HOUSE JUDICIARY STANDING COMMITTEE February 9, 2000 1:20 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Jeannette James Representative Lisa Murkowski Representative Eric Croft Representative Beth Kerttula MEMBERS ABSENT Representative Norman Rokeberg COMMITTEE CALENDAR HOUSE BILL NO. 318 "An Act relating to property disposal by law enforcement agencies." - HEARD AND HELD HOUSE BILL NO. 288 "An Act relating to the creation of an aggravating factor for the commission of domestic violence in the physical presence of a child." - MOVED CSHB 288(JUD) OUT OF COMMITTEE HOUSE BILL NO. 259 "An Act relating to a parent's eligibility to be represented by the public defender before and during the probable cause and temporary placement hearing that is held after the state takes emergency custody of a child." - MOVED CSHB 259(JUD) OUT OF COMMITTEE PREVIOUS ACTION BILL: HB 318 SHORT TITLE: RETURN FOUND PROPERTY TO FINDER Jrn-Date Jrn-Page Action 1/26/00 2006 (H) READ THE FIRST TIME - REFERRALS 1/26/00 2007 (H) JUD, FIN 1/26/00 2007 (H) REFERRED TO JUDICIARY 1/31/00 2049 (H) COSPONSOR(S): DYSON 2/09/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 288 SHORT TITLE: CHILDREN WITNESSING DOMESTIC VIOLENCE Jrn-Date Jrn-Page Action 1/14/00 1923 (H) READ THE FIRST TIME - REFERRALS 1/14/00 1923 (H) HES, JUD 2/01/00 (H) HES AT 3:00 PM CAPITOL 106 2/01/00 (H) Moved Out of Committee 2/02/00 2076 (H) COSPONSOR(S): DYSON, GREEN 2/04/00 2088 (H) HES RPT 4DP 1NR 2/04/00 2089 (H) DP: DYSON, COGHILL, WHITAKER, BRICE; 2/04/00 2089 (H) NR: KEMPLEN 2/04/00 2089 (H) FISCAL NOTE (COR) 2/04/00 2089 (H) INDETERMINATE FISCAL NOTE (ADM) 2/04/00 2089 (H) 2 ZERO FISCAL NOTES (DPS, LAW) 2/04/00 2102 (H) FIN REFERRAL ADDED AFTER JUD 2/04/00 2104 (H) COSPONSOR(S): COGHILL 2/09/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 259 SHORT TITLE: PUBLIC DEFENDER CHILDREN'S PROCEEDINGS Jrn-Date Jrn-Page Action 1/10/00 1887 (H) PREFILE RELEASED 12/30/99 1/10/00 1887 (H) READ THE FIRST TIME - REFERRALS 1/10/00 1887 (H) STA, JUD, FIN 1/25/00 (H) STA AT 8:00 AM CAPITOL 102 1/25/00 (H) Moved CSHB 259(STA) Out of Committee 1/25/00 (H) MINUTE(STA) 1/27/00 (H) STA AT 8:00 AM CAPITOL 102 1/27/00 (H) Moved CSHB 259(STA) Out of Committee 1/27/00 (H) MINUTE(STA) 1/28/00 2026 (H) STA RPT CS(STA) 5DP 1NR 1AM 1/28/00 2027 (H) DP: JAMES, GREEN, HUDSON, WHITAKER, 1/28/00 2027 (H) OGAN; NR: KERTTULA; AM: SMALLEY 1/28/00 2027 (H) ZERO FISCAL NOTE (ADM) 2/04/00 (H) JUD AT 1:00 PM CAPITOL 120 2/04/00 (H) -- Meeting Canceled -- 2/09/00 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER REPRESENTATIVE CON BUNDE Alaska State Legislature Capitol Building, Room 501 Juneau, Alaska 99801 Telephone: (907) 465-4843 POSITION STATEMENT: Testified as sponsor of HB 318. KAREN McCARTHY, Legislative Assistant to Representative Bunde Alaska State Legislature Capitol Building, Room 501 Juneau, Alaska 99801 POSITION STATEMENT: Answered questions on HB 318. DEL SMITH, Deputy Commissioner Department of Public Safety P.O. Box 111200 Juneau, Alaska 99811-1200 POSITION STATEMENT: Testified on HB 318, Version D. DAVID HUDSON, Lieutenant Division of Alaska State Troopers Department of Public Safety 5700 East Tudor Road Anchorage, Alaska 99507-1225 POSITION STATEMENT: Testified on HB 318, Version D; testified in support of HB 288. LARRY MEYERS, Director Income and Excise Audit Division Department of Revenue P.O. Box 110420 Juneau, Alaska 99811-0420 POSITION STATEMENT: Testified on HB 318, Version D. GERALD LUCKHAUPT, Legislative Counsel Legislative Affairs Agency Division of Legislative Legal and Research Services Terry Miller Legislative Office Building 129 Sixth Street, Room 329 Juneau, Alaska 99801-1182 POSITION STATEMENT: As drafter, answered questions on HB 318, Version D. DENISE HENDERSON, Staff to Representative Pete Kott Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 POSITION STATEMENT: Presented HB 288 on behalf of sponsor. DR. ARTHUR HANSEN, Dentist Chairman, PANDA Coalition for the Dental Society 1329 McGrath Road Fairbanks, Alaska 99712 POSITION STATEMENT: Testified in favor of HB 288 and the proposed amendment. PATTY KALLANDER, Member on the Board of Directors and Volunteer Cordova Family Research Center P.O. Box 2272 Cordova, Alaska 99574 POSITION STATEMENT: Testified in support of HB 288 and the proposed amendment. ANNE CARPENETI, Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811 POSITION STATEMENT: Answered questions relating to HB 288. REPRESENTATIVE JOHN COGHILL Alaska State Legislature Capitol Building, Room 204 Juneau, Alaska 99801 POSITION STATEMENT: Testified as the sponsor of HB 259. HARRY NIEHAUS P.O. Box 55455 North Pole, Alaska 99705 POSITION STATEMENT: Testified on behalf of the Guardians of Family Rights in support of HB 259. MARCI SCHMIDT (Address not provided) POSITION STATEMENT: Testified in support of HB 259. BLAIR McCUNE, Deputy Director Public Defender Agency Department of Administration 900 West 5th Avenue, Number 200 Anchorage, Alaska 99501-2090 POSITION STATEMENT: Testified on HB 259 on behalf of the Public Defender Agency. ACTION NARRATIVE TAPE 00-11, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:20 p.m. Members present at the call to order were Representatives Kott, Green, Rokeberg, Murkowski and Kerttula. Representatives James and Croft arrived as the meeting was in progress. CHAIRMAN KOTT engaged the committee members in a discussion regarding the possibility of taking a field trip to Arizona to visit the prison facility. HB 318-RETURN FOUND PROPERTY TO FINDER CHAIRMAN KOTT announced the next order of business would be HOUSE BILL NO. 318, "An Act relating to property disposal by law enforcement agencies." Number 0290 REPRESENTATIVE CON BUNDE, Alaska State Legislature, came forward to testify as the sponsor of HB 318. He said this bill codifies common sense. He explained that a constituent had found a gun, turned it in to authorities, then requested that he be given the gun in the event it was not claimed. He indicated Chairman Kott had played a major part in drafting previous legislation that said law enforcement authorities cannot give a gun to someone but must sell it to a licensed dealer who then resells the gun. Representative Bunde used a firearm as an example, but pointed out that this applies to any unclaimed property. The State of Alaska does not have a procedure for returning found property to the finder if it is unclaimed, he said. It would be lawful to own that property. REPRESENTATIVE BUNDE advised members that the bill encourages finders to do the responsible thing by turning property in to law enforcement. If the property has not been used in a crime, isn't needed for evidence, and is deemed lawful to own after a period of one year, the finder is able to claim the property. He noted that representatives of the Department of Public Safety (DPS) who were involved in solving the initial problem had brought this issue to the forefront. Number 0520 CHAIRMAN KOTT said he believes there is a property disposal division in the state now, although he isn't sure what they do with property that is stolen or turned into the state; nor is he sure how it is disposed of or whether there is any revenue generated. He wondered what would happen if a large-screen television were turned in to the state, for example. REPRESENTATIVE BUNDE said he isn't sure. He pointed out that if it occurs within a municipality, this law would not apply. Number 0593 KAREN McCARTHY, Legislative Assistant to Representative Con Bunde, Alaska State Legislature, indicated Larry Persily, Deputy Commissioner, Department of Revenue (DOR), had informed her that this bill would not impact the DOR at all. CHAIRMAN KOTT asked if the bill extinguishes the rights of the true owner of the property after one year. REPRESENTATIVE BUNDE said he would defer to the DPS. He then suggested that if the property is held for one year and no criminal action is filed, there is no way for the state to hold the person harmless. If an incredibly valuable item is returned to the finder, and if the original owner files a criminal action, it