Legislature(1997 - 1998)

01/24/1997 01:00 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE JUDICIARY STANDING COMMITTEE                                    
                  January 24, 1997                                             
                      1:00 p.m.                                                
                                                                               
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Representative Joe Green, Chairman                                             
Representative Con Bunde, Vice Chairman                                        
Representative Brian Porter                                                    
Representative Jeannette James                                                 
Representative Ethan Berkowitz                                                 
Representative Eric Croft                                                      
Representative Norman Rokeberg                                                 
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
All members present                                                            
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
* HOUSE BILL NO. 22                                                            
"An Act relating to civil liability for illegal sales of alcoholic             
beverages; and providing for an effective date."                               
                                                                               
     - HEARD AND HELD                                                          
                                                                               
* HOUSE BILL NO. 9                                                             
"An Act relating to the right of crime victims and victims of                  
juvenile offenses to be present at court proceedings; and amending             
Rule 615, Alaska Rules of Evidence."                                           
                                                                               
     - MOVED CSHB 9(JUD) OUT OF COMMITTEE                                      
                                                                               
PREVIOUS ACTION                                                                
                                                                               
BILL:  HB 22                                                                   
SHORT TITLE: CIV.LIAB.:ILLEGAL SALE OF ALCOHOL/DRUGS                           
SPONSOR(S): REPRESENTATIVE(S) IVAN                                             
                                                                               
JRN-DATE      JRN-PG                 ACTION                                    
01/13/97        33    (H)   PREFILE RELEASED 1/3/97                            

01/13/97 33 (H) READ THE FIRST TIME - REFERRAL(S)

01/13/97 33 (H) JUDICIARY

01/24/97 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 9 SHORT TITLE: VICTIMS' RIGHTS/ CRIMINAL LAW CHANGES SPONSOR(S): REPRESENTATIVE(S) PORTER JRN-DATE JRN-PG ACTION

01/13/97 29 (H) PREFILE RELEASED 1/3/97

01/13/97 29 (H) READ THE FIRST TIME - REFERRAL(S)

