ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 31, 2014
2:30 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Bob Lynn, Vice Chair
Representative Gabrielle LeDoux
Representative Lance Pruitt
Representative Max Gruenberg
MEMBERS ABSENT
Representative Neal Foster
Representative Charisse Millett
COMMITTEE CALENDAR
COMMITTEE SUBSTITUTE 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."
- MOVED OUT OF COMMITTEE
SENATE BILL NO. 186
"An Act relating to the Controlled Substances Advisory Committee
and providing for mandatory meetings of the committee at least
twice a year."
- MOVED OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 110
SHORT TITLE: RETURN OF SEIZED PROPERTY
SPONSOR(s): SENATOR(s) DYSON
01/22/14 (S) PREFILE RELEASED 1/10/14
01/22/14 (S) READ THE FIRST TIME - REFERRALS
01/22/14 (S) JUD
02/19/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/19/14 (S) Heard & Held
02/19/14 (S) MINUTE(JUD)
02/21/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/21/14 (S) Moved CSSB 110(JUD) Out of Committee
02/21/14 (S) MINUTE(JUD)
02/24/14 (S) JUD RPT CS 2DP 1NR SAME TITLE
02/24/14 (S) DP: COGHILL, DYSON
02/24/14 (S) NR: OLSON
03/10/14 (S) TRANSMITTED TO (H)
03/10/14 (S) VERSION: CSSB 110(JUD)
03/12/14 (H) READ THE FIRST TIME - REFERRALS
03/12/14 (H) JUD
03/31/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 186
SHORT TITLE: CONTROLLED SUBSTANCES ADVISORY COMMITTEE
SPONSOR(s): SENATOR(s) DYSON
02/21/14 (S) READ THE FIRST TIME - REFERRALS
02/21/14 (S) JUD
03/12/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/12/14 (S) Moved SB 186 Out of Committee
03/12/14 (S) MINUTE(JUD)
03/14/14 (S) JUD RPT 4DP 1NR
03/14/14 (S) DP: COGHILL, WIELECHOWSKI, MCGUIRE,
DYSON
03/14/14 (S) NR: OLSON
03/21/14 (S) TRANSMITTED TO (H)
03/21/14 (S) VERSION: SB 186
03/24/14 (H) READ THE FIRST TIME - REFERRALS
03/24/14 (H) JUD
03/31/14 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SENATOR FRED DYSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 110 as sponsor.
CHARLES KOPP, Staff
Senator Fred Dyson
Alaska State Legislature
POSITION STATEMENT: Presented SB 110 on behalf of Senator Dyson.
NANCY MEADE, General Counsel
Alaska Court System
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Answered questions regarding SB 110.
SENATOR FRED DYSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 186 as sponsor.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding SB 186.
CHARLES KOPP, Staff
Senator Fred Dyson
Alaska State Legislature
POSITION STATEMENT: Answered questions regarding SB 186.
ACTION NARRATIVE
2:30:59 PM
VICE CHAIR BOB LYNN called the House Judiciary Standing
Committee meeting to order at 2:30 p.m. Representatives LeDoux,
Pruitt, Gruenberg, and Lynn were present at the call to order.
Chair Keller arrived as the meeting was in progress.
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
SB 186-CONTROLLED SUBSTANCES ADVISORY COMMITTEE
CHAIR KELLER announced that the next order of business would be
SENATE BILL NO. 186, "An Act relating to the Controlled
Substances Advisory Committee and providing for mandatory
meetings of the committee at least twice a year."
SENATOR FRED DYSON, Alaska State Legislature, said that SB 186
is small but it is not simple. "In 1982, one of the last things
that Governor [Jay] Hammond did-and this was originally the
whole section of the code on controlled substance, scheduled
substances, was a part of the Governor's package." He said it
originated in the House and sets up "that whole section." The
first part sets up a Controlled Substance Advisory Committee, he
said, and it is extraordinary how wisely it was done. "[The
section] had the right people with the right kind of knowledge
and experience, and challenges them to watch over how we handle
controlled substances," he stated. He spoke of [the committee
members] having knowledge of the effects of the substances,
effectiveness of treatments, economics, appropriateness of
sentences, and diversionary ways of handling people with drug
problems.
3:09:32 PM
SENATOR DYSON said, "It commands that they meet twice a year."
The bill passed with a $170,000 fiscal note, which the
legislature approved, "and nothing happened." Governor Hammond
returned to Lake Clark and Bella went back to set-netting at
Naknek Point, and nothing happened, he reiterated. He said his
office is working on some sentencing and criminal justice issues
as well as the complex restorative justice issue. He stated
that he has had some experience and a lot of frustration with
administrations not following clear legislative intent or the
statute. Everyone was ignorant of what was done in 1982, he
opined. In the fall of 2013, an attorney saw SB 56, which is
now in House Finance, and represented in court that if this
commission had been put in place and had been followed, her
client would not be facing a draconian sentence that he was
getting. The attorney requested that the whole section of the
law be thrown out, but that was unacceptable to the Department
of Law, he noted. The Assistant Attorney General actually
argued in court that the administration did not need to pay
attention to what the legislature put in code, because if it
meant it, there would have been a penalty for noncompliance.