seems to him this would become a civil claim. REPRESENTATIVE GREEN said he doesn't believe this bill addresses the issue if the finder obtains the item illegally. Number 0680 REPRESENTATIVE BUNDE stated that if property is taken from someone illegally, it cannot be legally owned. REPRESENTATIVE GREEN speculated that this may be enough to protect someone. REPRESENTATIVE CROFT said it seems firearms are treated differently. He referred to an unspecified document, then listed three options for dealing with firearms: declare the weapon as surplus and give it to the Department of Administration (DOA); use it with the DPS; or destroy it, if it is determined unsafe. He wondered whether this provision encompasses the firearm example. REPRESENTATIVE BUNDE said that is the intent. He believes the difference is that it would be property claimed by the finder. In contrast, he thinks Representative Croft is addressing unclaimed property. He added, "And remember that bill was modified, that there's a further step of disposal, and that has to be sold to a licensed dealer." CHAIRMAN KOTT interjected, "I think that's fairly accurate, having been the sponsor of that piece of legislation." Number 0849 REPRESENTATIVE BUNDE brought attention to the proposed committee substitute (CS) for HB 318, Version D (1-LS1294\D, Luckhaupt, 2/8/00). In response to the chairman's request, he addressed the changes in Version D. He referred to page 1, lines 8 and 9, and noted the change from two years to one year, which makes it consistent with other statutes. On page 2, lines 3 through 6, is an inclusion which allows law enforcement to continue to dispose of property. He suggested this might address Representative Croft's previous concern. Number 0900 REPRESENTATIVE GREEN made a motion to adopt Version D of HB 318 (1- LS1294\D, Luckhaupt, 2/8/00) as a work draft. There being no objection, Version D was before the committee. REPRESENTATIVE MURKOWSKI wondered what the rationale is for changing from two years to one year. She said she assumes this is okay with the DPS. REPRESENTATIVE BUNDE deferred to Del Smith, Deputy Commissioner, Department of Public Safety. Number 0960 DEL SMITH, Deputy Commissioner, Department of Public Safety (DPS), came forward, noting that Lieutenant David Hudson from Fairbanks was online to answer questions. He discussed the incident Representative Bunde had mentioned. Someone had found a weapon and turned it in to the Alaska State Troopers. Six months later, the person wrote the agency asking whether he could have the weapon back if no one had claimed it. Initially, a letter was sent to the person saying no; the DPS was relying on AS 12.36.040 in doing that. Mr. Smith paraphrased a portion of the statute, which reads: ... the property shall be held for two years. If the property is not claimed within two years of the date it comes into the possession of a law enforcement agency, the property shall be disposed of as provided in AS 12.36.030(b). MR. SMITH explained that he was being particular sensitive, not wanting to violate what the legislature had intended about firearms. When the matter came to his attention again, he reviewed it and concurred with his earlier decision. However, the more he thought about it - with the gun languishing 16 months in the evidence locker of the Alaska State Troopers - the more he questioned it. That particular weapon they had traced back to 1971, to the Caribou Wards store in Mountainview, which no longer exists. It was a BATF [Bureau of Alcohol, Tobacco and Firearms] trace, with no report of its ever being stolen or purchased by a private individual. There was absolutely no record available regarding it. MR. SMITH explained the dilemma. He'd figured it was unclaimed. However, a gentleman had found it, brought it to the DPS, and was now claiming it. Mr. Smith said he therefore took what he presumed to be a common-sense approach. About a month ago, he'd directed the gun's release to this gentleman under the theory that it was claimed by him, the DPS could find nobody else, and it made little sense for the state to continue to hold it. Mr. Smith referred to a letter sent by the troopers; he said in looking at the statutes, it seemed clear to them that they couldn't give the gun back to the claimant. Mr. Smith added, "And I told the sponsor it didn't seem very clear to me at all when I looked at it." He proposed that it be clarified a little. He would object to long-term storage of found property and evidence in police lockers, he pointed out, because the process is cumbersome and it is difficult to store items. Although the DPS would like to move stored items along as fast as reasonably prudent, he doesn't know whether it should be one or two years, or even three; he suggested that is a call for the legislature. MR. SMITH said, regarding an original owner making a claim after the DPS gets rid of property, that he suspects that could have happened under current law if a person had come in two years after the fact. Responding to a scenario posed by Chairman Kott, he said he finds it pretty doubtful that people would burgle a safe, bring those items to the police department, report that they had found them, and try to in some way launder through the found property system to get clearer title to it. He added, "It could be that you had already reported it to the police department, which would make it problematic when they showed up. And certainly, if we found out that they had come about it in another way, unless the statute of limitations had run on that particular crime, we certainly could prosecute." Number 1215 REPRESENTATIVE GREEN referred to Mr. Smith's firearm example and asked how it would be handled. For example, is an "all points bulletin" issued? Or is the department sophisticated enough to hold property as evidence and keep it until one year after the final adjudication of the case? MR. SMITH responded that he hopes the DPS is sophisticated enough. In the Alaska Public Safety Information Network (APSIN), "locates" can be placed on particular items. In his example, the firearm was run through APSIN by serial number and description. Number 1315 CHAIRMAN KOTT posed a different example: A couple of kids are out Friday night looking for some alcoholic beverage, so they break into somebody's house. And while they're in there, unbeknownst to them, they come across a Rolex watch ... They take it, not knowing the value of it. They depart, and during the departure, the silent alarm goes off, and the police are responding, so they throw the watch on the lawn and just continue walking. They're not caught with any goods. A couple days later, the guy that's the owner of the house in which the watch was thrown onto his lawn ... finds the watch. He turns it in, and after a year, I guess, he would get it back. But let's say there is a number of those burglaries that are occurring, and you're able to tie those two kids into the whole scheme of things. What is the remedy for the department to then go out and acquire that watch as evidence, being, now, that it is, I suppose, the rightful owner's hands, based on the law as it would currently be written? Number 1380 MR. SMITH asked if Chairman Kott was referring to charging the kids with burglary after the year has passed. CHAIRMAN KOTT responded: Let's say the investigation goes on for a year and a half. And finally you're able to tie ... those kids to the burglaries that are occurring, and they admit, "Yeah, I stole a watch at this house; it was a Rolex." Somebody else found it. They turned it in after a year. They got it back. The rightful owner here - me - let's say I want my watch back, but it's two years later down the road. What remedy do I have? And what remedy do you have to acquire that watch as evidence in your prosecution? MR. SMITH said he would go to the individual who turned it in, subpoena the person to whatever litigation was involved, and try to prosecute the kids. The watch would be needed as evidence. There are many different approaches, he said. It would muddy up who ultimately gets the