Legislature(2015 - 2016)GRUENBERG 120

03/30/2016 01:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Recessed to 3/31/16 at 1:00 p.m. --
*+ HB 317 FORFEITURE:NO CIVIL IN REM; ONLY CRIMINAL TELECONFERENCED
Heard & Held
-- Public & Invited Testimony --
*+ HB 236 RIGHT TO REFUSE TO SOLEMNIZE MARRIAGE TELECONFERENCED
Scheduled but Not Heard
-- Testimony <Invitation Only> --
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 205 CRIMINAL LAW/PROCEDURE; DRIV LIC; PUB AID TELECONFERENCED
Heard & Held
-- Testimony <Invitation Only> --
       HB 317-FORFEITURE: NO CIVIL IN REM; ONLY CRIMINAL                                                                    
                                                                                                                                
2:05:05 PM                                                                                                                    
                                                                                                                                
CHAIR LEDOUX announced  that the next order of  business would be                                                               
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 date."                                                                                
                                                                                                                                
2:05:15 PM                                                                                                                    
                                                                                                                                
TAMMIE WILSON, Representative, Alaska State Legislature,                                                                        
paraphrased   the    following   sponsor    statement   [original                                                               
punctuation provided] as follows:                                                                                               
                                                                                                                                
     House Bill 317 protects  the private property rights of                                                                    
     innocent  citizens by  requiring that  Alaska's revered                                                                    
     and   dedicated  law   enforcement  agencies,   convict                                                                    
     individuals  of  a  crime  before  permanently  seizing                                                                    
     private  property.   Alaska's "civil  asset forfeiture"                                                                    
     laws have  been reported to  be among the worst  in the                                                                    
     country,  allowing private  property to  be permanently                                                                    
     taken  from individuals  suspected of  crimes, even  if                                                                    
     they are never charged, much less found guilty.                                                                            
                                                                                                                                
     Across  the nation,  civil asset  forfeiture laws  have                                                                    
     gained notoriety in recent years  for rampant abuse and                                                                    
     deliberate   circumvention   of  due   process.   Well-                                                                    
     documented cases of policing  for profit have sparked a                                                                    
     wave  of  reform  nationwide.   In  Alaska,  local  law                                                                    
     enforcement only  need to show probable  cause to seize                                                                    
     property.   Failure  to challenge  a  seizure within  a                                                                    
     given timeframe  results in an automatic  and permanent                                                                    
     forfeiture.  These   problems  are  compounded   by  an                                                                    
     incentive  for  law enforcement  to  seize  as much  as                                                                    
     possible, since 75-100% of  the revenues generated from                                                                    
     civil  forfeitures  flow  back  to  the  local  agency.                                                                    
     Moreover,   there  is   no   requirement  that   Alaska                                                                    
     authorities   collect   or   report   data   on   their                                                                    
     forfeitures.                                                                                                               
                                                                                                                                
     While assets may be  reclaimed, civil asset forfeitures                                                                    
     places  the   burden  on   individuals  to   fight  the                                                                    
     bureaucracy to prove that their  assets were not gotten                                                                    
     through  ill means,  or that  they did  not consent  to                                                                    
     using  their property  for an  illegal purpose.   Civil                                                                    
     cases do not provide for  free legal assistance, so for                                                                    
     individuals that cannot  afford private representation,                                                                    
     the process  is intimidating at best,  and ill-fated at                                                                    
     worst.   HB  317 would  require that  an individual  be                                                                    
     convicted   of  an   actual  crime   before  forfeiture                                                                    
     proceedings   can  take   place,   and  would   protect                                                                    
     guiltless  spouses  and  family members  from  property                                                                    
     loss as  a result of  the process. The bill  would also                                                                    
     impose transparency and  accountability for civil asset                                                                    
     seizures and reduce financial  incentives for abuse, by                                                                    
     providing that  any revenues that  do flow back  to the                                                                    
     state  as  a  result of  federalized  proceedings,  are                                                                    
     deposited in the General Fund.                                                                                             
                                                                                                                                
     This  bill  reaffirms  our   confidence  in  local  law                                                                    
     enforcement,  as  well  as the  most  basic  tenets  of                                                                    
     Constitutional  law  and  values.  Convicted  criminals                                                                    
     will still  see the  fruits of their  crime confiscated                                                                    
     by  the  state, but  innocent  Alaskans  can rest  easy                                                                    
     knowing  they will  no longer  be deprived  of property                                                                    
     without due process.                                                                                                       
                                                                                                                                
2:09:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WILSON said  the bill asks that "if  you are going                                                               
to  take something  until someone  has  their day  in court,  you                                                               
should take good care of it.   I would have already expected that                                                               
to have  happened."   She referred  to the  fiscal note  from the                                                               
Department of Public Safety (DPS)  and read as follows:  "Passage                                                               
of  this bill  could  potentially increase  costs  to the  Alaska                                                               
Wildlife  Troopers with  respect to  managing illegal  taken fish                                                               
and game  statewide."  She said  it is not illegal  until someone                                                               
has their  day in court and  until they are proven  guilty "we do                                                               
expect you  to take care  of things."   She then referred  to the                                                               
Department  of  Law's (DOL)  fiscal  note  in  the amount  of  $2                                                               
million,  which   stated  it   would  require   eight  additional                                                               
attorneys  and  eight  assistants  for each  attorney.    If  the                                                               
department needs  eight additional attorneys, she  asked how much                                                               
is being taken  from Alaskans, who is receiving it,  and where is                                                               
it  going.    She  explained  that the  bill  does  four  things:                                                               
criminal  conviction  before  forfeiture, provides  a  consistent                                                               
overall  process for  forfeiture, a  transparent accounting,  and                                                               
revenues  for  forfeiture  will  go   to  general  fund  and  not                                                               
necessarily to the  agencies deciding whether or not  they get to                                                               
keep it.                                                                                                                        
                                                                                                                                
