Legislature(2013 - 2014)SENATE FINANCE 532
03/17/2014 09:00 AM FINANCE
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|Confirmation: Department of Revenue, Commissioner Angela Rodell|
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE BILL NO. 108 "An Act relating to the confidentiality of certain records of criminal cases; and providing for an effective date." 10:01:00 AM SENATOR FRED DYSON, SPONSOR, addressed the legislation. He believed many members had handled Second Amendment issues well and that First Amendment issues would be addressed on a more frequent basis. The bill pertained to the Fourth Amendment's right to privacy. His concern had come out of the task force currently working on barriers to reentry from the criminal justice system. He discussed that the State of Alaska had a public website called CourtView that listed criminal records. He stated that unfortunately, the website also carried arrest records. The bill would strengthen the privacy and liberty interests of persons when charges were dismissed or acquitted by removing records from CourtView after 120 days. The information would remain available to police, the Department of Corrections, judges, and prosecutors. He stated that many employers, landlords, and other frequently looked at CourtView to determine whether a person had a record; a person's name on the website hindered that person from competing for jobs and other. He referred to a case in Anchorage from the prior year as an example of an innocent person with their name posted on CourtView. He relayed that the record on CourtView was indefinite. 10:04:25 AM CHUCK KOPP, STAFF, SENATOR FRED DYSON, stated that section 1 of the bill addressed the practicality of going back without incurring a large fiscal note. The sponsor's office had developed the legislative intent language in conjunction with the Alaska Court System that aimed to address people who were currently struggling under the weight of an acquitted or dismissed charge on CourtView. He read from the sectional analysis (copy on file): Section 1 Provides legislative intent directing the Court, to the extent practicable, to treat as confidential records of criminal cases disposed of before the effective date of the Act by acquittal of all charges, dismissal of all charges, or acquittal of some charges and dismissal of remaining charges, to the same extent that records are held confidential by this bill, under AS 22.35.030. Section 2 Amends AS 22.35 by adding a new section, AS 22.35.030. Records concerning criminal cases resulting in acquittal or dismissal confidential. This section establishes that a court record of a criminal case is confidential if 120 days have elapsed from the date of acquittal or dismissal and (1) the person was acquitted of all charges filed in the case; (2) all charges against the person have been dismissed by the prosecuting authority; or (3) the person was acquitted of some of the charges in the case, and the remaining charges were dismissed. Provide exceptions for access to information made confidential for state agency employees responsible for health, safety, welfare, or placement of a child, a person with a physical or intellectual disability, or a person with a mental illness; employees that protect other vulnerable citizens, and state criminal justice information network users. The Department of Health and Social Services will adopt regulations to administer these exceptions. Section 3 Establishes the Applicability of the Act to criminal charges concluded on or after the effective date of the Act by dismissal or by acquittal of the defendant. Section 4 Establishes the effective date of the Act as October 1, 2014. Mr. Kopp elaborated that that the original bill had read that a court record of a criminal case would be confidential if 90 days had elapsed from the date of acquittal or dismissal; the provision had been updated in Section 2 to 120 days per a request from the Department of Law due to a 120 evidentiary rule. 10:08:52 AM Mr. Kopp directed committee attention to the zero fiscal notes from the Department of Administration, which included the Office of Public Advocacy and the Public Defender's Office, and one from the Department of Law. He stated that the courts could address the process by which records were held confidential under court rule. He noted that there were letters of support in member files as well as one letter of opposition from the Office of Victim's Rights. NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM, testified that the Alaska Court System (ACS) was neutral on the bill. She shared that she had worked with the bill sponsor to ensure that the legislation could be implemented with the least amount of expense and technological problems. She said that ACS could make cases confidential; this would be a unique category of cases, as all other cases that were confidential were so from the beginning of the case. She relayed that when the legislature made a certain case type confidential the case was not posted on Court View or released in hard copy. The cases were kept in courthouses in a fluorescent envelope and were