Legislature(2013 - 2014)BELTZ 105 (TSBldg)

02/28/2014 01:30 PM JUDICIARY

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01:34:45 PM Start
01:35:37 PM SB136
01:40:10 PM Confirmation Hearing
01:47:09 PM SB108
03:00:05 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
Heard & Held
Heard & Held
         SB 108-LIMIT PUBLIC ACCESS TO CRIMINAL RECORDS                                                                     
1:47:09 PM                                                                                                                    
CHAIR  COGHILL announced  the consideration  of SB  108. "An  Act                                                               
relating to  the confidentiality  of certain records  of criminal                                                               
cases; and providing for an  effective date." This was the second                                                               
1:47:20 PM                                                                                                                    
SENATOR DYSON, Alaska State  Legislature, Juneau, Alaska, sponsor                                                               
of SB 108,  introduced the legislation speaking  to the following                                                               
sponsor statement:                                                                                                              
     SB  108   seeks  to  strengthen  privacy   and  liberty                                                                    
     interests  of persons  by designating  confidential (as                                                                    
     defined in  Administrative Rule of Court  37.5) certain                                                                    
     court records  associated with dismissed  and acquitted                                                                    
     charges. SB 108 would make  court records of a criminal                                                                    
     case  confidential if  90 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                                                                    
     criminal   charges  against   the   person  have   been                                                                    
     dismissed; or  3) the person  was acquitted of  some of                                                                    
     the  charges in  the  case, and  the remaining  charges                                                                    
     were dismissed.                                                                                                            
     SB  108 does  not pose  any restriction  to police  and                                                                    
     prosecution  ability  to   access  arrest  records  and                                                                    
     charging documents.  It does not remove  information in                                                                    
     the  federal National  Crime Information  Center (NCIC)                                                                    
     database, or  in the  Alaska Public  Safety Information                                                                    
     Network (APSIN)  state database,  and would  not render                                                                    
     information already in the public domain confidential.                                                                     
     CourtView,  the  Alaska  Trial Courts  online  publicly                                                                    
     accessible  database, provides  exceptional access  for                                                                    
     persons seeking  information on the status  of criminal                                                                    
     and civil  cases, the nature of  criminal charges filed                                                                    
     against persons,  and the final outcome  of litigation.                                                                    
     CourtView  indefinitely   shows  arrest   and  charging                                                                    
     documents  for  persons  who were  never  convicted  or                                                                    
     incarcerated,  and  is  an unrestricted  site  allowing                                                                    
     anyone to  use the database  to screen any  person, for                                                                    
     any reason. In spite of  CourtView user warnings that a                                                                    
     charge  is  not to  be  considered  a conviction,  this                                                                    
     public posting of  a person's name and  charges has had                                                                    
     significant    deleterious   effects    on   employment                                                                    
     prospects,   ability  to   find   housing,  and   other                                                                    
     professional   and  personal   opportunities  of   many                                                                    
     By  very definition,  a  person is  not  a criminal  if                                                                  
     acquitted at  trial, or if  their case is  dismissed by                                                                    
     the prosecution and not refiled  in a timely manner. In                                                                    
     American  jurisprudence, we  are all  to be  considered                                                                    
     innocent until  proven guilty. SB 108  strengthens this                                                                    
     maxim  of  presumption  of  innocence  by  treating  as                                                                    
     confidential  court records  associated with  dismissed                                                                    
     and acquitted charges.                                                                                                     
SENATOR DYSON noted that at the  request of the Department of Law                                                               
he would probably bring a  committee substitute to modify the 90-                                                               
day timeline to 120 days.                                                                                                       
1:51:31 PM                                                                                                                    
CHAIR COGHILL opened public testimony.                                                                                          
1:51:41 PM                                                                                                                    
NANCY MEADE, General Counsel,  Administrative Staff, Alaska Court                                                               
System, said  the court has no  position on SB 108  but the court                                                               
could  implement  the legislation.  She  began  her testimony  by                                                               
distinguishing  between   "confidential"  records   and  "sealed"                                                               
records   as  defined   by  court   rule.   She  explained   that                                                               
confidential records are  restricted to the parties  to the case,                                                               
the  counsel  of  record,  people  with  a  written  court  order                                                               
authorizing  access,   and  court   staff  for   case  processing                                                               
