HOUSE FINANCE COMMITTEE February 1, 1994 1:32 p.m. TAPE HFC 94-21, Side 1, #000 - end. TAPE HFC 94-21, Side 2, #000 - end. TAPE HFC 94-22, Side 1, #000 - 234. CALL TO ORDER Co-Chair Larson called the House Finance Committee to order at 1:32 p.m. PRESENT Co-Chair Larson Representative Martin Vice-Chair Hanley Representative Navarre Representative Brown Representative Parnell Representative Foster Representative Grussendorf Co-Chair MacLean and Representatives Martin and Therriault were not present for the meeting. ALSO PRESENT Senator Dave Donley; Representative Brian Porter; Janice Lienhart. SUMMARY INFORMATION HJR 43 Proposing an amendment to the Constitution of the State of Alaska relating to penal administration. CS HJR 43 (FIN) was reported out of Committee with a "do pass" recommendation and with a fiscal impact note by the Office of the Governor, dated 1/13/95; and with two zero fiscal notes by the Department of Public Safety and the Department of Corrections, dated 1/13/94. Members were provided with a proposed committee substitute work draft 8LS1056\D, dated 1/28/94 (copy on file). REPRESENTATIVE BRIAN PORTER explained that CSHJR 43 (JUD) would provide specific constitutional rights for victims of crime. He observed that families and spouses of the individual that has been victimized would be included. He emphasized that most of the rights contained in CSHJR (JUD) have been defined in statute. He stressed that victim's rights would be raised to the same level as the criminal defendant. 1 Representative Grussendorf noted that constitutional law generally protects individuals from abuses by the government. He observed that CSHJR 43 (JUD) would protect victim's rights from other individuals. He asked if other states have adopted constitutional rights for victims. Representative Porter replied that fourteen states have adopted constitutional rights for victims. He maintained that the government has control of the criminal defendant in the criminal justice system. Representative Brown addressed the fiscal impact of CSHJR 43 (JUD). She asked if the right to be reasonably protected would increase the State's liability. Representative Porter noted that the right of timely disposition already exists in law. Current law requires that a case be addressed within 120 days. A defendant can petition for a suspension of the right for timely disposition in order to delay a case. He pointed out that CSHJR 43 (JUD) would allow a victim to request that the case not be delayed. Courts would have to weigh the interests of the defendant and the victim if the legislation is enacted. Representative Hanley expressed concern that the right for timely disposition would result in dismissal of cases due to court backlogs. Representative Porter doubted that the Supreme Court would interrupt that timely disposition would occur in less time than current law allows (120 days). JANICE LIENHART, VICTIMS FOR JUSTICE testified on behalf of CSHJR 43 (JUD). She stressed that defendant's rights are protected by the Constitution of the State of Alaska. She asserted that victim's rights need to be equally protected. She listed other states that have passed or have legislation pending in regards to victim's constitutional rights. She maintained that the rights of victims of violent crimes must be balanced with defendant's rights. Representative Parnell raised the question of restitution. Representative Porter explained that current law allows the court to render restitution in a criminal case for a conviction, over a period of probation. A victim also has the option of pursuing restitution through civil proceedings. Representative Porter clarified that an accusation does not automatically make an individual responsible for restitution. Restitution is awarded only upon a conviction. 2 Representative Parnell raised the question of the right to be informed and present. Representative Porter noted that it is not the intent of the legislation that the State pay for a victim's travel. He noted that victims could utilize telecommunications. Representative Hanley expressed concern that the State's responsibility to inform victims of proceedings be clear. Representative Porter clarified that "proceeding" is defined by the presence of a judge or jury. Psychological evaluations would not be included. Motions determining guilt or innocence would be included in the definition of "preceding" in cases involving juveniles. Representative Grussendorf echoed the previous concerns regarding notification of proceedings. He asked if a delay would occur to protect the rights of victims unable to attend a proceeding. He questioned the need to raise the issue to a constitutional level. Ms. Lienhart assured Representative Grussendorf that victims would not choose to prolong their cases. Representative Grussendorf asked what the State's responsibility would be to inform victims when their whereabouts are unknown. Representative Porter assured him that the process would follow the normal confines of the court's schedule. Representative Porter added that a victim could attempt to show that a defendant has manipulated the court schedule to prevent the victims appearance. Representative Martin pointed out that the victim's rights issue is not new. He asked if statutes defined reasonable attendance. Representative Porter stressed that existing statute requires that victims supply the court with current addresses. Current statutes would not be altered. Representative Brown expressed concern that the State's responsibility not be increased by raising statutory law to the constitutional level, in regards to the right to be reasonably protected. She observed that there are villages without a village public safety officer or state trooper. She wondered if the State would incur extra liability in areas where there is not sufficient protection. Representative Porter pointed out CSHJR 43 (JUD) states the right to be "reasonably" protected. It does not guarantee protection. In response to a question by Representative Larson, Representative Porter assured members that the intent of the 3 legislation is not to add further liability to the State. Representative Brown suggested that the right of restitution be moved from page 1, line 11 of the proposed committee substitute, to page 1 line 14, in order to clarify that restitution would occur after conviction. Representative Porter had no objections but was concerned that the victim's right to seek restitution in civil court not be changed. Representative Hanley MOVED to ADOPT work draft 8LS1056\D, dated 1/28/94. There being NO OBJECTION, it was so ordered. Members continued to discuss restitution. Representative Porter stated that courts cannot award restitution without a conviction. Representative Navarre stressed that civil proceedings