01/13/97 29 (H) JUDICIARY, FINANCE

01/24/97 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER TOM WRIGHT, Legislative Assistant to Representative Ivan Ivan Alaska State Legislature Capitol Room 418 Juneau, AK 99811 Telephone: (907)465-4942 Position Statement: Prime Sponsor, HB 22 LISA JAEGER, Tanana Chiefs Conference 122 First Avenue Fairbanks, AK 99701 Telephone: (907) 452-8251 Position Statement: Testified in favor of HB 22. LINDA O'BANNON, Assistant Attorney General Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, AK 99501 Telephone: (907)269-0971 Position Statement: Testified in favor of HB 22 JAYNE ANDREEN, Executive Director Council on Domestic Violence & Sexual Assault Department of Public Safety P.O. Box 111200 Juneau, AK 99811-1200 Telephone: (907)465-4356 Position Statement: Provided testimony on HB 9 DEL SMITH, Deputy Commissioner Department of Public Safety P.O. Box 111200 Juneau, AK 99811-1200 Telephone: (907)465-4322 Position Statement: Testified in favor of HB 9 ANNE CARPENETI, Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, AK 99811-0300 Telephone: (907)465-3428 Position Statement: Testified in favor of HB 9 SARAH MUSGROVE 4203 Wilson Street, Number 10 Anchorage, AK 99508 Telephone: (907)562-1898 Position Statement: Testified in favor of HB 9 MARTI GREESON, Executive Director Mothers Against Drunk Drivers 618 West 82nd Avenue, Suite B-1 Anchorage, AK 99518 Telephone: (907)562-6233 Position Statement: Testified in favor of HB 9 JANICE LIENHART, Victims of Crime 619 East 5th Avenue Anchorage, AK 99501 Telephone: (907)278-0971 Position Statement: Testified in favor of HB 9 JANELLE DIXSON 8621 Rebel Ridge Anchorage, AK Telephone: (907)333-2461 Position Statement: Testified in favor of HB 9 DAWN SCHERBERT 2910 West Northern Lights, Number 3E Anchorage, AK 99517 Telephone: (907)562-2324 Position Statement: Ms. Musgrove read Ms. Scherbert's statement in favor of HB 9 KAREN CAMPBELL P.O. Box 191001 Anchorage, AK 99519 Telephone: (907)261-7662 Position Statement: Testified in favor of HB 9 CHARLOTTE PHELPS 733 West 4th Avenue Anchorage, AK 99501 Telephone: (907)566-2204 Position Statement: Testified in favor of HB 9 BARBARA BRINK, Acting Director Alaska Public Defender Agency Department of Administration 900 West 5th Avenue, Suite 200 Anchorage, AK 99501 Telephone: (907)264-4400 Position Statement: Provided testimony on HB 9 KEVIN SHORES Alaska Civil Liberties Union 635 Main Street Juneau, AK 99801 Telephone: (907)463-2517 Position Statement: Testified in opposition to HB 9 ACTION NARRATIVE TAPE 97-2, SIDE A Number 000 The House Judiciary Standing Committee was called to order by Chairman Joe Green at 1:00 p.m. Members present at the call to order were Vice Chair Bunde, Representative Brian Porter, Representative Eric Croft, Representative Ethan Berkowitz and Chairman Green. HB 22 - CIVIL LIABILITY FOR BOOTLEGGERS CHAIRMAN JOE GREEN advised members they would first consider HB 22, "An Act relating to civil liability for illegal sales of alcoholic beverages; and providing for an effective date." It was sponsored by Representative Ivan Ivan. His committee aide, Tom Wright would provide comments on behalf of Representative Ivan. Number 101 TOM WRIGHT, Legislative Assistant to Representative Ivan Ivan, provided comments on HB 22 on behalf of the prime sponsor, Representative Ivan Ivan, who was ill. MR. WRIGHT advised members that current law appeared to exempt those who sell liquor without a license from any civil liability for damages that might be caused by their actions. The basis of the bill was to remove that exemption and make bootleggers strictly liable for his or her actions. MR. WRIGHT pointed out that Christopher Cooke, an attorney in Bethel, Alaska was responsible for bringing this matter to the attention of the Attorney General's Office. He noted that there had been an Alaska Supreme Court decision, Chokwak v. Worley, 912 P.2d 1248 (Alaska 1996), which stated that there might be a problem as far as civil liability was concerned, for those who sell liquor without a license. CHAIRMAN GREEN noted that individuals at two teleconference sites in Anchorage and Fairbanks were standing by to provide testimony on the proposed legislation. MR. WRIGHT advised members that Linda O'Bannon, Assistant Attorney General, would be able to respond to any technical questions posed by committee members. Ms. O'Bannon was the Attorney General who had corresponded with Christopher Cook and Representative Ivan's office, and also does legal work for the Alcohol Beverage Control Board (ABC) Board. CHAIRMAN GREEN requested testimony from Fairbanks. LISA JAEGER, Tanana Chiefs Conference, Inc. (TCC), advised members that TCC fully supported HB 22. She offered to fax down a position paper and also expressed that the TCC had adopted several resolutions during their annual conventions relating to alcohol issues. Ms. Jaeger advised members that alcohol was an excessive problem in the Fairbanks area. MS. JAEGER stated that not only did the TCC fully support the bill, but the Elders in the community had declared war on alcohol. She advised members that they had experienced problems bringing criminal charges because, basically, everyone's related, which was a major problem