purposes.  She further  explained  that sealed  records are  less                                                               
common and extremely restrictive; access  is limited to the judge                                                               
and somebody authorized by written court order.                                                                                 
She  said that  SB  108 will  make  certain records  confidential                                                               
after they  have been public  for a  time period. They  will have                                                               
been  posted on  CourtView and  then  removed after  the case  is                                                               
dismissed or  the person is  acquitted. The paper record  will be                                                               
designated  confidential and  the person's  name will  be removed                                                               
from CourtView. She discussed how  these cases are different from                                                               
juvenile cases  and child in  need of  aid (CINA) cases  that are                                                               
confidential by  statute. Cases that are  confidential by statute                                                               
are  never posted  on CourtView  or  available to  the public  in                                                               
paper form.                                                                                                                     
MS.  MEADE addressed  an earlier  question  from Senator  McGuire                                                               
about  cases  where  somebody  is  arrested  but  there  isn't  a                                                               
subsequent  charging  document.  The  process  when  somebody  is                                                               
arrested, in  the middle of  the night  for example, is  that the                                                               
arresting officer has discretion to  take the person to a 24-hour                                                               
court  that has  a magistrate  to have  bail set  or to  take the                                                               
person to jail. Anyone who enters  jail at night is arraigned the                                                               
next day  and, for administrative  purposes, the court  assigns a                                                               
case  number before  the person  is transported  for arraignment.                                                               
That next day it could be  that the Department of Law decides not                                                               
to file a charging document.                                                                                                    
MS.  MEADE  said she  believes  that  is  the case  that  Senator                                                               
McGuire referenced  and SB  108 does  not directly  address those                                                               
situations.  However,  the  Alaska  Supreme  Court  is  currently                                                               
considering a  draft court  rule to  remove from  CourtView those                                                               
cases  that have  no  charging  document but  had  a case  number                                                               
assigned  for  administrative  purposes. She  reported  that  the                                                               
court  is also  considering  another situation  for removal  from                                                               
CourtView  by  administrative  rule. These  are  cases  involving                                                               
domestic  violence protective  orders  where  a judicial  officer                                                               
finds at the  initial hearing that the petitioner  either was not                                                               
a victim  of domestic violence as  defined in the statute  or was                                                               
not a  household member so that  it could be a  domestic violence                                                               
case as defined in the statute.                                                                                                 
1:59:48 PM                                                                                                                    
SENATOR DYSON  asked her to  share the data regarding  felony and                                                               
misdemeanor cases and the numbers that were dismissed.                                                                          
MS.  MEADE  cited  statistics  for  the  last  fiscal  year  that                                                               
represent the  number of cases that  would be covered by  SB 108.                                                               
About  20 percent  of the  6,000  some felony  case filings  were                                                               
completely disposed  by dismissal or acquittal:  1,289 cases were                                                               
dismissed and  39 cases were  acquitted. About 32 percent  of the                                                               
nearly  30,000   misdemeanor  case   filings  were   disposed  by                                                               
dismissal or acquittal:  9,508 cases were dismissed  and 57 cases                                                               
were  acquitted. She  recapped  that those  cases  would be  made                                                               
confidential  in paper  and electronic  form. They  would not  be                                                               
visible  on   CourtView,  but  because   of  the   definition  of                                                               
"confidential"  they  would  be  available  to  the  parties  and                                                               
counsel.  She added  that her  understanding is  that they  would                                                               
still  be  in  the  Alaska   Public  Safety  Information  Network                                                               
2:01:57 PM                                                                                                                    
CHUCK  KOPP,  Staff,  Senator  Fred Dyson,  sponsor  of  SB  108,                                                               
clarified that  the exact  language in the  bill says  that those                                                               
charges  would not  be on  CourtView if  a person  in a  case was                                                               
acquitted of all  the charges. If a  person pled to any  one of a                                                               
number of  charges, the person's  name and all the  charges would                                                               
be on CourtView.                                                                                                                
MS. MEADE agreed.                                                                                                               
2:03:10 PM                                                                                                                    
NORMAN MEANS, MD., representing himself,  said he was speaking as                                                               
the father  of Nancy Means.  He related her story,  which Senator                                                               
McGuire described in the 2/24/14  judiciary committee meeting. In                                                               
