Legislature(2015 - 2016)BUTROVICH 205

03/02/2015 01:00 PM JUDICIARY

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Audio Topic
01:07:56 PM Start
01:08:14 PM Confirmation Hearing Lieutenant Governor Successor
01:31:28 PM SB49
01:34:35 PM SB5
02:05:50 PM SB41
02:36:12 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Bills Previously Heard/Scheduled:
-- Testimony <Invited and Public> --
+ Confirmation of Governor's Appointment: TELECONFERENCED
Craig Fleener - Lieutenant Governor Successor
Heard & Held
Heard & Held
Moved SB 49 Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
          SB   5-RESTITUTION: PROPERTY AND INCOME LOSS                                                                      
1:34:35 PM                                                                                                                    
CHAIR  MCGUIRE  announced  the consideration  of  SB  5. "An  Act                                                             
relating to  loss of  income and valuing  property for  orders of                                                               
1:35:15 PM                                                                                                                    
SENATOR  PETER MICCICHE,  Sponsor  of SB  5,  explained that  the                                                               
legislation is  about rising property  theft crime  and restoring                                                               
crime victims to a pre-offense  condition. The bill clarifies for                                                               
the courts that  the public policy favors  requiring criminals to                                                               
compensate  their  victims  for  their loss,  including  loss  of                                                               
income. He related a story  from his district. During the busiest                                                               
time of year  someone attacked the truck of  a small family-owned                                                               
business to get the copper wire.  Although the value of the crime                                                               
was relatively low, the family was  out of business for weeks and                                                               
lost  many  jobs. He  noted  that  the  bill also  addresses  the                                                               
appellate  court  decision in  Welsh  vs.  State of  Alaska  that                                                             
overruled  a  lower  court  decision  awarding  market  value  of                                                               
restitution   to  a   victim  of   property  theft,   because  it                                                               
represented unjust  enrichment of  the crime  victim. He  said he                                                               
believes  that  perpetrators  have  basic rights  but  he  has  a                                                               
tendency to put the rights of  the victim above the rights of the                                                               
1:38:03 PM                                                                                                                    
CHUCK  KOPP, Staff,  Senator  Peter Micciche,  stated  that SB  5                                                               
essentially does  four things: 1) it  amends Alaska's restitution                                                               
statutes and directs  the courts to take into  account the public                                                               
policy   consideration  that   favors   requiring  offenders   to                                                               
compensate victims for damages and  injury, including the loss of                                                               
income; 2)  it provides a  definition from the  criminal statutes                                                               
for loss  of income  as the  total loss of  income a  business or                                                               
person suffers up to the time  that a replacement is obtained; 3)                                                               
it  gives direction  to the  courts in  making determinations  of                                                               
loss  or damage  for restitution  to  value the  property as  the                                                               
market value  of the property; and  4) it amends AS  12.55.100 to                                                               
reconcile  the  standard  of  probation   with  the  standard  of                                                               
sentencing in AS 12.55.045.                                                                                                     
1:41:42 PM                                                                                                                    
SENATOR  WIELECHOWSKI  asked  if   this  affects  the  amount  of                                                               
payments  that  would have  to  be  made  by the  Violent  Crimes                                                               
Compensation Board.                                                                                                             
MR.  KOPP  replied  he  didn't believe  so  because  the  board's                                                               
statutory direction  to make people  whole is  entirely different                                                               
than the  restitution statutes. The guidelines  are different for                                                               
establishing awards.                                                                                                            
SENATOR  COGHILL  asked  if the  bill  takes  into  consideration                                                               
situations  like a  frozen building  that results  from vandalism                                                               
and it's down for a month and a half.                                                                                           
MR.  KOPP confirmed  that the  restitution  statute AS  12.55.100                                                               
does look at the value of goods and services.                                                                                   
SENATOR  WIELECHOWSKI posed  a hypothetical  of  kids lighting  a                                                               
fire and destroying  a fishing boat. He asked if  the owner would                                                               
be compensated for the loss of  income and the replacement of the                                                               
MR. KOPP replied  the current law covers actual  damage or injury                                                               
which would cover  the loss of the boat. The  bill asks the court                                                               
to take the loss of fishing income into account as well.                                                                        
SENATOR WIELECHOWSKI asked  to whom and how  much the perpetrator                                                               
would  pay  back  if  much  of   the  loss  was  covered  by  the                                                               
fisherman's insurance.                                                                                                          
MR. KOPP  said he is a  fisherman and his policy  would cover the                                                               