watch - the person who lost it originally or the person who found it. He suspects the court would provide some direction, he said. He is not sure it is a decision that law enforcement should be making. Number 1448 REPRESENTATIVE CROFT agreed that it is a confusing set of statutes. He again voiced concern about giving a clear direction on the firearm example. He pointed out that AS 12.36.060 says "a deadly weapon shall be disposed of by the commissioner of [Public] Safety under this section." He said he doesn't see how authority is given under that specific section. He suggested there would be a general unclaimed property provision and then a very specific section on firearms, which would say that a firearm shall be disposed of in one of three ways: make the weapon surplus; give the weapon to DPS; or destroy the weapon. He asked whether a cross-reference is needed. MR. SMITH indicated that issue had occurred to him. As stated previously, he was hypersensitive to the gun issue. He believes the sections Representative Croft mentioned refer to forfeiture. The firearm is forfeited and becomes the property of state. In this particular circumstance, however, the gun was found property, not forfeited. He sees a difference between found property and that which is forfeited. Number 1604 REPRESENTATIVE CROFT said he'd thought a deadly weapon was being referred to, but he noted that the section states "a deadly weapon other than a firearm forfeited to the state under". He said he'd perhaps ask Tamara Cook or the drafter for an opinion. He then said he'd like to have it clean so that it applies, and it seems to apply to everything but firearms cleanly in this bill. He would like to ensure that the reference is correct on firearms, he concluded. CHAIRMAN KOTT indicated that would be fairly simple to do. Number 1671 REPRESENTATIVE GREEN asked if it has been Mr. Smith's experience that people readily turn in items other than firearms, such as coins and jewelry. He wondered if people turn in these items because they think they will ultimately get title to them. MR. SMITH pointed out a recent Juneau incident involving a man who found $25,000-plus in cash and turned it in. He thinks there is a chance people might not turn items in, but it has been his experience that people do turn in items. REPRESENTATIVE GREEN wondered about an inoperative antique gun that is valuable, for instance. He asked if it would be handled according to the provisions outlined for firearms. MR. SMITH stated his belief that there was an exception relative to antique firearms when this issue was considered a couple of years ago. Whether or not the gun is inoperative, the department considers the safety of the firearm. He noted that if the gun is deemed valuable, it would not be destroyed because it offers some value to the state. Number 1787 DAVID HUDSON, Lieutenant, Division of Alaska State Troopers, Department of Public Safety, testified via teleconference from Fairbanks. He expressed his belief that the bill has a positive intent of making citizens honest in the sense that if they find property and recognize that it might be of value to someone else, they would turn it into law enforcement. One concern, as pointed out by DPS Deputy Commissioner Smith, is with evidence and holding facilities across the state, and the amount of property in those at any one time. Lieutenant Hudson said he hadn't seen the proposed CS. However, if he understands correctly, they are looking at possibly changing AS 12.36.040 to also read "one year." LIEUTENANT HUDSON told members that from his experience, when dealing with burglaries, thefts and other issues, several things come up. One is the recovery of property that was probably stolen in a crime. Although the state may prosecute defendants who have stolen property, the perpetrators don't reveal everywhere that they have stole from; the state ends up with property that probably was stolen, but for which the owner is unknown, especially if the owner doesn't report it stolen for whatever reason. The DPS holds that property for a period of time until it is destroyed. Lieutenant Hudson said he doesn't know the what the right answer is, but he thinks one year would probably be adequate. He stated, "We would try to cross-reference our documentation and our crimes across the state through our APSIN computer system to determine if someone had reported it stolen. And obviously we would attempt to return it if we could determine who that person was. So, that does become a problem for us in that regard." He indicated he isn't sure that the time limit or year value would change or eliminate that one way or the other. LIEUTENANT HUDSON pointed out that someone who turns in property to the Alaska State Troopers may not want it, even if it isn't claimed by the rightful owner. So then what would the DPS do? He suggested that the bill allow the DPS the capability or authority to destroy, sell or otherwise dispose of the unclaimed property, utilizing the appropriate methods already in legislation under standard operating procedures. Removing the property from the custody of the DPS after one year would assist them in that regard. Number 1953 LIEUTENANT HUDSON brought up another issue not addressed by the bill: unusual or large items that were found. He cited horses as an example, explaining that in past instances, the DPS has released that property to someone other than the owner until the owner could be located. He explained: We have some legislation already on the books which kind of allows us to do that in regards to property from someone who's deceased. It doesn't, obviously, address found property. But in Title 12.65 ... it allows law enforcement to have someone take temporary custody who is willing to preserve property until such time the legitimate person responsible can be found. So, that's something else we would like to have considered in regard to just making this bill a little more usable for law enforcement. Number 2022 REPRESENTATIVE GREEN asked whether the state inventories such property so that when the year is up, a "tickle" system brings it to attention and the finder is notified. Or would it be up to the finder to come back in a year and start begging for the property? LIEUTENANT HUDSON said that system is not presently set up. With regard to evidence in a crime that has been adjudicated, a person who has property stolen will normally contact the law enforcement agency. The agency will be in general contact with the person to provide some idea of when the person will get his or her property back. He continued: But that's something that we would need to do in this particular case, is when we file the police report initially and got the information - of where the property was found, who found it, how can we locate them over a period of time, what's their mailing [address] and telephone numbers and work address and things of that nature - then we would have to set up, as you indicated, some sort of a tickler where after twelve months or thirteen months or whatever time frame as we went through our evidence procedures and went through our property, that we would then make a note that it's time to call this person and see if they want this back or what else we can do to eliminate it from our holding facility. REPRESENTATIVE GREEN wondered if that process would become a burden. LIEUTENANT HUDSON said it would be a little extra work, but he thinks that would be overcome by the fact that the agency could cleanly and legitimately remove the items from its property rooms. REPRESENTATIVE CROFT noted that the bill doesn't say people need to indicate to the DPS whether they want found items. He said that like Representative Green, he doesn't want the department to have to search out everything. He asked whether the cleaner procedure would be that a person indicates at the time that if the original owner isn't found, he or she wants the item. Only in those cases would the DPS need to go searching for the finder after 12 months. LIEUTENANT HUDSON said he thinks that would easier. REPRESENTATIVE