2:11:28 PM                                                                                                                    
                                                                                                                                
CHAIR  LEDOUX asked  whether there  is  anyone seriously  against                                                               
this bill, but the question was answered by the fiscal notes.                                                                   
                                                                                                                                
REPRESENTATIVE  WILSON  related  that  the  commissioner  of  the                                                               
Department of  Public Safety (DPS)  advised that he did  not like                                                               
the bill, and  the representatives from DOL and  the Alaska Court                                                               
System have discussed their issues  and they are working on them.                                                               
She further related that this is  good for Alaska and they should                                                               
be  excited about  making  sure the  legislature  does the  right                                                               
thing for Alaskan residents.                                                                                                    
                                                                                                                                
2:12:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LYNN opined  that if property is  forfeited to DPS                                                               
or  the  state,  and  if  [a  person]  does  not  act  within  an                                                               
appropriate period of  time, the agency can take  the airplane or                                                               
boat and  give it  to the  federal government  and he  doubts the                                                               
owner would ever see it again.                                                                                                  
                                                                                                                                
REPRESENTATIVE  WILSON advised  there  is a  process  to where  a                                                               
person has a  limited amount of days to put  in paperwork, and if                                                               
the person doesn't do it the agency has the right to keep it.                                                                   
                                                                                                                                
2:13:07 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LYNN asked  whether it goes from  the state agency                                                               
to the federal government.                                                                                                      
                                                                                                                                
REPRESENTATIVE WILSON opined that it  could be a federal case and                                                               
it could  go in that direction  but the person would  have had to                                                               
break  federal law.   She  related  stories that  when the  state                                                               
doesn't have enough  evidence the state will turn it  over to the                                                               
federal government and allow them to pursue the action.                                                                         
                                                                                                                                
CHAIR LEDOUX said she presumes  that if the federal government is                                                               
charging an  individual and seizing  property initially,  that as                                                               
draconian  as Alaska's  forfeiture  laws are,  that probably  the                                                               
federal laws  are at  least equal if  not surpassing  Alaska law.                                                               
She surmised that  the bill doesn't do anything  with the federal                                                               
seizure of assets.                                                                                                              
                                                                                                                                
REPRESENTATIVE WILSON  explained that the federal  government can                                                               
still charge  but currently  there is an  agreement that  some of                                                               
the money comes back  to the state.  In those  cases it would not                                                               
come back  to the troopers or  any other agency, and  is directed                                                               
to the  general fund.  The  bill would not change  [federal] laws                                                               
or processes in any fashion, she said.                                                                                          
                                                                                                                                
2:14:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KELLER  referred  to   the  offenses  subject  to                                                               
forfeiture, on pages  6-7, and asked her to explain  the types of                                                               
crimes being discussed.                                                                                                         
                                                                                                                                
REPRESENTATIVE WILSON  responded that  many are  mandatory having                                                               
to do  with drinking and driving  and she then deferred  to Kevin                                                               
Fitzgerald.                                                                                                                     
                                                                                                                                
REPRESENTATIVE KELLER referred to  the outline for the forfeiture                                                               
process under  the bill and asked  whether she is saying  that it                                                               
is not  currently there, and she  included it.  He  further asked                                                               
whether other  states have  clear standards  on forfeitures  as a                                                               
model.                                                                                                                          
                                                                                                                                
REPRESENTATIVE WILSON  replied yes,  and this  has come  from the                                                               
states that are rated as "A" or "B" and not "D" as Alaska is.                                                                   
                                                                                                                                
2:15:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLER  advised he  likes the  bill, but  he would                                                               
like a description of the crimes.                                                                                               
                                                                                                                                
REPRESENTATIVE WILSON reiterated that  Mr. Fitzgerald could speak                                                               
to that issue.                                                                                                                  
                                                                                                                                
CHAIR LEDOUX opened invited testimony.                                                                                          
                                                                                                                                
