Legislature(1997 - 1998)
05/06/1998 03:28 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSSB 219(FIN) AM - OFFICE OF VICTIMS' ADVOCACY CHAIRMAN GREEN announced the next item of business would be CS for SB No. 219(FIN) am, "An Act relating to establishing an office of victims' rights; relating to compensation of victims of violent crimes; relating to eligibility for a permanent fund dividend for persons convicted of and incarcerated for certain offenses; and amending Rule 16, Alaska Rules of Criminal Procedure, Rule 9, Alaska Delinquency Rules, and Rule 501, Alaska Rules of Evidence." CHAIRMAN GREEN called on Brett Huber, staff to Senator Rick Halford, sponsor of the bill. Number 1319 BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska State Legislature, noted that $30 million annually is spent either prosecuting or defending criminals. On November 8, 1994, 86 percent of the ballots ratified the victims' rights amendment to the state constitution providing victims with constitutional rights. Senate Bill 219 establishes an office of victims' rights. The legislature tasked the victims' advocate with assisting crime victims and obtaining their rights guaranteed under the constitution and laws of the state with regards to their contacts with state justice agencies. The Senate Judiciary Committee heard heartfelt testimony showing that crime victims are all too often left to deal with the justice system that's heavily weighted to the benefit of the criminal, that's full of legalese and technicalities, and virtually impossible for anyone - other than an attorney - to understand. The passage of SB 219 would provide victims of crime with an advocate that understands and is experienced in criminal law under the justice process. The bill does not preclude the responsibility of the prosecutor's office to fulfill its statutory obligations. The bill does not preclude organizations such as Victims for Justice. Their effectiveness would be boosted by the office of victims' rights. Mr. Huber announced that there is an amendment addressing the concerns of the Department of Law. Number 1426 CHAIRMAN GREEN stated he would gladly introduce the amendment, but there isn't a quorum. He asked Mr. Huber to explain the sections of the bill. MR. HUBER explained that Section 1 of the bill provides a short title. MR. HUBER explained that Section 2 of the bill amends AS 12.55.023(b) allowing the advocates to make statements at the time of sentencing in lieu of the victim. MR. HUBER explained that Section 3 of the bill brings the victims' advocate under the ethics of the legislature. The office was built on the model of the ombudsman. MR. HUBER explained that Section 4 of the bill creates the actual Office of Victims' Rights. It creates a new chapter - AS 24. He mentioned the sections within the new chapter. MR. HUBER explained that Section 5 of the bill provides the option of adopting longevity pay provisions to the advocate. MR. HUBER explained that Section 6 of the bill extends the period for permanent fund dividend ineligibility from one to two years. MR. HUBER explained that Section 7 of the bill provides that the proceeds of the permanent fund dividend may be used to fund the office of victims' rights, subject to legislative appropriation. MR. HUBER explained that Section 8 of the bill exempts regulations promulgated by the office from gubernatorial review. MR. HUBER explained that Section 9 of the bill exempts an advocate from some of the record keeping requirements. MR. HUBER explained that Section 10 of the bill provides a sunset review of agencies to include interaction with the office of victims' rights. MR. HUBER explained that Section 11 names the office as a state agency for the purposes of state publications. MR. HUBER explained that Sections 12 and 13 of the bill provide a notice of the court rule changes. Number 1609 REPRESENTATIVE ROKEBERG asked Mr. Huber whether the office has been funded in the budget or is there a fiscal note. MR. HUBER replied it would take the next legislature to appoint the victims' advocate and establish the office. Although the fiscal notes shows a fiscal year (FY) 1999 cost, there is no actual anticipated cost in 1999. A fiscal note was prepared thinking that there was enough time to pass the bill and appoint the advocate this legislative session. The Senate Finance Committee, although all members were supportive of the bill, was concerned that it is a new general fund draw, which is why there is a tie to the permanent fund dividend forfeiture. If the bill passes, the fiscal note would be subject to the Conference Committee. The office cannot be put together without an advocate appointed. He reiterated, he anticipates no cost for FY 99. Number 1679 CHAIRMAN GREEN asked Mr. Huber, for clarification, whether the