Legislature(2015 - 2016)BELTZ 105 (TSBldg)
04/16/2016 09:00 AM JUDICIARY
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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 crimes. 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 Committee.