late 2011  his then 18-year-old  daughter borrowed his van  to go                                                               
with  younger  friends  to  do  some  Black  Friday  shopping  in                                                               
Anchorage. On  the way  home at  about 3:30  a.m. the  van became                                                               
disabled  in  the  middle  of Tudor  Road.  An  Anchorage  police                                                               
officer stopped  and after Ms.  Means explained the  situation he                                                               
used his car  to push the van  onto a side street.  He then began                                                               
to conduct a  traffic stop. She provided  the license, insurance,                                                               
and  registration documents  that  were all  in  order. When  the                                                               
officer  asked  Ms.  Means  for her  personal  phone  number  she                                                               
balked, and  he became  more aggressive  in his  questioning. She                                                               
asserted her  constitutional right to  remain silent and  have an                                                               
attorney. She  was subsequently  arrested, handcuffed,  and taken                                                               
to the  jail. Search of her  person and vehicle found  no illicit                                                               
items,  but the  vehicle was  impounded.  She was  tested at  the                                                               
Anchorage  jail and  the officer  at the  jail reported  that Ms.                                                               
Means did  not appear to be  under the influence of  any legal or                                                               
illegal drugs or  alcohol. The Data Master  blood alcohol content                                                               
(BAC) meter  yielded a .000  reading. The testing officer  at the                                                               
jail contacted  the arresting officer  and asked if he  wanted to                                                               
"unarrest" Ms.  Means, but he  declined to do so.  The magistrate                                                               
released her on her own recognizance.                                                                                           
DR.  MEANS  reported  that  five   separate  departments  of  the                                                               
Municipality  of   Anchorage  have  reviewed   the  circumstances                                                               
surrounding  the   situation  and  have  found   fault  with  the                                                               
officer's  actions. He  said  the  municipal prosecutor's  office                                                               
dropped the case without filing  formal charges, but his daughter                                                               
still has  a record  on CourtView showing  that she  was arrested                                                               
for  a criminal  act. To  right this  and similar  wrongs Senator                                                               
McGuire introduced SB 180, and  it led to his approaching Senator                                                               
Dyson to discuss the situation.                                                                                                 
DR. MEANS relayed  that with the two-year  statute of limitations                                                               
approaching, his daughter  approached municipal attorney Wheeler,                                                               
through counsel, to  try to get her records  sealed. The response                                                               
from the municipal attorney shows  how damaging an arrest can be,                                                               
he said.  In a letter sent  to counsel, Mr. Wheeler  said, "While                                                               
the officer  may not have  had probable  cause to arrest  her for                                                               
DUI, he  had probable cause  to arrest  her for some  crime." Dr.                                                               
Means said  he is speaking in  support of SB 108  because it will                                                               
address wrongs  and hopefully  restore justice  to a  system that                                                               
hasn't treated his daughter very fairly.                                                                                        
SENATOR DYSON asked if he got his van back.                                                                                     
DR. MEANS said yes.                                                                                                             
2:12:38 PM                                                                                                                    
MARY GEDDES,  representing herself, Anchorage,  Alaska, testified                                                               
in support of SB 108. She  said the bill provides a simple answer                                                               
to the  question of what should  happen to the record  of a state                                                               
court criminal case  if none of the criminal  charges resulted in                                                               
a criminal conviction  and the case is closed. The  court file is                                                               
designated  as  confidential  three  months  after  the  case  is                                                               
closed. Making  these records confidential avoids  an unnecessary                                                               
risk of  harm to  a person,  she said.  Even though  it shouldn't                                                               
make  any  difference, just  the  information  that there  was  a                                                               
criminal  accusation can  limit a  person's economic  opportunity                                                               
and damage  their reputation. By  contrast, making  these records                                                               
confidential  provides a  meaningful end  to a  criminal process.                                                               
She cited  the case of  U.S. Senator  Ted Stevens as  evidence of                                                               
the harm  of criminal charges  and refuted the  opposing position                                                               
of Taylor Winston with the Office of Victims' Rights.                                                                           
2:17:48 PM                                                                                                                    
CARMEN  GUTIERREZ,   representing  herself,   Anchorage,  Alaska,                                                               
testified in  support of  SB 108.  She described  the bill  as an                                                               
important step  in reducing recidivism.  She said it's  fair that                                                               
the name of  a person who has been arrested  and convicted should                                                               
be available to  the public and posted on CourtView.  What is not                                                               
fair  is that  a person's  name and  the fact  of charge  remains                                                               
available to  the public  and on CourtView  even when  the charge                                                               