permanent fund dividend is the other funding source. MR. HUBER replied, "Correct." CHAIRMAN GREEN asked Mr. Huber whether the permanent fund dividend would amount to almost $500,000. MR. HUBER replied testimony from the Permanent Fund Dividend Division indicated that in the second year of eligibility the revenue stream is estimated at up to $4 million. The funding mechanism more than exceeds the requirements of the bill. Number 1709 REPRESENTATIVE BERKOWITZ asked Mr. Huber how the office would work procedurally. MR. HUBER replied procedurally anybody has the opportunity to use the office who feels that his rights as a victim have been denied, providing that it is a felony offense or certain misdemeanor offenses. The bill also provides that the office can establish a priority. The office would have to be able to address those that it can given staff and budget constraints. The office has the power to advocate on behalf of a victim, investigate, consult, publish a report, and make recommendations after a case, similar to the ombudsman. Number 1811 REPRESENTATIVE BERKOWITZ stated prioritization usually raises equal protection and due process problems. He asked Mr. Huber whether there was testimony on that in any of the other committees. MR. HUBER replied the testimony in the other committees has been limited to the fact that the case load is high, especially after some misdemeanor cases were added in an amendment in the Senate Judiciary Committee. It is not the idea that the advocate becomes someone's civil attorney. REPRESENTATIVE BERKOWITZ stated he does not mean that. He is concerned about denying services to a citizen. MR. HUBER replied it is the same for the Office of the Ombudsman. Services would not be denied. The office would be operating inside of staff and budget constraints. REPRESENTATIVE BERKOWITZ stated the office is being predicated on a constitutional basis. The Office of the Ombudsman doesn't have a constitutional basis. MR. HUBER replied the constitutional rights would be the same. As with all other constitutional provisions, there are statutory provisions. The statutory provisions to implement the office allow for prioritizing the cases. It does not diminish a person's constitutional rights. REPRESENTATIVE BERKOWITZ asked Mr. Huber how the office would proceed when there are two crimes and one victim wants the service and the other victim doesn't. MR. HUBER replied there is discretion with the court to determine who is a named victim. Alaska Statute 12.55.185 defines a victim as follows: "(16) "victim" means (A) a person against whom an offense has been perpetrated; (B) one of the following, not the perpetrator, if the person specified in (A) of this paragraph is a minor, incompetent, or incapacitated: (i) an individual living in a spousal relationship with the person specified in (A) of this paragraph; or (ii) a parent, adult child, guardian, or custodian of the person; (C) one of the following, not the perpetrator, if the person specified in (A) of this paragraph is dead: (i) a person living in a spousal relationship with the deceased before the deceased died; (ii) an adult child, parent, brother, sister, grandparent, or grandchild of the deceased; or (iii) any other interested person, as may be designated by a person having authority in law to do so." MR. HUBER stated, according to the statutory definition, it boils down to "a" victim. The office would proceed at the discretion of the person who comes forward and asks for assistance. Number 2005 REPRESENTATIVE BERKOWITZ referred to page 8, lines 4 - 7, and asked Mr. Huber whether a law clerk or in-court clerk would be able to be subpoenaed. MR. HUBER replied this section was adopted by the Senate Judiciary Committee at the request of the court system. The court system was concerned about actual judicial decisions coming under question. It did not have a problem with procedures coming under question. Therefore, the language "concerning a judicial action or nonaction" was included. REPRESENTATIVE BERKOWITZ noted that often times a law clerk is intertwined with what the judge is doing. In a way it would backdoor a judge's insulation from the process. MR. HUBER replied the court system offered the amendment and is comfortable with the language. A law clerk could not be questioned about decisions, only procedures. REPRESENTATIVE BERKOWITZ asked Mr. Huber whether that would mean the office would have the ability to subpoena members of the prosecution. MR. HUBER replied that's correct. REPRESENTATIVE BERKOWITZ asked Mr. Huber whether that would mean the office would have the ability to subpoena law enforcement. MR. HUBER replied that's correct. REPRESENTATIVE BERKOWITZ asked Mr. Huber whether the proceeding would be done publicly. MR. HUBER replied the subpoena is for