viewed by no one, with the exception of: the parties in the case, the attorneys in the case, court staff for case processing purposes, and the judge. She explained that the legislation would make cases confidential after they had previously been public. Provided that every charge in the case was dismissed or acquitted the case would be removed from CourtView at no fiscal impact to the state. She spoke to the retroactivity provision in the bill. She stated that ACS had transferred all of its case management to the CourtView system over the past decade and different courts had different dates on which they were put on CourtView. She said that as long as courts were on CourtView certain case types could be removed. She warned that removing case files prior to the conversion date could prove logistically problematic. The retroactivity intent language in the bill would alleviate the fiscal and logistical problem of retrieving cases from storage and categorizing them differently. She reiterated that ACS could implement all of the changes proposed in the legislation without a fiscal impact except for the exceptions that were created for certain state agencies. She stated that in order for certain people in specific state agencies to gain access to cases that had been removed from CourtView a special portal would need to be created. The portal would need to work with the ACS vendor and would have an initial fee of $22,000, a yearly maintenance fee of $3000, and a security fee of $500. 10:14:20 AM DR. NORMAN MEANS, SELF, ANCHORAGE (via teleconference), spoke in support of SB 108. He relayed a story concerning is daughter's arrest for driving under the influence (DUI). He stated his daughter was driving with friends when the fuel pump in the vehicle went out. The vehicle stalled in the middle of the road and an Anchorage police officer responded. He said that after the officer pushed the van to the side of the road while is daughter steered, he issued a traffic stop. He explained that his daughter provided all of the required documents, which were in order. He testified that the officer then began demanding his daughter's personal phone number, which she refused to provide. He stated that his daughter asserted her constitutional right to remain silent, requested an attorney, and refused to consent to any searches. He furthered that at that point the officer placed her under arrest for DUI; she was transported to the Anchorage jail. He read from the arresting officer's report: "She does not appear to be under the effects of any drugs, legal or illegal." Dr. Means related that his daughter passed a Breathalyzer Test and was released on her own recognizance; however, the arrest record currently remains on Court View. He expressed frustration that the vehicle had been impounded when it was registered under his name, and not to his daughter. He said that he had had no fewer than 5 separate departments of municipal government find fault with all, or part, of the arresting officer's actions. He shared that he filed a complaint with the Chief of Police, and after an investigation, Internal Affairs responded in a written letter to him alerting him that his complaints concerning the vehicle impoundment had been sustained. He felt that his daughter's experience was an example of the difficulties a person faced when attempting to get an arrest record sealed based on the improper actions of one police officer. Mr. Means lamented that despite the overwhelmingly controvertible evidence that his daughter had done nothing wrong the municipal attorney at the time had written that: While the officer might not have had probable cause to arrest her for DUI, he had probable cause to arrest her for some crime. Mr. Means wondered what that crime would have been. He opined that all that his daughter had wanted was to have her record sealed, even offering to waive her right to pursue any litigation. As a result his daughter had been forced to file litigation in an effort to clear her name. He shared that his daughter would be testifying before the legislature at a later date on SB 180. He remarked that the system in the state made it impossible to get a record expunged or sealed. He worried that his daughter's record could limit her options for graduate school or future employment. 10:21:27 AM JAMES MOONEY, SELF, ANCHORAGE (via teleconference), testified in strong support of SB 108. He stated that in 2009 he had been falsely accused of sexual assaulting his fiancé. He said that the relationship had lasted for 6 years, but began to deteriorate after differences of opinion arose concerning child custody. He was arrested for sexual assault, fought the charge in court, and was acquitted on all charges. His accuser and his daughter moved out of state several weeks after making the accusations, as a result he had not seen his daughter in 4 years. He believed that the accusations were premeditated because his accuser had knowledge of the legal system. He reiterated that he had been acquitted on all charges. He shared that he had lost his job and had been out of work for months and was living off savings. He opined that employment opportunities were cut short once employers ran a background check. He felt that he was suffering repercussions as though he had been convicted and sent to prison. 