Legislature(2015 - 2016)BELTZ 105 (TSBldg)

04/16/2016 09:00 AM Senate JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSHB 147(JUD) Out of Committee
Moved HB 308 AM Out of Committee
Moved SCS CSHB 317(JUD) Out of Committee
Moved SCS CSHB 126(JUD) Out of Committee
+ Bills Previously Heard/Scheduled: TELECONFERENCED
Heard & Held
-- Public Testimony --
**Streamed live on AKL.tv**
          HB 317-NO COMMON LAW CIVIL IN REM FORFEITURE                                                                      
9:59:43 AM                                                                                                                    
CHAIR MCGUIRE  announced the consideration  of HB 317.  She noted                                                               
this  is  the   first  hearing,  CSHB  317(FIN)   is  before  the                                                               
committee, and there is a proposed Senate committee substitute.                                                                 
REPRESENTATIVE TAMMIE  WILSON, Alaska State  Legislature, Juneau,                                                               
Alaska,  sponsor  of HB  317,  explained  that version  P  amends                                                               
Alaska's  civil asset  forfeiture  laws  clarifying that  private                                                               
property   may  not   be  permanently   taken  from   individuals                                                               
suspected,  but  not  charged  or  found  guilty,  of  committing                                                               
10:00:23 AM                                                                                                                   
SENATOR COGHILL moved  to adopt the Senate CS for  CS for HB 317,                                                               
labeled 29-LS1380\P, as the working document.                                                                                   
SENATOR COSTELLO objected to hear changes.                                                                                      
10:00:56 AM                                                                                                                   
REPRESENTATIVE  WILSON  explained that  Section  1  of version  P                                                               
deletes the  language in Sec.  09.55.700 relating  to prohibiting                                                               
common  law civil  in rem  forfeiture except  by court  order. It                                                               
inserts,  "Common  law  civil  in   rem  forfeiture  actions  are                                                               
abolished if used instead of a criminal proceeding."                                                                            
She related that the Department of  Law agreed to this portion of                                                               
the original bill. The intent  is to close the statutory loophole                                                               
where law enforcement can seize  private property before charging                                                               
an  individual with  a crime.  She said  DOL agrees  this is  the                                                               
right language.                                                                                                                 
SENATOR COSTELLO removed her objection.                                                                                         
CHAIR MCGUIRE said this bill  addresses a concern about the small                                                               
erosion  of  the  Fourth  Amendment  right  against  unreasonable                                                               
seizure. She  asked Senator Wielechowski  if he had  any concerns                                                               
with the bill.                                                                                                                  
10:02:45 AM                                                                                                                   
SENATOR  WIELECHOWSKI asked  if  the court  has  a position,  and                                                               
noted the  representative in the  audience shook her head  in the                                                               
negative. He asked if there was any opposition to the bill.                                                                     
REPRESENTATIVE WILSON said not now that it's a civil matter.                                                                    
SENATOR  WIELECHOWSKI asked  the  the Department  of Law's  (DOL)                                                               
position on the bill.                                                                                                           
10:03:56 AM                                                                                                                   
KENT  SULLIVAN,  Assistant   Attorney  General,  Civil  Division,                                                               
Department  of  Law, said  neither  the  Civil Division  nor  the                                                               
Criminal  Division  have  concerns   with  HB  317  as  currently                                                               
drafted. Originally the bill seemed  to focus on forfeitures used                                                               
in  conjunction with  criminal proceedings  and  the concern  was                                                               
about  unintended  consequences  because civil  forfeitures  also                                                               
occur pursuant  to the common  law that uses in  rem jurisdiction                                                               
against property. His understanding  is that the current language                                                               
satisfies those concerns.                                                                                                       
SENATOR WIELECHOWSKI asked when in rem forfeitures are used.                                                                    
MR. SULLIVAN replied  in rem actions are  relatively rare outside                                                               
of criminal  proceedings but they  do happen both within  DOL and                                                               
the private sector. A partition  action and a float house located                                                               
on state land are good examples.  DOL wanted to make sure, if the                                                               
owner couldn't  be located, that  it could seize the  float house                                                               
to do  something with it  and not be  affected by this  change in                                                               
statute. The Senate CS satisfies the concern.                                                                                   
SENATOR  WIELECHOWSKI asked  if there  is a  way the  state could                                                               
take action against  a derelict float house on  state property if                                                               
the bill is enacted.                                                                                                            
MR. SULLIVAN  said it doesn't  affect the state's ability  if the                                                               
bill is enacted as currently drafted.                                                                                           
SENATOR WIELECHOWSKI  asked if this  will make it  more difficult                                                               
for the state to take action in certain cases.                                                                                  
MR. SULLIVAN answered no.                                                                                                       
SENATOR  WIELECHOWSKI asked  for  an example  of  how this  would                                                               
apply in a quiet title action.                                                                                                  
MR. SULLIVAN  explained that the  property itself can be  sued in                                                               
quiet  title  actions  to affect  the  property  boundaries.  For                                                               
example, two neighbors can sue  over the strip of land separating                                                               
the two  driveways, arguing  how the  strip should  be configured                                                               
and  who ought  to be  the  owner. It's  a civil  in rem  action.                                                               
Initially  the concern  was that  while quiet  title actions  are                                                               
statutory, not all  the law that addresses how  that law proceeds                                                               
is statutory. Common  law is relied upon for a  large part of how                                                               
those actions  occur so DOL wanted  to make sure that  common law                                                               
as to  those civil in rem  proceedings is not done  away with. As                                                               
currently drafted, HB 317 does away with that concern.                                                                          
SENATOR WIELECHOWSKI asked how it avoids the problem.                                                                           
MR. SULLIVAN said it's because  it's a civil proceeding. The bill                                                               
seeks  to  abolish going  after  property  in criminal  instances                                                               
instead of going after the person.                                                                                              
10:10:53 AM                                                                                                                   
REPRESENTATIVE WILSON  agreed with the explanation  and expressed                                                               
appreciation for the  work that takes care of  the intent without                                                               
having unintended consequences.                                                                                                 
SENATOR COGHILL summarized his understanding of the bill.                                                                       
MR. SULLIVAN  confirmed that civil  in rem  forfeiture associated                                                               
with criminal  activity will have  to happen either with  a court                                                               
order or through statute alone.                                                                                                 
SENATOR COGHILL stated agreement with the bill and sponsor.                                                                     
CHAIR MCGUIRE found no further questions and solicited a motion.                                                                
10:12:52 AM                                                                                                                   
SENATOR COGHILL moved to report the  Senate CS for CS for HB 317,                                                               
labeled    29-LS1380\P,    from   committee    with    individual                                                               
recommendations and attached zero fiscal note(s).                                                                               
CHAIR  MCGUIRE   announced  that  without  objection,   SCS  CSHB
317(JUD)  is   reported  from   the  Senate   Judiciary  Standing                                                               

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