investigating a decision. It would not be subject to a public hearing. The office is barred from releasing confidential information or prereleasible reports before taking the preliminary report to the agency affected, getting their recommendations, and at a later date publishing the final report and recommendations. REPRESENTATIVE BERKOWITZ referred to page 7, line 1, and asked Mr. Huber what procedural safeguards would an individual have, such as an attorney or taking the Fifth Amendment. MR. HUBER replied there is nothing in the bill that would change anybody's constitutional rights to due process. Certainly, one would be able to take the Fifth Amendment, for example. REPRESENTATIVE BERKOWITZ disagreed. This is a huge change in criminal processes. Historically, it has been an adversarial process with an arbitrator. Now, a new agency is being interjected. It could be a good policy call, but needs to be done very carefully. There are a lot of possibilities for unintended consequences. MR. HUBER agreed with Representative Berkowitz. The sponsor has spent a considerable amount of time talking to prosecutors, defense attorneys, the Department of Law, the court system, and agencies tasked to assist victims. The bill has been through the Senate Judiciary Committee and the Senate Finance Committee. Number 2231 REPRESENTATIVE BERKOWITZ asked Mr. Huber whether the bill is modeled after something in other jurisdictions. MR. HUBER replied the office is modeled after the Office of the Ombudsman. He doesn't know of another agency like this in another state. Again, there is the unique constitutional provision adopted in 1984 that promised the voters their rights. Senator Halford believes that it is time to put forth a practical mechanism to help make sure that those rights are implemented. REPRESENTATIVE BERKOWITZ stated, he believes, that there are other states that have victims' rights. Number 2256 REPRESENTATIVE ROKEBERG stated he appreciates the fact that there are constitutional rights for a victim. He is concerned about who in fact would deny these rights. The judge can't be subpoenaed who oversees the rights of the victim as they relate to the process now. MR. HUBER replied the Department of Law and the prosecutors are specifically tasked with some of the provisions that provide the mechanism for making constitutional rights available. He cited, to consult with a prosector, to be involved with the prosecution and investigation of the case, and to be able to make a statement at the time of sentencing as examples. There are statutes that specifically task the prosecutor's office with certain responsibilities under the constitutional amendment. The legislation does not do anything for somebody when the judge or jury made a bad decision. That is what the appellate courts and civil proceedings are for. According to the court system, the majority of the complaints are of the process, and mainly of the prosecutorial side. The bill does not attempt to influence or review specific judicial action. REPRESENTATIVE ROKEBERG referred to a constituent who complained about a prosecutor misdirecting her case and asked Mr. Huber whether this could be used to harass the prosecutor. What's to protect those folks? MR. HUBER replied prosecutorial discretion rests in the prosecutor's office. The Office of the Prosecutor makes determinations all of the time: what level to bring a charge to, what plea bargain is reasonable, how to proceed with an investigation, and how to proceed with a court proceeding, for example. If a person feels that his rights have been abridged, the Office of Victims' Rights is tasked to look at the facts of the case and make a preliminary report to the effected agency. The agency responds to the report and then the advocate produces a final report and recommendation(s). REPRESENTATIVE ROKEBERG asked Mr. Huber whether he is suggesting that a victim can second guess a prosecutor. MR. HUBER replied there are victims now who second guess a prosecutor's decision. Prosecutorial discretion still lies with the prosecutor. There are victims now, however, who are thrown into a system full of legalities that may or may not understand what has been done correctly.... TAPE 98-86, SIDE B Number 0000 MR. HUBER continued. ... the opportunity to have somebody who is familiar with the process, has a criminal law background, and has dealt with these issues before in order to take a reasoned look at the complaint. It may only result in an initial consultation at which time it is determined that no right has been abrogated. Victims now feel that there are certain shortcomings in the judicial system. The most powerful statement in the Senate Judiciary Committee was that the criminal has on his side all of the constitutional protections of somebody who is