Legislature(2013 - 2014)

2014-09-19 Senate Journal

Full Journal pdf

2014-09-19                     Senate Journal                      Page 2878
SB 108                                                                                                                        
Message dated August 28 was received stating:                                                                                   
Dear President Huggins,                                                                                                         
Marsingill v. O'Malley, 128 P.3d 151 (Alaska 2006) (Marsingill II) (On                                                          
appeal after remand, the jury verdict in favor of the physician was                                                             
  Marsingill II,128 P.3d at 155, citing to Marsingill I, 58 P.3d at 503                                                         
(internal citations omitted).                                                                                                   

2014-09-19                     Senate Journal                      Page 2879
Under the authority vested in me by Article II, Section 15 of the                                                               
Alaska Constitution, I have vetoed the following bill:                                                                          
         HOUSE CS FOR CS FOR SENATE BILL                                                                                        
         NO. 108(FIN) "An Act relating to the confidentiality                                                                   
         of certain records of criminal cases; and providing for                                                                
         an effective date."                                                                                                    
The provisions in HCS CSSB 108(FIN) attempt to solve a complex                                                                  
issue that requires striking the right balance between open and                                                                 
transparent criminal court proceedings, the rights of crime victims, and                                                        
the rights of persons who have been accused, but never convicted, of a                                                          
crime. Unfortunately, the legislation summarily sweeps all such cases                                                           
under the cloak of confidentiality in an unnecessarily broad manner                                                             
without respect to likely adverse impacts on the public. In my view,                                                            
the legislation unnecessarily restricts access to criminal court records                                                        
which adversely affects the ability of Alaskans to protect themselves                                                           
and to hold their judicial system accountable. Additionally, the law                                                            
would be vulnerable to legal challenge.                                                                                         
This legislation implicates important constitutional provisions and                                                             
protections for all concerned, including the victim, the accused,                                                               
members of the public outside the criminal proceeding, and                                                                      
generations to come who review and rely on historical information left                                                          
in the public record.                                                                                                           
For centuries, our country and her states have allowed public access to                                                         
criminal court documents and proceedings because public confidence                                                              
in the fairness, trustworthiness, and impartiality of our judicial system                                                       
depends on the public's ability to observe criminal court proceedings                                                           
and access the records of those proceedings. Indeed, the United States                                                          
Supreme Court has concluded that "…a presumption of openness                                                                    
inheres in the very nature of a criminal trial under our system of                                                              
justice." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573                                                              
While Richmond Newspapers addressed the issue of whether a trial                                                                
could be closed to the press and public, something not at issue in this                                                         
legislation, the Supreme Court's opinion spoke to constitutional                                                                
interests at stake in HCS CSSB 108(FIN). The First Amendment, in                                                                

2014-09-19                     Senate Journal                      Page 2880
conjunction with the Fourteenth, prohibits governments from                                                                     
abridging the freedom of speech, or of the press; or of its people to                                                           
petition the government for a redress of grievances. The First                                                                  
Amendment right to free speech "goes beyond protection of the press                                                             
and the self-expression of individuals to prohibit government from                                                              
limiting the stock of information from which members of the public                                                              
may draw." Id. at 576, citing, First National Bank of Boston v. Bellotti,                                                     
435 U.S. 765, 783 (1978). Free speech, the Richmond Newspapers                                                                  
Court held, carries with it some freedom to listen, to receive                                                                  
information and ideas. Id. at 576.                                                                                            
The public's right to know what happens in criminal proceedings was                                                             
not based on some right to satisfy mere personal curiosity, but rather                                                          
on a person's right to be fully informed so as to protect him or herself                                                        
or family members from harm, to foster accountability for our judicial                                                          
branch by the people, and to improve individual decision-making.                                                                
I think here of the parent who wants to complete his or her due                                                                 
diligence on a potential daycare provider. Just because the prosecutor                                                          
failed to prove beyond a reasonable doubt that a person should be                                                               
convicted of a crime related to child abuse, it does not mean that a                                                            
parent outside the proceeding should be left in the dark about that                                                             
court process. A parent's standard for who should watch his or her                                                              
child would likely be considerably different than whether someone                                                               
had been acquitted of such charges on a "beyond a reasonable doubt"                                                             
standard. At the very least, the parent should have access to court                                                             
information so they can pursue a more fully informed choice.                                                                    
The legislation makes case records confidential from public view, but                                                           
gives access rights to records of criminal proceedings to employees of                                                          
the Department of Health and Social Services who are responsible for                                                            
the health, safety, welfare, or placement of a child; a person with a                                                           
physical or intellectual disability; or a person with a mental illness.                                                         
Why is it important for a State worker to have access rights to this                                                            
information to protect a vulnerable person in the State's care, but not                                                         
for a parent or other family member trying to ensure the safety of a                                                            
vulnerable person in their household? An argument can be made that                                                              
the legislation could create more crime victims in our state because it                                                         
would inhibit the ability of Alaskans to protect themselves or their                                                            
loved ones via access to complete criminal records.                                                                             