2:16:42 PM                                                                                                                    
                                                                                                                                
KEVIN FITZGERALD,  Attorney, said  he has been  in practice  as a                                                               
prosecutor and  a defense attorney for  over 27 years, and  is in                                                               
in favor of  the bill.  He  opined that the dual aim  of the bill                                                               
is  to  put into  play  standardized  and centralized  procedures                                                               
designed to protect the rights  of property owners and interested                                                               
parties while  at the  same time not  undermining the  ability of                                                               
the government  to seize  or ultimately  forfeit property  nor to                                                               
place undue  burdens on the  court in doing so.   He said  in the                                                               
perspective  of  a  practitioner  that  practices  in  the  areas                                                               
implicated by  the existing forfeiture  law, which  includes fish                                                               
and game,  Medicaid, and  other areas, he  is advocating  for the                                                               
bill.   In response to  the question concerning  offenses subject                                                               
to  forfeiture, he  advised that  they  include liquor,  assault,                                                               
property, drugs,  and DUIs.  He  described it as having  quite an                                                               
expansive scope  and it's  intended to  be that  way in  order to                                                               
centralize  and   standardize  procedures   for  any   number  of                                                               
different areas that  are in some measure  disparate, or contrary                                                               
to each  other, and  difficult to  find.   As a  practitioner, he                                                               
said  the  current law  as  it  addresses forfeiture  is  broken,                                                               
confusing,  ill  understood even  by  those  practicing in  these                                                               
areas, frequently  applied in a  haphazard or ad hoc  fashion, is                                                               
neither  standardized  nor  centralized,  and  appears  to  be  a                                                               
vehicle  increasingly used  by prosecution  to impose  sanctions.                                                               
He  reiterated the  benefits of  this bill  as being  profound in                                                               
providing a standardized and  centralized process for forfeiture.                                                               
He then  related a case he  has of seized property  spanning over                                                               
the  course  of  four  years  regarding  current  law  and  after                                                               
explaining  the  details of  the  case,  he commented  that  this                                                               
particular case is  not unusual and the  circumstances and issues                                                               
raises over the  forfeiture law are not unique to  that case.  He                                                               
then  reiterated that  he strongly  supports the  passage of  the                                                               
bill  to   give  standardize  and  centralized   rules  governing                                                               
Alaska's forfeiture law.                                                                                                        
                                                                                                                                
2:27:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CLAMAN referred to  Mr. Fitzgerald's earlier years                                                               
as  a  prosecutor  and  asked  his  perspective  regarding  civil                                                               
forfeiture, whether he ever used it, and in what cases.                                                                         
                                                                                                                                
MR. FITZGERALD explained that it wasn't  used often as much as it                                                               
is now being  used, or used for items of  significance.  Case law                                                               
does  reference  occasional cases  in  which  airplanes had  been                                                               
seized, but  he estimated that  the forfeiture law is  being used                                                               
as  a  tool  more  frequently  to  obtain  significant  items  of                                                               
property.    He opined  that  when  it was  used  when  he was  a                                                               
prosecutor it  was largely items  that would be  characterized as                                                               
contraband and he does not  remember any actions pursued pursuant                                                               
to the  forfeiture and what typically  now is the avenue  used in                                                               
the fish  and game context under  AS 16.05.109 or 16.05.195.   In                                                               
answer to the  question he reiterated that it is  being used more                                                               
often now.                                                                                                                      
                                                                                                                                
2:30:10 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   CLAMAN  asked   whether,   within  his   current                                                               
practice, he is in federal court as well as state court.                                                                        
                                                                                                                                
MR.  FITZGERALD  answered that  he  is  in  both courts  and  the                                                               
federal arena offers even less  protections than Alaska's current                                                               
forfeiture law.                                                                                                                 
                                                                                                                                
REPRESENTATIVE CLAMAN asked  whether he sees a  difference in how                                                               
this is being  used in drug cases and the  forfeiture of property                                                               
that may be the benefits of  massive drug profits versus fish and                                                               
game  and fish  and wildlife  forfeiture cases  that shut  entire                                                               
businesses down for violations.                                                                                                 
                                                                                                                                
MR.  FITZGERALD remarked  that the  difference in  many instances                                                               
within the  fish and  game context  occurs on  a state  level and                                                               
occasionally it  is in the federal  level as well, but  under the                                                               
Lacey  Act  [16  USC  3371-3378]  it  must  be  predicated  on  a                                                               
violation of state fish  and game law.  In a  drug context, it is                                                               
not  uncommon  that  the  state   charges  are  more  focused  on                                                               
individuals and  the state  side does  do co-defendant  cases but                                                               
the  federal government,  because of  its sentencing  guidelines,                                                               
utilizes a  lot more  conspiracy multi-defendant  cases involving                                                               
10-30 individuals.  In the event  an individual is charged with a                                                               
drug crime  at the  state level, Mr.  Fitzgerald said  he doesn't                                                               
see a  lot of attempts  at forfeiting property, and  typically if                                                               
the defendant does  not play ball with the  state authorities the                                                               
matter is  referred to the  federal authorities who are  happy to                                                               
help.   He remarked that under  federal law it can  be scary with                                                               
regard  to  what is  seized,  the  nexus between  the  properties                                                               
seized, and  the offense can  be extraordinarily de minimis.   An                                                               
individual really  has no  recourse at all  other than  under the                                                               
Eighth Amendment, which is cruel  and unusual punishment, and the                                                               
way  that  has been  defined  under  federal  law is  unless  the                                                               
property  amounts to  twice what  the  otherwise applicable  fine                                                               
would  be,  the  individual  does  not  have  cruel  and  unusual                                                               
punishment.  Since most of  the crimes proceeded in federal court                                                               
are  $500,000 at  least fine  range such  as million  dollar plus                                                               
items such as houses, he explained.                                                                                             
                                                                                                                                