10:25:40 AM JAMES NOBLE, SELF, PRUDHOE BAY (via teleconference), testified in support of SB 108. He relayed a story concerning two charges filed against him and the repercussions he experienced following a dismissal ruling from a judge on both cases. He stated that after researching cases similar to his he had determined that the common thread was revengeful actions from a significant other who was abusing the court system. He explained that he had been in a romantic relationship from 2003 to 2007. He said that his partner terminated the romantic relationship in 2006, but a platonic relationship remained. He relayed that he ended the friendship when the person began dating a new person. He stated that he received a domestic violence protective order from the court on September 17, 2007 and hired an attorney who represented him throughout court proceedings. During the course of the defense for the domestic violence order, the attorney discovered a stalking charge, filed by his ex on September 11, 2007 and had been dismissed by the court on September 12, 2007. He argued that he had never been notified of, or given any details concerning, the stalking charge. He opined that the stalking charge could be seen on CourtView, regardless of the fact that the charges had been dismissed. He said that he appeared before the court on October 4, 2007 to contest the domestic violence charge which was dismissed due to insufficient evidence. 10:28:54 AM Mr. Noble feared that the information on CourtView could hinder him when seeking future employment. He added that the social stigma could limit his ability to form new relationships. 10:31:10 AM DONNA KLECKA, SELF, EAGLE RIVER (via teleconference), spoke in favor of the SB 108. She testified that she was self- employed which made word-of-mouth important to her professional reputation. She state that she had gone through a divorce in 1999. During the proceedings her ex- husband attempted to use domestic violence charges as leverage for child custody. She spoke of another incidence where a woman, whom she believed to be mentally unstable, had made multiple charges against her of trespassing, theft and stalking. Due to the charges, she was arrested and held for 24 hours. She related that the arresting officer had lost her job for the episode because she had not had an arrest warrant. She said that she had received accusatory notes from neighbors. She added that she had been charged with assault and battery at one point as well. She opined that her children were harassed at school. She relayed that approximately a year and a half ago she had consumed alcohol and was pulled over for speeding in Seward. She asserted that the Alaska State Trooper had profiled her by pulling up her record before pulling her over. She shared that she had been nervous while taking the field sobriety test, which was videotaped. She stated that in the process of her arrest her arm was broken by the police. She said that the arresting officers had written in their report that she has not had alcohol on her breath; she also submitted to a blood test, which turned up negative. She said that all of the charges against her were dismissed. She shared that during discovery the arresting officer stated that he had been aggressive with her as a result of having reviewed her record. 10:38:55 AM CARMEN GUTIERREZ, SELF, JUNEAU, spoke in support of SB 108. She read from a prepared document (copy on file): Thank you for the opportunity to comment on SB 108. As a former attorney for 25 years followed by the privilege of serving the state as Deputy Commissioner for the Department of Corrections, I have observed first-hand the need for the criminal justice reforms for which this Committee has so tirelessly worked to advance. I thank this Committee for its courageousness in promoting needed revisions aimed at reducing recidivism. Every former offender who is able to successfully return to his or her community means one less victim, one less crime, and one less costly prosecution. I believe that SB 108 is another step in that direction. As it stands today, every person who is arrested for a criminal offense has a permanent public record of that arrest. In felony cases, a detailed statement of alleged factual detail accompanies the fact of arrest and charge. The name of the person arrested and then convicted always remains available to the public through the period of prosecution and after conviction. That is fair. What is not fair and not in keeping without system of criminal justice is that under current law a person's name and fact of charge remains available to the public even when the prosecutor dismisses the charge, the charge is dismissed by the court of after a jury acquits the person. Despite dismissal of or acquittal on the charge, the fact of arrest and the accompanying documentation forever remains available for public examination. The reality is that when the fact of arrest after