in the smaller villages. Representatives Jeannette James and Norman Rokeberg arrived. VICE CHAIRMAN CON BUNDE expressed his support of TCC in dealing with alcohol related problems. He asked Ms. Jaeger how the proposed legislation would affect neighbors and relatives if a criminal charge were imposed. MS. JAEGER did not know how the legislation would help with respect to people not wanting to testify against one another. However, felt it would be a great tool, in terms of waving a flag, that those people would be civilly liable for activities caused by other people that they illegally sell alcohol to. Number 606 VICE CHAIRMAN BUNDE questioned the ability of those being charged with bootlegging to pay a fine because of the lack of work in the smaller villages, as well as many people living a semi-subsistence lifestyle. MS. JAEGER felt it was known that the bootleggers were the individuals with money, and other people, in the remote areas, did have snow machines and property. REPRESENTATIVE ERIC CROFT referenced the "sell or barter" language of the proposed legislation and asked if a barter arrangement was typical. MS. JAEGER was not familiar with how bartering for alcohol worked. The transactions she was most familiar with involved money transactions. REPRESENTATIVE CROFT asked if it was generally known who, in the villages, the bootleggers were. MS. JAEGER responded that it was common knowledge who the bootleggers were in the villages. REPRESENTATIVE ETHAN BERKOWITZ asked what the estimated cost of a bottle of alcohol was that goes through a bootlegging operation. MS. JAEGER stated that the cost varied depending on the location, however a bottle of alcohol could range from double the shelf cost to 25 times the shelf cost. REPRESENTATIVE CROFT asked what types of efforts the TCC would make to publicize and alert the public of the legislation if it passed. MS. JAEGER felt they would run front cover stories in the local newspapers, as well as utilize the local radio stations to publicize the enactment of the legislation. LINDA O'BANNON, Assistant Attorney General and representative of the Alcohol Beverage Control Board (ABC) and their staff, pointed out that the proposed legislation would make clear that bootleggers are civilly liable for the harm they cause by the illegal sale of alcohol. She added that under the particular version, a bootlegger would be subject to strict liability. MS. O'BRANNON advised members that after the Alaska Supreme Court decision in Chokwak v. Worley concerning civil immunity, the ABC Board and staff felt it should be clarified in statute that civil immunity was not, and should not be extended to persons who unlawfully traffic alcohol. She noted that the ABC Board recommended a change to AS 04.21.020 by adding a paragraph to make clear that bootleggers were held responsible for damages they cause to other persons. Ms. O'Brannon noted that as the bill was currently written, it might include someone who purchased alcoholic beverages from the bootlegger and then was injured, or someone injured by the person who purchased alcoholic beverages from the bootlegger, such as an innocent victim of an automobile accident. Number 1270 REPRESENTATIVE NORMAN ROKEBERG advised members that he had a suggested amendment that he had received from the Alcohol Beverage Control Board and asked if the language had been drafted by Ms. O'Brannon. MS. O'BRANNON responded that she did draft that language, although that had been done some time ago and was slightly different than the language of HB 22. REPRESENTATIVE CROFT referenced the difference between a negligent standard and a strict liability standard and asked Ms. O'Brannon what the difference and practical effect would be between a negligent and strict liability standard. He questioned how someone would prove negligence in an act that was already criminal. MS. O'BRANNON agreed, pointing out that what they were talking about would be a criminal violation, and therefore, negligence per se. REPRESENTATIVE BRIAN PORTER recommended adding a new subsection to HB 22 which would read as follows: "(b) Notwithstanding (a) of this section, a person who sells or barters an alcoholic beverage to another person in violation of AS 04.11.010 is strictly liable for civil damages FOR PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGES, resulting from the intoxication of the person receiving the alcoholic beverage IF THE INTOXICATION SUBSTANTIALLY CONTRIBUTED TO THE PERSONAL INJURIES, DEATH AND PROPERTY DAMAGES." MS. O'BRANNON advised members she did not see a problem with that language. She stated that AS 04.21.020 provides immunity to social hosts and people who hold liquor licenses if they do certain things. Ms. O'Brannon explained that by amending AS 04.21.020 that bootleggers would be responsible, no matter what, in a civil liability situation. REPRESENTATIVE JEANNETTE JAMES spoke in favor of the proposed language because it made more perfectly clear what an individual would be civilly liable for. Number 1980 REPRESENTATIVE BERKOWITZ preferred the more simple language over specifying certain incidences because a broader statement would more likely result in a civil liability case. REPRESENTATIVE ROKEBERG asked if a