CROFT referred to the horse issue. He inquired under what authority property can be released to private individuals. In Version D, he pointed out, it states in Section 2, "a private individual obtains property of another that is lost, ... the individual delivers that property to a law enforcement agency". Representative Croft indicated it does not cover when property is not delivered. He asked Lieutenant Hudson if he wants clearer authority in that regard. Number 2170 LIEUTENANT HUDSON said it would be very beneficial. Number 2190 LARRY MEYERS, Director, Income and Excise Audit Division, Department of Revenue, came forward to testify. He said the division runs the unclaimed property program. CHAIRMAN KOTT asked how the system works. When there is unclaimed property after a certain period of time, is it turned over to Mr. Meyers' division and then sold? MR. MEYERS answered that the unclaimed property statutes only address holders in the ordinary course of business and would not deal with lost property found in these examples. The division deals with entities such as insurance companies and banks. Number 2230 REPRESENTATIVE GREEN asked Lieutenant Hudson whether the scenarios he had heard would be a burden to the Alaska State Troopers. He asked: If, in one of the scenarios that you heard, Lieutenant, would it be a burden on you? The property's turned over to you and the year ... is over; and does this ... give title and so that the original owner in Representative Kott's scenario comes back and says, "Hey, I found out about this thing and it's mine, but it has been released to the finder, and the finder's out of the state now"? Do we get into any kind of a donnybrook, or does the title pass at the time it goes back to the finder? LIEUTENANT HUDSON explained that is a legal issue he is not prepared to answer. He indicated if something like that came up in civil litigation it could occur later. It is difficult to decide where something like that ends, he added. Number 2290 REPRESENTATIVE KERTTULA said she had a similar question for the drafter, Gerald Luckhaupt, Legislative Counsel, Legislative Legal and Research Services. She pointed out that the bill states that the new person shall be the owner. She doesn't know where that leaves the original owner. She asked Mr. Meyers if he has encountered a situation like this, and she further asked how the department handles it. MR. MEYERS said the department does an extensive search in which the original owner has to provide proof of ownership. He clarified that the department does not normally have a conflict in claims, but if there are problems, they are adjudicated through the civil courts. Number 2351 GERALD LUCKHAUPT, Legislative Counsel, Legislative Affairs Agency, Division of Legislative Legal and Research Services, came forward to answer questions on Version D. REPRESENTATIVE CROFT referred to AS 12.36.060, which read in part: (a) A deadly weapon, other than a firearm or ammunition, forfeited to the state under AS 12.55.015(a)(9), unless remitted under AS 12.36.050, shall be disposed of by the commissioner of public safety under this section. REPRESENTATIVE CROFT indicated his understanding that the "forfeited under AS 12.55.015(a)9" is the part that relates to something having been used in a crime. MR. LUCKHAUPT said because it pertains to forfeitures, it would not apply outside of forfeiture situations unless they were to talk about disposing of it in another section. Number 2401 REPRESENTATIVE CROFT pointed out that the disposal of forfeited deadly weapons is mentioned in the title, but the text simply says a "deadly weapon shall be disposed of by the commissioner of public safety under this section." Between those two, it says "other than one forfeited to the state," but that is in an "other" clause. MR. LUCKHAUPT replied that a deadly weapon other than a firearm or ammunition forfeited to the state under this shall be forfeited. He explained: You know, the whole point of this bill: firearms are going to be excluded. I tried to massage this as best I could, this whole idea. We just dealt with this in '96, and it was a very trying piece of legislation to work on then, in trying to keep everybody happy around the state, all the municipal police departments and everything. And so, we finally came [up] with this way to keep them happy by exempting them out of this whole thing, as long as they pass an ordinance that met two little requirements that we put in statute. And then we didn't care what they did. Now, with this, I tried to deal with this finder situation, and ... I'm just trying to get DPS - or any municipal department that follows this, that has not been smart enough to adopt their own ordinance, so they don't have to use the state statutes here - I'm just saying, "Get them out of the property business, allowing them a way to release it to the finder." Number 2471 REPRESENTATIVE CROFT asked what happens to a firearm or other deadly weapon under AS 12.36.060 and Version D. MR. LUCKHAUPT answered that the law enforcement agency, after one year, considers the person who found the firearm to be the true owner and has to return it to that person if it is legal for that person to possess. REPRESENTATIVE CROFT indicated it still seems mandatory, as AS 12.36.060 says "shall be disposed of under this section." TAPE 00-11, SIDE B Number 0001 MR. LUCKHAUPT read from AS 12.36.060(a). He said this section applies only to the disposal of deadly forfeited to the state. He noted that a couple of other statutes allow forfeitures. REPRESENTATIVE CROFT specified that this is forfeiture to the state under AS 12.55.015. MR. LUCKHAUPT agreed, pointing out that references to this section in other places direct the DPS to follow this section, which could be done in another statute. REPRESENTATIVE CROFT indicated he didn't want to make any more changes than necessary. MR. LUCKHAUPT clarified that this could be out there somewhere. He said this wasn't the easiest bill to work on. Number 0045 REPRESENTATIVE CROFT surmised, then, that the way to read AS 12.36.060 is that it only applies to deadly weapons that are used in the actual commission of a crime, which is the (a)(9) portion. MR. LUCKHAUPT concurred. He pointed out that a provision in AS 18.65.340 deals with the disposal of firearms. That was inserted due to objections to the Department of Administration's policy, for a time, of destroying all firearms. That was a bill in 1997 to require all state agencies to sell firearms that are safe and legal to possess. REPRESENTATIVE CROFT suggested, then, that that would not be problematic with this idea before the committee because that [AS 18.65.340] would say, "or unclaimed" somewhere. MR. LUCKHAUPT clarified that it comes into play under [AS 18.65.]030(b)(2)(A). If the owner is unknown or cannot be found, the state resorts to AS 18.65[.030], which requires the state to sell firearms that are safe or legal to possess. REPRESENTATIVE CROFT commented that if the state is required to sell the firearm, then the state cannot give it back to the person who found it. MR. LUCKHAUPT reiterated that would be the case only if the true owner cannot be found. "And they can because we say the finder is the true owner here," he added. "We get them out of the whole thing by just coming up with this legal fiction to allow the law enforcement agency to give this back to the finder." Number 0123 REPRESENTATIVE CROFT referred to AS 18.65.340, which says, in part: "The state may only dispose of forfeited, surplus, or recovered but unclaimed, firearms and ammunition by sale or trade to a federally licensed firearms dealer." Indicating that is the statute previously passed by the chairman, he said it isn't clear. It seems that this is not forfeited or surplused; it is recovered but unclaimed. There is a statute that discusses what to do with recovered but unclaimed things. However, this says that recovered but unclaimed guns must be sold. MR. LUCKHAUPT said that [the firearm] would not be unclaimed anymore, under this legislation. They will be able to identify