Legislature(2009 - 2010)HOUSE FINANCE 519

04/12/2010 01:30 PM House FINANCE

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
--Recessed to Call of Chair to 4/13/10--
Moved HCS CSSB 110(FIN) Out of Committee
Moved CSHB 324(FIN) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHB 283(FIN) Out of Committee
<Bill Held Over from 8:00 Meeting>
Moved CSHB 126(FIN) Out of Committee
<Bill Held Over from 8:00 Meeting>
HOUSE BILL NO. 324                                                                                                              
     "An Act  relating to  the crime  of failure  to appear;                                                                    
     relating to arrest for  violating certain conditions of                                                                    
     release;  relating  to  release  before  trial,  before                                                                    
     sentence,  and  pending  appeal; relating  to  material                                                                    
     witnesses; relating  to temporary release;  relating to                                                                    
     release on a petition  to revoke probation; relating to                                                                    
     the first  appearance before  a judicial  officer after                                                                    
     arrest;  relating to  service of  process for  domestic                                                                    
     violence    protective   orders;    making   conforming                                                                    
     amendments; amending  Rules 5  and 41, Alaska  Rules of                                                                    
     Criminal  Procedure,  and  Rules 206  and  603,  Alaska                                                                    
     Rules  of Appellate  Procedure;  and  providing for  an                                                                    
     effective date."                                                                                                           
3:13:38 PM                                                                                                                    
Co-Chair  Hawker  moved  to  adopt  work  draft  26-GH2910\S                                                                    
Luckhaupt 4/11/10.                                                                                                              
Co-Chair Stoltze OBJECTED.                                                                                                      
Mr. Svobodny  stated that  Section 1 of  the bill  moves the                                                                    
offense  of failure  to appear  in  court from  Title 12  to                                                                    
Title 11. The  current bail bill was passed in  1966 and has                                                                    
not  been  updated  or  moved when  the  criminal  code  was                                                                    
revised in  1978 by the  legislature. The section  moves the                                                                    
location of the  crime from the criminal section  of the law                                                                    
to  the criminal  law. The  state must  prove that  a person                                                                    
knew that  they must  appear in  court. This  bill clarifies                                                                    
that  we are  not able  to prove  the negative.  The section                                                                    
does not refer to strict  liability which means that despite                                                                    
a person's excuse, if a  law is broken, they are prosecuted.                                                                    
The law here provides an affirmative defense.                                                                                   
Mr. Svobodny continued  with Section 2. He  pointed out that                                                                    
the section allows  for police arrest without  a warrant for                                                                    
violating a condition of release.  Section 3 establishes the                                                                    
procedures for  obtaining bail in  any particular  case. The                                                                    
section  aligns  with  present   bail  conditions  and  adds                                                                    
conditions deemed appropriate by the court system.                                                                              
3:19:41 PM                                                                                                                    
Mr.  Svobodny  stated that  the  section  requires a  person                                                                    
released  from court  to be  released on  bail or  their own                                                                    
recognizance. The signed conditions  of release can cost the                                                                    
court system time in the  state's view. For important events                                                                    
the  state  requires  a  signature  for  the  conditions  of                                                                    
release. A  provision where a  judge can change bail  at any                                                                    
time he or she deems appropriate is dropped.                                                                                    
3:22:56 PM                                                                                                                    
Mr. Svobodny  noted that the  process describes  the various                                                                    
circumstances regarding  appropriate conditions  of release.                                                                    
He pointed  out Section  4 and the  burden of  persuasion or                                                                    
proceedings which establishes that  the state has the burden                                                                    
of proving  the person is  a threat to society.  A defendant                                                                    
must go  forward to show that  they are not a  danger to the                                                                    
community.  When   the  charge   before  the  court   is  an                                                                    
unclassified felony,  the defendant must show  the court why                                                                    
they  are likely  to appear  or why  they do  not present  a                                                                    
danger  to  the community.  The  next  situation includes  a                                                                    
previous  felony offense  which  is included  in  the CS.  A                                                                    
person seeking bail while engrossed  in another case on bail                                                                    
must  come  forward  to  prove  that  they  can  follow  the                                                                    
conditions release.                                                                                                             
3:27:44 PM                                                                                                                    