community or a law enforcement agency would be able to bring a cause of action against an individual for the illegal sale of alcoholic beverages. MS. O'BRANNON stated that for a criminal prosecution under the bootlegger statute, AS 04.11.010, the district attorneys office would have to prove the allegations beyond a reasonable doubt. However, in a civil context, the people who could bring civil law suits would be those who had actually been injured or were in some type of relationship with the injured party. In a civil liability case the standard of proof would be a preponderance of the evidence, as opposed to beyond a reasonable doubt, which is a much easier standard of proof. Ms. O'Brannon also pointed out that a criminal prosecution of the bootlegger would not be needed in order to bring a civil law suit against that person. VICE CHAIRMAN BUNDE asked if what was being said, was that a bootlegger could be acquitted on a criminal charge, but a civil suit could be brought because of certain results of his illegal selling of alcoholic beverages. Number 2245 MS. O'BRANNON fully agreed with Vice Chairman Bunde's understanding, noting that there was a very famous case being argued currently where that same type of situation occurred. REPRESENTATIVE BERKOWITZ asked if the state would have the ability to recover investigation costs as an economic damage in a bootlegging case. MS. O'BRANNON did not feel the proposed legislation would provide for that. She explained that the state or city would not be the directly injured party and specific language would be necessary to include that ability. Ms. O'Brannon went on to say that the proposed legislation would cover a situation even where an investigation had not been conducted by a governmental entity. REPRESENTATIVE PORTER felt that the cost of prosecution to a city or state should be added to personal injuries, death and property damages. Number 2430 LISA KIRSCH, Committee Aide to Chairman Green, referenced the language of, "substantially contributed" in the proposed amendment, and wondered if that would cause a problem with the causation standard in Title 9. TAPE 97-2, SIDE B Number 000 MS. O'BRANNON stated that the way the tort laws were currently written, she did not know if it was necessary to say "substantially contributed", because she felt the courts would automatically provide jury instructions that would apportion fault among the parties based on their percentage of the fault. REPRESENTATIVE PORTER requested that HB 22 be held over to further consider the ability of the state or city being able to recover monetary damages from acts of bootleggers and the need to investigate those types of cases. TOM WRIGHT, Committee Aide to Representative Ivan, advised members the sponsor would not object to holding the bill over for the purpose of considering additional amendments addressing the concerns voiced at the present hearing. Mr. Wright offered to work with the Chairman's staff, Representative Porter's staff and Representative Berkowitz staff to arrive at language that would accommodate their concerns. REPRESENTATIVE CROFT declared a possible conflict of interest advising members that he had worked with Christopher Cooke, the attorney from Bethel, Alaska, although it involved nothing to do with the proposed legislation, HB 22. REPRESENTATIVE ROKEBERG expressed his support of a community or state having the ability to file action. CHAIRMAN GREEN advised members that HB 22 would be held over for the purpose of considering additional language, and brought back before the committee at a later date. Number 660 HB 9 - VICTIM'S RIGHT TO BE PRESENT AT TRIAL CHAIRMAN GREEN announced that the next item of business was HB 9, "An Act relating to the right of crime victims and victims of juvenile offenses to be present at court proceedings; and amending Rule 615, Alaska Rules of Evidence." REPRESENTATIVE PORTER, Prime Sponsor of HB 9, noted that the legislature passed a constitutional amendment that would provide victims the same rights, in criminal proceedings, as the defendant has. He advised members that there were at least two judges in the state that felt the wording of the constitutional amendment allowed them to refer back to the statute that would allow the exclusion of witnesses prior to their court testimony, and interpreted that language to mean victims as well. Representative Porter pointed out that that was not the intent of the constitutional amendment, and was the reason for amending the statute that those particular judges were relying on by specifically stating victims could not be excluded whenever the accused has the right to be present. JAYNE E. ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety advised members that the Council was overseen by a seven-member board that establishes the policy of the council and directions it takes. She advised members that the council, itself, had not had the opportunity to review the proposed legislation. Ms. Andreen noted that the comments she would be making would be based on positions the council had taken in the past on similar issues, and comments and feedback the council had received from grantees at the local level. MS. ANDREEN advised members that the council highly supported the constitutional amendment and were also supportive of the efforts at the federal level for passage of a similar type of constitutional amendment. Ms. Andreen stated that the council felt that the public was making a strong statement that victims do need to have equal access to the criminal justice system and procedures, as do the defendants. MS. ANDREEN noted that the council had heard from some of their grantees around the state that there was a fairly significant number of circumstances where victims were denied access to criminal proceedings because of the fact that they are victims and could be required to testify in the future. She advised members that the council was concerned that the intent of the constitutional amendment was not being followed through. It was her understanding that the proposed legislation would assist in alleviating those concerns to a large extent. Number 945 DEL SMITH, Deputy Commissioner, Department of Public Safety, advised members the department was in support of HB 9. ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, advised members the department was in support the proposed legislation. She noted that the Constitution, Article I, Section 24 guaranteed victims the right to be present at all phases of a proceeding where the defendant has a right to be present. MS. CARPENETI felt the Constitution was fairly clear, however the proposed legislation might be necessary to convince all judges of the right for victims' participation in court proceedings. REPRESENTATIVE ROKEBERG asked what judges appeared not to be adhering to the language of the constitutional amendment. MS. CARPENETI felt it involved a couple judges in the Anchorage area that, based on the language in the amendment which states, "crime victims, as defined by law, shall have the following rights as provided by law", were basing the fact that there was not a statute in Title 12 or Title 11 on that language. Ms. Carpeneti explained that presently Title 47 allowed victims to participate in juvenile proceedings at every stage where the charged juvenile could be present. REPRESENTATIVE CROFT referenced Section 24 of the Alaska Constitution and asked Ms. Carpeneti if it would violate the federal right to a fair trial in situations where the witness was listening to trial testimony and alter their testimony to fit what they had heard. Number 1550 MS. CARPENETI did not believe that would take place. She pointed out that victims of crimes, typically, have given statements to the police, which are transcribed, and have also testified at grand jury proceedings and the defense attorney would have the right to cross examine the witness or victim on any changes that might arise, if the victim had altered their testimony. She felt the right of cross examination of the victim's testimony would take care of a possible argument that there might be any due process concerns. REPRESENTATIVE CROFT asked if there was a definition of victim in the Constitution. Ms. Carpeneti advised members there was a statutory definition, AS 12.55.185. The Constitution makes reference to the term "victim", as is defined by law. REPRESENTATIVE CROFT asked if it would be possible to change the constitutional definition of victim by changing the statutory definition of victim. MS. CARPENETI felt that could be done because the Constitution states, as defined by law. REPRESENTATIVE CROFT felt there could be a conflict of two constitutional provisions; a defendant's right to a fair trial, and the victim's right to be present, which could result in the victim changing their testimony because of testimony they heard while sitting in on a proceeding. He questioned if what was provided in statute would change the conflict of those two constitutional rights. MS. CARPENETI did not feel those two constitutional rights would present a conflict in the Constitution. She felt if there was any due process issue, in terms of a defendant, that it could be easily addressed through cross examination of the victim or witness. CHAIRMAN GREEN requested testimony from the two teleconference sites, Anchorage and Fairbanks, Alaska. Number 2000 SARAH MUSGROVE testified via teleconference from the Anchorage Legislative Information Office (LIO). As a victim of the crime of murder, Ms. Musgrove testified in favor of HB 9. She stated that as a victim, she did not feel that the state, or anyone else, had the right to deny her the right to listen to all court proceedings, as does the defendant. Ms. Musgrove expressed the need to be allowed to participate in all court proceedings for healing purposes and the right and need to know the truth. MARTI GREESON, Executive Director of Mothers Against Drunk Drivers, (MADD), advised members she had worked in victim services for over 22 years, primarily through law enforcement agencies. She pointed out that over that time span, victims' rights had become recognized throughout the nation. Ms. Greeson expressed that victims were consistently excluded from the criminal justice process. MS. GREESON stated that the rights of victims should be protected at least to the extent that the defendants rights are protected and supported HB 9. JANICE LIENHART, representing Victim's for Justice, advised members