2014-09-19                     Senate Journal                      Page 2881
While I do not believe the provisions of this bill clearly violate the                                                          
victims' rights provisions of the Alaska Constitution, I believe that the                                                       
other constitutional implications and the rights of victims need to be                                                          
considered further to address the important interests at stake in this                                                          
type of legislation.                                                                                                            
Next, the public's right to know what happened in a criminal                                                                    
proceeding is important for reasons of government accountability.                                                               
How else would we discover misconduct by a prosecutor or defense                                                                
counsel or misconduct by a judge in one trial or a series of trials?                                                            
The public's right to know is also important for historical accuracy                                                            
and completeness. Where records in the public domain are incomplete,                                                            
truth and accuracy suffer. Where volumes of court information would                                                             
be rendered confidential by the legislation, the public is left with only                                                       
what was printed in press reports of the time, if any. Under the best of                                                        
circumstances, no one could say those accounts are complete or                                                                  
wholly accurate. More reputational destruction could occur based on                                                             
incomplete accounts and no member of the public would be able to                                                                
ever "set the record straight." It has been said that text, out of context,                                                     
is pretext, and the saying holds true here. An incomplete historical                                                            
record fosters inaccuracy in the retelling, all at the expense of truth,                                                        
safety, accountability, and future decision-making.                                                                             
On the other hand, as a society we have already set some limitations                                                            
on the public's right to know out of concern for individuals. For                                                               
example, in some cases, the parties' privacy interests outweigh the                                                             
public's right to view proceedings or records, such as proceedings                                                              
involving the protection of minor children. These privacy interests and                                                         
more were thoughtfully set forth by a number of people in legislative                                                           
hearings on the bill.                                                                                                           
Lawmakers heard compelling testimony from individuals who had                                                                   
been arrested, but never charged with a crime, or who had been subject                                                          
to retaliatory, baseless requests for protective orders against                                                                 
them. These individuals' names appear on the Alaska Court System's                                                              
easily searchable electronic public index (CourtView), adversely                                                                
affecting their reputation. In many situations, I agree that the privacy                                                      
  See, House Finance Standing Committee Minutes, April 14, 2014 and                                                             
letters of support for Senate Bill 108.                                                                                         

