Legislature(2015 - 2016)HOUSE FINANCE 519

04/12/2016 01:30 PM House FINANCE

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSSB 147(HSS) Out of Committee
Moved HCS CSSCR 1(EDC) Out of Committee
Moved CSHB 317(FIN) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
HOUSE BILL NO. 317                                                                                                            
     "An Act  relating to forfeiture to  the state; relating                                                                    
     to criminal law;  amending Rules 3, 4, 11,  12, 16, 32,                                                                    
     32.2, 32.3, 39, 39.1, and  42, Alaska Rules of Criminal                                                                    
     Procedure,  Rules 501,  801, and  803, Alaska  Rules of                                                                    
     Evidence, and Rules 202, 209,  and 217, Alaska Rules of                                                                    
     Appellate  Procedure; and  providing  for an  effective                                                                    
2:08:27 PM                                                                                                                    
REPRESENTATIVE  WILSON,  SPONSOR,  reviewed  the  bill.  She                                                                    
stated that the legislation  prohibited law enforcement from                                                                    
seizing  property   without  pressing  charges   first.  She                                                                    
reported that  the explanation of changes  from the previous                                                                    
version amended  Section 09.55  to add  a new  subsection to                                                                    
abolish  "in rem  forfeiture" actions  and  provided for  an                                                                    
effective  date.  She added  that  all  other sections  were                                                                    
2:09:11 PM                                                                                                                    
AT EASE                                                                                                                         
2:10:01 PM                                                                                                                    
Representative   Kawasaki   cited  letters   of   opposition                                                                    
included in the bill packet  (copy on file) and assumed they                                                                    
referred  to  previous  versions   of  the  legislation.  He                                                                    
related  a scenario  where a  person got  stopped for  a DUI                                                                    
[Driving  Under  the  Influence] and  wondered  whether  the                                                                    
individual  was immediately  charged. Representative  Wilson                                                                    
responded  in  the  affirmative.   She  confirmed  that  the                                                                    
letters referred  to previous  versions of  the legislation.                                                                    
She characterized  the bill as  "simple." She  exemplified a                                                                    
chair  and explained  that that  she "could  not arrest  the                                                                    
chair and  take it to court  and expect it to  testify." The                                                                    
bill  mandated that  charges  had to  be  brought against  a                                                                    
person  and  not  their  property.  Representative  Kawasaki                                                                    
indicated  that civil  asset forfeiture  was typically  used                                                                    
with  drug offenses.  He  asked how  the  bill would  impact                                                                    
civil  asset forfeiture.  Representative Wilson  stated that                                                                    
many forfeiture  laws existed and  were not affected  by the                                                                    
bill. She  stated that the specific  forfeiture contained in                                                                    
the legislation was a process  not currently being used. The                                                                    
bill was initially much larger  and encompassed all types of                                                                    
forfeiture but created costly fiscal  notes for the affected                                                                    
departments.  She commented  that she  was planning  to work                                                                    
with the departments over the  interim on the larger version                                                                    
of the  bill and  address the fiscal  note issues.  The bill                                                                    
was reduced to only include an idle statue.                                                                                     
Representative Gara liked the  way the sponsor described the                                                                    
bill. He asked if he could  direct a question to an attorney                                                                    
in the room.                                                                                                                    
Co-Chair Thompson answered in  the affirmative. He mentioned                                                                    
an  email from  the Department  of Law  (DOL) [Cori  Mills -                                                                    
dated April  12, 2016] (copy  on file) that  was distributed                                                                    
to members.                                                                                                                     
Co-Chair Thompson  indicated he  had received an  email that                                                                    
stated that  DOL had concerns  about the bill  and suggested                                                                    
amendment language.                                                                                                             
JOHN  SKIDMORE, DIRECTOR,  CRIMINAL DIVISION,  DEPARTMENT OF                                                                    
LAW,  relayed that  the original  bill was  much larger  and                                                                    
tried  to change  a number  of statutes.  Concerns developed                                                                    
regarding certain measures  and the bill was  scaled back to                                                                    
the  single   provision.  He  reported  that   the  Criminal                                                                    
