Legislature(2013 - 2014)SENATE FINANCE 532
03/17/2014 09:00 AM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| Confirmation: Department of Revenue, Commissioner Angela Rodell | |
| SB161 | |
| SB135 | |
| SB108 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | SB 80 | TELECONFERENCED | |
| + | SB 108 | TELECONFERENCED | |
| += | SB 161 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 135 | ||
SENATE BILL NO. 108
"An Act relating to the confidentiality of certain
records of criminal cases; and providing for an
effective date."
10:01:00 AM
SENATOR FRED DYSON, SPONSOR, addressed the legislation. He
believed many members had handled Second Amendment issues
well and that First Amendment issues would be addressed on
a more frequent basis. The bill pertained to the Fourth
Amendment's right to privacy. His concern had come out of
the task force currently working on barriers to reentry
from the criminal justice system. He discussed that the
State of Alaska had a public website called CourtView that
listed criminal records. He stated that unfortunately, the
website also carried arrest records. The bill would
strengthen the privacy and liberty interests of persons
when charges were dismissed or acquitted by removing
records from CourtView after 120 days. The information
would remain available to police, the Department of
Corrections, judges, and prosecutors. He stated that many
employers, landlords, and other frequently looked at
CourtView to determine whether a person had a record; a
person's name on the website hindered that person from
competing for jobs and other. He referred to a case in
Anchorage from the prior year as an example of an innocent
person with their name posted on CourtView. He relayed that
the record on CourtView was indefinite.
10:04:25 AM
CHUCK KOPP, STAFF, SENATOR FRED DYSON, stated that section
1 of the bill addressed the practicality of going back
without incurring a large fiscal note. The sponsor's office
had developed the legislative intent language in
conjunction with the Alaska Court System that aimed to
address people who were currently struggling under the
weight of an acquitted or dismissed charge on CourtView. He
read from the sectional analysis (copy on file):
Section 1
Provides legislative intent directing the Court, to
the extent practicable, to treat as confidential
records of criminal cases disposed of before the
effective date of the Act by acquittal of all charges,
dismissal of all charges, or acquittal of some charges
and dismissal of remaining charges, to the same extent
that records are held confidential by this bill, under
AS 22.35.030.
Section 2
Amends AS 22.35 by adding a new section, AS 22.35.030.
Records concerning criminal cases resulting in
acquittal or dismissal confidential.
This section establishes that a court record of a
criminal case is confidential if 120 days have elapsed
from the date of acquittal or dismissal and (1) the
person was acquitted of all charges filed in the case;
(2) all charges against the person have been dismissed
by the prosecuting authority; or (3) the person was
acquitted of some of the charges in the case, and the
remaining charges were dismissed.
Provide exceptions for access to information made
confidential for state agency employees responsible
for health, safety, welfare, or placement of a child,
a person with a physical or intellectual disability,
or a person with a mental illness; employees that
protect other vulnerable citizens, and state criminal
justice information network users. The Department of
Health and Social Services will adopt regulations to
administer these exceptions.
Section 3
Establishes the Applicability of the Act to criminal
charges concluded on or after the effective date of
the Act by dismissal or by acquittal of the defendant.
Section 4
Establishes the effective date of the Act as October
1, 2014.
Mr. Kopp elaborated that that the original bill had read
that a court record of a criminal case would be
confidential if 90 days had elapsed from the date of
acquittal or dismissal; the provision had been updated in
Section 2 to 120 days per a request from the Department of
Law due to a 120 evidentiary rule.
10:08:52 AM
Mr. Kopp directed committee attention to the zero fiscal
notes from the Department of Administration, which included
the Office of Public Advocacy and the Public Defender's
Office, and one from the Department of Law. He stated that
the courts could address the process by which records were
held confidential under court rule. He noted that there
were letters of support in member files as well as one
letter of opposition from the Office of Victim's Rights.
NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM,
testified that the Alaska Court System (ACS) was neutral on
the bill. She shared that she had worked with the bill
sponsor to ensure that the legislation could be implemented
with the least amount of expense and technological
problems. She said that ACS could make cases confidential;
this would be a unique category of cases, as all other
cases that were confidential were so from the beginning of
the case. She relayed that when the legislature made a
certain case type confidential the case was not posted on
Court View or released in hard copy. The cases were kept in
courthouses in a fluorescent envelope and were viewed by no
one, with the exception of: the parties in the case, the
attorneys in the case, court staff for case processing
purposes, and the judge. She explained that the legislation
would make cases confidential after they had previously
been public. Provided that every charge in the case was
dismissed or acquitted the case would be removed from
CourtView at no fiscal impact to the state. She spoke to
the retroactivity provision in the bill. She stated that
ACS had transferred all of its case management to the
CourtView system over the past decade and different courts
had different dates on which they were put on CourtView.
She said that as long as courts were on CourtView certain
case types could be removed. She warned that removing case
files prior to the conversion date could prove logistically
problematic. The retroactivity intent language in the bill
would alleviate the fiscal and logistical problem of
retrieving cases from storage and categorizing them
differently. She reiterated that ACS could implement all of
the changes proposed in the legislation without a fiscal
impact except for the exceptions that were created for
certain state agencies. She stated that in order for
certain people in specific state agencies to gain access to
cases that had been removed from CourtView a special portal
would need to be created. The portal would need to work
with the ACS vendor and would have an initial fee of
$22,000, a yearly maintenance fee of $3000, and a security
fee of $500.
10:14:20 AM
DR. NORMAN MEANS, SELF, ANCHORAGE (via teleconference),
spoke in support of SB 108. He relayed a story concerning
is daughter's arrest for driving under the influence (DUI).
He stated his daughter was driving with friends when the
fuel pump in the vehicle went out. The vehicle stalled in
the middle of the road and an Anchorage police officer
responded. He said that after the officer pushed the van to
the side of the road while is daughter steered, he issued a
traffic stop. He explained that his daughter provided all
of the required documents, which were in order. He
testified that the officer then began demanding his
daughter's personal phone number, which she refused to
provide. He stated that his daughter asserted her
constitutional right to remain silent, requested an
attorney, and refused to consent to any searches. He
furthered that at that point the officer placed her under
arrest for DUI; she was transported to the Anchorage jail.
He read from the arresting officer's report: "She does not
appear to be under the effects of any drugs, legal or
illegal."
Dr. Means related that his daughter passed a Breathalyzer
Test and was released on her own recognizance; however, the
arrest record currently remains on Court View. He expressed
frustration that the vehicle had been impounded when it was
registered under his name, and not to his daughter. He said
that he had had no fewer than 5 separate departments of
municipal government find fault with all, or part, of the
arresting officer's actions. He shared that he filed a
complaint with the Chief of Police, and after an
investigation, Internal Affairs responded in a written
letter to him alerting him that his complaints concerning
the vehicle impoundment had been sustained. He felt that
his daughter's experience was an example of the
difficulties a person faced when attempting to get an
arrest record sealed based on the improper actions of one
police officer.
Mr. Means lamented that despite the overwhelmingly
controvertible evidence that his daughter had done nothing
wrong the municipal attorney at the time had written that:
While the officer might not have had probable cause to
arrest her for DUI, he had probable cause to arrest
her for some crime.
Mr. Means wondered what that crime would have been. He
opined that all that his daughter had wanted was to have
her record sealed, even offering to waive her right to
pursue any litigation. As a result his daughter had been
forced to file litigation in an effort to clear her name.
He shared that his daughter would be testifying before the
legislature at a later date on SB 180. He remarked that the
system in the state made it impossible to get a record
expunged or sealed. He worried that his daughter's record
could limit her options for graduate school or future
employment.
10:21:27 AM
JAMES MOONEY, SELF, ANCHORAGE (via teleconference),
testified in strong support of SB 108. He stated that in
2009 he had been falsely accused of sexual assaulting his
fiancé. He said that the relationship had lasted for 6
years, but began to deteriorate after differences of
opinion arose concerning child custody. He was arrested for
sexual assault, fought the charge in court, and was
acquitted on all charges. His accuser and his daughter
moved out of state several weeks after making the
accusations, as a result he had not seen his daughter in 4
years. He believed that the accusations were premeditated
because his accuser had knowledge of the legal system. He
reiterated that he had been acquitted on all charges. He
shared that he had lost his job and had been out of work
for months and was living off savings. He opined that
employment opportunities were cut short once employers ran
a background check. He felt that he was suffering
repercussions as though he had been convicted and sent to
prison.
