Legislature(2007 - 2008)BELTZ 211

04/01/2008 09:00 AM Senate STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 227 DIVEST INVESTMENTS IN SUDAN TELECONFERENCED
Moved SB 227 Out of Committee
+ SB 228 MUNICIPAL LAND USE REGULATION TELECONFERENCED
Scheduled But Not Heard
+ HB 196 HANDLING MATTERS AFTER A PERSON'S DEATH TELECONFERENCED
Moved SCS CSHB 196(STA) Out of Committee
+ SB 198 ELECTION VIOLATIONS: STAT OF LIMITATIONS TELECONFERENCED
Moved SSSB 198 Out of Committee
+= HB 92 JURISDICTION OF OMBUDSMAN: VICTIMS RTS TELECONFERENCED
Moved HB 92 Out of Committee
+ HB 351 CONCEALED HANDGUN PERMIT: FINGERPRINTS TELECONFERENCED
Moved CSHB 351(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
         HB  92-JURISDICTION OF OMBUDSMAN: VICTIMS RTS                                                                      
                                                                                                                                
9:30:13 AM                                                                                                                    
CHAIR MCGUIRE announced the consideration of HB 92.                                                                             
                                                                                                                                
9:30:13 AM                                                                                                                    
REPRESENTATIVE BILL  STOLTZE, Alaska  State Legislature,  said he                                                               
and Representative Samuels are cosponsors  and have been involved                                                               
with  the  Office  of  Victims   Rights  (OVR)  for  many  years.                                                               
Representative Samuels was a  citizen advocate and Representative                                                               
Stoltze was  on staff with  the legislative when  the legislation                                                               
was crafted. It was patterned after  the ombudsman office - "as a                                                               
stand-beside organization." The director of  OVR is selected by a                                                               
bipartisan process that  requires a super majority vote.  It is a                                                               
consensus  position like  the ombudsman.  Last year  there was  a                                                               
jurisdictional skirmish  between the two offices.  The intent for                                                               
the OVR was  to have jurisdiction granted by  the legislature. HB
92 clarifies that  intent to avoid litigation  between one branch                                                               
of the  legislature and another.  There are many reasons  why the                                                               
two are separate.                                                                                                               
                                                                                                                                
9:32:32 AM                                                                                                                    
REPRESENTATIVE   RALPH   SAMUELS,   Alaska   State   Legislature,                                                               
concurred,  and  said  the  OVR  was  created  as  a  specialized                                                               
ombudsman for the victims of crime  only. A person can easily see                                                               
the  inherent conflict  if one  office presided  over the  other.                                                               
About 40 percent  of complaints to the ombudsman  come from jail,                                                               
and all of the complaints to  the OVR come from victims. Creating                                                               
it was  a several-year  process, including where  to house  it. A                                                               
victim may  file against the district  attorney, public defender,                                                               
public  safety,  or  police.  He  fixed that  as  a  freshman  by                                                               
allowing  OVR to  look at  law  enforcement. A  complaint from  a                                                               
victim will go against one of  the agencies, so the OVR shouldn't                                                               
be  housed  in  the  Department  of Law  "because  you  would  be                                                               
complaining against your  boss, possibly." "If you put  it in the                                                               
Department   of   Administration,   all   roads   lead   to   the                                                               
commissioner, including  the public  defender and OPA  [Office of                                                               
Public Advocacy]."  It ended  up in the  legislative branch  as a                                                               
separate ombudsman for  victims of crime. The OVR  answers to the                                                               
legislature just  like the ombudsmen.  There could be  a conflict                                                               
of the same ombudsman representing  the rapist and his victim, so                                                               
he  wanted a  clear line.  It is  clearer to  the public  and the                                                               
victim to  not even have the  appearance of a conflict,  and that                                                               
is the purpose of HB 92.                                                                                                        
                                                                                                                                
9:35:37 AM                                                                                                                    
REPRESENTATIVE STOLTZE said this  was the implementing agency for                                                               
the  constitutionally  created   Victims  Rights  Amendment.  The                                                               
people  of  Alaska  overwhelmingly  endorsed  that  amendment  to                                                               
Alaska's constitution.  There were  the inherent problems  of the                                                               
District Attorney's  (D.A.) office -  they just have a  hard time                                                               
regulating themselves because they  are always working hard. This                                                               
agency was  viewed as very important.  The substantive difference                                                               
between  the ombudsman  and the  OVR is  the direct  link to  the                                                               
constitution.                                                                                                                   
                                                                                                                                