Division did not  file charges against property  and did not                                                                    
have any problems with bill.  He noted that criminal charges                                                                    
were  filed  against  an  individual  and  if  property  was                                                                    
associated  forfeiture actions  would  be  taken. The  civil                                                                    
division had identified some concerns  during the process of                                                                    
revising the fiscal note.                                                                                                       
KENT SULLIVAN,  ASSISTANT ATTORNEY GENERAL,  CIVIL DIVISION,                                                                    
DEPARTMENT OF  LAW, understood  the intent  of the  bill. He                                                                    
stated concerns  about potential unintended  consequences in                                                                    
civil law. He shared that  he practiced civil litigation for                                                                    
roughly  20 years  that included  real property  litigation,                                                                    
quiet title  actions, condemnation actions, and  probate. He                                                                    
communicated that  many areas of  civil law was  involved in                                                                    
"in  rem forfeiture"  actions,  which  were actions  against                                                                    
property  that   "might  be  construed"   in  some   way  to                                                                    
"constitute  a   civil  forfeiture."  A   question  remained                                                                    
whether  the legislation  impacted the  types of  actions he                                                                    
referenced.  He suggested  clarification by  the courts.  He                                                                    
provided a  few examples. He  pointed out that  in Southeast                                                                    
Alaska it  was not  uncommon for  the Department  of Natural                                                                    
Resources (DNR)  to find unoccupied float  houses located on                                                                    
state tide  lands. Permits were required  for the situation.                                                                    
In the  absence of  a permit, DNR  was authorized  to remove                                                                    
the  float house.  If records  identifying an  owner or  the                                                                    
owner itself  was not  discovered, DNR  needed an  avenue to                                                                    
deal  with the  float house.  He  revealed that  a cause  of                                                                    
action against  the property itself  could be  instituted by                                                                    
the  courts which  granted authority  over the  property and                                                                    
allowed  further   notification  of  potential   owners  and                                                                    
further  authorized  the  action   to  proceed  against  the                                                                    
property. The action  granted time for a  potential owner to                                                                    
claim the  property and prove ownership.  If ownership isn't                                                                    
proven  or found  the  court engaged  in  in rem  forfeiture                                                                    
proceedings,  which   allowed  the  state  to   take  action                                                                    
disposing  of  the  float  house.  He  stated  that  in  rem                                                                    
forfeiture applied to many other examples of civil law.                                                                         
2:19:04 PM                                                                                                                    
Mr. Sullivan  provided other  examples where  the forfeiture                                                                    
law applied  such as  finding abandoned  property structures                                                                    
or  equipment  on an  individual's  private  property or  in                                                                    
probate proceeding  in the absence  of a will or  heir where                                                                    
property escheated  to the state.  In the  examples provided                                                                    
the  in rem  laws allowed  the  claims to  proceed in  court                                                                    
against  the  property.  He delineated  that  state  statute                                                                    
allowed a quiet title action  but statute did not define all                                                                    
of the parameters  of quiet title actions.  The details were                                                                    
filled in by  common law. He was unsure about  the extent of                                                                    
the impact of  the bill. The department needed  more time to                                                                    
further  examine how  the bill  would impact  the issues  he                                                                    
Representative Gara wanted to see  the bill move forward and                                                                    
suggested  developing  appropriate   amendment  language  to                                                                    
assist  its adoption.  He understood  the concern  raised by                                                                    
the civil division.  He asked for a brief  explanation of in                                                                    
rem forfeiture.  Mr. Sullivan defined  an in  rem forfeiture                                                                    
as "a proceeding  as against the property as  opposed to the                                                                    
person." He  informed the committee  that there  were "many,                                                                    
many instances  where it was  impossible to get  a judgement                                                                    
against the person."                                                                                                            
2:23:23 PM                                                                                                                    
Representative  Gara  did not  mean  a  judgement against  a                                                                    
