Legislature(2001 - 2002)
04/20/2001 01:18 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
SB 105 - VICTIMS' RIGHTS/ PRISONER'S PFD [Contains brief note that HB 133 was incorporated into the work draft of SB 105, Version L, which was adopted and discussed at this meeting.] Number 1600 CHAIR ROKEBERG announced that the next order of business would be CS FOR SENATE BILL NO. 105(FIN), "An Act relating to victims' rights; relating to establishing an office of victims' rights; relating to the authority of litigants and the court to comment on the crime victim's choice to appear or testify in a criminal case; relating to compensation of victims of violent crimes; relating to eligibility for a permanent fund dividend for persons convicted of and incarcerated for certain offenses; relating to notice of appropriations concerning victims' rights; amending Rules 16 and 30, Alaska Rules of Criminal Procedure, Rule 9, Alaska Delinquency Rules, and Rule 501, Alaska Rules of Evidence; and providing for an effective date." Number 1677 REPRESENTATIVE COGHILL made a motion to adopt the proposed committee substitute (CS) for SB 105, version 22-LS0219\L, Luckhaupt, 4/11/01, as a work draft. There being no objection, Version L was before the committee. Number 1700 JULI LUCKY, Staff to Senator Rick Halford, Alaska State Legislature, on behalf of Senator Halford, sponsor, confirmed that HB 133 - the governor's bill pertaining to restitution - has been incorporated into Version L of SB 105. Number 1756 CHAIR ROKEBERG made a motion to adopt Amendment 1, which read [original punctuation provided]: Page 6, lines 8-9: Following "misdemeanor." Delete "A copy of the completed form shall be provided" Insert "The defendant shall provide a copy of the completed form" Page 7, line 2 through Page 8, line 6: Delete all material and insert: (e) The Department of Law is authorized to collect restitution on behalf of the recipient unless (1) the recipient elects as provided in (f) of this section to enforce the order of restitution without the assistance of the Department of Law; or (2) the order requires restitution to be made in a form other than payment of a specific dollar amount. (f) The court shall forward a copy of an order of restitution to the Department of Law when the judgement is entered. Along with the copy of the order, the court shall provide the name, date of birth, social security number, and current address of the recipient of the restitution and the defendant, to the extent that the court has that information in its possession. Upon receipt of the order and other information from the court, the Department of Law shall send a notice to the recipient regarding the recipient's rights under this section, including the right to elect to enforce the order of restitution without the assistance of the Department of Law. The information provided to the Department of Law under this subsection is confidential and is not open to inspection as a public record under AS 40.25.110. The Department of Law or its agents may not disclose the information except as necessary to collect on the restitution. (g) The Department of Law may not begin collection procedures on the order of restitution until the recipient has been given notice and has been given 30 days after receipt of notice to elect to collect the restitution without the assistance of the Department of Law. A recipient may inform the Department of Law at a later time of the recipient's election to collect the restitution without the assistance of the Department of Law; upon receipt of that information, the Department of Law may no longer proceed with collection efforts on behalf of the recipient. A recipient who has elected under this section to collect restitution without the assistance of the Department of Law may not later request the services of that department to collect the restitution. (h) If the Department of Law or its agents proceed to collect restitution on behalf of a recipient under (g) of this section, the actions of the Department of Law or an agent of the Department of Law on behalf of the recipient do not create an attorney-client relationship between the Department of Law and the recipient. The Department of Law or its agent may not settle a judgement for restitution without the consent of the recipient of the restitution. (i) An action for damages may not be brought against the state or any of its agents, officers, or employees based on an action or omission under this section. (j) The Department of Law may enter into contracts on behalf of the state to carry out the collection procedures of this section. The Department of Law may adopt regulations necessary to carry out the collection procedures of this section, including the reimbursement of attorneys fees and costs in appropriate cases. Page 23, lines 19-20: Following "election to" Delete "inform the Department of Law of an election to" Page 22, line 27: Following "when the" Delete "order" Insert "judgement" Page 23, line 29: Following: "settle" Delete "an order of" Insert "a judgement for" MS. LUCKY explained that Amendment 1 is a technical amendment that will fix some inconsistencies found after portions of HB 133 was incorporated into Version L of SB 105. In detail, the first section of Amendment 1 will specify that it is the defendant who shall provide a copy of the completed financial information form to the prosecuting authority; the second