an owner. If the person does not want the gun, then it is sold under AS 18.65.340. If the person wants the gun, the statute says that person is the owner and the gun has to be given to that person. This provides a way to give the gun to the finder, which is what seemed to have been done in the example provided anyway. He pointed out that common property law, which Alaska follows, says that a person who finds abandoned or lost items has a greater right to possess those items than any other person. REPRESENTATIVE CROFT expressed the desire to make it clear that DPS can do this, however. He pointed out that the bill says "when the true owner does not claim the property within a year," which seems to mean recovered but unclaimed. By operation of this statute, and appropriately so, a new owner is declared. MR. LUCKHAUPT clarified that that section does not come into play unless AS 12.36.030 directs the use of that section. He explained that AS 12.36.030 does not come into play because the property is claimed by the person that found the weapon. "So, the only way we get there is if .030 tells us to go there," he added. REPRESENTATIVE CROFT disagreed, saying that when a person brings in a gun, he or she has no claim beyond a request to be called in 12 months, at which point there could be a property interest. However, he or she claims no property interest now. Having just found it, the person cannot claim any ownership. Representative Croft said he doesn't believe the word "claim" gets the state out of the operation of these statutes. Number 0270 REPRESENTATIVE KERTTULA referred to AS 12.36.060, which begins as follows: "(a) A deadly weapon, other than a firearm or ammunition, forfeited to the state". She pointed out that AS 12.36.060 does not apply to the situation because the second comma brings it back into the regular sentence; it is not a subordinate clause. REPRESENTATIVE GREEN related his understanding that when 364 days have passed, the agency still has possession of the weapon. However, on day 365 it becomes the property of the finder and there is a claimant. It is no longer unclaimed. REPRESENTATIVE CROFT suggested at that point there is more than a claimant; there is an owner. He said Mr. Luckhaupt makes a decent argument, although it is not as clear as it should be. He pointed out the difficulty in reconciling the language that says a recovered but unclaimed firearm may only be disposed of by sale, and the statute that says a recovered but unclaimed items goes to the person who found it after a year. He indicated he would rather make it clear. REPRESENTATIVE GREEN indicated he believes the two are compatible, although perhaps clarification could be added. REPRESENTATIVE CROFT agreed with Representative Kerttula about the comma. He also agreed with Mr. Luckhaupt's and Representative Kerttula's description. However, a mandatory statute says firearms can only be disposed of in certain ways. He restated the need to define what they are talking about: recovered but unclaimed property, or property that has no owner by operation of this new language. He added, "The things that you must sell are these, and it doesn't include things that are recovered by somebody by operation of the one-year law." Number 0421 MR. LUCKHAUPT countered that this statute being added in [AS 12.36].030 says it is not unclaimed; it says there is an owner. He added, "And if that person wants it, he gets it. If he doesn't want it, then they sell it." REPRESENTATIVE CROFT noted that the existing statute uses the language "the true owner does not claim," which is similar to the language "recovered but unclaimed." He believes that it is defining this and contradictorily tying the hands as far as what can be done. He pointed out that the statute does not put it in terms of a claim that the finder has; rather, it talks about the claim that the owner has but doesn't exercise. He said they are talking here about recovered but unclaimed property after a year, and what happens to it. "And this is talking about recovered but unclaimed firearms you can't do anything with but sell," he added. He indicated he'd defer to the committee or Mr. Luckhaupt. Nonetheless, he again expressed concern about the clarity. He pointed out that Lieutenant Hudson had expressed the need for more clarity on the agency's authority to allow animals or other large found property to remain in third-party possession. He asked whether that could be written. Number 0519 MR. LUCKHAUPT replied, "I can do whatever you want." He restated that the finder of property has a greater right to the property than anyone else; if the property is abandoned, the finder owns it. That is common law property, applied in Alaska all these years, and applied in virtually every state. Furthermore, the Office of the Attorney General has issued opinions on this, to the Department of Natural Resources (DNR) and the DPS, over the years. MR. LUCKHAUPT also pointed out that a criminal statute instructs people to return whatever property they find to the true owner or to tell a policeman. Traditionally, law enforcement agencies have taken that property into possession. Regardless of whether the found item is a horse, cash or a lamp, public agencies have a better way of communicating to the public that they have found property, and a better way of storing it. He believes a member of the public who finds property has a duty to maintain that property against everyone but the true owner, and to protect it. He suggested this may be placing a burden on a finder who doesn't want that burden. REPRESENTATIVE CROFT interjected that he was not suggesting that the finder be forced to take the item; it is all going to be voluntary. He noted the need to allow for some third-party possession, however, because the DPS may not want to keep a horse at headquarters, for example. MR. LUCKHAUPT replied that nothing prevents that. "It's still in their possession," he added. "They can sit there and put it at the local stable." REPRESENTATIVE CROFT emphasized that Lieutenant Hudson had said, however, that his authority to do that wasn't clear. Number 0723 CHAIRMAN KOTT said he believes this could be cleared up by including language that is similar to AS 12.64.105, which provides for that temporary release of property. MR. LUCKHAUPT restated that law enforcement already has this authority. He isn't sure that DPS has physically kept possession, in a station, of every item recovered over the years. Some things are too big. For instance, recovered vehicles are sometimes maintained at towing yards. That leeway is already exercised and available in the statutes. CHAIRMAN KOTT posed a situation in which he finds a pig on his lawn and calls to inform the police. He asked if he would then be obligated to take care of the pig if the police don't want it. MR. LUCKHAUPT explained that under common law property laws, if Chairman Kott places his hands on the pig, then he must take care of that pig and protect it against everyone but the true owner. That is the law relating to lost property. One who doesn't want to get involved shouldn't touch it. In response to Chairman Kott's comment that he may want a ham, Mr. Luckhaupt pointed out that he would need to worry about the criminal statute regarding converting lost, mislaid or abandoned property of another for one's own use. These laws have worked for years. MR. LUCKHAUPT commented that conceivably when one finds a quarter on the ground, that person should report that finding; however, no one cares. On the other hand, if one finds $10,000, someone should be told and it should be turned over to a law enforcement agency. If that $10,000 was stolen out of the finder's home, the finder would have to repay the true owner that $10,000. This is a burden on an individual who is trying to help another person, he said. Traditionally, the burden has fallen on law enforcement. Number 0917 CHAIRMAN KOTT inquired as to what would happen if the aforementioned pig brushed up against him; would he be obligated to take care of the pig in that situation? MR. LUCKHAUPT