3:11:53 PM
SENATOR DYSON said it is unacceptable that for 32 years
successive administrations have failed to do this very
reasonable thing of evaluating our war on drugs and treatment
programs. He noted his very good efforts at getting things into
law, but nothing happened in the way he anticipated. "So what
you have on this page ... this is what our [legislative
attorney] tells us is the necessary words to make sure that it
is clear in the statute that we mean what we say." He told the
committee to "watch these things," and make sure that the
intention of the legislature is followed. If the language he
proposes does not make that happen, he has some draft language
that says, "Failure of compliance will mean class C felony and
these four PCNs [position control numbers] go away."
SENATOR DYSON said all he is asking is to change a couple of
words so that it becomes clearer that what the legislature said
in 1982 is followed.
3:13:46 PM
REPRESENTATIVE LEDOUX said if the administration has argued that
it does not have to follow the law unless there is a penalty,
why is there no penalty?
SENATOR DYSON answered that the current administration did not
know that "this stuff was in the law," and it is supportive of
the legislation. He did not put in a penalty because he has
been told that his wording will work, but the Department of Law
and the Attorney General "were really between a rock and hard
place." They had to generate a defense of why the entire
section of the code should not be thrown out, so he does not
believe that it is the position of this administration that "we
need to make it more draconian, but I am asking you ... to watch
this stuff."
3:15:30 PM
REPRESENTATIVE LEDOUX said the legislature does not always make
the laws for the good people; sometimes laws are made because
there are some people who do not listen unless there is a
penalty. She noted that other administrations apparently have
not complied because there was no penalty. "To me, the old
language looks pretty much like the new language," so she is not
sure what the bill accomplishes.
CHAIR KELLER said the committee will take an at-ease so that
Representative LeDoux can talk to the sponsor. He stated that
getting the discussion on the record will have a big impact, and
"it's part of our job to keep track of this stuff, and sometimes
we fail."
3:16:28 PM
SENATOR DYSON said that the Department of Law is supportive, and
Anne Carpeneti can explain what went on in that court case.
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), stated that
there is not much difference between the old language and the
new language in SB 186, but the language in the amendment is
more demanding than current law. Senator Dyson is correct; the
Department of Law was not aware of this [Controlled Substances
Advisory Committee], and there are probably others that DOL is
unaware of. She said she is sure that the committee has not
been funded since the law was originally passed. She explained
that the reason the state took the position that it did in the
aforementioned litigation was that the plaintiffs were trying to
get the statutes set aside and not followed. The legislature
had adopted these laws, so the state's position was that the law
could not be set aside just because the [committee] had not been
formed.
3:19:02 PM
REPRESENTATIVE LEDOUX asked what happened to the $170,000.
MS. CARPENETI said she believes that monies not expended are
returned to the general fund.
REPRESENTATIVE GRUENBERG asked if the commission is within DOL.
CHARLES KOPP, Staff, Senator Fred Dyson, said the Controlled
Substances Advisory Committee is within the Department of Law,
and the Attorney General is the chair.
3:20:50 PM
REPRESENTATIVE GRUENBERG asked why the committee has not been
meeting.
CHAIR KELLER said the DOL did not know it existed.
REPRESENTATIVE GRUENBERG asked if the committee will now meet.
If the commission is not beneficial, "maybe we don't need it."
MS. CARPENETI said that she believes that a periodic review of
Alaska laws is a good thing.
3:22:21 PM
SENATOR DYSON said that is an inadequate answer. The law
requires the committee to meet twice a year and it is rigorously
required to do analysis and report to the governor. "And it
says the governor shall initiate legislation to deal with
inadequate sentencing, changes in the drugs that are coming
after us, evaluating diversion programs, i.e. therapeutic
courts, and so on and so forth, and treatment programs." He
said he is really glad that this administration has been quite
positive about getting after this, but he does not want anyone
going out of this meeting thinking that he is calling for a nice
group of people to get together every once in a while and work
on this. "I want the rigorous process that Governor Hammond and
his team laid out then," he stated. That includes formal
meetings, reports, and recommendations to the governor.
CHAIR KELLER said he is grateful that this has been brought
forward. It has affected people's lives because it has not been
in place. He added that he is grateful to the DOL for picking
up the baton and making it happen from here on out.
3:24:12 PM
CHAIR KELLER closed public testimony.
REPRESENTATIVE LYNN moved to report SB 186 out of committee with
individual recommendations and the accompanying fiscal notes.
Hearing no objection, SB 186 was reported from the House
Judiciary Standing Committee.
CHAIR KELLER noted that amendments to the crime bill are due by
2:00 PM tomorrow.
3:26:01 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:26 P.M.