loss of the boat, but not the loss of income.                                                                                   
1:45:26 PM                                                                                                                    
CHAIR MCGUIRE  offered her  belief that  income would  be covered                                                               
for a business that carried professional insurance.                                                                             
SENATOR  MICCICHE reminded  the committee  that the  goal of  the                                                               
bill  is  to make  the  person  whole  and make  the  perpetrator                                                               
responsible for his/her actions. The  goal is the same whether or                                                               
not the insurance pays first and  the perpetrator is on a payment                                                               
plan afterward.                                                                                                                 
1:46:06 PM                                                                                                                    
QUINLAN  STEINER, Director,  Public Defender  Agency, offered  to                                                               
answer questions.                                                                                                               
SENATOR  WIELECHOWSKI  asked  what   the  courts  are  doing  now                                                               
regarding restitution and how it might change with this law.                                                                    
MR.  STEINER  explained  that  when  restitution  is  ordered  it                                                               
typically becomes  part of the  judgement for the  criminal case.                                                               
If the  person doesn't  pay or  doesn't attempt  to pay  it could                                                               
impact  their supervision  if the  crime  is a  felony. When  the                                                               
restitution  order  is  large   repayment  becomes  difficult  to                                                               
impossible, and if the person  doesn't pay after probation lapses                                                               
it's  something  that  businesses  or  individuals  could  pursue                                                               
SENATOR WIELECHOWSKI  asked how judges  look at this  when people                                                               
can't make payments.                                                                                                            
MR. STEINER  said if somebody  has no  work and no  money they're                                                               
unlikely to  be imprisoned for that  alone, but it can  happen if                                                               
they're  not making  payments. Also,  it could  impact somebody's                                                               
ability  to  get a  suspended  imposition  of sentence  (SIS)  if                                                               
they're  ordered to  pay  restitution and  they're  unable to  do                                                               
SENATOR  WIELECHOWSKI asked  his  perspective on  whether or  not                                                               
this legislation  will result in  a lot of people  being returned                                                               
to jail.                                                                                                                        
MR. STEINER  opined that  the bill  doesn't materially  alter the                                                               
present structure  with the  exception of  the discussion  of the                                                               
difference between the  retail value and the market  value of the                                                               
property. Typically,  stolen items are  dealt with at  the market                                                               
value, but  under the bill the  loss of income arguably  could be                                                               
used to  make up the  difference. The  downside, he said,  is the                                                               
potential for  more litigation. He  added that he  believes there                                                               
is a  misconception about the  basis for the Welsh  case, because                                                               
it  didn't stand  for  the proposition  that  stolen property  is                                                               
valued at wholesale.                                                                                                            
1:51:47 PM                                                                                                                    
SENATOR  WIELECHOWSKI   asked  if   these  cases   would  require                                                               
additional court resources.                                                                                                     
MR. STEINER said  it depends on the complexity of  the case, what                                                               
is  damaged  and  the  litigation associated  with  the  loss  of                                                               
SENATOR WIELECHOWSKI asked if loss  of income expands to the crew                                                               
on a fishing boat that was destroyed.                                                                                           
MR. STEINER replied  that is a possibility. The  crew could argue                                                               
they're victims of the crime  if they're unable to participate in                                                               
an opening and could potentially receive a restitution order.                                                                   
SENATOR COGHILL asked if a court  might put off judgment until it                                                               
made  a determination  about  the  income loss  or  if the  court                                                               
already deals with that sort of timeframe issue.                                                                                
MR. STEINER asked for clarification of the question.                                                                            
SENATOR   COGHILL  replied   he's  referring   to  the   cost  of                                                               
replacement within  a reasonable time  in the new  subsection (o)                                                               
in  Section  3  and  the  total  loss  of  income  referenced  in                                                               
paragraph (2) of Section 2.                                                                                                     
SENATOR  MICCICHE reiterated  that the  bill asks  the courts  to                                                               
consider loss of income, realizing  that the decision will not be                                                               
the same  in every case.  As sponsor, he feels  that perpetrators                                                               