answered that as long as Chairman Kott did not exercise any control over the pig, he would be okay. CHAIRMAN KOTT reiterated an earlier question in which the rightful owner of some property found that property more than a year later. Would the owner of the property have any rights to that property after a year? MR. LUCKHAUPT explained that if the property is abandoned, the owner would lose any right or interest in the property at the time of abandonment. If the property is merely lost, the owner would [after a year] still have a right to the return of that property. The person to whom the property was released wouldn't have absolutely clear title in that circumstance, but would have a better title than anybody else in the world except that true owner. If the property has been misplaced, he indicated, the owner does not lose title to the property and still has a right to retain that title. Mr. Luckhaupt said he would have to do more research for the specifics in this area; he indicated a statute of limitations in Title 9 would cover this. He informed the committee that a person who wanted the property back would have to file suit if the finder did not want to return the property to the owner. The owner would have to prove that the property was not abandoned. Number 1140 CHAIRMAN KOTT asked if anyone else wished to testify. There being no one, he closed the public testimony portion of the meeting. He noted Representative Bunde's presence and recalled Lieutenant Hudson's desire to have a more proactive provision in the legislation. He related that Lieutenant Hudson wanted the finder to have to tell the law enforcement agency, when turning in the property, that he/she wanted the property after the year. Without any such request, the law enforcement agency would not have to proceed with a "search and destroy mission." REPRESENTATIVE BUNDE said that was his intent. The responsibility of establishing the claim belongs to the finder. He clarified that it was not his intent to place the burden of seeking the finder on the state. He also felt it to be the finder's responsibility to contact the proper agency when the one-year waiting period has ended. CHAIRMAN KOTT suggested that was basically the testimony given by Lieutenant Hudson: there is no triggering mechanism that would highlight that the waiting period is over. REPRESENTATIVE BUNDE noted the additional cost to the state. He reiterated that the intent of the bill is to encourage people to turn in found property with the expectation that it could be returned to them if the property is not claimed or used in a criminal case. CHAIRMAN KOTT recalled Lieutenant Hudson's example of a large animal that needed to be picked up. Lieutenant Hudson had expressed the need to have a mechanism available to provide something - which Chairman Kott felt was similar to AS 12.65.105 - that provides temporary custody to the person finding it. REPRESENTATIVE BUNDE said that seems so logical that he would have difficulty in disagreeing with it. Number 1356 REPRESENTATIVE JAMES asked if finders who turn in items know that they have the option to claim the property after a year. It seems that the law enforcement agency would have some provision to allow the finder to indicate on paper whether he or she wants the property. Representative James also posed a situation in which someone brings in an item that has to be archived. She asked, once the person turns in the item [to the law enforcement agency], whether that person would be absolved of any responsibility for that item. REPRESENTATIVE BUNDE answered that it was not his intent that one who finds something would be stuck with it and obligated to care for it. He pointed out that currently when the troopers receive items that they cannot maintain or do not have the facilities for, such as animals or boats, the troopers ask someone to maintain custody, although that person has the right to refuse. REPRESENTATIVE JAMES commented that finders, then, would be on their own. REPRESENTATIVE BUNDE answered that if the person approached by the troopers declined to take on custody of the item, then the state would have to find other ways in which to dispose of the item. REPRESENTATIVE GREEN said he assumed this law was intended to be effective at the location of finding. He posed a situation in which a dog wanders outside of the municipality and no owner is found. He asked whether that would be addressed under this. REPRESENTATIVE BUNDE noted that legal advice may be necessary. However, he interprets that this would be effective at the location of where the item is found. REPRESENTATIVE GREEN pointed out that it does not apply in municipalities; therefore, if a dog were loose, that would be governed by the Humane Society within the town. If the dog were outside of the town, however, would the one-year waiting period be implemented? REPRESENTATIVE BUNDE explained that if an item is found and someone wants to establish a claim, the person has to wait a year. He further explained that if someone finds a dog and does not want the dog, and if the dog is turned into the authorities, then it is the responsibility of the authorities. Because there is no claim on the dog, it does not have to be kept for a year. REPRESENTATIVE KERTTULA related her belief that animals fall under a completely different statute. REPRESENTATIVE BUNDE indicated he didn't know. CHAIRMAN KOTT proposed that with the will of the committee, he would draft a couple of changes that he believes the sponsor concurred with, and move that as a committee substitute, unless the committee wants the bill back before it. REPRESENTATIVE KERTTULA and REPRESENTATIVE GREEN both expressed the desire to review the changes. CHAIRMAN KOTT announced that the changes would be drafted to conform with the sponsor's intent, and the bill would be brought back before the committee at the next hearing. [HB 318 was held over.] HB 288-CHILDREN WITNESSING DOMESTIC VIOLENCE CHAIRMAN KOTT announced that the next order of business would be HOUSE BILL NO. 288, "An Act relating to the creation of an aggravating factor for the commission of domestic violence in the physical presence of a child." As sponsor of HB 288, he called upon Denise Henderson to present the bill. Number 1749 DENISE HENDERSON, Staff to Representative Pete Kott, Alaska State Legislature, informed the committee that HB 288 would add a new section to AS 12.55.155(c)(18). Currently, the commission of domestic violence in the presence of a child is not included as a determining factor in the sentencing of a perpetrator. This legislation expands the list of aggravating circumstances to include the special vulnerability of the children, which would become a major factor in determining severity of the crime of domestic violence and the resulting sentence. The bill would allow the courts to consider these factors to aggravate the severity of domestic violence when committed in the presence of a child. MS. HENDERSON reported that she has seen the emotional and psychological damage that violence in the home has on children. She believes this legislation is imperative, as it would provide the court system with a new tool to further the fight against domestic violence. In working in the juvenile division of the Albuquerque District Attorney's office, she noted, there was always one underlying factor of the children in the system: domestic violence. She informed the committee that since moving to Anchorage, she has worked at Abused Women's Aid in Crisis, where once again she observed the damage that domestic violence can cause to children. Currently a court-appointed advocate with the Office of Public Advocacy in Anchorage, Ms. Henderson said this legislation would not only bring awareness to the trauma that children bear in witnessing domestic violence in the home, but it would also be instrumental in breaking this ongoing cycle. Number 1980 DAVID HUDSON, Lieutenant, Division of Alaska State Troopers, Department of Public Safety (DPS), testified via teleconference from Fairbanks. He informed the committee that