9:36:56 AM                                                                                                                    
SENATOR GREEN said  she cosponsored the OVR bill  and never heard                                                               
it  called  an ombudsman's  office.  It  raises the  question  of                                                               
institutional competency  when the  ombudsman lacks  that special                                                               
legal  knowledge  necessary  to investigate.  She  doesn't  think                                                               
there are  any limitations on  what the  ombudsman can do  to get                                                               
assistance. She would prefer not to  see "a sentence like that to                                                               
denigrate  another sister  agency."  [OVR] was  placed under  the                                                               
legislature  because no  one  wanted  a new  line  item in  their                                                               
budget. "If  you want to  address the issue  of what can  or what                                                               
should the ombudsman investigate, because  I think the genesis of                                                               
this  problem  actually has  to  do  with the  representation  of                                                               
prisoners." That  is the way to  address the problem. There  is a                                                               
system of  appeals, courts  and internal ways  to correct  it. "I                                                               
don't know  if the Office of  Victims Rights ever reports  to us,                                                               
except for their  little report they do." Attempts  are made each                                                               
year for  the legislature to  exert authority over  the ombudsman                                                               
in the budget process, but she  doesn't know if that is done with                                                               
OVR. She would like to hear from both.                                                                                          
                                                                                                                                
9:39:10 AM                                                                                                                    
KATHERINE  HANSEN, Interim  Director, Office  of Victims  Rights,                                                               
Anchorage, said the  OVR has two functions, and one  is to act as                                                               
an  ombudsman for  victims, and  the other  is to  advocate as  a                                                               
lawyer  for crime  victims  who  ask and  to  provide free  legal                                                               
advice on crime victim issues.                                                                                                  
                                                                                                                                
SENATOR GREEN asked if OVR actually goes to court.                                                                              
                                                                                                                                
MS.  HANSEN  said  yes,  and  they  file  briefs  and  facilitate                                                               
communication with the prosecutors and the police.                                                                              
                                                                                                                                
SENATOR GREEN asked if the role is an observer.                                                                                 
                                                                                                                                
MS. HANSEN  said crime victims have  statutory and constitutional                                                               
rights. Sometimes OVR will speak on  behalf of the victim at bail                                                               
hearings and at  sentencing. "We are not a party,  but victims do                                                               
have a special role in the criminal process."                                                                                   
                                                                                                                                
SENATOR GREEN asked if the court lists OVR as their attorney.                                                                   
                                                                                                                                
MS. HANSEN said yes.                                                                                                            
                                                                                                                                
9:41:25 AM                                                                                                                    
SENATOR BUNDE asked  if a criminal can get a  public defender and                                                               
the state pays  for the lawyer, and the OVR  balances that with a                                                               
state-appointed lawyer for a victim without substantial means.                                                                  
                                                                                                                                
MS. HANSEN said that is a good  way to phrase it. The OVR gathers                                                               
documents  and  represent  the crime  victim.  It  has  certified                                                               
attorneys   with   prosecution   or  substantial   criminal   law                                                               
experience. "If  they're unhappy with  the outcome, then  they go                                                               
to the  ombudsman and there is  a risk of them  getting documents                                                               
they shouldn't  be getting." There  also may be confusion  of who                                                               
is  making  the  final  decision.  When  the  OVR  statutes  were                                                               
drafted,  the  intent was  for  a  specialized office  for  crime                                                               
victims that would have some teeth and would be the final say.                                                                  
                                                                                                                                
9:43:02 AM                                                                                                                    
MS.  HANSEN said  there  are several  things  that the  ombudsman                                                               
cannot  access  that  OVR can,  such  as  criminal  investigation                                                               
records  from cold  cases.  If  a crime  victim  later asked  the                                                               
ombudsman for  a review, the  OVR couldn't statutorily  turn over                                                               
that information.  There are  things that the  OVR gets  that the                                                               
ombudsman doesn't.  If the ombudsman  were investigating  OVR, it                                                               
would be contrary to statute to turn over information.                                                                          
                                                                                                                                
SENATOR  GREEN asked  if a  person can  sign over  access to  the                                                               
records.                                                                                                                        
                                                                                                                                
MS. HANSEN  said AS24.55 would  have to be  substantially revised                                                               
to allow the  ombudsman to oversee the OVR. The  easiest and best                                                               
thing  to do  for the  crime victim  is to  have the  specialized                                                               
knowledge of the  OVR looking at the issues and  making the final                                                               
decision on what  action is needed to improve the  system and the                                                               
circumstances for  that crime victim.  The reason this  bill came                                                               
up  is a  case with  an  active criminal  investigation that  OVR                                                               
looked at to  see if it was viable for  prosecution. OVR has that                                                               
expertise and  works with the  DA's office on helping  to explain                                                               
that  determination to  the crime  victim. To  have a  non-lawyer                                                               
without experience in criminal investigation  take it and oversee                                                               
it would be unhelpful.                                                                                                          
                                                                                                                                