accused. On the prosecutor's side it is the full force and weight of the state that is bringing the case. The victim, therefore, is left in the shadow of justice. The office allows for an advocate to help a victim through the process, understand the process, and ensure that his or her constitutional rights are protected as the process goes on. Number 0057 REPRESENTATIVE ROKEBERG asked Mr. Huber what is the penalty involved here. MR. HUBER replied the penalty provisions are only for somebody who is obstructing the victims' office from doing its job. It is not set up to punish the prosecutors or courts. It is set up to give the public a better understanding of what happens in the process. REPRESENTATIVE ROKEBERG asked Mr. Huber whether nagging or jawboning is being institutionalized. MR. HUBER replied he believes that many of the issues that the legislature chooses to deal with are ones that are brought forward by constituents that have been put into a situation that they don't want to be put back into. Number 0101 REPRESENTATIVE ROKEBERG asked Mr. Huber what is the remedy. What would happen if there is a finding? MR. HUBER replied ideally the information in the report comes forward and the justice agencies have been told the recommendations. If someone feels that his constitutional rights have been aggrieved, of course, he can bring suit with or without the office. If he feels that the decision was in error, of course, he can appeal it or try to bring civil litigation. Number 0128 REPRESENTATIVE BERKOWITZ asked Mr. Huber to whom would he appeal. MR. HUBER replied appeal was the wrong choice of words. The appeal would be on the side of who is convicted, but certainly civil remedies are something that could be sought. Number 0149 REPRESENTATIVE BERKOWITZ asked Mr. Huber, if the office writes a scathing report about a prosecutor and the prosecutor comes out with contrary evidence, who would he take it to. MR. HUBER replied the prosecutor would take the evidence to his superiors inside the Department of Law. There is no specific penalty for the prosecutor in that position. REPRESENTATIVE BERKOWITZ stated the prosecutor has been publicly sanctioned, but he doesn't have a public avenue to gain his good name back. MR. HUBER stated, before a report is issued in final, the agency is consulted and has the opportunity to answer to the report. Number 0188 REPRESENTATIVE BERKOWITZ stated there used to be something known as the victim witness coordinator in most prosecutors' offices. Usually, they are under funded, but it is their job to explain to victims how the process works and the consequences. He asked Mr. Huber whether he is saying that they don't need to be funded anymore. MR. HUBER replied he is not saying that at all. There are designated victim coordinators in all of the offices of public law with the exception of some satellite offices. The bill does not ask to divert those funds. The bill does not relieve them of any of their statutory responsibilities. It merely provides an entity for a victim to consult with somebody who is versed in the system. Number 0246 REPRESENTATIVE BERKOWITZ stated this is an interesting separation of powers issue. The office would be a legislative entity doing oversight of both the executive and judicial branches. It raises some real questions. If someone was to come to the legislature to determine whether it did a good job putting a bill together, for example, he would feel resentful of someone from the executive or judicial branch looking over his shoulder. He asked Mr. Huber whether the legislature is guilty of the same sin. MR. HUBER replied he doesn't view it that way. He suggested looking at the Office of the Ombudsman, a legislative branch function tasked to do exactly what Representative Berkowitz described with the executive branch. It was not brought forward as a punitive measure. Legislators represent the branch of government that is tasked with representing the people - the branch that brought the House Joint Resolution forward to provide the opportunity to vote on the constitutional amendment. It is the branch whose phone rings first when a constituent is having a problem with a state agency. Number 0322 REPRESENTATIVE ROKEBERG stated he is still not satisfied that there is a remedy. The only remedy that he can think of is a public opinion editorial in the Anchorage Daily News. Number 0354 REPRESENTATIVE JAMES stated it seems that the bill serves the purpose for victims to understand their opportunities. Victims have indicated that they don't have a source, they don't know the legalities, they don't know when to complain, and they don't have anywhere to go unless they hire an attorney. Many victims don't have enough money to hire an attorney. The purpose of the office is for information. It seems