law enforcement across the state and the DPS support this creation of an aggravating factor involved with domestic violence in the presence of a child for a felony crime. He expressed support of anything the legislature passes to keep offenders off the streets a little longer and not share the abuse with families and children. Number 2022 DR. ARTHUR HANSEN, Dentist, testifying via teleconference from Fairbanks, said he was in favor of HB 288. One of the instigators of this, he is the Chairman of the PANDA (Prevent Abuse and Neglect through Dental Awareness) Coalition for the Dental Society. Dr. Hansen indicated domestic violence will be carried out on a generational basis because children learn that violence is the way to solve problems. If children learn this at an early age, it will remain a part of them and they will repeat it. DR. HANSEN also expressed support for the proposed change to the bill that he understands to exist, which is insertion of the language "or within hearing of the child.". He indicated all literature points out domestic violence as the starting point of crime for children. He referred to Bruce Perry (ph) [at Baylor University], who he said has shown that factors that take place from 33 [weeks] of gestation through a child's first three years relate to some people becoming violent. Dr. Hansen commented that when he sees two adults in a domestic violence situation, he wonders how they arrived at that point and if they maybe do the same thing that their parents did; he acknowledged that this connection is not necessarily true, although all developmental psychology points to it. DR. HANSEN explained why dentists are involved in this matter. He told members that dentists have a code of ethics through the American Dental Association (ADA), which obligates them to report all child abuse and neglect. This past October, ADA passed another resolution mandating that dentists receive education on the subject of child abuse and neglect; Dr. Hansen informed the committee that he chairs the program that does that. He said the Dental Society is involved because dentists see these patients. Dr. Hansen urged the committee to pass this legislation. He mentioned the need to think about parent training, parent education and anger management training that could be required along with the judge's sentencing. Furthermore, there should be consideration with regard to where the aforementioned training would come from. TAPE 00-12, SIDE A Number 0001 PATTY KALLANDER, Member on the Board of Directors and Volunteer, Cordova Family Research Center (CFRC), testified via teleconference from Cordova, indicating she is a trained legal advocate for victims of domestic violence and an adult survivor. She pointed out that statistics show that growing up in a household with domestic violence leads to depression, alcoholism, drug abuse, anger control problems and a high incidence of suicide. She stated that the proposed amendment is an important one to add to HB 288. She requested clarification about the term "physical presence," however, and wondered if that included being in another room from where the domestic violence was taking place. She explained that she was diagnosed with post traumatic stress syndrome years ago, as were all of her siblings; they have all dealt with depression, alcoholism and drug abuse. Therefore, she informed the committee, she is in favor of HB 288. Number 0260 MS. HENDERSON noted that there is a proposed amendment to HB 288. She explained that after the bill was written, it was taken into consideration that children in another room from where domestic violence is taking place are affected. CHAIRMAN KOTT stated that he believes it is just as important if children are in another room, because it probably has just as much affect on them as if they were in the same room. Number 0340 REPRESENTATIVE CROFT made a motion to adopt the proposed amendment, which read [original punctuation provided]: The purpose of this amendment is to add to the aggravating factor in the hearing of a child. The new aggravating factor would now be "in the presence of or within hearing of a child" Specific changes are: Amend the title. Page 1, line 2 to read..domestic violence in the physical presence or hearing of a child." Page 1, line 13 add after the word presence or hearing Number 0403 REPRESENTATIVE GREEN objected for the purpose of discussion. He directed a question to Anne Carpeneti, Assistant Attorney General, and asked whether, when talking about domestic violence in statute, it is always considered an assault. He further asked whether it is ever a misdemeanor. ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, responded that it is not always considered an assault. She affirmed that it could be a misdemeanor. REPRESENTATIVE GREEN expressed concern that they are elevating a misdemeanor to a felony by someone hearing domestic violence in another room. MS. CARPENETI clarified that it is an aggravating factor. It applies to sentencing in felony cases and in those cases where presumptive sentencing applies. They are not elevating a misdemeanor to a felony. Instead, they are giving more latitude to the court in sentencing a person in crimes where there has been a conviction of a felony and a presumptive term applies. REPRESENTATIVE GREEN gave a hypothetical example where a parent feels that it is necessary to severely spank a child. He asked: If the child is younger than 16, could that child or a sibling bring that up as a domestic violence issue? MS. CARPENETI responded that a child could report the incident to the police, who would have to look at the circumstances of the offense to see if a crime was committed. She pointed out that generally parents are allowed to discipline their children, and that includes some corporal punishment. Those lines are tough to draw and tough to describe. She clarified that HB 288 applies to people who are being sentenced after they have already been convicted of felony offenses. Number 0603 REPRESENTATIVE GREEN withdrew his objection. CHAIRMAN KOTT announced that without objection, the proposed amendment has been adopted. Number 0611 REPRESENTATIVE MURKOWSKI wondered if there is a reason why they are limiting it to members of the household as opposed to children who might be at the scene. Although Ms. Carpeneti deferred to the sponsor, Representative Murkowski asked for her input. MS. CARPENETI pointed out the cycle of domestic violence where children see it growing up and think it is acceptable; therefore, as adults they end up abusing people around them. She explained that the reason it probably does not apply to any child present is because that same relationship does not exist, even though it would be traumatic. CHAIRMAN KOTT indicated that Ms. Carpeneti's response is one of the reasons they had narrowed the bill in scope. He explained that most of the research out there shows that the greatest degree of trauma and emotional damage is done to the child whose parents were involved in the domestic violence. REPRESENTATIVE MURKOWSKI wondered if less weight would be given as an aggravating factor with regards to the age of the child and the child's ability to understand what is going on. MS. CARPENETI responded, "Yes." She explained that the state would have to prove factors of aggravation with clear and convincing evidence. The judge is given more discretion to impose a sentence and can take these matters into consideration. She pointed out that an altercation may have caused great damage to the infant, who may have been in the way of items being thrown around. Number 0898 REPRESENTATIVE GREEN made a motion to move HB 288, as amended, from the House Judiciary Standing Committee with individual recommendations and the attached zero fiscal note. REPRESENTATIVE JAMES pointed out the need for a title change. She asked whether what the committee had done was sufficient to extend that amendment to the title. CHAIRMAN KOTT affirmed that, saying it would be conceptually ingrained in the title. REPRESENTATIVE KERTTULA thanked Representative Kott