has been dismissed  or the person has been  acquitted. When these                                                               
charges  remain open  to  the public,  the  arrest often  becomes                                                               
synonymous with  conviction. This  impedes a person's  ability to                                                               
find  employment, rent  an apartment,  and  live a  life free  of                                                               
stigmatization  for  a  crime  for   which  the  person  was  not                                                               
convicted. SB  108 is  intended to  rectify these  unintended and                                                               
harmful consequences, she said.                                                                                                 
2:26:08 PM                                                                                                                    
DONNA   KLECKA,  representing   herself,  Eagle   River,  Alaska,                                                               
testified  in  support   of  SB  108.  She  said   a  history  of                                                               
snowballing issues is affecting  her reputation and therefore her                                                               
private business.  She described  a number  of charges  that were                                                               
filed against  her through the  years, and pointed out  that even                                                               
though  all the  charges  were  dismissed her  name  is still  on                                                               
CourtView as a felon.                                                                                                           
CHAIR  COGHILL  expressed  sympathy  that  the  chain  of  events                                                               
created such a trial.                                                                                                           
2:33:21 PM                                                                                                                    
STACIE KRALY,  Chief Assistant  Attorney General  Civil Division,                                                               
Human  Services  Section, Department  of  Law  and Emily  Wright,                                                               
Assistant  Attorney  General,  Civil Division,  Child  Protection                                                               
Section, Department of Law, introduced themselves.                                                                              
MS. KRALY said she was speaking  on behalf of both the Department                                                               
of Law and  the Department of Health and  Social Services (DHSS).                                                               
She said  she understands the  purpose and policy behind  SB 108,                                                               
but  limiting access  to this  information raises  some concerns.                                                               
The primary concern is that  it limits access of this information                                                               
to  DHSS.  Specifically,  the   Office  of  Children's  Services,                                                               
Senior  Disability  Services,   Division  of  Behavioral  Health,                                                               
certification  of licensing  within the  Division of  Health Care                                                               
Services  all  use this  information  for  purposes of  achieving                                                               
statutory  obligations  for  health,   safety,  and  welfare  for                                                               
vulnerable  adults,  children  (including disabled)  and  elderly                                                               
people  for placement,  services, resources,  and licensing.  The                                                               
Department of Law  supports DHSS in these endeavors  and thus has                                                               
concerns about limiting access to this information, she said.                                                                   
MS. KRALY suggested that DOL work  with the sponsor and his staff                                                               
to look at  ways for DHSS to continue to  have access to relevant                                                               
information to meet the statutory obligations identified above.                                                                 
2:36:30 PM                                                                                                                    
SENATOR DYSON asked if there  already is a procedure for somebody                                                               
with the  appropriate credentials  to access that  information on                                                               
behalf of DHSS.                                                                                                                 
MS.  KRALY replied  that  is what  DOL is  trying  to achieve  on                                                               
behalf  of  DHSS. She  clarified  that  the  request is  not  for                                                               
unfettered access. For example, a  licensing worker who is trying                                                               
to  emergency license  a  foster  care on  a  weekend would  have                                                               
access  to that  limited information,  but not  everybody in  the                                                               
Office of Children's Services.                                                                                                  
2:39:04 PM                                                                                                                    
CHAIR COGHILL observed  that it still begs the  question that OCS                                                               
will  be assessing  someone's reputation  based  on charges  that                                                               
were  dropped. He  asked  the  value of  the  information if  the                                                               
charge has been dropped.                                                                                                        
MS. KRALY replied  the value is in looking at  an individual in a                                                               
pattern  of  conduct  or  services.  If there  is  a  pattern  of                                                               
behavior,  that information  becomes  qualitatively important  to                                                               
evaluating the safety of placing a child or individual.                                                                         
SENATOR DYSON assured Ms. Kraly that  if she would come up with a                                                               
fix, it would be incorporated in a [committee substitute].                                                                      
MS. KRALY committed to work with his staff on proposed language.                                                                
CHAIR  COGHILL   asked  if  the  term   "confidential"  would  be                                                               
MS.  KRALY replied  it would  probably require  a new  section to                                                               
provide  limited   and  statutorily  authorized  access   to  the                                                               
confidential information.                                                                                                       