Mr. Svobodny  noted that Section  4 addresses  situations of                                                                    
extradition.  He commented  on the  debate about  bail in  a                                                                    
case  of   extradition.  Alaskan   courts  have   held  that                                                                    
following a  governor's warrant there is  not bail following                                                                    
a   case  of   extradition.  A   person  who   fled  another                                                                    
jurisdiction may flee the current  one or may prove a danger                                                                    
to the  community. Evidence can  be presented on  the normal                                                                    
conditions of release if a court can be convinced.                                                                              
Mr.  Svobodny discussed  special  conditions  that apply  in                                                                    
special  cases. He  noted specific  provisions for  specific                                                                    
crimes.  For alcohol  related crimes,  the court  can impose                                                                    
certain conditions.  He pointed  out special  provisions for                                                                    
crimes that involve drug offenses.                                                                                              
3:32:15 PM                                                                                                                    
Mr. Svobodny continued with Section  5 and the protection of                                                                    
the  public.  A  third  party  custodian  might  be  issued.                                                                    
Standards for  the appointment of third  party custodians do                                                                    
not  yet  exist.  He  provided an  example.  The  bill  does                                                                    
contain exclusions  for people  who are seeking  third party                                                                    
Representative  Gara suggested  that the  sectional analysis                                                                    
be reserved for questions.                                                                                                      
3:35:00 PM                                                                                                                    
Mr. Svobodny stated  that the Court of  Appeals overturned a                                                                    
decision  made by  the legislature  about a  prohibition for                                                                    
people charged with committing a  crime of domestic violence                                                                    
that resolves  the dispute.  The law  requires a  twenty day                                                                    
cooling off period.  The defendant must show  that they will                                                                    
not  present  a danger  to  the  person. Currently  the  law                                                                    
states that a  person must be brought before  a court within                                                                    
twenty four  hours to  set bail, but  this bill  changes the                                                                    
time to forty eight hours.                                                                                                      
3:37:40 PM     AT EASE                                                                                                        
3:39:33 PM     RECONVENED                                                                                                     
QUINLAN  STEINER,  PUBLIC  DEFENDER  AGENCY,  DEPARTMENT  OF                                                                    
ADMINISTRATION,  commented  page  seven, line  eight,  which                                                                    
could impact the  agency in terms of the  conduction of bail                                                                    
hearings.  If  judges  interpret  the section  in  a  highly                                                                    
technical  manner,  the  change would  require  the  defense                                                                    
council  to use  evidence related  to the  defense to  rebut                                                                    
that   presumption.  The   section   could  be   interpreted                                                                    
differently, but if elected,  defense attorneys are required                                                                    
to make  a decision.  He commented  on Page  12, Line  13 in                                                                    
which defense  is required to  use evidence about  the event                                                                    
itself  to meet  the  burden  that might  commit  them to  a                                                                    
defense of the disclosure of defense theories and evidence.                                                                     
Vice-Chair Thomas asked  if Mr. Steiner had  spoken with the                                                                    
sponsors  of  the  bill  about  his  concerns.  Mr.  Steiner                                                                    
responded yes.                                                                                                                  
Mr.  Svobodny  responded  that   a  person  must  illustrate                                                                    
whether they are a danger  to various entities. He continued                                                                    
with  Page  12,  Line  13 the  addresses  domestic  violence                                                                    
situations and cooling off period.  The section allows for a                                                                    
finding that the  court must make in  the circumstances with                                                                    
a domestic case.                                                                                                                
3:46:33 PM                                                                                                                    
JEFFREY   MITTMAN,   EXECUTIVE  DIRECTOR,   AMERICAN   CIVIL                                                                    
LIBERTIES  UNION  (ACLU)  OF  ALASKA  (via  teleconference),                                                                    
expressed    ACLU's   concerns    with   respect    to   the                                                                    
constitutionality  of   the  bill.   He  noted   that  prior                                                                    
correspondence with the Judiciary  Committee has been placed                                                                    
on the  BASIS system  in the  documents section.  He pointed                                                                    
out  Page 3,  Lines 23  which  encompasses the  change to  a                                                                    
forty eight  hour period for  an initial hearing.  He stated                                                                    
that ACLU believes  that the standard of 24  hours in Alaska                                                                    