section of Amendment 1 mirrors the structure of the enabling language for the Department of Law (DOL) regarding restitution with that which pertains to the Division of Juvenile Justice; the third section of Amendment 1 fixes a typo containing duplicate language; and the fourth and fifth sections of Amendment 1 bring the Division of Juvenile Justice into compliance by replacing references to "order" with "judgement". Number 1867 CHAIR ROKEBERG asked whether there were any objections to Amendment 1. There being no objection, Amendment 1 was adopted. Number 1870 CHAIR ROKEBERG made a motion to adopt Amendment 2, which read: Page 1, line 2: Delete "authority of litigants and the court to comment on the" Page 2, line 1: Delete "Rules 16 and 30" Insert "Rule 16" Page 8, lines 7 - 13: Delete all material. Insert a new bill section to read: "* Sec. 12. AS 12.55 is amended by adding a new section to read: Sec. 12.55.151. Court may not reduce or mitigate punishment based on victim's failure to appear or testify. Notwithstanding another provision of law, when sentencing a defendant, a court may not mitigate or reduce the punishment of the defendant based on, or otherwise consider as a mitigating factor or reason to impose a lesser punishment, the failure of the crime victim to appear or testify." Page 25, lines 25 - 29: Delete all material. Renumber the following bill sections accordingly. Page 26, lines 12 - 16: Delete all material. Renumber the following bill sections accordingly. Page 27, line 1: Delete "and 34 - 37" Insert "34, and 35" Page 27, line 5: Delete "39, and 40" Insert "37, and 38" Page 27, line 7: Delete "and 34 - 37" Insert "34, and 35" Page 27, line 9: Delete "and 38" Insert "and 36" MS. LUCKY explained that an amendment adopted in the Senate Finance Committee prohibits comment on whether a victim chooses to testify or not. To forestall constitutional difficulties, Amendment 2 alters the language to simply clarify that the court may not reduce or mitigate punishment based on the victim's failure to appear or testify, and moves this language to AS 12.55, which is the sentencing statute. Number 1927 CHAIR ROKEBERG asked whether there were any objections to Amendment 2. There being no objection, Amendment 2 was adopted. Number 1941 CHAIR ROKEBERG made a motion to adopt Amendment 3, which read: Page 2, line 2: Delete "Rule 501" Insert "Rules 402 and 501" Page 16, lines 7 - 12: Delete all material and insert: "Sec. 24.65.200. Victims' advocate's privilege not to testify or produce documents or other evidence. Except as may be necessary to enforce the provisions of this chapter, the determinations, conclusions, thought processes, discussions, records, reports, and recommendations of or information collected by the victims' advocate or staff of the victims' advocate are not admissible in a civil or criminal proceeding, and are not subject to questioning or disclosure by subpoena or discovery." Page 26, line 10: Delete "Rule 501" Insert "Rules 402 and 501" Page 26, line 11: Following "testify": Insert "or produce evidence" Following "court": Insert "and precluding admissibility of certain evidence in certain cases" MS. LUCKY relayed that Mr. Guaneli, Department of Law, is of the opinion that language currently in Version L regarding the victims' advocate's privilege not to testify is not specific enough; Amendment 3 is intended to enumerate specifically what is privileged. Number 2010 REPRESENTATIVE COGHILL objected for the purpose of discussion. CHAIR ROKEBERG called an at-ease from 1:53 p.m. to 1:56 p.m. Number 2017 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), explained that although victims' advocates could not be compelled to testify and neither could their documents be used as evidence, current language in Version L did not preclude someone from going after those records and files during the course of civil discovery and then using the information gleaned from them. Since these records and files come from confidential sources, he said the documents should remain confidential and be contained within the office. Amendment 3 clarifies that these documents are not permissible [as evidence] in proceedings and are not subject to questioning or disclosure by subpoena or discovery. He opined that Amendment 3 preserves the sponsor's intent that the confidentiality of these records be maintained. MR. GUANELI also explained that Rule 402 of the Alaska Rules of Evidence is a general rule regarding relevant evidence, and that the drafter felt that including specific reference to Rule 402 is necessary because it is indirectly changed by the fact that these records are not admissible or subject to questioning. Number 2156 CHAIR ROKEBERG asked whether there were any further objections to Amendment 3. There being no objection, Amendment 3 was adopted. Number 2169 CHAIR ROKEBERG made a motion to adopt Amendment 4, which read: Page 16, lines 24 - 26: Delete ", including the governor and lieutenant governor, when acting with regard to executive clemency, judges, and magistrates" MR. GUANELI explained that Version L defines "justice Agency" to include any number of departments, agencies, offices, et cetera, and that these are the agencies that the victims' advocate, in his/her investigative capacity, could subpoena records from. Included in this list are the governor and lieutenant governor with regard to executive clemency, judges, and magistrates. He