advocacy (OPA), Department of Administration (DOA), [with regard to the aforementioned court-rule guidelines pertaining to estimated legal-representation costs,] pointed out that the amount varies depending upon the type of case; for example, the estimated legal-representation cost for a misdemeanor is a lot less than it is for a class A or unclassified felony. CHAIR GATTO, after ascertaining that no one else wished to testify, closed public testimony on HB 221. 1:25:37 PM NANCY MEADE, General Counsel, Administrative Staff, Office of the Administrative Director, Alaska Court System (ACS), said that the ACS has some concerns with HB 221, but would be working with the sponsor to address those concerns. As the bill is currently written, implementation could be problematic for the ACS because at some initial appearances, there can be between 30 and 60 different parties coming before the court, with a great majority of those parties qualifying for court-appointed representation, and with much of the information used in making those determinations being provided verbally. Currently there are three instances in which a person can presumptively qualify for court-appointed legal representation without any further investigation by the court into the person's inability to pay: if the person is already receiving state or federal public assistance benefits; if the person's gross annual income is below federal poverty-level amounts; or if the person had applied for and received court-appointed representation within the previous [12 months]. Presumptively qualifying for court- appointed legal representation under one of those criteria happens in a great majority of cases, with, again, the necessary information having been provided verbally. MS. MEADE relayed that if those people who currently only needed to provide the necessary information verbally had instead had to provide it in writing - and the existing financial statement form provided by the ACS is four pages long - the ACS estimates that it would have taken each person an additional 20 minutes, or longer, to fill out the form, and he/she might have also required assistance from ACS personnel. Although changes to the bill could change its fiscal impact on the ACS, under the bill as currently written, the ACS would require additional personnel to help people fill out the necessary forms, since currently only the courts in Anchorage and Fairbanks have the personnel to assist such people. The ACS understands the problem the bill is meant to address, she relayed, and so will be working with the sponsor and the PDA to come up with [legislation] that assists the audit process, thereby increasing accountability - the ACS doesn't want to be appointing legal representation to those who don't deserve it. MS. MEADE mentioned that the bill's proposed changes could result in additional expenses and additional delays associated with providing translator services and assistance to illiterate clients. In response to a question, she clarified that the ACS is not opposed to the concept of having the required information be submitted in writing, and is instead merely concerned with the bill's potential fiscal impact on the ACS; again, the ACS would need to hire additional personnel in order to accommodate the needs of those who would be required to submit information in writing, and to verify the accuracy of that written information. Such accommodation and verification is going to take time, and the ACS would be bearing the cost of any resultant delays in the process, and thus a fiscal note from the ACS regarding HB 221 would be forthcoming. 1:35:07 PM MS. MEADE, in response to a question, explained that the PDA has a statutory responsibility, with which it does comply, to report to the ACS when it's been appointed to represent someone whom it later learns should not have been provided with a PDA attorney. MR. STEINER concurred, and, in response to further comments and questions, provided information about the process the PDA currently undertakes in such situations. MS. MEADE added that the ACS does notify those seeking court- appointed counsel that if they provide false information, it would be considered perjury and they would then be subject to the penalties for that crime. She acknowledged, though, that she isn't sure how that crime would then be prosecuted. In response to a question, she clarified that the ACS would not be impacted by Section 1's proposal to add the words, "financial  resources and" to AS 18.85.120(b), because the ACS already considers such information when determining whether to appoint counsel. The bill's anticipated fiscal impact on the ACS would result from Section 2's proposed direct court rule change to Rule 39.1(e) of the Alaska Rules of Criminal Procedure, specifically that of requiring all those seeking court-appointed counsel to complete a signed sworn financial statement subject to the penalties for perjury. Again, currently, when a person is found to be presumptively eligible for court-appointed legal representation, there is no further investigation by the court into the person's inability to pay. She, too, noted that for purposes of determining a person's inability to pay for his/her legal representation, Alaska's court rules provide guidelines regarding financial resources and estimated legal-representation costs. REPRESENTATIVE KELLER, having characterized HB 221 as a really good bill, indicated that the need for it has been clarified for him by Ms. Meade's remarks. 1:46:08 PM MS. MEADE, in response to comments, reiterated that a fiscal note from the ACS would be forthcoming shortly, and mentioned that the ACS is hopeful that the bill could be changed at some point so that something other than the aforementioned four-page document could be used. REPRESENTATIVE GRUENBERG said he supports the concept of the bill, and expressed interest in receiving a report from the ACS [if/when] the bill's proposed changes are implemented. CHAIR GATTO relayed that HB 221 would be held over.