for introducing HB 288, and thanked his staff for all the work they have done. Number 0949 CHAIRMAN KOTT noted that his research had revealed the effect of domestic violence on the business community in the United States is a loss of between $3 and $5 billion. He announced that without objection, CSHB 288(JUD) was moved out the House Judiciary Standing Committee. HB 259 - PUBLIC DEFENDER CHILDREN'S PROCEEDINGS CHAIRMAN KOTT announced that the next order of business would be HOUSE BILL No. 259, "An Act relating to a parent's eligibility to be represented by the public defender before and during the probable cause and temporary placement hearing that is held after the state takes emergency custody of a child." Before the committee was CSHB 259(STA). Number 1003 REPRESENTATIVE JOHN COGHILL, Alaska State Legislature, sponsor, explained that HB 259 addresses getting counsel to parents who have to deal with a system that is sometimes very difficult to understand. Many times a child is taken into protective custody and there is a statutorily mandated 48-hour hearing. In Anchorage, he noted, people are previewed to see whether they are indigent, and then are given counsel before a judge at the 48-hour hearing; however, that is not always the case. He has proposed a bill, therefore, that will get counsel to people at that 48-hour hearing, because once the determination is made that a child needs assistance, the family enters into a system that is a whole new world, and they need to understand what is going on at that juncture. He explained that HB 259 is intended for getting counsel as easily as possible for people that are in need. Number 1156 REPRESENTATIVE CROFT made a motion to adopt Amendment 1, which read: Page 1, line 6: Delete "A" Insert "Subject to the other provisions of this subsection, a" Page 1, lines 7-8: Delete ",pending a determination of indigency," Page 1, line 10: Delete "under this subsection" Insert "in connection with the hearing" Page 2, line 2, following "expense.": Insert "If a person who was represented by the Public Defender Agency at public expense without a court order in connection with a hearing held under AS 47.10.142(d) is not later determined to be eligible for court-appointed counsel at public expense under applicable laws and court rules, the court shall assess against the represented parent the cost to the Public Defender Agency of providing the representation." CHAIRMAN KOTT objected for the purpose of discussion. REPRESENTATIVE COGHILL explained that Amendment 1 simply says that the expense can be prorated back to a person who is found, after the hearing, to be able to afford it. Number 1237 CHAIRMAN KOTT withdrew his objection and announced that without objection, Amendment 1 had been adopted. Number 1258 HARRY NIEHAUS testified via teleconference from Fairbanks, specifying that he was speaking on behalf of the Guardians of Family Rights, in support of HB 259. He referred to page 2, line 7, where it reads, "any income source the person has had for a period of three years." He asked if it is three years or one year. REPRESENTATIVE COGHILL indicated it is three years in existing law. Number 1319 MARCI SCHMIDT testified via teleconference, encouraging the passage of HB 259. She explained that many parents and other family members that have entered into the Division of Family and Youth Services (DFYS) process have felt that they needed representation during the first hearings. She indicated that a lot of people have been beguiled into admitting probable cause without knowing what they are saying. She believes HB 259 would be cost-effective and would help out in the long run in getting people to cooperate, getting some cases dismissed and clearing up some workloads. REPRESENTATIVE GREEN asked Ms. Schmidt whether she believes it would help or hinder the process to have a notification made that an attorney will be provided, but that if it is found later that the person can afford the attorney, that person will be charged for the service. MS. SCHMIDT indicated that she doesn't think it will hinder the process. She explained that it is very hard to find a private attorney in child-in-need-of-aid (CINA) cases, which are long, expensive and dragged out. She said it would be cost-effective and also might encourage privatized attorneys to come forward and represent a client. She added that currently it is about $10,000 to get an attorney in the private sector. Number 1460 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. He pointed out that his agency had submitted a fiscal note with an analysis. His agency believes that they could start earlier in cases, which is better; it is important to have some leeway in their duties here, however, and the words "may be represented" are very important to them. Mr. McCune noted that conflicts of interest are tricky in these cases; the agency may sometimes have to sort out a conflict before determining whether to represent someone. He added, "And also I think we have to be careful we take the most serious case in order to save money and time down the road." MR. McCUNE advised members that his agency doesn't anticipate doing additional work on those cases. He stated, "We'd be working sooner and hopefully get things resolved quicker, but I can't promise 24- hour-a-day coverage and unlimited resources devoted to this. But within our resources, I think getting parents representation sooner in these cases is a good idea." Mr. McCune expressed agreement with the amendment adopted. As far as eligibility and recoupment of costs, he said that is up to the legislature. He added: Of course, we don't want to represent people who are financially able to hire their own attorneys. We can recommend some attorneys. I know in Anchorage there are some attorneys who do take these cases and charge maybe a little less than the previous speaker said, but I know in other areas of the state it is difficult. But if we find somebody who's presumptively eligible - in other words, somebody who has currently received some public assistant or has had counsel appointed for them in the past - I think we'd feel real comfortable going ahead and representing them without a determination of indigency. Number 1602 CHAIRMAN KOTT wondered if the zero fiscal note is derived from the assumption that few indigent people will have to be accommodated or if the assumption is that the few numbers out there will be absorbed in the current budget. MR. BLAIR responded: What I anticipate is that the people who we would work with under this would be people who we would eventually be appointed to represent in the course of business the way things usually are going under the current legislation. ... We could represent people we would eventually be appointed to represent, but start with them earlier. And that's my assumption. CHAIRMAN KOTT requested clarification on the fiscal note analysis where it reads, "The Public Defender Agency does not anticipate any fiscal impact from this legislation if it is amended so that we are not obligated to represent non-indigent parents." MR. BLAIR responded that the language was in the analysis before the committee substitute (CS) was adopted for HB 259. He said he would proofread it better and take the language out. CHAIRMAN KOTT wondered how much discretion the Public Defender Agency has in representing the people that are in these type of cases. MR. BLAIR replied that the answer is none. He explained that once they are appointed by the court to represent the person, unless there is a conflict of interest or some reason for them to withdraw, the agency will take the case. CHAIRMAN KOTT, noting that there were no further testifiers, closed public testimony. Number 1765 REPRESENTATIVE CROFT made a motion to move CSHB 259(STA), as amended, with individual recommendations and the attached zero fiscal note from the committee. There being no objection, CSHB 259(JUD) was moved out of the House Judiciary Standing Committee. ADJOURNMENT Number 1794 CHAIRMAN KOTT adjourned the House Judiciary Standing Committee meeting at 3:23 p.m.