simply like an advocacy for those who are vulnerable or disenfranchised and cannot represent themselves just like all the other advocacies in the state. The only time that there would be any punitive kinds of treatment is when there is a case. She sees a real advantage to having the office, but she doesn't know who would pay for it. Number 0467 MR. HUBER replied that is the intent of this legislation. According to the fiscal note, there is a projected $500,000 cost. There is a potential funding source included in the bill with the increased revocation of the permanent fund dividend for convicted felons or multi-misdemeanants. It would appear as an item in the legislative budget and be subject to appropriation. Number 0492 CHAIRMAN GREEN stated there has been indication that this would be a money maker rather than an expense. MR. HUBER stated the folks from the Permanent Fund Dividend Division have indicated that there is the potential for a $4 million revenue stream. REPRESENTATIVE JAMES stated the office is also trying to eliminate people becoming victims and a constitutional amendment has been passed. She thinks it is a good idea. Number 0540 REPRESENTATIVE BERKOWITZ asked Mr. Huber whether he knows quantitatively how often victims' rights are violated. MR. HUBER replied no he does not have any quantitative data. He can give some anecdotal data, however. REPRESENTATIVE BERKOWITZ stated most anecdotal data would not get by an attorney's evaluation. Currently, there are the Victims for Justice and Court Watch in Anchorage that do a very good job of keeping their eyes on things and explaining to victims how the process works. He asked Mr. Huber whether the government is supplanting something that is being done in the private sector. MR. HUBER replied the sponsor has long supported the work of Victims for Justice, which is on record for supporting the bill as a priority in this legislative session. At its level, it believes that having an agency like this would help it with its task, not hinder it. Number 0614 REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 1. It reads as follows: TO: CSSB 219(FIN) am Page 6, line 13, following "Jurisdiction.": Insert "(a)" Page 6, following line 21: Insert a new subsection to read: "(b) The victims' advocate shall exercise (1) the jurisdiction granted under this section in a manner that does not interfere with a criminal investigation or with a criminal prosecution; (2) reasonable care to prevent crime victims and employees of the office of victims' rights from making extrajudicial statements that the victims' advocate is prohibited from making under the Alaska Rules of Professional Conduct." Page 6, lin 26: Delete "Notwithstanding another provision of law, the" Insert "The" Page 6, line 27, following "state": Insert "under art. I, sec. 24, Constitution of the State of Alaska, and AS 12.55.023," Page 7, following line 1: Insert a new subsection to read: "(d) Records obtained by the victims' advocate shall remain in the exclusive custody of the victims' advocate. The victims' advocate may not disclose confidential information to any person." MR. HUBER noted that the amendment was suggested by the Department of Law to meet some of its concerns. The sponsor concurs with the amendment. CHAIRMAN GREEN asked whether there is any objection to Amendment 1. There being no objection, it was so adopted. Number 0636 REPRESENTATIVE ROKEBERG asked Mr. Huber whether there is a House Finance Committee referral. MR. HUBER replied, "Yes." REPRESENTATIVE BERKOWITZ asked Mr. Huber how a victims' advocate would determine whether the exercise of its jurisdiction interferes with a criminal investigation. There are a lot of times when proceedings are cloaked in some degree of secrecy to prevent information from getting out. A non-answer from a prosecutor could jeopardize an ongoing investigation or prosecution. MR. HUBER replied the amendment speaks to the confidentiality of the information gleamed in the investigation and advocacy process. REPRESENTATIVE BERKOWITZ stated he is particularly concerned about cases of domestic violence. The perpetrator often leans on the victim. He is concerned about exacerbating the problem. MR. HUBER replied Representative Berkowitz has a valid concern. The sponsor has addressed it through the process of qualification and appointment of the victims' advocate. REPRESENTATIVE BERKOWITZ replied he is not worried about the Office of Victims' Rights. He is worried about a perpetrator sending a victim into the office demanding not to testify, for example. The office would then go to the prosecutor on behalf of the client and the prosecutor would say, "Tough luck." The office then tells the victim that he has to testify. As a victim's voice, it could be a conduit for further violence to the