person. He  reiterated Mr.  Sullivan's float  house example.                                                                    
He  suggested adding  the following  language: "common  law,                                                                    
civil in rem forfeiture  actions are abolished, unless there                                                                    
has  been  a  final   court  judgement."  He  asked  whether                                                                    
everyone's interest was satisfied.                                                                                              
Co-Chair   Thompson   asked  whether   Representative   Gara                                                                    
referred to the potential  language amendment recommended in                                                                    
the department's  email. Representative Gara replied  in the                                                                    
affirmative  and declared  that the  proposed amendment  was                                                                    
Mr. Sullivan supposed that  the language Representative Gara                                                                    
was  suggesting  might  work. He  was  concerned  whether  a                                                                    
judgement  existed in  all instances.  He  stated in  issues                                                                    
concerning  probate  proceedings, disclaimers  of  property,                                                                    
and  disavowing a  property a  judgement was  not given.  In                                                                    
addition, requiring  a judgment  was putting the  last legal                                                                    
piece of the process first.                                                                                                     
2:25:37 PM                                                                                                                    
Representative Gara suggested the  language "without a court                                                                    
order"  instead.  Mr.  Sullivan  agreed  that  both  of  the                                                                    
representative's   amendment   proposals  might   work.   He                                                                    
referred to the language proposed in the email:                                                                                 
     Sec.  09.55.  700.  In  rem  civil  forfeiture  actions                                                                    
     abolished. Common  law civil in rem  forfeiture actions                                                                    
     are   abolished  if   used   instead   of  a   criminal                                                                    
Representative  Gara  responded  that the  language  sounded                                                                    
"really vague." He believed  that the department's suggested                                                                    
language required  justification why  the in  rem forfeiture                                                                    
action was  chosen instead of criminal  proceedings. He felt                                                                    
that the language  was unclear and his  language regarding a                                                                    
valid court  order was more  definitive. Mr.  Sullivan asked                                                                    
whether  he  was  suggesting  not  using  DOL's  recommended                                                                    
language.  Representative Gara  replied in  the affirmative.                                                                    
He contended that his suggested  language clarified that the                                                                    
property  could not  be seized  without a  court order.  Mr.                                                                    
Sullivan  remarked  that  he  was  being  asked  to  respond                                                                    
quickly. He  maintained a concern that  the language allowed                                                                    
a  court order  in a  criminal proceeding  and defeated  the                                                                    
intent of the  bill. He indicated that if the  intent of the                                                                    
language was  to only  abolish the  use of  civil forfeiture                                                                    
unless there  was a court  order, the amendment  might work.                                                                    
However, if  the intent was to  abolish the use of  civil in                                                                    
rem forfeiture  even when  used in  the context  of criminal                                                                    
procedure  it   would  not   achieve  the   desired  result.                                                                    
Representative Gara  thought that the bill  sponsor's intent                                                                    
was  to  eliminate forfeiture  without  a  court order.  Mr.                                                                    
Sullivan deduced that his language  "may address the concern                                                                    
from the civil side" of the issue.                                                                                              
Representative  Gara   suggested  alternative   language  as                                                                    
follows:  "Common law  civil in  rem forfeiture  actions are                                                                    
prohibited unless there had been a court order."                                                                                
2:29:51 PM                                                                                                                    
Representative Munoz  referred to Mr. Sullivan's  example of                                                                    
a  house  boat.  She  wondered whether  a  court  order  was                                                                    
necessary to  remove the  structure. Mr.  Sullivan responded                                                                    
affirmatively. He expounded that  a court process similar to                                                                    
a  quiet title  action that  provided notice  to the  public                                                                    
Representative Gara  wondered whether there was  any illegal                                                                    
circumstance where a trooper  would seize someone's property                                                                    
without a court order.                                                                                                          
JEFF   LAUGHLIN,   TROOPER,   ALASKA  STATE   TROOPER   (via                                                                    