she had been working with victims of crime for the past ten years. Ms. Lienhart felt the most important component of the healing process was receiving information about the alleged crime. She pointed out that police would not provide information to the victim because it could contaminate the case. Ms. Lienhart felt laws should be made for the purpose of providing victims answers, and provide equal rights in the court room as the defendant has. JANELLE DIXSON, testified as a victim of a violent crime. She explained that her husband had been murdered in 1995. Ms. Dixson pointed out that the trial had been rescheduled numerous times for various reasons. Ms. Dixson advised members that the defendant was allowed to attend all court proceedings, while she was prohibited from attending the evidentiary hearing, as well as the trial. TAPE 97-3, SIDE A Number 000 Although Ms. Dixson had told the same story many times, she was told that should she hear other testimony during trial, that it may result in her swaying her testimony. Ms. Dixson felt the system treated criminals like victims, and victims like criminals. SARAH MUSGROVE, spoke on behalf of Dawn Scherbert because she had to leave. Ms. Scherbert was also a victim of the crime of murder. Ms. Scherbert felt it was her right to be present during all court proceedings, however was denied access to those proceedings. Ms. Scherbert also spoke in favor of HB 9. KAREN CAMPBELL, a victim of the crime of murder, explained her experience with the criminal justice system. Her daughter, 18 years old, was found murdered in 1994. She advised members that her daughter was the victim of a brutal murder, and that she, herself, was a victim of justice and state laws. Ms. Campbell pointed out that a jury is responsible for determining whether a defendant is telling the truth, and asked if state lawmakers felt that same jury was incapable of determining whether a victim was being truthful. MS. CAMPBELL pointed out that victims were always being excluded and left in the dark at a time when they were desperately seeking answers. Number 670 CHARLOTTE PHELPS testified in support of HB 9 noting that the proposed legislation would give victims, and families of victims, the opportunity to participate more fully in the criminal justice process. She felt the state's criminal justice system was overly protective of the rights of the accused, and often ignored the rights and needs of victims. CHAIRMAN GREEN recognized the presence of Senator Dave Donley. BARBARA BRINK, Acting Director, Public Defender Agency, Department of Administration advised members she had served as a public defender throughout the state for the past 14-1/2 years. MS. BRINK explained some unintended consequences that could result with the enactment of HB 9. Ms. Brink advised members that the rule that allowed certain witnesses to be excluded from trial was a tool designed to improve the accuracy of the fact finding process. A victim, who was not a witness to the event, would never be excluded under the exclusionary rule. Ms. Brink stated that if it was a case where the victim was also a witness whose perceptions, observations and memory of such an event would assist the jury in finding facts that the rule could promote accuracy by keeping witness/victim's testimony untainted by the testimony of other witnesses. MS. BRINK advised members that the exclusionary rule attempts to make it possible for a judge to hear recollections, perceptions and impressions of each witness separately. She further stated that the rule allows a judge to determine when it is critical that a witnesses testimony be unclouded and unaffected, which was the reason they are asked not to participate in the court room until after they had testified. MS. BRINK noted that the exclusionary rule in the federal system operated in the same manner. She reiterated that if a victim was not actually a witness to a criminal event, they would not be excluded under the rule, and if they were a witness, the prosecutor could solve that problem by calling them to testify first. MS. BRINK explained that the two Anchorage judges were trying to balance the victim's constitutional right to be present, along with their concern that the jury receive accurate information. Number 1066 REPRESENTATIVE PORTER expressed that the judges who were excluding victims were saying that the exclusionary statute was the law that was being provided by the state, and that was the reason that they could exclude a victim witness from being present during various court proceedings. If that were the fact situation in front of the committee, he asked Ms. Brink if the correction to amend that would be to amend the statute those judges were referring to. MS. BRINK stated that if she understood the question correctly, that the answer would be yes. However, she did not feel that would necessarily preclude those judges from attempting to make the balancing test, not between the rule and a constitutional right, but a balance between two competing constitutional rights. REPRESENTATIVE PORTER did not disagree with Ms. Brink's response, although noted that if that had been the case, he would have been happy to make some suggestions about a subsequent retention