2:35:23 PM                                                                                                                    
                                                                                                                                
JOHN  SKIDMORE,   Director,  Legal  Services   Section,  Criminal                                                               
Division, Department of Law (DOL),  said he has been a prosecutor                                                               
for the  last 18 years, and  has not practiced often  in the area                                                               
of  drug offense  but he  supervises the  prosecutors within  the                                                               
state.    He  said  he  previously  expressed  to  Representative                                                               
Wilson, and now  to the committee, the Department  of Law's (DOL)                                                               
interest and commitment  in working on trying  to standardize and                                                               
centralize forfeiture law in Alaska.   He agreed that the current                                                               
forfeiture law  is scattered in  at least seven  different titles                                                               
and  it addresses  different types  of crimes.   He  advised that                                                               
within those  seven different titles  it describes  the procedure                                                               
or process at  varying levels, and the Alaska  courts have filled                                                               
in the  procedures or processes that  are left vacant in  some of                                                               
the various  titles.   The result  has been  a complex  system in                                                               
trying  to understand  how forfeiture  law works,  and he  agrees                                                               
that is  an issue and  that trying to standardize  and centralize                                                               
is  an  excellent  idea.   Although,  he  commented,  the  issues                                                               
between  that [intent]  and this  bill  are that  this bill  adds                                                               
additional  processes  that  may  or  may  not  be  the  intended                                                               
consequences.  For example, he said,  in current law a person can                                                               
forfeit property  in a criminal  case at a sentencing  when there                                                               
is a preponderance of the evidence  that the item is connected to                                                               
the case and should be forfeited.                                                                                               
                                                                                                                                
2:37:30 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE  explained that  HB 317  creates a  separate process                                                               
tracking  the criminal  process  to deal  with those  forfeitures                                                               
because it  wants the state  to file separately  against property                                                               
to be  forfeited, hold  separate hearings  to decide  what should                                                               
happen  with the  property, and  raise the  burden of  proof from                                                               
preponderance  of  the evidence  to  clear  and convincing.    He                                                               
related  that those  are the  sorts  of things  that resulted  in                                                               
DOL's fiscal  note.  He  agreed that  the process would  be labor                                                               
intensive  but   that  doesn't  mean   it  is  not   possible  to                                                               
standardize   and  centralize   without   having   some  of   the                                                               
requirements,  thereby,   eliminating  the   fiscal  note.     He                                                               
reiterated  that  the department  is  committed  to working  with                                                               
folks on those things, but there  are important issues to look at                                                               
which  are  ultimately  policy decisions  for  the  committee  to                                                               
decide.  He pointed out that in discussing forfeiture ...                                                                       
                                                                                                                                
2:39:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CLAMAN  referred to  Mr. Skidmore's  statement and                                                               
said that due  to the fiscal note  it is more than  a policy call                                                               
because it  is now  about how  much money  is being  dedicated to                                                               
certain functions of government.                                                                                                
                                                                                                                                
2:39:49 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLER said  the policy here is  the Department of                                                               
Law  (DOL)   and  the  state's   justice  branch  of   the  whole                                                               
government,  and it  appears that  the things  Mr. Skidmore  said                                                               
need to  be dealt with are  fundamental.  He referred  to the job                                                               
not getting  done and  asked why  it takes more  money to  get it                                                               
done,  why hasn't  the  committee heard  about  this before,  why                                                               
aren't things  being done right, and  how does he attach  a price                                                               
tag to  doing things right.   He said he realizes  that different                                                               
sections of law were added on  but it appears DOL would have come                                                               
forward with proposed  legislation to fix this on  its own rather                                                               
than the  legislature trying to build  it.  He related  that part                                                               
of  the reason  he is  in  Mr. Skidmore's  face is  that time  is                                                               
running out, the session is moving  along, and this sounds like a                                                               
critical item to deal with.                                                                                                     
                                                                                                                                
2:41:02 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE responded  that this is an issue  the department has                                                               
been  looking at,  and pointed  out that  there is  a distinction                                                               
between forfeiture  and seizure  that has  been somewhat  lost in                                                               
the discussion.   For example, when Mr.  Fitzgerald discussed the                                                               
airplane being seized, he said,  it was seized pursuant to search                                                               
warrants in a criminal case.   He remarked that he was unaware of                                                               
that particular  case and  did not know  whether it  was evidence                                                               
seized for purposes  of that case,  There  are legal restrictions                                                               
on the department  regarding its obligation to preserve  if it is                                                               
going to trial under Thorne  v. Department of Public Safety, [774                                                             
P.2d  1326  (1989)], or  if  it's  strictly  about seizure.    He                                                               
referred to  a DUI case and  driving a vehicle, and  said if that                                                               
vehicle is  seized pursuant  to a search  warrant or  incident to                                                               
arrest,  it may  be  that the  vehicle is  evidence  in the  case                                                               
because the defense  may allege the bad driving,  observed by the                                                               
officer, is  the result of  the vehicle having  faulty mechanics.                                                               
The department is  then required to preserve that  vehicle so the                                                               
information  can be  presented at  the time  of trial,  which has                                                               
nothing to  do with whether  or not that  vehicle is going  to be                                                               
forfeited at  the end of  the case.  He  extended that it  may be                                                               
that it's  not going to be  forfeited and it is  just about using                                                               
it  for evidence,  or it  may be  a case  in which  the DUI  is a                                                               
felony DUI  or something  else egregious, and  not only  was that                                                               
vehicle needed  for evidence but  then later was also  subject to                                                               
forfeiture.   He explained that it  is easy to confuse  those two                                                               
things  and he  opined the  area that  needing the  most work  is                                                               
returning property  that is not  needed in the criminal  case and                                                               
should not  be subject  to forfeiture.   He  stated that  for the                                                               
past  three years  while he  has  been director  of the  criminal                                                               
division it has  worked on trying to return  property to citizens                                                               
across the state.   There are problems of where  impound yards of                                                               
law  enforcement  agencies  have  more vehicles  than  should  be                                                               
there,  and  that  various  policies  have  been  instituted  and                                                               
practices to  get vehicles returned  to people.  He  opined there                                                               
is evidence  in evidence lockers within  law enforcement agencies                                                               
around that  state that  are not subject  to forfeiture  and that                                                               
property needs to be returned.   The law requires a process to be                                                               
followed  in order  to get  property  returned and  it should  be                                                               
looked  at, which  is separate  from property  seized, ultimately                                                               
subject  to forfeiture,  and whether  or not  that forfeiture  is                                                               
appropriate.   He related that  [there are provisions] in  HB 317                                                               
that he  is not certain  address the seizure problems  because it                                                               
focuses  on forfeiture,  although  there are  areas  it seems  to                                                               
cross over.   He said he views those as  two separate issues, and                                                               
the  seizure and  returning  things is  an area  to  work on  and                                                               
forfeiture needs to be standardized  and centralized.  The law in                                                               
Alaska regarding how  forfeiture is supposed to  work, he opined,                                                               
is  not broken,  it is  just not  in one  place that  is easy  to                                                               
follow.                                                                                                                         
                                                                                                                                
