Legislature(2013 - 2014)
2014-09-19 Senate Journal
Full Journal pdf2014-09-19 Senate Journal Page 2878 SB 108 Message dated August 28 was received stating: Dear President Huggins, Marsingill v. O'Malley, 128 P.3d 151 (Alaska 2006) (Marsingill II) (On appeal after remand, the jury verdict in favor of the physician was upheld.) 3 Marsingill II,128 P.3d at 155, citing to Marsingill I, 58 P.3d at 503 (internal citations omitted). 2014-09-19 Senate Journal Page 2879 Under the authority vested in me by Article II, Section 15 of the Alaska Constitution, I have vetoed the following bill: HOUSE CS FOR CS FOR SENATE BILL NO. 108(FIN) "An Act relating to the confidentiality of certain records of criminal cases; and providing for an effective date." The provisions in HCS CSSB 108(FIN) attempt to solve a complex issue that requires striking the right balance between open and transparent criminal court proceedings, the rights of crime victims, and the rights of persons who have been accused, but never convicted, of a crime. Unfortunately, the legislation summarily sweeps all such cases under the cloak of confidentiality in an unnecessarily broad manner without respect to likely adverse impacts on the public. In my view, the legislation unnecessarily restricts access to criminal court records which adversely affects the ability of Alaskans to protect themselves and to hold their judicial system accountable. Additionally, the law would be vulnerable to legal challenge. This legislation implicates important constitutional provisions and protections for all concerned, including the victim, the accused, members of the public outside the criminal proceeding, and generations to come who review and rely on historical information left in the public record. For centuries, our country and her states have allowed public access to criminal court documents and proceedings because public confidence in the fairness, trustworthiness, and impartiality of our judicial system depends on the public's ability to observe criminal court proceedings and access the records of those proceedings. Indeed, the United States Supreme Court has concluded that "…a presumption of openness inheres in the very nature of a criminal trial under our system of justice." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980). While Richmond Newspapers addressed the issue of whether a trial could be closed to the press and public, something not at issue in this legislation, the Supreme Court's opinion spoke to constitutional interests at stake in HCS CSSB 108(FIN). The First Amendment, in 2014-09-19 Senate Journal Page 2880 conjunction with the Fourteenth, prohibits governments from abridging the freedom of speech, or of the press; or of its people to petition the government for a redress of grievances. The First Amendment right to free speech "goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw." Id. at 576, citing, First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978). Free speech, the Richmond Newspapers Court held, carries with it some freedom to listen, to receive information and ideas. Id. at 576. The public's right to know what happens in criminal proceedings was not based on some right to satisfy mere personal curiosity, but rather on a person's right to be fully informed so as to protect him or herself or family members from harm, to foster accountability for our judicial branch by the people, and to improve individual decision-making. I think here of the parent who wants to complete his or her due diligence on a potential daycare provider. Just because the prosecutor failed to prove beyond a reasonable doubt that a person should be convicted of a crime related to child abuse, it does not mean that a parent outside the proceeding should be left in the dark about that court process. A parent's standard for who should watch his or her child would likely be considerably different than whether someone had been acquitted of such charges on a "beyond a reasonable doubt" standard. At the very least, the parent should have access to court information so they can pursue a more fully informed choice. The legislation makes case records confidential from public view, but gives access rights to records of criminal proceedings to employees of the Department of Health and Social Services who are responsible for the health, safety, welfare, or placement of a child; a person with a physical or intellectual disability; or a person with a mental illness. Why is it important for a State worker to have access rights to this information to protect a vulnerable person in the State's care, but not for a parent or other family member trying to ensure the safety of a vulnerable person in their household? An argument can be made that the legislation could create more crime victims in our state because it would inhibit the ability of Alaskans to protect themselves or their loved ones via access to complete criminal records. 2014-09-19 Senate Journal Page 2881 While I do not believe the provisions of this bill clearly violate the victims' rights provisions of the Alaska Constitution, I believe that the other constitutional implications and the rights of victims need to be considered further to address the important interests at stake in this type of legislation. Next, the public's right to know what happened in a criminal proceeding is important for reasons of government accountability. How else would we discover misconduct by a prosecutor or defense counsel or misconduct by a judge in one trial or a series of trials? The public's right to know is also important for historical accuracy and completeness. Where records in the public domain are incomplete, truth and accuracy suffer. Where volumes of court information would be rendered confidential by the legislation, the public is left with only what was printed in press reports of the time, if any. Under the best of circumstances, no one could say those accounts are complete or wholly accurate. More reputational destruction could occur based on incomplete accounts and no member of the public would be able to ever "set the record straight." It has been said that text, out of context, is pretext, and the saying holds true here. An