10:25:40 AM
JAMES NOBLE, SELF, PRUDHOE BAY (via teleconference),
testified in support of SB 108. He relayed a story
concerning two charges filed against him and the
repercussions he experienced following a dismissal ruling
from a judge on both cases. He stated that after
researching cases similar to his he had determined that the
common thread was revengeful actions from a significant
other who was abusing the court system. He explained that
he had been in a romantic relationship from 2003 to 2007.
He said that his partner terminated the romantic
relationship in 2006, but a platonic relationship remained.
He relayed that he ended the friendship when the person
began dating a new person. He stated that he received a
domestic violence protective order from the court on
September 17, 2007 and hired an attorney who represented
him throughout court proceedings. During the course of the
defense for the domestic violence order, the attorney
discovered a stalking charge, filed by his ex on September
11, 2007 and had been dismissed by the court on September
12, 2007. He argued that he had never been notified of, or
given any details concerning, the stalking charge. He
opined that the stalking charge could be seen on CourtView,
regardless of the fact that the charges had been dismissed.
He said that he appeared before the court on October 4,
2007 to contest the domestic violence charge which was
dismissed due to insufficient evidence.
10:28:54 AM
Mr. Noble feared that the information on CourtView could
hinder him when seeking future employment. He added that
the social stigma could limit his ability to form new
relationships.
10:31:10 AM
DONNA KLECKA, SELF, EAGLE RIVER (via teleconference), spoke
in favor of the SB 108. She testified that she was self-
employed which made word-of-mouth important to her
professional reputation. She state that she had gone
through a divorce in 1999. During the proceedings her ex-
husband attempted to use domestic violence charges as
leverage for child custody. She spoke of another incidence
where a woman, whom she believed to be mentally unstable,
had made multiple charges against her of trespassing, theft
and stalking. Due to the charges, she was arrested and held
for 24 hours. She related that the arresting officer had
lost her job for the episode because she had not had an
arrest warrant. She said that she had received accusatory
notes from neighbors. She added that she had been charged
with assault and battery at one point as well. She opined
that her children were harassed at school. She relayed that
approximately a year and a half ago she had consumed
alcohol and was pulled over for speeding in Seward. She
asserted that the Alaska State Trooper had profiled her by
pulling up her record before pulling her over. She shared
that she had been nervous while taking the field sobriety
test, which was videotaped. She stated that in the process
of her arrest her arm was broken by the police. She said
that the arresting officers had written in their report
that she has not had alcohol on her breath; she also
submitted to a blood test, which turned up negative. She
said that all of the charges against her were dismissed.
She shared that during discovery the arresting officer
stated that he had been aggressive with her as a result of
having reviewed her record.
10:38:55 AM
CARMEN GUTIERREZ, SELF, JUNEAU, spoke in support of SB 108.
She read from a prepared document (copy on file):
Thank you for the opportunity to comment on SB 108. As
a former attorney for 25 years followed by the
privilege of serving the state as Deputy Commissioner
for the Department of Corrections, I have observed
first-hand the need for the criminal justice reforms
for which this Committee has so tirelessly worked to
advance. I thank this Committee for its courageousness
in promoting needed revisions aimed at reducing
recidivism. Every former offender who is able to
successfully return to his or her community means one
less victim, one less crime, and one less costly
prosecution.
I believe that SB 108 is another step in that
direction. As it stands today, every person who is
arrested for a criminal offense has a permanent public
record of that arrest. In felony cases, a detailed
statement of alleged factual detail accompanies the
fact of arrest and charge.
The name of the person arrested and then convicted
always remains available to the public through the
period of prosecution and after conviction. That is
fair.
What is not fair and not in keeping without system of
criminal justice is that under current law a person's
name and fact of charge remains available to the
public even when the prosecutor dismisses the charge,
the charge is dismissed by the court of after a jury
acquits the person. Despite dismissal of or acquittal
on the charge, the fact of arrest and the accompanying
documentation forever remains available for public
examination.