9:45:27 AM                                                                                                                    
SENATOR FRENCH said he has  been thinking about the institutional                                                               
competence  argument.  There  may  be a  legitimate  issue  about                                                               
whether  one   agency  should  oversee  another   one,  but  that                                                               
particular argument is very unpersuasive  to him. The DA's office                                                               
is ultimately  the one  that decides on  whether to  prosecute or                                                               
not, "and … if you're unhappy  with that decision, go complain to                                                               
an  ombudsman." Ombudsmen  aren't  experts in  any single  field.                                                               
They are  good at  looking at  both sides and  they tend  to make                                                               
good  judgments. They  will almost  always have  to defer  to the                                                               
institutional competence  of the agency they  are overseeing. The                                                               
idea that  there is a  decision too  complex for someone  else to                                                               
review is not something he embraces.                                                                                            
                                                                                                                                
LINDA LORD-JENKINS,  Ombudsman, Alaska  Office of  the Ombudsman,                                                               
Anchorage,  said she  appreciates  Senator  French's comments  on                                                               
institutional competence.  There are two attorneys  on staff that                                                               
have been  involved in criminal  defense issues. The  matter that                                                               
brought this  to a  head was  characterized as  whether or  not a                                                               
sexual assault of  a young woman was viable  for prosecution. The                                                               
complainant said  it had to  do with  how the police  treated the                                                               
victim.  She was  fully  aware  that it  wasn't  a viable  matter                                                               
because both the alleged victim  and the alleged perpetrator were                                                               
mentally handicapped. Her office assured  her that it wouldn't be                                                               
prosecutable, but  she was  more concerned  about how  the victim                                                               
was handled  by the police. Her  allegation was that OVR  did not                                                               
go beyond talking  to the police. She wanted them  to look at how                                                               
handicapped victims  are treated,  which is important  in today's                                                               
society.  There is  a movement  to get  better treatment  for the                                                               
handicapped  and  disabled from  police  officers  and the  court                                                               
system.  The   ombudsman  wanted  to   know  from  OVR   who  the                                                               
investigator talked to. All the  accounts are that the victim was                                                               
re-victimized  and kept  up almost  24 hours  being interrogated,                                                               
and she had  very limited communication capabilities  and she was                                                               
not allowed to  have a family member with  her. The interrogation                                                               
started  at  three  a.m.  The  complainant  alleged  it  was  not                                                               
reasonable treatment of a handicapped  victim. "We wanted to know                                                               
what the  non-attorney investigator looked  at and talked  to. We                                                               
do  understand  that  there  are   records  that  we  don't  have                                                               
statutory access to,  but we also do not provide  records that we                                                               
acquire from any agency to any complainant."                                                                                    
                                                                                                                                
9:50:05 AM                                                                                                                    
MS.  LORD-JENKINS said  that is  a longstanding  policy. If  they                                                               
want records  from agencies  her office directs  them to  file an                                                               
open record request,  but it does not act as  a conduit. "We mark                                                               
the records that  we get from complainants and  agencies, so that                                                               
simply  does not  happen." OVR  was modeled  after the  ombudsman                                                               
statute. Her  concern is that OVR  statute does not allow  OVR to                                                               
provide  specific information  about  its  investigations to  the                                                               
legislature. The  statute provides  for confidentiality,  and she                                                               
believes  OVR does  have access  to that  statute. If  her office                                                               
doesn't have oversight over OVR, then who does?                                                                                 
                                                                                                                                
SENATOR BUNDE asked about other  cases where the ombudsman felt a                                                               
need to review the activities of OVR.                                                                                           
                                                                                                                                
MS. LORD-JENKINS  said there  was one other  case dealing  with a                                                               
person who  felt he was a  crime victim. Her office  referred him                                                               
to OVR  and he  said that  OVR had  not responded  reasonably. He                                                               
alleged that he  was turned over to the troopers  by OVR. "He did                                                               
not provide  sufficient information. There  were a lot  of issues                                                               
there, but  we did ask the  questions. We have not  conducted any                                                               
formal investigations of  OVR as defined in  our statutes." Since                                                               
HB 92 was filed the  ombudsman has been referring complainants to                                                               
the director  and to the  bill sponsors. "We  said if you  have a                                                               
problem with  how OVR  is responding, these  two people  are very                                                               
interested in OVR  and they would be good people  for you to also                                                               
talk to. But we route them through the process first."                                                                          
                                                                                                                                