election. He continued noting that the two judges were actually using the statutory language as the rationale for their rulings. KEVIN SHORES, Representative of the Alaska Civil Liberties Union, (ACLU), noted that he had only recently been apprised of the proposed legislation. He expressed that the ACLU opposed HB 9, adding that he felt one of the other witnesses who testified on the proposed legislation was accurate when she stated that what victims were seeking was the truth. MR. SHORES explained that the ACLU was interested in preserving the constitutional right to due process and having a fair, truth- finding process. Mr. Shores supported the comments provided by Ms. Brink of the Public Defender Agency, and agreed that when in a trial situation, memory was affected by talking to people by what is said and heard. He noted that the memory changes over time, pointing out that psychologists had conducted studies on that concept to find it to be so. MR. SHORES advised members that the ACLU was interested in the integrity of the fact finding process. He pointed out that the proposed legislation would apply to all criminal cases, not just murder cases. Mr. Shores explained that through his experience as a criminal defense practitioner, it was rare for a victim to come into court, even to exercise their rights at sentencing. He stated that victims, in his experience, most often attend court proceedings in domestic violence cases. Mr. Shore noted that often times in those cases, the victim wants to support the person who had plead out to the offense, and ask that charges be dropped. MR. SHORES asked that members consider all of the types of cases the proposed legislation would affect. REPRESENTATIVE PORTER quoted the language in the Alaska State Constitution as follows: "The victims have the right to obtain information and to be allowed to be present at all criminal or juvenile proceedings where the accused has the right to be present". He advised members that that was a guaranteed right of the Alaska State Constitution. Representative Porter pointed out that there was a conflicting right, in the Constitution, which states that the defendant has the right to a fair trial. As the sponsor of HB 9 and the victim's rights legislation, Representative Porter felt a judge would lose in the court of public opinion if he or she said that the defendant's rights superseded the victim's rights. REPRESENTATIVE PORTER noted that the two particular judges were not allowing victims in the court room because of the specific wording of the constitutional amendment and the inclusion of that right by statute. REPRESENTATIVE PORTER moved to amend HB 9 on page 2, line 6, following the word "witness", insert, In this section, "victim" has the meaning given in AS 12.55.185., and on page 2, line 27, following the word "present;" insert "victim" has the meaning given in AS 12,55,185. There being no objection, amendment number one, HB 9, passed unanimously. REPRESENTATIVE BERKOWITZ stated that when there was a conflict of constitutional rights, he felt it was incumbent on members to consider the consequence and felt uncomfortable proceeding further with the proposed legislation prior to receiving some type of legal analysis as to what the constitutional conflict was, and a likely resolution of that conflict. REPRESENTATIVE PORTER responded that there was no definitive resolution to Representative Berkowitz question, which was the whole point. He pointed out that one of the first questions that arose, and was still unresolved, was the conflict between the amendment's provision that the defendant, too, has a right to a speedy trial. Representative Porter noted that case law had determined what that meant on the defendant's side to 120 days, however, there was no conflict when that case law was developing. REPRESENTATIVE PORTER continued stating that now, through the constitutional amendment, the victim would have a right to request the right to a speedy trial, should the defendant attempt to delay trial proceedings, for whatever reason. REPRESENTATIVE BERKOWITZ stated that in his opinion as both a prosecuting attorney and a defense attorney, that to take a step as was being proposed, he felt it was important to proceed cautiously. He agreed that there was a lot of pressure and sympathy for people who had been victimized by crimes. However, he felt it was also important to assure that the protections afforded under the Constitution, not only to defendants, but to the entire process and the integrity of that process remain intact. CHAIRMAN GREEN advised Representative Berkowitz that he would have ample time to review and address the issue again, either on the House floor, or when the bill goes over to the Senate. VICE CHAIRMAN BUNDE moved to report CSHB 9(JUD) out of committee with individual recommendations. REPRESENTATIVE BERKOWITZ objected. A roll call vote was taken. In favor: Representatives Bunde, Porter, James and Chairman Green. Opposed: Representative Croft and Berkowitz. CSHB 9(JUD) was reported out of committee. Number 1932 ADJOURNMENT There being nothing further to come before the committee, Chairman Green adjourned the meeting at 3:07 p.m.

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