The reality is that when the fact of arrest after
dismissal continues to be made available for public
inspection either by an in-person visit to the
courthouse or by review on CourtView, the arrest often
becomes synonymous with conviction in the mind of
those doing the inspecting. This greatly impedes a
person's ability to find employment, rent an apartment
and to live a life free of stigmatization for a crime
for which the person was never convicted.
Numerous individuals - both men and women - in Alaska
are arrested for the crime of Assault in the Fourth
Degree. A person may be charges with this offense if a
police officer concluded there is probable cause to
believe that a person by "words or other conduct
recklessly places another person in fear of imminent
physical injury."
AS 18.65.530 appropriately provides that in a domestic
relations context, when a person reports to the police
that she/he was placed in fear of imminent physical
injury, the police must arrest the alleged offender
for Domestic Violence Assault when the officer decides
there is probable cause to believe that assault took
place.
Needless to say, police officers taxed with a
tremendous amount of work have to make snap decisions
when deciding if there is probable cause to believe an
assault occurred. The soundness of the police
officer's decision often depends on the experience of
the officer and the officer's perceived need to
diffuse a situation.
After the person is arrested and charges, a prosecutor
later has more time to review the merits of the case.
In some cases, upon more careful review and with the
benefit of additional facts, the prosecutor determines
the charge doesn't merit prosecution and dismisses it.
The individual arrested, however, is forever
stigmatized by his arrest. It will forever be a part
of the Alaska Court System records available for
public inspection.
A good number of cases filed in Alaska are ultimately
dismissed. For example, in FY13, the state filed 6,675
felony cases. Of those, the state dismissed 1,289
cases. Of the 29,562 misdemeanor cases filed, the
state dismissed 9,508.
Our constitutional right to due process of law is
intended to protect citizens from being treated as
convicted persons without first being afforded certain
procedural safeguards. That is the way it should be
and it is our responsibility to uphold out system of
criminal justice, the shining example and envy of
other countries.
There are those who would have you believe that their
individual judgment is more knowing than the
collective wisdom of a jury; that a person's record
should forever be stigmatized by an arrest and charge
even though the prosecutor dismissed the charge or a
jury of his peers acquitted him of the charge. These
same individuals would have you believe that an arrest
should be equated to conviction of a crime. Alaska
citizens, judges, prosecutors, and defense attorneys
will always have different opinions regarding the
facts of a case. That is why our system requires due
process under the law before someone is convicted of a
crime and shoulders the burdens associated with
criminal conviction.
For these reasons, the fact of an arrest and charge
without conviction should not forever tarnish the
reputation of an Alaskan citizen. SB 108 is intended
to rectify these unintended and harmful consequences
that in many cases impact a person's ability to
successfully live and work in our communities.
10:45:10 AM
Ms. Gutierrez asserted that for every individual that could
come forward to say that having access to CourtView made a
meaningful difference in a decision being made, there were
many more cases of individuals who have had their ability
to live successfully in their community compromised.
Senator Hoffman inquired if Ms. Gutierrez would support the
legislation for an individual that had been acquitted due
to a hung jury.
Ms. Gutierrez replied that when an individual was found not
guilty by virtue of a hung jury the prosecutor had the
ability to evaluate the evidence in the and decide whether
the case merited a new trial. She understood that if the
prosecutor decided that the evidence supported the charge
it was the prosecutor's burden to take the case back to a
jury. She asserted that, in the spirit of due process and
constitutional procedure, in a hung jury case the record
would be deemed confidential.
Co-Chair Meyer CLOSED public testimony.
10:48:12 AM
Vice-Chair Fairclough queried whether the opposition letter
from the Office of Victim's Rights had been submitted
before or after changes to the legislation had been made in
the Senate Judiciary Committee.
Mr. Kopp replied that the letter had arrived before the
bill was amended in Senate Judiciary. He added that the
sponsor had not received any additional communications from
the Office of Victim's Rights.
Vice-Chair Fairclough understood that an old court record
could be damaging to people well after the fact. She
expressed concern as to how the legislation would affect
the rights of victims, specifically for victims of domestic
violence and rape; however, she recognized that instances
of false accusation did occur.
SB 108 was HEARD and HELD in committee for further
consideration.