incomplete historical record fosters inaccuracy in the retelling, all at the expense of truth, safety, accountability, and future decision-making. On the other hand, as a society we have already set some limitations on the public's right to know out of concern for individuals. For example, in some cases, the parties' privacy interests outweigh the public's right to view proceedings or records, such as proceedings involving the protection of minor children. These privacy interests and more were thoughtfully set forth by a number of people in legislative hearings on the bill. Lawmakers heard compelling testimony from individuals who had been arrested, but never charged with a crime, or who had been subject to retaliatory, baseless requests for protective orders against them. These individuals' names appear on the Alaska Court System's easily searchable electronic public index (CourtView), adversely 4 affecting their reputation. In many situations, I agree that the privacy 4 See, House Finance Standing Committee Minutes, April 14, 2014 and letters of support for Senate Bill 108. 2014-09-19 Senate Journal Page 2882 interests of a person outweigh the public's need to know of a minor brush with the law, and certainly so when an Alaskan is the subject of a baseless, retaliatory action. It is easy to imagine how someone could simply log on to CourtView and make decisions based on the simple fact that a person was arrested or had a protective order filed against them, regardless of the final outcome. This is especially true where CourtView does not make the disposition of the case known until one drills down several screens into CourtView. A relatively simple solution might be for the Alaska Court System to make the case or charge disposition more readily available on the same screen as the listing of the charge. Unfortunately, the bill before me requires no consideration of the substance of a matter, or of its possible significance, historical or otherwise, to the public at large, in order to remove a record from public view. As one person wrote in opposition to the bill, "This bill takes a meat-axe approach to a problem," by making all criminal records confidential (in the broad categories enumerated) when a more finely targeted or nuanced response would better balance the rights and interests of all Alaskans. During public testimony on the bill, several tragic accounts were related about how people had been stigmatized by an arrest without subsequent charges being brought and by being wrongly charged as an adult when a minor was involved and the charges should not have been on CourtView. To better address some of these concerns, the Alaska Court System recently adopted a more finely-tuned approach via an amended Alaska Court rule that better protects Alaskans' privacy. The newly amended Alaska Court rule provides that names of those who are arrested with the following circumstances will no longer be visible in the electronically searchable CourtView database: · criminal cases dismissed because the prosecuting authority declined to file a charging document; · criminal cases dismissed for lack of probable cause under Criminal Rule 5(d); · criminal cases dismissed for an identity error under Criminal Rule 43(d); · criminal cases dismissed because the named defendant is a 2014-09-19 Senate Journal Page 2883 minor wrongly charged in adult court with an offense within the jurisdiction for delinquency proceedings under AS 47.12.020; · minor offense cases dismissed for an identity error under Minor Offense Rule 11(c); · domestic violence protective order cases dismissed at or before the hearing on an ex parte petition because there is not sufficient evidence that the petitioner is a victim of domestic violence as defined by AS 18.66.990(3) or there is not sufficient evidence that the petitioner is a household member as defined by AS 18.66.990(5); and · stalking or sexual assault protective order cases dismissed at or before the hearing on an ex parte petition because there is not sufficient evidence that the petitioner is a victim of stalking as defined by AS 11.41.270 or sexual assault as defined in AS 18.66.990(9). Alaska citizens who find themselves in the circumstances listed above are now better protected. Because of the Alaska Court rule, they will no longer have their names on an easily searchable public database due to a minor brush with the law that resulted in no charges, or where they were the target of baseless requests for a protective order by a disgruntled ex-partner. I remain open to further discussion about whether the balance struck by the Alaska Court rule in tandem with my veto adequately addresses circumstances where privacy interests might outweigh the public's right to know about criminal proceedings. For example, should case records related to an arrest, a charge based on probable cause, and a subsequent prosecutor or court dismissal be available on CourtView (when no lack of probable cause is cited in the record as a reason for dismissal)? Or, should criminal case records involving crimes against people be treated differently than those involving crimes against property with respect to confidentiality in the "not guilty" context? I do not attempt to answer those issues here, but merely to signal to legislators that I am willing to engage in discussing a more targeted approach to confidentiality of criminal case records beyond the new Alaska Court rule, but not so far as HCS CSSB 108(FIN) would take us. 2014-09-19 Senate Journal Page 2884 Accordingly, although I have vetoed HCS CSSB 108(FIN) because I think it too blunt and sweeping an instrument against the public's right to know, I share that deep concern for individual privacy and maintenance of a person's reputational interest. The sponsor and supporters of HCS CSSB 108(FIN) have made great strides in protecting those interests as demonstrated by implementation of the newly amended Alaska Court rule. Due to this new Alaska Court rule, Alaskans' privacy will be better protected. In addition, I remain open to working with the Legislature, the Court System, and members of the public to develop a more targeted and balanced approach. Sincerely, /s/ Sean Parnell Governor