opined that this language might lead to problems related to separation of powers, and goes too far. Amendment 4 will exclude the offices of governor and lieutenant governor from investigations by the victims' advocate. In response to a question, he added that with the inclusion of "court" on line 20 of page 16, the language is broad enough to include magistrates, judges, deputy magistrates, supreme court justices, and a variety of judicial officers. MS. LUCKY noted that Senator Halford does not have any objections to Amendment 4. Number 2258 CHAIR ROKEBERG asked whether there were any objections to Amendment 4. There being no objection, Amendment 4 was adopted. Number 2260 CHAIR ROKEBERG made a motion to adopt Amendment 5, which read [original punctuation provided]: Page 14, Line 31: Delete "or" Page 15, line 3, following "rights": Insert"; (5) a victim counselor concerning a matter made confidential by AS 18.66.200 - 18.66.250; or (6) a justice agency concerning records that lead to the disclosure of a confidential police informant." MR. GUANELI, in support of Amendment 5, explained that pages 14- 15 contain a number categories of persons or agencies that would be exempt from having their records subpoenaed, including judges, justices, magistrates, and members of juries, and he said it was felt that victims' counselors should be included in this exemption since they already operate under very detailed confidentiality rules and because release of such information would interfere in the victim/counselor relationship. In addition, he explained that any police agency records that might lead to the disclosure of confidential police informants should also be included in the exemption because release of their identities might put them in physical danger. Number 2346 CHAIR ROKEBERG asked whether there were any objections to Amendment 5. There being no objection, Amendment 5 was adopted. REPRESENTATIVE BERKOWITZ asked whether the issue of "subpoenaing the privileged informational work product," which he had previously discussed with Ms. Lucky, has been addressed yet. MS LUCKY noted that an actual amendment addressing that topic has not yet been drafted. She explained that she has made inquiries into whether there is a danger of having attorney/client communications subpoenaed under the current language in Version L. She said that the responses she received from the DOL, the drafter, and the majority counsel indicated that the current language that says, "subject to privileges the witnesses have in the courts of this state", would protect the attorney/client privilege. She sought further comments from Representative Berkowitz, and also said she would be willing to change this language if any member had suggestions for specific changes. She noted one such suggestion is to replace the aforementioned language with "subject to privileges recognized by court rule and statute", and another option offered is to insert language into AS 24.65.130(c)(4) that would include in the exclusions from subpoena the privileged communications of a defendant's attorney. She commented that the latter option might be the more appropriate change since the current language addresses what may be subpoenaed by the advocate while investigating a victim's complaint that he/she has been denied constitutional and statutory rights. TAPE 01-68, SIDE B Number 2480 REPRESENTATIVE BERKOWITZ expressed willingness to consider the former aforementioned option as a conceptual amendment. CHAIR ROKEBERG called an at-ease from 2:08 p.m. to 2:10 p.m. Number 2473 REPRESENTATIVE BERKOWITZ made a motion to adopt Conceptual Amendment 6. MS. LUCKY recapped that on page 14, lines 6-7, Conceptual Amendment 6 would delete "Subject to the privileges that witnesses have in the courts" and insert "Subject to the privileges recognized by court rule and statute". Number 2416 CHAIR ROKEBERG asked whether there were any objections to adopting Conceptual Amendment 6. There being no objection, Conceptual Amendment 6 was adopted. Number 2399 BLAIR McCUNE, Deputy Director, Central Office, Public Defender Agency (PDA), Department of Administration, testified via teleconference and suggested that out of an abundance of caution, the language "or an attorney retained by the person or appointed by the court to represent the person" could also be added to subsection (c)(4) on page 15, line 3, after "rights". He noted that this would clarify that an attorney's confidential communications with his/her client cannot be subpoenaed. Number 2249 CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 7, which would insert "or an attorney retained by the person or appointed by the court to represent the person" after "rights" on page 15, line 3. There being no objection, Conceptual Amendment 7 was adopted. MR. McCUNE, on a slightly different point, clarified that the PDA does not consider itself to be a justice agency under the definition in Version L because it is not concerned with apprehension, prosecution, incarceration, or supervision. He also noted that the Office of Public Advocacy is not a justice agency under this definition either. REPRESENTATIVE BERKOWITZ, on the point of another conceptual amendment, suggested that "this new bureaucracy" should have a sunset date. MS. LUCKY stated a preference not to include a sunset date. REPRESENTATIVE BERKOWITZ opined that if the [Office of Victims' Rights] has a sunset date, the