should  be  responsible  for  the  item as  well  as  the  damage                                                               
inflicted on  the victim. The  bill allows that to  be considered                                                               
in court.                                                                                                                       
SENATOR COGHILL restated his question.                                                                                          
SENATOR  MICCICHE  responded  that  the bill  isn't  designed  to                                                               
create  indentured servitude.  The idea  is that  the perpetrator                                                               
should be responsible for restitution  to the extent possible and                                                               
in a reasonable period of time.                                                                                                 
CHAIR  MCGUIRE  observed that  the  plain  language of  the  bill                                                               
allows for judicial discretion.                                                                                                 
1:58:54 PM                                                                                                                    
MR. KOPP  told Senator Coghill  that the language  regarding cost                                                               
of replacement  in a  reasonable period of  time was  lifted from                                                               
the determinations of value in criminal law in AS 11.46.980.                                                                    
SENATOR  WIELECHOWSKI asked  what  sort of  discretion the  court                                                               
will have when page 1, lines 14-15,  page 2, line 16, and page 2,                                                               
line 28, all talk about what the court shall do.                                                                                
MR. STEINER  explained that the  courts don't deviate  from using                                                               
market  value when  assessing theft  and damaged  items, although                                                               
there is discussion about how to  determine it for items that are                                                               
not sold  on a readily  available market. He reiterated  that the                                                               
Welsh  case was  somewhat confused  in  the idea  that they  were                                                               
assessing the  marked up retail  value, which  didn't necessarily                                                               
relate to  its market value.  That was discussed in  another case                                                               
recently when  the appellate  court reversed  a case  that valued                                                               
the  property at  more than  $500 retail  value which  made it  a                                                               
felony. The appellate court held  that market value prevailed and                                                               
that the value was under $500.                                                                                                  
SENATOR WIELECHOWSKI  asked if the bill  potentially will advance                                                               
property crime cases from misdemeanors to felonies.                                                                             
MR.  STEINER said  he didn't  believe so  because the  bill deals                                                               
with  restitution  which is  different  than  assessing value  in                                                               
terms of property damage.                                                                                                       
2:02:46 PM                                                                                                                    
CHRIS  NETTLES,  representing   National  Federation  Independent                                                               
Businesses (NFIB) and President,  Geo Tek Alaska, Inc., testified                                                               
in support of SB 5. He  related a personal experience when a snow                                                               
machine was stolen from  a job site at the end of  the job. If it                                                               
had occurred at the beginning of  the job, his company would have                                                               
suffered the consequences  of being down until  the machine could                                                               
be replaced. He stressed the  importance of the courts being able                                                               
to consider the total loss a victim suffers in a theft.                                                                         
2:05:06 PM                                                                                                                    
CHAIR  MCGUIRE announced  she would  hold SB  5 in  committee for                                                               
further consideration.                                                                                                          

Document Name Date/Time Subjects
1 SB5 Sponsor Statement.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
2 SB5 Sectional Analysis.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
3 SB5.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
4 SB5 Witnesses.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
5_SB5 NFIB Support.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
5.1 SB5 AGC Support.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
5.2 SB5 State Chamber Support.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
6 SB5 AS 11 46 980.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
7 SB5 Appellate Court Opinion.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
8 SB5 Welsh Case Brief and Commentary.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
9 SB5 2011 - 2013 Alaska Property Loss Summary.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
9.1 SB5 Crime Index Offense Summary 2009-2013.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
1 SB41 Sponsor Statement.pdf SJUD 3/2/2015 1:00:00 PM
SB 41
2 SB41 Sectional Analysis vsn H.pdf SJUD 3/2/2015 1:00:00 PM
SB 41
3 SB41 vsn H.pdf SJUD 3/2/2015 1:00:00 PM
SB 41
4 SB41 Fiscal Note DCCED 2-18-15.pdf SJUD 3/2/2015 1:00:00 PM
SB 41
5 SB41 Support AK Psychological Assn 2-14-15.pdf SJUD 3/2/2015 1:00:00 PM
SB 41
5.1 SB41 Support Brainerd 2-17-15.pdf SJUD 3/2/2015 1:00:00 PM
SB 41
5.2 SB41 Support Lisa Turner 2-17-15.pdf SJUD 3/2/2015 1:00:00 PM
SB 41
5.3 SB41 Support Whipple 2-26-15.pdf SJUD 3/2/2015 1:00:00 PM
SB 41
5.4 SB41 Support DeRuyter 2-27-15.pdf SJUD 3/2/2015 1:00:00 PM
SB 41
6 SB41 Letter Alaska Psychological Association.pdf SJUD 3/2/2015 1:00:00 PM
SB 41
Resume_Craig Fleener_Lt. Gov Successor.pdf SJUD 3/2/2015 1:00:00 PM
5.3 SB5 Orion Marine Group Support.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
5.4 SB5 - ACAN Support.pdf SJUD 3/2/2015 1:00:00 PM
SB 5
SB 49 Fiscal Note, Courts.pdf SJUD 3/2/2015 1:00:00 PM
SB 49
SB 49 Supporting Document-Clarification Re ALSC Prohibited Case Types-signed.pdf SJUD 3/2/2015 1:00:00 PM
SB 49
7 SB41 Letetr Alaska Psychological Association.pdf SJUD 3/2/2015 1:00:00 PM
SB 41