2:44:59 PM                                                                                                                    
                                                                                                                                
CHAIR LEDOUX  referred to Alaska's  forfeiture law and  said that                                                               
sometimes a  case can be dismissed  against a person and  yet the                                                               
state  will continue  in an  in  rem action  for forfeiture,  not                                                               
seizure.  For example, she said,  take a drug case and the person                                                               
is  acquitted,  she asked  whether  the  state  is ever  able  to                                                               
forfeit the property when someone is acquitted.                                                                                 
                                                                                                                                
MR.  SKIDMORE  responded  that the  vast  majority  of  materials                                                               
seized should be  returned, with the exception  of seized cocaine                                                               
and the department unable to prove its case.                                                                                    
                                                                                                                                
CHAIR  LEDOUX expressed  that  she knows  the  department is  not                                                               
going to give back the cocaine, but what about the house.                                                                       
                                                                                                                                
MR.  SKIDMORE said  he would  change it  to a  different type  of                                                               
case, such as  fish and game, because there are  certain types of                                                               
items in  fish and game cases  that are also illegal  to possess.                                                               
For example, in most of the  state when hunting moose the antlers                                                               
must be of  a certain size and a hunter  may have innocently shot                                                               
a moose that was not legal,  it is illegal to possess that animal                                                               
thereafter.    The  seized  gun  in that  case  would  have  been                                                               
returned, but  not the  moose because it  is illegal  to possess.                                                               
Generally,  he said,  the department  does not  use civil  in rem                                                               
forfeiture proceedings  in criminal  cases.   He referred  to the                                                               
case Mr.  Fitzgerald discussed and  although Mr.  Fitzgerald said                                                               
it  was  not an  exception,  he  disagreed  because he  does  not                                                               
believe the department  is using civil in rem  forfeitures in the                                                               
vast majority of cases other than the example offered.                                                                          
                                                                                                                                
2:47:30 PM                                                                                                                    
                                                                                                                                
CHAIR LEDOUX  asked whether  civil in  rem forfeitures  are being                                                               
used and  further asked whether  he was  willing to say  that the                                                               
department is  prohibited by law,  and that the  department never                                                               
does  it for  something such  as, a  house, gun,  airplane, or  a                                                               
legal item.   She expressed that she can't  see any justification                                                               
whatsoever  when someone  hasn't been  convicted of  something to                                                               
seize their legal property.   She stressed that if the department                                                               
can't get the  person under criminal law, she  finds it repugnant                                                               
that  the  department  would  try   to  do  it  through  a  civil                                                               
forfeiture proceeding, and  she wanted to know whether  or not it                                                               
is used.                                                                                                                        
                                                                                                                                
2:48:31 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE answered that the only  case he is aware of in which                                                               
civil forfeiture has  been attempted to be used like  that is the                                                               
case  Mr. Fitzgerald  discussed.   Wherein  there  was a  pending                                                               
prosecution that was expected to  result, but hadn't gotten there                                                               
until much later in the  process because the investigation seemed                                                               
to have  taken awhile.  Other  than that, he said,  he is unaware                                                               
of it being used.  He stated  that the department does not have a                                                               
problem  eliminating that  civil  in rem  forfeiture,  it is  not                                                               
often  used because  the department  doesn't think  it should  be                                                               
used often.                                                                                                                     
                                                                                                                                
2:49:11 PM                                                                                                                    
                                                                                                                                
CHAIR LEDOUX  surmised that the  only thing the department  has a                                                               
problem with  is taking  care of the  property, and  figuring out                                                               
where it is at a certain time.                                                                                                  
                                                                                                                                