is effective  and it may  be unreasonable to  statutorily or                                                                    
legislatively change  from a  24 hour to  a 48  hour period.                                                                    
Page 5, Line 23-24 along with  Page 6, Lines 12-15 allow for                                                                    
conditions that  enable the court  to mandate that  a person                                                                    
maintain   employment  or   that  they   follow  a   medical                                                                    
provider's treatment.  These requirements apply to  a person                                                                    
that has  been charged  but not  yet convicted  making their                                                                    
rights  those  of  an  innocent   person.  He  believed  the                                                                    
requirement  unconstitutional as  a judicial  mandate on  an                                                                    
individual  who  is  not yet  under  court  supervision.  He                                                                    
continued with Page  7, lines 8 and 9, which  is the area of                                                                    
greatest concern for the ACLU.  The Alaska constitution sets                                                                    
forth that  a person  has a  right to  bail. To  reverse the                                                                    
statute   by   legislative    action   is   constitutionally                                                                    
inappropriate.  He  commented  that the  exception  for  the                                                                    
presumption  of  bail was  with  capital  offense where  the                                                                    
evidence is great. That high  standard governs and to create                                                                    
a rebuttable presumption would  prove improper. He continued                                                                    
with Page  8, Lines 8-28  which include the mandate  that an                                                                    
individual would be  required to submit to  a search without                                                                    
a warrant.  He continued  with Page 10,  Line 15-19  and the                                                                    
imposition of third party  custodian status. The presumption                                                                    
for bail is that a person  is entitled to bail and the court                                                                    
imposition  of conditions  should  be  less restrictive.  He                                                                    
recommended  additional   language  stating  that   a  court                                                                    
finding of an  imposition of a third party  custodian is the                                                                    
least restrictive means to assure  that a person appears for                                                                    
the safety of the victim.                                                                                                       
3:52:50 PM                                                                                                                    
Representative  Doogan  asked   about  the  unconstitutional                                                                    
nature of the bill.                                                                                                             
Mr.  Svobodny  addressed  the   concerns  presented  by  Mr.                                                                    
Mittman. He  addressed the initial concern  about the change                                                                    
from 24  to 48 hours. He  noted that Alaska is  one of three                                                                    
states with a  24 hour requirement. He pointed  out that the                                                                    
Supreme Court agreed to 72 hour limits.                                                                                         
Mr.  Svobodny addressed  Mr. Mittman's  complaints regarding                                                                    
conditions  of   bail  including   use  of   medication  are                                                                    
conditions  commonly set  by the  court.  Often, people  are                                                                    
incarcerated   that  have   mental   illness  or   diabetes.                                                                    
Conditions of  release are typically  set by the court  at a                                                                    
hearing where  there has  been a  finding of  probable cause                                                                    
that a person has committed the  crime. The court then has a                                                                    
responsibility about  the least restrictive  alternative for                                                                    
the  person.  The  law  presumes that  the  person  will  be                                                                    
released  on their  own recognizance  unless they  present a                                                                    
danger to flee  or a danger to the victim  or the community.                                                                    
The  judge  must then  establish  conditions  of release  to                                                                    
protect the interests of the people.                                                                                            
Mr.  Svobodny  continued with  Page  7,  Lines  8 and  9.  A                                                                    
presumption includes  the person who proves  the proposition                                                                    
that  a  person  is  a  flight  risk  or  a  danger  to  the                                                                    
community. The presumption  is found in the  federal law and                                                                    
many other states.                                                                                                              
3:59:40 PM                                                                                                                    
General Sullivan  stated that HB  324 is the  most important                                                                    
legislation  this session  since  bail  legislation has  not                                                                    
been reformed since the 1950s.  He acknowledged the value of                                                                    
victims' safety.  He commented that  if a community  has the                                                                    
guts to  put a person  in jail and  he is eligible  for bail                                                                    
that places innocent  people at risk. He  outlined the broad                                                                    
approach  to  the  issue  of  bail.  He  believed  that  the                                                                    
provisions  were  important  as   they  promote  safety.  He                                                                    
believed  that  the  presumption issue  suggested  that  the                                                                    