legislature will then have the opportunity to revisit the issue and determine whether the sunset should be removed or if other steps need to be taken. REPRESENTATIVE JAMES expressed agreement with this concept. Number 2223 REPRESENTATIVE BERKOWITZ made a motion to adopt Conceptual Amendment 8, which would provide a sunset date of July 1, 2005, for the [Office of Victims' Rights]. Number 2200 CHAIR ROKEBERG objected for the purpose of discussion. MS. LUCKY, in response to questions, explained that Version L has three different effective dates. The first effective date - the immediate effective date - deals with the regulations and receiving money from forfeited permanent fund dividends (PFDs). The second effective date of July 1, 2002, relates to the Office of Victims' Rights, which won't be up and running until then. The third effective, which addresses the restitution provisions, will be January 1, 2002. She mentioned that the fiscal notes total a little over $500,000. She reiterated that she would prefer not to have a sunset date, but added that a sunset date of 2006 would at least allow the [Office of Victims' Rights] to operate for a full four years. REPRESENTATIVE BERKOWITZ said, "That'd be fine; I would take that as a friendly amendment." Number 2152 CHAIR ROKEBERG announced that the amendment to Conceptual Amendment 8 would result in a sunset date of July 1, 2006, for the provisions pertaining to [the Office of Victims' Rights]. There being no objection, the amendment to Conceptual Amendment 8 was adopted. REPRESENTATIVE JAMES opined that a sunset date would not be injurious to the legislation, and that it makes rational sense to provide a sunset date. CHAIR ROKEBERG maintained his objection to Conceptual Amendment 8, as amended. Number 2079 A roll call vote was taken. Representatives James, Meyer, and Berkowitz voted for Conceptual Amendment 8, as amended. Representatives Coghill and Rokeberg voted against it. Therefore, Conceptual Amendment 8, as amended, passed by a vote of 3-2. MR. GUANELI, in response to questions regarding a memorandum from the drafter pertaining to Section 6, said he believed that Version L, as drafted, is constitutional. He surmised that what the legislature is saying via Section 6 is that the money that was the defendant's, but as a result of some conduct of the defendant, will now go to the victim, and that an equal amount will be owed to the state. He opined that this is proper legislative action and does not constitute an appropriation as is posited by the drafter in his memorandum. He noted that although current statute allows for bail to be forfeited if a defendant violates the conditions of bail, the statute does not stipulate where the funds go. As matter of practice, he added, the funds have been going to the general fund (GF), but nothing in statute precludes the legislature from directing forfeited money elsewhere. He remarked that the incident referred to in the memorandum involved fines owed to the state but which were then paid to private organizations, whereas Section 6 is referring to money owned by the defendant but which, upon forfeiture, is directed by the legislature to go to the victim. He opined that language in Section 6 does not create a dedicated fund problem. CHAIR ROKEBERG noted that the state has a compelling interest to ensure that victims are receiving restitution, and said that "this" is one way to secure that. He opined that [this compelling interest] would supersede any interpretation that Section 6 is referring to a dedicated fund. The courts would simply be holding the funds in trust and then issuing it to the victim as form of restitution. MR. GUANELI confirmed this; it would be another mechanism similar to what the courts currently do when collecting restitution. Number 1901 REPRESENTATIVE BERKOWITZ, referring to the Eighth Amendment of the U.S. Constitution addressing excessive bail, noted that the defendant is being required to pay bail twice in these instances of forfeiture, [once to the defendant, and then again to the state]. He asked whether there has been any analysis done on this point. MR. GUANELI surmised that these instances would have to be considered on a case-by-case basis. For example, if bail is set at $1 million and the defendant violates the conditions of bail, then having to pay $2 million might be considered inappropriate, but in the normal circumstance, he offered, judges have wide discretion to set an amount of bail. Therefore, he opined, without looking at a specific case, one could not say that Section 6 falls under the excessive bail provision of the U.S. Constitution. REPRESENTATIVE BERKOWITZ pointed out that language in Section 6 mandates that a matching amount of the forfeited bail be paid to the state. He noted that this raises questions regarding process; he opined that it could be problematic from a constitutional perspective. MR. GUANELI posited that everyone would agree that if bail is set at $500, and the defendant has to pay $500 to the victim and $500 to the state for a violation of bail conditions, it would not be considered unconstitutional. He acknowledged, however, that as the amount of bail rises, there may be other issues that have to be resolved, and that there may be a point when the courts say, "We can not constitutionally do what this says; we'll pay the victim what the victim is due." He pointed out that the victim would not get the