victim. MR. HUBER replied he understands the point, but he is not certain whether that same eventuality is out there with or without the Office of Victims' Rights. As a victim, to come forward and ask for help is an incredible big step, especially in cases of domestic violence. There are other agencies that deal with these situations, such as non-profit domestic violence shelters. Number 0841 NANCI JONES, Director, Permanent Fund Dividend Division, Department of Revenue, stated she would like to correct the amount estimated. There are no statistics at all to determine how much money would be earned by holding another years dividend. This year the felon ceiling amount that was given to the Office of Management and Budget was $3.9 million. That is funding for the Department of Public Safety, Department of Corrections, Council on Domestic Violence and Sexual Assault, crime victim compensation, and gate fees. In 1995, there was a provision added to include misdemeanants. The division has not been able to collect that data yet because of the reporting period. This bill and SB 274 add an additional pot of dividends. The division is concerned based on the felon program was it first started in 1988. It was challenged and taken all the way to the supreme court. The court ruled that it was a legitimate purpose to withhold the dividend. It was for incarcerated people and the cost of their keep. The division's concern of SB 274 is the parole fee. If they don't pay it we levy it. The provision in SB 219, just like the second part of SB 274, says one is ineligible for the permanent fund dividend if incarcerated in any of two years. One year the division would get it anyway because the person is in jail. Now, the division would get the dividend the second year when the person is out of jail as well. The bill also says that there is a cost for these people being on parole - $3. The dividend is constantly increasing. She wondered who would get the difference. The provisions of the bill say because a person was in jail two years ago, the division has to estimate a dividend for him when normally he would not apply for one. It starts to get into other people's pockets. The division is paying people who otherwise would not be eligible. These people would not otherwise apply for a dividend. The number given to OMB was based on the number of people incarcerated in 1996 and how many of those people did not return to jail in 1997. The Department of Corrections came up with 1,100. The division would have to run the number through an eligibility test then calculate how many would have gotten a dividend had they not been in prison. She is afraid it won't stand up in court. She doesn't think that there is a legitimate purpose for holding dividends from people who are no longer in jail, even if they are on probation. She is also concerned that since they are not in jail and perhaps eligible for a dividend they would not be able to pass it on to pay debts, such as child support. Every year there is about a 3 percent increase in the amount of claims that the Child Support Enforcement Division (CSED) gives to the Permanent Fund Dividend Division. That money would no longer be available to CSED. Number 1183 REPRESENTATIVE BERKOWITZ asked Ms. Jones whether this would also jump ahead of restitution, fines, and civil debts. MS. JONES replied it definitely jumps ahead of everything. These people are now ineligible for a dividend. The division takes the money that they would have gotten and gives it to state government. REPRESENTATIVE BERKOWITZ asked Ms. Jones whether it would fund state government before it would pay victims. MS. JONES replied, "Exactly." REPRESENTATIVE BERKOWITZ asked Ms. Jones whether it would fund state government before it would pay civil creditors. MS. JONES replied everyone. Number 1231 REPRESENTATIVE JAMES asked Ms. Jones whether the money would be set aside whether there is an application filed or not. MS. JONES replied, "Right." The extra provision in the bill means the year that the person is out of jail when the division would not normally have gotten the dividend. This bill would make the person ineligible and instead the division would give the money to state government. REPRESENTATIVE JAMES asked Ms. Jones whether they would have to make an application for the dividend. MS. JONES replied, "No." REPRESENTATIVE JAMES asked Ms. Jones, "Even the year that they're in?" MS. JONES replied, even the year that they are incarcerated, they do not make an application. The Department of Corrections gives the division a list of those who are incarcerated during the qualifying year. The division runs them through the eligibility criteria to determine who would be eligible for a dividend if they were out on the street. That becomes the ceiling from which