MR. SKIDMORE  said that  law enforcement  can tell  the committee                                                               
where  the seized  property is  because it  is required  to track                                                               
that  information.   The  question  asked was  how  much of  that                                                               
property has been forfeited and he  said that is a statistic that                                                               
DOL has not  kept.  For example, he could  answer how many murder                                                               
sentences,  but  could  not  answer  how  many  of  those  murder                                                               
sentences resulted  in property being forfeited  because he would                                                               
have  to  go  back  and  look  at  each  individual  judgment  to                                                               
determine which cases had property  forfeited.  He explained that                                                               
he doesn't have  the ability to track  that information currently                                                               
and  does  not  know  the  cost, but  it  would  not  take  eight                                                               
attorneys.   He  referred to  the eight  attorneys in  the fiscal                                                               
note and  qualified it is  when a separate proceeding  is created                                                               
where  the department  has  to file  against  the property,  then                                                               
there  are court  hearings  about the  property  both before  the                                                               
trial  and  after  the  trial  that are  not  the  trial  or  the                                                               
sentencing itself.   If the  current process is  followed wherein                                                               
items can be seized and  subject to forfeiture at the sentencing,                                                               
he opined that the fiscal note would disappear.                                                                                 
                                                                                                                                
2:50:40 PM                                                                                                                    
                                                                                                                                
CHAIR LEDOUX  asked him to  repeat how  he would make  the fiscal                                                               
note disappear rather than just zeroing it out.                                                                                 
                                                                                                                                
MR. SKIDMORE explained  that in current law with  regard to items                                                               
that are seized a person has  the opportunity to petition to have                                                               
it bonded out ...                                                                                                               
                                                                                                                                
CHAIR  LEDOUX argued  that if  it is  seized she  thought it  was                                                               
seized because  it's evidence,  so how could  a person  ever bond                                                               
out the  evidence.  She  surmised that the department  is seizing                                                               
property that  may not be  evidence or  required to be  kept, and                                                               
that the department  seizes property because it  believes it will                                                               
convict  the defendant  and; therefore,  wants to  make sure  the                                                               
property  the department  might  want forfeited  is  there.   She                                                               
expressed  that she  has a  problem with  that because  the state                                                               
doesn't get  to fine someone  before being convicted so  why does                                                               
the department  get to  take this property  if it's  not evidence                                                               
just to make sure it stays around.                                                                                              
                                                                                                                                
2:52:00 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE explained there are  two different reasons for which                                                               
seizure  can  occur,  simply  for   evidence  that  is  sometimes                                                               
forfeited  but  it   is  evidence  in  the  case   and  in  those                                                               
circumstances  that property  cannot be  bonded out.   There  are                                                               
also  circumstances  rarely used  in  which  law enforcement  can                                                               
seize property  that would be  subject to forfeiture  not because                                                               
it  is evidence  in  the case,  but because  it  would likely  be                                                               
forfeited at the end of the  case.  He further explained that the                                                               
reason is that,  in the law, it is recognized  that with property                                                               
subject  to  seizure there  are  defendants  who will  frequently                                                               
attempt to  sell, destroy, or  somehow change that  property from                                                               
their ownership so it can't be taken later on.                                                                                  
                                                                                                                                
CHAIR LEDOUX  pointed out that the  seizure for this reason  is a                                                               
civil action  and, other than a  maritime suit which has  its own                                                               
unique rules of law, the property  can't be seized.  For example,                                                               
as an attorney, Representative Claman  may be 100 percent certain                                                               
he has a slam dunk winnable case,  he still is not allowed to ask                                                               
the court to  seize the property because the defendant  may go to                                                               
Mexico  or spend  the  money.   She  reminded  Mr. Skidmore  that                                                               
Representative Claman  must wait  until the end  of the  case and                                                               
then sometimes the case is not a slam dunk.                                                                                     
                                                                                                                                
REPRESENTATIVE  CLAMAN said  in  the background  "We  know a  lot                                                               
about (indisc.) and they only seize them in federal court."                                                                     
                                                                                                                                
2:54:15 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE  responded that  it is  not a  civil matter,  it's a                                                               
criminal matter  and when people  have violated the  criminal law                                                               
authorities are  given greater power  to take property.   That is                                                               
what the  Fourth Amendment  of the  United State  Constitution is                                                               
about, the search and seizure laws are about.                                                                                   
                                                                                                                                
CHAIR LEDOUX  argued that if  it is  a criminal matter  why isn't                                                               
the  standard of  proof  beyond a  reasonable  doubt when  taking                                                               
property, the same as when imprisoning a person.                                                                                
                                                                                                                                
MR. SKIDMORE explained that there does  have to be proof beyond a                                                               
reasonable  doubt  that  the  person committed  the  crime.    He                                                               
clarified that once  it has been proven the  person committed the                                                               
crime  with a  conviction,  in determining  the  sanctions to  be                                                               
imposed the  courts evaluate the  evidence on a  preponderance of                                                               
the  evidence standard  to determine  jail  time, community  work                                                               
service, fine,  probation, probation conditions,  and forfeiture.                                                               
He reiterated that all of  those various sanctions, after proving                                                               
someone committed a  crime beyond a reasonable  doubt, the courts                                                               
evaluate  those  sanctions  based   on  a  preponderance  of  the                                                               
evidence.                                                                                                                       
                                                                                                                                