2014-09-19                     Senate Journal                      Page 2882
interests of a person outweigh the public's need to know of a minor                                                             
brush with the law, and certainly so when an Alaskan is the subject of                                                          
a baseless, retaliatory action.                                                                                                 
It is easy to imagine how someone could simply log on to CourtView                                                              
and make decisions based on the simple fact that a person was arrested                                                          
or had a protective order filed against them, regardless of the final                                                           
outcome. This is especially true where CourtView does not make the                                                              
disposition of the case known until one drills down several screens                                                             
into CourtView. A relatively simple solution might be for the Alaska                                                            
Court System to make the case or charge disposition more readily                                                                
available on the same screen as the listing of the charge.                                                                      
Unfortunately, the bill before me requires no consideration of the                                                              
substance of a matter, or of its possible significance, historical or                                                           
otherwise, to the public at large, in order to remove a record from                                                             
public view. As one person wrote in opposition to the bill, "This bill                                                          
takes a meat-axe approach to a problem," by making all criminal                                                                 
records confidential (in the broad categories enumerated) when a more                                                           
finely targeted or nuanced response would better balance the rights                                                             
and interests of all Alaskans.                                                                                                  
During public testimony on the bill, several tragic accounts were                                                               
related about how people had been stigmatized by an arrest without                                                              
subsequent charges being brought and by being wrongly charged as an                                                             
adult when a minor was involved and the charges should not have                                                                 
been on CourtView. To better address some of these concerns, the                                                                
Alaska Court System recently adopted a more finely-tuned approach                                                               
via an amended Alaska Court rule that better protects Alaskans'                                                                 
privacy. The newly amended Alaska Court rule provides that names of                                                             
those who are arrested with the following circumstances will no longer                                                          
be visible in the electronically searchable CourtView database:                                                                 
     · criminal cases dismissed because the prosecuting authority                                                               
         declined to file a charging document;                                                                                  
     · criminal cases dismissed for lack of probable cause under                                                                
         Criminal Rule 5(d);                                                                                                    
     · criminal cases dismissed for an identity error under Criminal                                                            
         Rule 43(d);                                                                                                            
     · criminal cases dismissed because the named defendant is a                                                                

2014-09-19                     Senate Journal                      Page 2883
         minor wrongly charged in adult court with an offense within                                                            
         the jurisdiction for delinquency proceedings under                                                                     
         AS 47.12.020;                                                                                                          
     · minor offense cases dismissed for an identity error under                                                                
         Minor Offense Rule 11(c);                                                                                              
     · domestic violence protective order cases dismissed at or                                                                 
         before the hearing on an ex parte petition because there is not                                                        
         sufficient evidence that the petitioner is a victim of domestic                                                        
         violence as defined by AS 18.66.990(3) or there is not                                                                 
         sufficient evidence that the petitioner is a household member                                                          
         as defined by AS 18.66.990(5); and                                                                                     
     · stalking or sexual assault protective order cases dismissed at                                                           
         or before the hearing on an ex parte petition because there is                                                         
         not sufficient evidence that the petitioner is a victim of                                                             
         stalking as defined by AS 11.41.270 or sexual assault as                                                               
         defined in AS 18.66.990(9).                                                                                            
Alaska citizens who find themselves in the circumstances listed above                                                           
are now better protected. Because of the Alaska Court rule, they will                                                           
no longer have their names on an easily searchable public database                                                              
due to a minor brush with the law that resulted in no charges, or where                                                         
they were the target of baseless requests for a protective order by a                                                           
disgruntled ex-partner.                                                                                                         
I remain open to further discussion about whether the balance struck                                                            
by the Alaska Court rule in tandem with my veto adequately addresses                                                            
circumstances where privacy interests might outweigh the public's                                                               
right to know about criminal proceedings. For example, should case                                                              
records related to an arrest, a charge based on probable cause, and a                                                           
subsequent prosecutor or court dismissal be available on CourtView                                                              
(when no lack of probable cause is cited in the record as a reason for                                                          
dismissal)? Or, should criminal case records involving crimes against                                                           
people be treated differently than those involving crimes against                                                               
property with respect to confidentiality in the "not guilty" context? I                                                         
do not attempt to answer those issues here, but merely to signal to                                                             
legislators that I am willing to engage in discussing a more targeted                                                           
approach to confidentiality of criminal case records beyond the new                                                             
Alaska Court rule, but not so far as HCS CSSB 108(FIN) would take                                                               

2014-09-19                     Senate Journal                      Page 2884
Accordingly, although I have vetoed HCS CSSB 108(FIN) because I                                                                 
think it too blunt and sweeping an instrument against the public's right                                                        
to know, I share that deep concern for individual privacy and                                                                   
maintenance of a person's reputational interest. The sponsor and                                                                
supporters of HCS CSSB 108(FIN) have made great strides in                                                                      
protecting those interests as demonstrated by implementation of the                                                             
newly amended Alaska Court rule. Due to this new Alaska Court rule,                                                             
Alaskans' privacy will be better protected. In addition, I remain open                                                          
to working with the Legislature, the Court System, and members of                                                               
the public to develop a more targeted and balanced approach.                                                                    
Sean Parnell