dismissal continues to be made available for public inspection either by an in-person visit to the courthouse or by review on CourtView, the arrest often becomes synonymous with conviction in the mind of those doing the inspecting. This greatly impedes a person's ability to find employment, rent an apartment and to live a life free of stigmatization for a crime for which the person was never convicted. Numerous individuals - both men and women - in Alaska are arrested for the crime of Assault in the Fourth Degree. A person may be charges with this offense if a police officer concluded there is probable cause to believe that a person by "words or other conduct recklessly places another person in fear of imminent physical injury." AS 18.65.530 appropriately provides that in a domestic relations context, when a person reports to the police that she/he was placed in fear of imminent physical injury, the police must arrest the alleged offender for Domestic Violence Assault when the officer decides there is probable cause to believe that assault took place. Needless to say, police officers taxed with a tremendous amount of work have to make snap decisions when deciding if there is probable cause to believe an assault occurred. The soundness of the police officer's decision often depends on the experience of the officer and the officer's perceived need to diffuse a situation. After the person is arrested and charges, a prosecutor later has more time to review the merits of the case. In some cases, upon more careful review and with the benefit of additional facts, the prosecutor determines the charge doesn't merit prosecution and dismisses it. The individual arrested, however, is forever stigmatized by his arrest. It will forever be a part of the Alaska Court System records available for public inspection. A good number of cases filed in Alaska are ultimately dismissed. For example, in FY13, the state filed 6,675 felony cases. Of those, the state dismissed 1,289 cases. Of the 29,562 misdemeanor cases filed, the state dismissed 9,508. Our constitutional right to due process of law is intended to protect citizens from being treated as convicted persons without first being afforded certain procedural safeguards. That is the way it should be and it is our responsibility to uphold out system of criminal justice, the shining example and envy of other countries. There are those who would have you believe that their individual judgment is more knowing than the collective wisdom of a jury; that a person's record should forever be stigmatized by an arrest and charge even though the prosecutor dismissed the charge or a jury of his peers acquitted him of the charge. These same individuals would have you believe that an arrest should be equated to conviction of a crime. Alaska citizens, judges, prosecutors, and defense attorneys will always have different opinions regarding the facts of a case. That is why our system requires due process under the law before someone is convicted of a crime and shoulders the burdens associated with criminal conviction. For these reasons, the fact of an arrest and charge without conviction should not forever tarnish the reputation of an Alaskan citizen. SB 108 is intended to rectify these unintended and harmful consequences that in many cases impact a person's ability to successfully live and work in our communities. 10:45:10 AM Ms. Gutierrez asserted that for every individual that could come forward to say that having access to CourtView made a meaningful difference in a decision being made, there were many more cases of individuals who have had their ability to live successfully in their community compromised. Senator Hoffman inquired if Ms. Gutierrez would support the legislation for an individual that had been acquitted due to a hung jury. Ms. Gutierrez replied that when an individual was found not guilty by virtue of a hung jury the prosecutor had the ability to evaluate the evidence in the and decide whether the case merited a new trial. She understood that if the prosecutor decided that the evidence supported the charge it was the prosecutor's burden to take the case back to a jury. She asserted that, in the spirit of due process and constitutional procedure, in a hung jury case the record would be deemed confidential. Co-Chair Meyer CLOSED public testimony. 10:48:12 AM Vice-Chair Fairclough queried whether the opposition letter from the Office of Victim's Rights had been submitted before or after changes to the legislation had been made in the Senate Judiciary Committee. Mr. Kopp replied that the letter had arrived before the bill was amended in Senate Judiciary. He added that the sponsor had not received any additional communications from the Office of Victim's Rights. Vice-Chair Fairclough understood that an old court record could be damaging to people well after the fact. She expressed concern as to how the legislation would affect the rights of victims, specifically for victims of domestic violence and rape; however, she recognized that instances of false accusation did occur. SB 108 was HEARD and HELD in committee for further consideration.