Legislature(2007 - 2008)BELTZ 211
04/01/2008 09:00 AM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB198 | |
| HB92 | |
| HB196 | |
| HB351 | |
| SB227 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 227 | TELECONFERENCED | |
| + | SB 228 | TELECONFERENCED | |
| + | HB 196 | TELECONFERENCED | |
| + | SB 198 | TELECONFERENCED | |
| += | HB 92 | TELECONFERENCED | |
| + | HB 351 | TELECONFERENCED | |
| + | 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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