teleconference), responded in the  negative. He relayed that                                                                    
troopers  never  seized  any  property  in  the  absence  of                                                                    
criminal  charges. Representative  Gara understood  criminal                                                                    
forfeiture.  He  was  referring   to  civil  cases  but  was                                                                    
uncertain how to phrase the question.                                                                                           
Co-Chair  Thompson agreed  that everyone  was familiar  with                                                                    
forfeiture that  was unreasonable and thought  that the bill                                                                    
was attempting to address the  issue. He provided an example                                                                    
of someone  driving through a  state with  a lot of  cash in                                                                    
order  to purchase  a  car. The  individual  was stopped  by                                                                    
police and  the money  was seized on  the suspicion  of drug                                                                    
dealing.  He  guessed  that  a  similar  situation  had  not                                                                    
happened in Alaska.                                                                                                             
2:33:10 PM                                                                                                                    
Co-Chair Thompson OPENED public testimony.                                                                                      
2:33:26 PM                                                                                                                    
Co-Chair Thompson CLOSED public testimony.                                                                                      
Co-Chair Thompson wanted additional clarification from DOL.                                                                     
2:33:58 PM                                                                                                                    
AT EASE                                                                                                                         
2:37:57 PM                                                                                                                    
Representative Wilson MOVED to  ADOPT Conceptual Amendment 1                                                                    
that  would   delete  the  word  "abolished"   and  inserted                                                                    
"prohibited unless there  is a court order."  There being NO                                                                    
OBJECTION, it was so ordered.                                                                                                   
Representative Kawasaki  suggested that the title  needed to                                                                    
2:39:12 PM                                                                                                                    
AT EASE                                                                                                                         
2:40:07 PM                                                                                                                    
Co-Chair Thompson stated that  the conforming language would                                                                    
apply to the title.                                                                                                             
Co-Chair Thompson  reviewed the  fiscal notes. He  noted the                                                                    
new zero  fiscal note for  the Department  of Administration                                                                    
(DOA) appropriated to Legal  and Advocacy Services allocated                                                                    
for the  Office of Public  Advocacy and the new  zero fiscal                                                                    
note   for   the    Department   of   Administration   (DOA)                                                                    
appropriated to  Legal and  Advocacy Services  allocated for                                                                    
the  Public  Defender  agency. He  mentioned  the  new  zero                                                                    
fiscal  note for  DOL  appropriated  for Administration  and                                                                    
Support  allocated to  Office of  the  Attorney General  and                                                                    
finally, the  indeterminate fiscal note from  the Department                                                                    
of Public  Safety (DPS)  appropriated for  Statewide Support                                                                    
and allocated to the Commissioner's Office.                                                                                     
Representative  Munoz  MOVED to  REPORT  CSHB  317 (FIN)  as                                                                    
amended  out of  committee  with individual  recommendations                                                                    
and the accompanying fiscal note(s).                                                                                            
CSHB  317 (FIN)  was REPORTED  out of  committee with  a "do                                                                    
pass"  recommendation and  with  two new  zero fiscal  notes                                                                    
from the  Department of Administration, one  new zero fiscal                                                                    
note from  the Department  of Law, and  one new  zero fiscal                                                                    
note from the Department of Public Safety.                                                                                      
Co-Chair Thompson  reminded members that formal  decorum was                                                                    
necessary  during  committee.  He reviewed  the  agenda  for                                                                    
later in the afternoon of the same day.                                                                                         

Document Name Date/Time Subjects
SB147 Summary of Changes 040416.pdf HFIN 4/12/2016 1:30:00 PM
SB 147
SB147 Sectional Analysis 040416.pdf HFIN 4/12/2016 1:30:00 PM
SB 147
SB147 Governor Transmittal Letter.pdf HFIN 4/12/2016 1:30:00 PM
SB 147
02_SCR1_CivicsEd_TaskForce_SponsorStatement.pdf HFIN 4/12/2016 1:30:00 PM
10_SCR1_US Citizenship Civics Test-2 Page.pdf HFIN 4/12/2016 1:30:00 PM
09_SCR1_CivicsEd_TaskForce_OtherStatesLaws_Summary.pdf HFIN 4/12/2016 1:30:00 PM
08_SCR1_FactsAboutCivicsLiteracy.pdf HFIN 4/12/2016 1:30:00 PM
07_SCR1_CivicsRenewalNetwork_Article.pdf HFIN 4/12/2016 1:30:00 PM
06_SCR1_ACTA_Roosevelt_Survey.pdf HFIN 4/12/2016 1:30:00 PM
SCR 1 Article Atlantic Educ Age of Trump.pdf HFIN 4/12/2016 1:30:00 PM
HB 317 DLAW email Re HB 317 legal concerns.pdf HFIN 4/12/2016 1:30:00 PM
HB 317