are separate from criminal proceedings. Members discussed language to clarify that restitution would not be awarded by the defendant, if the defendant were acquitted of the offense. Representative Hanley reiterated that restitution is dependent upon conviction. Representative Porter pointed out that the legislation was drafted based on laws existing in other states. SENATOR DAVE DONLEY observed that state statutes have been expanded to include victim's rights since 1987. He suggested that constitutional law will take statutory law into consideration but noted that it is impossible to guarantee how the court will interpret the law without legislative mandate. (Tape Change, HFC 94-21, Side 2) Senator Donley noted that the victim's rights movement has a strong national base. He maintained that the legislation will help those who have not yet been victimized. Senator Donley referred to CSSJR 2 (STA). He observed that CSSJR 2 (STA) contains language to allow constitutional interpretation to follow existing statutory law. He asserted that this allows existing law to be codified and clarifies that constitutional law and statutory law are not in conflict. Senator Donley discussed restitution. He noted that restitution is commonly addressed in civil law. He maintained that restitution as applied in criminal law is reserved for cases that are simple to prove. He gave the example of a robbery where it is demonstrated that a certain item or item has been withdrawn from the victim. He 4 maintained that the real issue is the balance between civil and criminal law. Representative Porter observed that the intent is that restitution be issued by the defendant not the State. Senator Donley clarified that constitutional rights do not have to exist in statute to be implemented, even if a mandate exists for legislative implementation of the law. He observed that the Court has upheld the constitutional right to privacy without implemented statutes. Representative Grussendorf expressed concern that the fiscal notes do not reflect the fiscal impact of the legislation. He pointed out that there will be administrative responsibilities for notification. Representative Brown asked if CSHJR 43 (FIN) would change current law. Senator Donley replied that without language instructing the legislature to implement the law, the court would have discretion on interpretation of the constitutional amendment. Representative Parnell observed that the court would take statutory law into consideration. Representative Brown questioned if juvenile proceedings would be open to victims. Senator Donley noted that federal law provides baseline protection for juveniles which could not be removed. He pointed out that juvenile proceedings are not generally considered as criminal proceedings. He stressed that some rights do not apply to juveniles. Representative Parnell expressed further concern that restitution not be limited in civil proceedings by the proposed constitutional amendment. Representative Porter assured him that the intent of the legislation is to raise existing law to a constitutional level. It is not the legislation's intent to change existing law. He added that grand juries would not be effected. Victims do not have the right to be present during grand jury deliberation. Representative Parnell MOVED to delete, "to restitution from the accused" on page 1, line 11; and insert, "to restitution from the accused," on page 1 line 14, after "considered,". There being NO OBJECTION, it was so ordered. Representative Brown MOVED to add on page 2, "The legislature may provide by law for the enforcement of this section." Representative Parnell suggested that existing 5 constitutional language be substituted. He stated that Article I (3) states: "The legislature shall implement this section." Representative Brown WITHDREW her MOTION. There being NO OBJECTION, it was so ordered. Representative Parnell MOVED that, "The legislature shall implement this section," be added on page 1, line 15. There being NO OBJECTION, it was so ordered. Representative Brown emphasized that more information is needed in regards to how the legislation would effect juvenile proceedings. Representative Porter and Senator Donley were unable to find statutes regarding juvenile proceedings but recalled that some proceedings are closed to victim participation and some are open. Representative Porter assured Representative Brown that it is not the intent to change existing law in regards to juvenile proceedings. Representative Brown suggested that language be added to clarify the "opportunity" to be present at proceedings is provided for the victim. She noted that "to have the opportunity to be," could be added before "present" on line 12, page 1; and "have an opportunity" could be added after "to" on line 13, page 1 of CSHJR 43 (FIN). Representative Navarre agreed with Representative Brown's attempt to further clarify that the State's responsibility to provide the victim with the opportunity to attend proceedings. (Tape Change, HFC 94-22, Side 1) Senator Donley assured members that the interpretation of constitutional law would be that the government cannot prevent victims from attending proceedings not that the government must provide the means to attend. He stressed that the amendment adopted stating that the legislature would implement the law would safe guard that the legislature's intent be upheld. In response to a question by Representative Martin, Representative Porter noted that the defendant has the right to request a change in venue. Under the proposed legislation the victim's right to maintain venue would also be considered by the court. He maintained that the court would be able to balance the rights of victims and defendants. Representative Larson reiterated that it is not the intent of the legislation that the State be responsible for transportation of victims to attend proceedings in which 6 they are involved. Representative Hanley suggested that a Letter of Intent accompany the legislation. Representative Navarre observed that the court would interpret the constitutional amendment from the point of view of those voting for adoption of the amendment. Representative Martin MOVED to report CSHJR 43 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. Representative Navarre OBJECTED for purpose of discussion. He suggested that the legislation needs further discussion. He emphasized the importance of a constitutional amendment. He WITHDREW his OBJECTION. CSHJR 43 (FIN) was reported out of Committee with a "do pass" recommendation and with a fiscal impact note by the Office of the Governor, dated 1/13/95; and with two zero fiscal notes by the Department of Public Safety and the Department of Corrections, dated 1/13/94. ADJOURNMENT The meeting adjourned at 3:16 p.m. 7