9:53:00 AM                                                                                                                    
SENATOR BUNDE said he encouraged  her to do that. The legislature                                                               
has an ombudsman role for  their constituents. He asked about the                                                               
ombudsman  having  the  perpetrator  and  the  victim  under  its                                                               
jurisdiction and working at cross purposes.                                                                                     
                                                                                                                                
MS. LORD-JENKINS  said 25  percent of  the ombudsman  caseload is                                                               
inmates  complaining about  the Department  of Corrections.  Less                                                               
than 0.5 percent  might be filed against  a prosecuting attorney.                                                               
It is  possible that the  ombudsman would  get a defendant  and a                                                               
victim, but  that has never  happened. If there were  a conflict,                                                               
she  would assign  one to  one office  and the  other to  another                                                               
office and  put up a wall  between them. When the  ombudsman gets                                                               
complaints,  the  people have  attorneys  and  there is  a  court                                                               
process, "and  we route them to  their attorneys." If there  is a                                                               
complaint that the attorney is  not adequately representing them,                                                               
the ombudsman has  no jurisdiction over a private  attorney and a                                                               
limited review of a public  defender. The ombudsman has no access                                                               
to  attorney/client  records,  but  the  client  can  waive  that                                                               
privilege.  The  allegation would  have  to  be incompetence  and                                                               
abuse of discretion. "We do route  people to the court process if                                                               
they  believe  that  their  attorney  is  not  representing  them                                                               
adequately.  We tell  them  they  have the  option  of filing  an                                                               
ineffective  assistance of  council  motion."  But the  ombudsman                                                               
doesn't go in and address  whether or not in-court representation                                                               
is adequate. She  has questions whether the  bar association does                                                               
that.                                                                                                                           
                                                                                                                                
MS. LORD-JENKINS said she has  a legal opinion that was generated                                                               
by in-house council  asking if the bar  association actually does                                                               
respond to  ineffective assistance complaints. The  conclusion is                                                               
that they generally  don't respond well because  of limited staff                                                               
time. If  there was  a complaint  from a  defendant that  OVR was                                                               
acting  inappropriately, "and  I think  that's what  we might  be                                                               
getting  at here.  I think  that  I would  probably decline  that                                                               
because  OVR  has  a  statutory  obligation  to  represent  crime                                                               
victims."  There are  a lot  of in-court  solutions to  defendant                                                               
complaints  of  OVR  acting  improperly.   She  can't  fathom  an                                                               
instance where that might happen.                                                                                               
                                                                                                                                
9:57:09 AM                                                                                                                    
SENATOR  BUNDE asked  if  this disagreement  evolved  out of  one                                                               
incident.                                                                                                                       
                                                                                                                                
MS.  LORD-JENKINS said  that  is her  assessment.  Prior to  this                                                               
disagreement  the ombudsman  office  requested  records from  OVR                                                               
regarding a complaint against the  DA's office. OVR was unable to                                                               
resolve the  questions that  a burglary victim  had, but  OVR had                                                               
documents on  the case.  The victim  authorized the  ombudsman to                                                               
obtain the documents, and OVR  initially declined and then sought                                                               
a  legal  opinion. Legislative  Legal  Services  opined that  the                                                               
ombudsman did have  the right to request the  documents. OVR then                                                               
provided them. It was evidence  at that point; it wasn't criminal                                                               
records,  but it  was  information that  her  office needed.  The                                                               
ombudsman didn't  have a complaint against  OVR. "We periodically                                                               
get  comments/complaints about  OVR,  and generally,  like we  do                                                               
many  complaints,  we  route  people   into  their  process,  and                                                               
frequently  they  don't  come  back  because  their  process  has                                                               
resolved their complaints."                                                                                                     
                                                                                                                                
9:59:13 AM                                                                                                                    
SENATOR BUNDE  said he  is confused because  she said  she cannot                                                               
have complete  access to information at  OVR, but she can  if the                                                               
victim provides a release?                                                                                                      
                                                                                                                                
MS.   LORD-JENKINS  said   she   believes  that   attorney-client                                                               
privilege belongs to  the client, and the client  can waive that.                                                               
If OVR has records of  active criminal complaints, OVR has argued                                                               
that it  cannot provide the  records to the ombudsman.  She won't                                                               
argue with that,  but there are some records that  she could get,                                                               
like OVR  records of  contact with the  complainant -  notes from                                                               
interviews with  complainants. In  her view,  those would  not be                                                               
classified as criminal investigation  records. "I believe that we                                                               
have access to those."                                                                                                          
                                                                                                                                