CHAIR  COGHILL  reiterated  his  concern and  said  he'd  try  to                                                               
rethink the balance.                                                                                                            
2:44:29 PM                                                                                                                    
QUINLAN STEINER, Director, Public  Defender Agency, Department of                                                               
Administration, commented  on the  impacts of  the bill.  He said                                                               
that  allegations   and  charges  that  are   brought  and  later                                                               
dismissed  can  have  a  significant  and  lifelong  impact.  The                                                               
charges and  allegations continue  to travel with  the individual                                                               
and it can be assumed that  they're guilty. It's hard not to leap                                                               
to that conclusion, he said.                                                                                                    
MR. STEINER commented  on the letter from the  Office of Victims'                                                               
Rights.  He said  it suggests  that  SB 108  is perpetuating  the                                                               
stereotype that victims  lie and, in particular,  women lie. That                                                               
aspect is  not contained  in the  bill, and  it ignores  the fact                                                               
that the  law is neutral on  gender, he said. The  letter goes on                                                               
to  suggest that  a  procedure ought  to  be set  up  to prove  a                                                               
person's  innocence  before  their  name  can  be  removed  [from                                                               
CourtView]. But as  a prior speaker suggested,  it's difficult to                                                               
prove a negative.  He also refuted the suggestion  that the grand                                                               
jury  process  somehow  justifies  leaving  the  name  posted  on                                                               
CourtView  as proof  of some  level of  culpability. Mr.  Steiner                                                               
concluded his comments stating that  he sees SB 108 as protecting                                                               
people who are not guilty  of crimes but have allegations against                                                               
2:49:06 PM                                                                                                                    
ANNE  CARPENETI, Assistant  Attorney General,  Criminal Division,                                                               
Legal   Services   Section,   Juneau,  Alaska,   referenced   the                                                               
statistics that Ms. Meade provided  and highlighted that a lot of                                                               
dismissed cases are the result  of a plea agreement. She observed                                                               
that the  bill appears to  look for  a balanced approach  and she                                                               
was  happy to  work with  the sponsor  and Ms.  Kraly to  achieve                                                               
that. She  suggested that  the sponsor look  at the  procedure in                                                               
Title 12.  It is  supposedly to address  clear cases  of mistaken                                                               
identification or false accusation,  but it obviously didn't work                                                               
in Ms. Mean's case.                                                                                                             
MS. CARPENETI  said she wanted  to clarify that the  bill applies                                                               
to all records  in the court system, not just  the documents that                                                               
are electronically accessible. She  suggested that if the sponsor                                                               
likes  the  definitions  of  "confidential"  and  "records"  that                                                               
currently  are in  the court  rules, he  should consider  putting                                                               
them into  the statute. She  also suggested on page  1, inserting                                                               
"by the prosecution"  at the end of paragraph (2).  The reason is                                                               
that  courts  sometimes  dismiss  cases  for  reasons  that  have                                                               
nothing to do with guilt or innocence.                                                                                          
CHAIR COGHILL asked her to think about prospective application.                                                                 
MS. CARPENETI agreed.                                                                                                           
2:55:48 PM                                                                                                                    
RICHARD ALLEN,  Director, Office  of Public  Advocacy, Department                                                               
of Administration, Anchorage, Alaska,  testified in support of SB                                                               
108. He  said the  bill would  impact different  parts of  OPA in                                                               
different  ways.  First, the  public  guardians  and guardian  ad                                                               
litems   might  find   it  more   challenging   to  get   certain                                                               
information,  but  he suspects  that  the  amendment that's  been                                                               
discussed will  take care of  that. He  opined that SB  108 could                                                               
provide a  real benefit  for OPA clients  that have  been charged                                                               
with crimes.  He pointed  out that  the presumption  of innocence                                                               
and  the right  to due  process are  fundamental to  the American                                                               
justice system,  and the founding fathers  recognized that police                                                               
and prosecutors  don't always get  it right. He described  SB 108                                                               
as a  common sense  approach to  limit the  negative consequences                                                               
for citizens who have been cleared of wrongdoing.                                                                               
CHAIR COGHILL said the point is well taken.                                                                                     
SENATOR DYSON  expressed appreciation that the  court was working                                                               
with him and urged the  stakeholders to bring suggestions forward                                                               
by Monday.                                                                                                                      
CHAIR COGHILL held SB 108 in committee.                                                                                         

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