entire amount of the forfeited bail unless there were damages up to that amount; the victim would only get the amount ordered for restitution. He added that a judge might then determine that it would be excessive to pay the state an amount that matched the forfeited bail. REPRESENTATIVE JAMES asked whether Section 6 stipulates this. MR. GUANELI said that he did not know that it did, but offered that it was the only interpretation that really makes sense in the context of collecting restitution; the victim is only going to get what he/she is due for damages, which would be determined at a restitution hearing. REPRESENTATIVE BERKOWITZ said that according to his recollection, "You can only impose [a] bail [amount that's] ... reasonably necessary to secure the defendant's appearance, and bail should be based on the defendant's flight risk and danger to the community." He posited that in essence, Section 6 proposes a third and fourth criteria for imposing bail. Number 1708 MR. GUANELI offered that on the one hand, there is the question of how much bail the court should impose to begin with to allow the person to get out of jail. He pointed out that bail is not imposed with any regard to how much the victim's restitution is. It is only if the defendant later violates the conditions [of bail] that the question of where forfeited bail should go arises. He opined that if the forfeited bail can go towards the victim's restitution, it should. The question of the overall penalty that the defendant is subject to, he asserted, is something that is taken up at sentencing along with restitution orders, bail forfeitures, and other types of forfeitures, all of which must be done on a case-by-case basis. MR. McCUNE commented that after careful review of Section 6, he did not see a problem with it. After the bail is forfeited in a criminal case, he explained, it's lost to the defendant. The defendant or the bail bondsman can ask for remission of the forfeiture, which he said he assumes is taken into account, but if the remission fails and the money's forfeited, it's gone. He pointed out that the victim doesn't get a windfall since the language says, "the court shall apply the cash or other security to an order that the defendant pay restitution"; consequently, if the forfeited amount is $1 million but the restitution order is $500, only $500 goes to the victim. REPRESENTATIVE JAMES pointed out that under the current language, it appears that once the bail is forfeited, the defendant would then be ordered to pay the exact same amount to the state, and that this seems to her to be doubling the amount of bail. MR. GUANELI, in response, explained that the process outlined in Section 6 would work thus: If a defendant has to post $5,000 bail and owes $1,000 restitution to the victim, the total amount is $6,000. Upon forfeiture of the bail, $1,000 would go to the victim first and the remaining $4,000 would go to the state general fund (GF). The state would then enter a separate judgment of $1,000 to be paid to the state for the amount of bail still owed. In this way, a defendant who violates the conditions of bail still pays a total of $6,000, but the victim gets paid restitution first. He added that since the victim is the first payee, the state, then, is responsible for going after any amount still owed for forfeited bail. REPRESENTATIVE JAMES likened it to a lien that the victim has on the forfeited bail. MR. GUANELI agreed, and added that the victim has first priority for receiving the money. CHAIR ROKEBERG said that it certainly seems to be to the public's benefit and in the state's best interest to make sure that restitution is paid to the victim before the GF is increased. Number 1430 REPRESENTATIVE COGHILL opined that Section 6 still needs clarification; he said it still looks like the defendant could end up paying more than the amount of restitution due. REPRESENTATIVE BERKOWITZ suggested deleting "forfeited and applied" from page 5, line 9, after "amount". MS. LUCKY concurred that doing so would clarify that the separate order is not referring to the forfeited amount, but only to the amount of restitution. Number 1292 CHAIR ROKEBERG indicated that he would treat that suggestion as a motion from Representative Coghill to adopt Conceptual Amendment 9, which would delete "forfeited and applied" from page 5, line 9, after "amount". There being no objection, Conceptual Amendment 9 was adopted. Number 1233 REPRESENTATIVE JAMES moved to report the HCS for CSSB 105, version 22-LS0219\L, Luckhaupt, 4/11/01, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HCS CSSB 105(JUD) was reported from the House Judiciary Standing Committee. Number 1224 CHAIR ROKEBERG announced that the committee needed to adopt a House Concurrent Resolution to change the title of SB 105. Number 1212 REPRESENTATIVE JAMES made a motion to adopt the proposed House Concurrent Resolution, version 22-LS0909\A, Luckhaupt, 4/11/01, as a work draft. There being no objection, it was so ordered. Number 1203 REPRESENTATIVE JAMES moved to report the proposed House Concurrent Resolution, version 22-LS0909\A, Luckhaupt, out of committee with individual recommendations. There being no objection, the House Concurrent Resolution [which later became HCR 18] was reported from the House Judiciary Standing Committee. [HCS CSSB 105(JUD) was reported from committee.]
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