state must  keep up  with the  federal rules.  He emphasized                                                                    
that the  approaches in the  bill were important  to keeping                                                                    
Alaskan communities and victims safer.                                                                                          
4:05:13 PM                                                                                                                    
Representative Doogan requested  clarification on the issue.                                                                    
Mr.  Svobodny responded  that every  person has  a right  to                                                                    
bail. If  the state  notes that a  person is  dangerous then                                                                    
the right to bail is  limited. The presumption shifts when a                                                                    
defendant  can prove  that  they are  not  flight risks.  He                                                                    
referred to Page  8, Line 28 and the  reference to searches.                                                                    
He  clarified  that  the  police   cannot  search  a  person                                                                    
indiscriminately. The law  states "to submit to  a search of                                                                    
the  defendant's personal  property, residence,  vehicle, or                                                                    
any vehicle  over which  the defendant  has control  for the                                                                    
possession of  alcoholic beverage or illegal  drugs and drug                                                                    
paraphernalia by a peace officer  has a reasonable suspicion                                                                    
that   the  defendant   is  violating   the  terms   of  the                                                                    
defendant's bail release."  If there is a  nexus between the                                                                    
condition and the  crime, conditions of bail  release can be                                                                    
imposed including searches based upon reasonable suspicion.                                                                     
Mr.  Svobodny addressed  the  question  regarding the  third                                                                    
party custodian. He noted that  a third party custodian is a                                                                    
tool the  judge uses  to retain  the defendant.  Third party                                                                    
custodians  exist  following  a court  finding  of  probable                                                                    
cause that the person has committed the crime.                                                                                  
4:09:47 PM                                                                                                                    
Co-Chair  Stoltze  removed  his objection.  There  being  NO                                                                    
OBJECTION, it was so ordered and Version S was ADOPTED.                                                                         
Representative Kelly  asked about Page 7  and the rebuttable                                                                    
presumption.   He  asked   about   other  state's   policies                                                                    
regarding rebuttable  presumption. Ms. McLean  answered that                                                                    
eleven states have expressly rebuttable presumption.                                                                            
4:12:29 PM     AT EASE                                                                                                        
4:13:32 PM     RECONVENE                                                                                                      
Co-Chair Stoltze noted all zero  fiscal notes except one for                                                                    
$50 thousand for the draft CS recently adopted.                                                                                 
Representative   Gara   explained   that   with   rebuttable                                                                    
presumption additional  time is  not necessary. He  MOVED to                                                                    
Zero out  the fiscal  note dated  4/12/10. The  $50 thousand                                                                    
was reduced to zero.                                                                                                            
4:16:09 PM                                                                                                                    
Vice-Chair  Thomas MOVED  to report  CSHB 324  (FIN) out  of                                                                    
Committee   with   individual    recommendations   and   the                                                                    
accompanying fiscal notes. There  being NO OBJECTION, it was                                                                    
so ordered.                                                                                                                     
CSHB  324 was  REPORTED out  of Committee  with a  "do pass"                                                                    
recommendation  and  with  attached  new zero  note  by  the                                                                    
Department of Administration, attached  new zero note by the                                                                    
House Finance  Committee for the  Alaska Courts  System, and                                                                    
previously  published fiscal  notes: FN1  (ADM), FN3  (COR),                                                                    
FN4 (LAW), and FN5 (DPS).                                                                                                       
4:18:07 PM                                                                                                                    

Document Name Date/Time Subjects
HCS for CSSB 110(JUD) sectional.doc HFIN 4/12/2010 1:30:00 PM
SB 110
HCS for SB110 Sponsor Statement.doc HFIN 4/12/2010 1:30:00 PM
SB 110
HB 324 CSWORKDRAFT S VERSION.pdf HFIN 4/12/2010 1:30:00 PM
HB 324
HB 324 CSWORKDRAFT S VERSION.pdf HFIN 4/12/2010 1:30:00 PM
HB 324
AK S.B. 222 Letter to House Finance Committee.pdf HFIN 4/12/2010 1:30:00 PM
SB 222
CSHB324(JUD)-DOA-PDA-04-12-10.pdf HFIN 4/12/2010 1:30:00 PM
HB 324
SB 222 Gov. Letter & ACLU Letter.pdf HFIN 4/12/2010 1:30:00 PM
SB 222
DOC001.PDF HFIN 4/12/2010 1:30:00 PM
SB 222
10 CSHB 324 (JUD) FN NEW COURTS.pdf HFIN 4/12/2010 1:30:00 PM
HB 324
10 CSHB 324 (JUD) FN.pdf HFIN 4/12/2010 1:30:00 PM
HB 324
06 HB324 ACLU Position paper 2010 03 22[1].pdf HFIN 4/12/2010 1:30:00 PM
HB 324
05 HB324 Court Records[1].pdf HFIN 4/12/2010 1:30:00 PM
HB 324
03 HB324 Sectional v. A[1].pdf HFIN 4/12/2010 1:30:00 PM
HB 324
HB 283 Amendment #1 Hawker.pdf HFIN 4/12/2010 1:30:00 PM
HB 283
Final Ten-Year Plan to Combat Sexual Assault and Domestic Violence doc.doc HFIN 4/12/2010 1:30:00 PM
HB283-DOA-DMV-02-05-10 (3).pdf HFIN 4/12/2010 1:30:00 PM
HB 283
SB 110 Amendment #1 Gara.pdf HFIN 4/12/2010 1:30:00 PM
SB 110
HB 126 Testimony.pdf HFIN 4/12/2010 1:30:00 PM
HB 126
CSSB222(JUD)-DOA-PDA-04-12-10.pdf HFIN 4/12/2010 1:30:00 PM
SB 222
HB 126 CS WORKDRAFT VERSION 26-LS0309 Q.pdf HFIN 4/12/2010 1:30:00 PM
HB 126
AK S.B. 222 Letter to House Finance Committee.pdf HFIN 4/12/2010 1:30:00 PM