2:55:46 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KELLER referred  to  property  being seized,  and                                                               
whether  law enforcement  or a  governmental entity  receives any                                                               
benefit from the seizure such as  using it.  He explained that he                                                               
can't help but think about a  seized airplane for four years, and                                                               
being a  pilot he knows that  is the end of  some $30,000-$50,000                                                               
engines  because they  have  to  be used.    He  referred to  Mr.                                                               
Skidmore's statement  that it  is totally  up to  the authorities                                                               
when making  that determination as  to whether the  property will                                                               
likely be  forfeited and it  can take  that into account  or not,                                                               
meanwhile the  airplane sits.   The state has  the responsibility                                                               
to store  property in a dry  place, possibly heated.   He said he                                                               
would like to know how many  warehouses are available and full of                                                               
evidence, how  long it sits there,  and the cost to  the state in                                                               
keeping this  evidence.   He commented that  he saw  Mr. Skidmore                                                               
shaking  his head  no, and  requested confirmed  information that                                                               
seized  property  is  not  ever  used  for  the  benefit  of  law                                                               
enforcement or governmental entities until it is forfeited.                                                                     
                                                                                                                                
2:57:21 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE responded that when  property is seized prior to any                                                               
forfeiture order, the state cannot  and does not use any property                                                               
that is seized  and the state has an obligation  to hold onto the                                                               
property and safeguard it.   He acknowledged that there have been                                                               
steps in recent years to  do precisely what Representative Keller                                                               
was discussing for  a seized airplane and not  many airplanes are                                                               
seized  but for  those  that  are, they  are  stored indoor,  the                                                               
engine  is foamed  to  try to  preserve it,  and  other sorts  of                                                               
things that need  to be done in order to  preserve that airplane.                                                               
In  the event  the airplane  is ultimately  forfeited, the  state                                                               
would  have  the  opportunity  to,  in some  cases  use  it,  and                                                               
according  to statute  give  it  to the  Civil  Air Patrol  Wing.                                                               
Other  items can  be forfeited  and used  in different  ways, and                                                               
other  items are  auctioned.   He  reiterated that  prior to  the                                                               
forfeiture order,  the state cannot  use the property  because it                                                               
does not belong to the state.                                                                                                   
                                                                                                                                
2:58:40 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CLAMAN  asked whether the state  currently has the                                                               
authority to bring  a civil action for in  rem forfeiture against                                                               
an airplane allegedly used or connected with criminal activity.                                                                 
                                                                                                                                
MR. SKIDMORE  answered in  the affirmative,  which does  exist in                                                               
statute and is not often used.                                                                                                  
                                                                                                                                
REPRESENTATIVE  CLAMAN  surmised  that  things are  seen  in  the                                                               
federal reporters such as "United  States v. $450,000 in Cash, or                                                               
United  States  v. One  Cessna  206,  or  United States  v.  Some                                                               
fishing boat  that was used  in, typically  we see these  in drug                                                               
cases," the state  still has the authority as  a prosecution tool                                                               
to seize  the property and  try to  forfeit the property  to take                                                               
some drug kingpins ill-gotten gains  away even if it doesn't have                                                               
the evidence to convict him of selling the drugs,                                                                               
                                                                                                                                
MR. SKIDMORE answered that he does  know whether he would call it                                                               
a prosecution tool, but the state does have that authority.                                                                     
                                                                                                                                
3:00:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CLAMAN surmised  that Mr.  Skidmore, speaking  on                                                               
behalf  of the  state,  would  have no  problem  cleaning up  the                                                               
statute  with respect  to these  civil actions  against property.                                                               
Although,  Mr.  Skidmore  would like  the  continued  ability  to                                                               
forfeit  property  connected with  a  crime  at  the end  of  the                                                               
criminal case with a conviction, he further surmised.                                                                           
                                                                                                                                
MS.  SKIDMORE replied  that the  description  is accurate  except                                                               
when the items are illegal in  and of themselves, as he discussed                                                               
with Chair LeDoux.                                                                                                              
                                                                                                                                
REPRESENTATIVE CLAMAN  offered a  hunting scenario wherein  a big                                                               
game guide has an airplane  and has successfully flown clients to                                                               
various areas for  many years.  The state  performs an undercover                                                               
investigation and  discovers the  guide is  taking folks  out but                                                               
the wrong size  game is being taken  so there is a  fish and game                                                               
prosecution against the  guide.  He said the  rifles are evidence                                                               
of  the crime  but  there  is nothing  in  the  airplane that  is                                                               
evidence  other  than the  fact  that  the  money he  was  making                                                               
involved  the  airplane.   Representative  Claman  asked why  the                                                               
state would take  the airplane for purposes of  trying to forfeit                                                               
the airplane even though it is  not needed for evidence at trial,                                                               
and why the state would go  after the airplane and hold it during                                                               
the entire period of time awaiting trial.                                                                                       
                                                                                                                                
3:02:43 PM                                                                                                                    
                                                                                                                                
MR.  SKIDMORE answered  that  generally  the department  wouldn't                                                               
seize   the  airplane   and  within   this  scenario,   the  only                                                               
hypothetical  circumstance in  which seizing  the airplane  would                                                               
become  justified  is   whether  the  guide  had   a  history  of                                                               
committing fish  and game  violations and  that he  was primarily                                                               
getting to the  locations to commit those  violations through the                                                               
use of the  airplane.  He noted that  other hypothetical concepts                                                               
must be  added to  that scenario  before it  becomes appropriate,                                                               
and  he   would  have   to  know   more  information   about  the                                                               
hypothetical  before  he could  determine  the  exact crimes  and                                                               
determine whether  the state  would seek  to seize  the airplane.                                                               
He advised  that the department  could hypothetically  attempt to                                                               
obtain  a court  order  to  seize the  airplane  for purposes  of                                                               
forfeiture, but it  generally doesn't do that except  in the more                                                               
serious or egregious cases.                                                                                                     
                                                                                                                                