SENATOR BUNDE  asked if she would  like to have oversight  of OVR                                                               
even though she cannot get complete information.                                                                                
                                                                                                                                
MS. LORD-JENKINS  said she believes  she has oversight  over OVR.                                                               
All agencies should have oversight.  If the ombudsman is removed,                                                               
OVR will have no oversight. That is why she is opposing HB 92.                                                                  
                                                                                                                                
10:01:16 AM                                                                                                                   
CHAIR MCGUIRE said the OVR is  staffed with attorneys that have a                                                               
professional code of conduct. The bar oversees that system.                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS said  he sees  there being  two ombudsman                                                               
offices. If a victim doesn't  like an OVR decision, the ombudsman                                                               
is saying  they will make a  decision, but where does  it stop if                                                               
that decision  is unacceptable?  There is  no oversight  over the                                                               
ombudsman.  He gets  complaints about  the ombudsman  all of  the                                                               
time. "And  quite frankly I look  at most of them,  and it's sour                                                               
grapes  - they  did the  investigation  and you  didn't get  your                                                               
way."  It is  similar at  the  OVR and  he views  them as  sister                                                               
agencies. HB 92  is simply saying they are  separate agencies. If                                                               
it is set  up that the ombudsman gets complaints  about OVR, then                                                               
there will have  to be something set up for  complaints about the                                                               
ombudsman. He wholeheartedly agrees with Senator Green's remark.                                                                
                                                                                                                                
10:03:08 AM                                                                                                                   
SENATOR  GREEN said  it  did  not sound  like  the ombudsman  was                                                               
questioning the  work of OVR, but  just what was observed  at the                                                               
police station.  "Maybe they don't consider  that their purview."                                                               
Are we addressing a problem that doesn't exist?                                                                                 
                                                                                                                                
CHAIR  MCGUIRE  said there  is  the  ombudsman investigating  the                                                               
victim's ombudsman, and who investigates them? It is circular.                                                                  
                                                                                                                                
REPRESENTATIVE  SAMUELS said  he has  had legislation  that would                                                               
give in-court  standing to  OVR but couldn't  get past  the legal                                                               
tangling of  evidentiary rule.  He was  constantly trying  to get                                                               
access  for  the victims  into  the  system. He  was  [personally                                                               
involved] in  the system before there  was OVR, and he  didn't go                                                               
to the  ombudsman; he  would yell  at Susan  Parks. There  was no                                                               
avenue of  where a victim  could go  to get legal  advice without                                                               
hiring an attorney.                                                                                                             
                                                                                                                                
SENATOR GREEN said that problem is solved.                                                                                      
                                                                                                                                
10:05:23 AM                                                                                                                   
REPRESENTATIVE  SAMUELS said  it  was solved,  but  now we  allow                                                               
people to  bypass OVR's decisions.  "You will end up,  over time,                                                               
deteriorating that. And maybe it will  never happen again … but I                                                               
think we're  better safe than  sorry with drawing the  line right                                                               
now and saying we've got two agencies."                                                                                         
                                                                                                                                
SENATOR GREEN asked when OVR began to be called an ombudsman.                                                                   
                                                                                                                                
REPRESENTATIVE STOLTZE said the term  was used frequently, and it                                                               
was modeled  after the  ombudsman statute.  That was  the intent.                                                               
The  constitutional  amendment  was   passed  in  1994,  and  the                                                               
ombudsman  office wasn't  effective  implementing  it because  it                                                               
didn't  have the  expertise. OVR  was not  only an  ombudsman but                                                               
almost a  foreign language translator for  victims. The defendant                                                               
had an  attorney, "and  certainly the  prosecutor was  there, but                                                               
they were on a  roll of -- sometimes dealing a  lot with a victim                                                               
was counterproductive in  many ways." But it  is important, given                                                               
the  constitutional  amendment. "This  was  really  to bring  the                                                               
victim  out of  the  shadow of  justice."  Creating the  separate                                                               
agency was the only way to do that.                                                                                             
                                                                                                                                
10:07:53 AM                                                                                                                   
SENATOR BUNDE  said it is a  turf battle, and he  moved to report                                                               
HB  92   from  committee  with  individual   recommendations  and                                                               
attached fiscal note(s).  There being no objection,  HB 92 passed                                                               
out of committee.                                                                                                               
                                                                                                                                

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