REPRESENTATIVE  CLAMAN commented  that it  appears this  bill may                                                               
not perfectly do  it, but the idea that the  department still has                                                               
the authority for  civil in rem forfeiture actions,  is not using                                                               
it,  and it  is creating  problems is  something the  legislature                                                               
should  fix.   He  surmised that  the  more complicated  question                                                               
about what happens in criminal  cases, which appears must be tied                                                               
into the criminal cases at  all times, the department can forfeit                                                               
after the conviction.  He related  that he does not like the idea                                                               
of anyone  being able to  forfeit property absent  the conviction                                                               
and there  have been  a tremendous amount  of comments  about how                                                               
the  federal   government  and  many   states  are   using  civil                                                               
forfeiture where they can't get  convictions and that is what the                                                               
committee is unhappy about.                                                                                                     
                                                                                                                                
CHAIR LEDOUX expressed that she is definitely unhappy about it.                                                                 
                                                                                                                                
3:04:46 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CLAMAN  expressed   concern  that  Representative                                                               
Wilson's  bill  may   go  further  and  create   burdens  on  the                                                               
prosecution and costs  that may not be  appropriate, and stressed                                                               
his concern  about having  laws on  the books  that no  one wants                                                               
enforced and are not enforceable.                                                                                               
                                                                                                                                
CHAIR  LEDOUX  encouraged  Mr.  Skidmore  to  work  quickly  with                                                               
Representative Wilson  because members  of the  committee believe                                                               
there is a  real problem here and it wants  to do something about                                                               
it.                                                                                                                             
                                                                                                                                
MR. SKIDMORE  reiterated that  he is  committed to  continuing to                                                               
work with Representative Wilson.                                                                                                
                                                                                                                                
[HB 317 was held over.]                                                                                                         

Document Name Date/Time Subjects
HB 317 - Sponsor Statement.pdf HJUD 3/30/2016 1:00:00 PM
HB 317
HB 317 - Sectional Analysis.pdf HJUD 3/30/2016 1:00:00 PM
HB 317
HB 317 - Version A.pdf HJUD 3/30/2016 1:00:00 PM
HB 317
HB 317 - Legal Memo.pdf HJUD 3/30/2016 1:00:00 PM
HB 317
HB 317 - Supporting Documents - Americans for Tax Reform Letter of Support 03.23.16.pdf HJUD 3/30/2016 1:00:00 PM
HB 317
HB 317 - Supporting Documents - Mike Jimerson Letter of Support.pdf HJUD 3/30/2016 1:00:00 PM
HB 317
HB 317 - Supporting Documents - NFIB Letter of Support 03.08.16.pdf HJUD 3/30/2016 1:00:00 PM
HB 317
HB 317 - Supporting Documents - Resident Hunters of Alaska Letter of Support 03.22.16.pdf HJUD 3/30/2016 1:00:00 PM
HB 317
HB 317 - Supporting Documents - Thomas Brown Letter of Support 03.22.16.pdf HJUD 3/30/2016 1:00:00 PM
HB 317
HB 317 - Supporting Documents - USJAN Letter of Support 03.17.16.pdf HJUD 3/30/2016 1:00:00 PM
HB 317
HB 317 - Letter of Opposition - APOA.pdf HJUD 3/30/2016 1:00:00 PM
HB 317
HB 317 - Back-Up Document - Fairbanks News Miner 03.21.16.pdf HJUD 3/30/2016 1:00:00 PM
HB 317
HB 236 - Sponsor Statement.pdf HJUD 3/30/2016 1:00:00 PM
HB 236
HB 236 - Sectional Analysis.pdf HJUD 3/30/2016 1:00:00 PM
HB 236
HB 236 - Legislation Ver. A.pdf HJUD 3/30/2016 1:00:00 PM
HB 236
HB 236 - Letters of Support - Received by 3-17-16.pdf HJUD 3/30/2016 1:00:00 PM
HB 236
HB 236 - Letters of Opposition - Received by 3-17-16.pdf HJUD 3/30/2016 1:00:00 PM
HB 236
HB 236 - Supporting Document - SB 2065 - Legislation - Texas.pdf HJUD 3/30/2016 1:00:00 PM
HB 236
SB2065
HB 236 - Supporting Document - SB 2065 - Summary - Texas.pdf HJUD 3/30/2016 1:00:00 PM
HB 236
SB2065
HB 236 - Supporting Document - Equality Texas SB 2065.pdf HJUD 3/30/2016 1:00:00 PM
HB 236
SB2065
HB 236 - Supporting Document - Texas House Passes Pastor Protection Act.pdf HJUD 3/30/2016 1:00:00 PM
HB 236
HB 236 - Supporting Document - Letter Pamela Lynn 3.25.16.pdf HJUD 3/30/2016 1:00:00 PM
HB 236
HB 317- Supporting Documents - APHA.pdf HJUD 3/30/2016 1:00:00 PM
HB 317
HB 317 - Supporting Documents - Jana Weltzin Letter of Support 03.28.16.pdf HJUD 3/30/2016 1:00:00 PM
HB 317