the Office of Management and Budget (OMB) can budget from. There is a provision that says OMB cannot budget anymore than the ceiling that was budgeted from the previous year, otherwise every use of every dollar given would have to be listed. REPRESENTATIVE JAMES agreed that there are some problems. Number 1390 CHRIS CHRISTENSEN, Staff Counsel, Administrative Staff, Office of the Administrative Director, Alaska Court System, stated the supreme court takes no position on the legislation. In reference to the question regarding law clerks asked earlier, he had originally drafted an amendment to take care of that problem. Law clerks act as the agent of the judicial officer at the officer's direction. If a law clerk is subpoenaed, it is in essence the same as subpoenaing a judge. It is access to the judge's thought processes. Number 1457 REPRESENTATIVE BERKOWITZ asked Mr. Christensen whether the committee could amend it to fulfill his concern. MR. CHRISTENSEN replied he would appreciate it. Number 1464 REPRESENTATIVE BERKOWITZ made a motion to conceptually incorporate law clerks and in-courts. MR. CHRISTENSEN stated the language that he had originally given was a judicial officer or person working under the direction of a judicial officer. Remember, this is limited to judicial acts, not administrative acts. MR. CHRISTENSEN suggested on page 8, line 4, following "magistrate" add "or a person acting under the direction of a justice, judge, or magistrate". He also suggest on page 8, line 5, following "by" add "or under the direction thereof". Number 1570 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 2 suggested by Mr. Christensen. There being no objection, it was so adopted. Number 1605 MR. CHRISTENSEN further stated that the bill is a further implementation of the victims' rights amendment to the state constitution. It does a number of significant things that would probably make the system better for victims. The court system is not concerned about the creation of the Office of Victims' Rights, the authority of an advocate to appear in court in lieu of a victim, the ability of the advocate to obtain court records relating to an offense, the ability of the advocate to investigate the administrative matters. He offers no comment on the sections of the bill that relate to the executive branch. He is concerned about allowing the advocate to issue a report critical of a jury's decision. For example, the constitution requires that a victim be treated with dignity and respect. A jury decides who to believe - a decision that does not involve treating the victim with dignity and respect. The courts have always protected and shielded jurors. The court system is concerned about people being taken to task by a government official for a decision that they have rendered in good faith as part of a jury. MR. CHRISTENSEN further stated that the bill would allow the advocate to issue a decision that in effect says the judge, the court of appeals, or supreme court is wrong. This system of government places final decisions on justice matters in the hands of judicial officers. It is not that way everywhere. There are countries where it is the parliament that acts as a supreme court. This system isn't perfect. A system run by people is not going to be perfect, but it seems to work fairly well. The bill has the effect of turning the system on its head. It says that a mid-level bureaucrat in another branch actually gets the final say on whether or not justice was done in a particular case. He might not have the authority to actually overturn a decision, but he gets to tell the public that the court of appeals is flat out wrong, for example. He does not accept the premise that a single bureaucrat has some greater degree of insight of what the law means than the three members of the court of appeals or the five members of the supreme court. It would have the effect of decreasing the public's confidence in the justice system, not increasing it - the thrust of the bill. Number 1856 REPRESENTATIVE BERKOWITZ asked Mr. Christensen what are the relative abilities of the court as opposed to the victim advocate to go public with the reasons and substance of the decision. MR. CHRISTENSEN replied the Cannons of Judicial Conduct prohibits a judicial officer from commenting publicly on a decision. A decision has to speak for itself. In essence, a judge would be prohibited from defending a decision, other than in the decision itself. REPRESENTATIVE BERKOWITZ stated the judge would be a sitting duck. Number 1907 REPRESENTATIVE JAMES stated it seems that the complaints can only be on the procedures, not the decisions. MR. CHRISTENSEN replied it has been his experience that if there is waffle language in a bill the bureaucrats would fill it. The testimony in the Senate Judiciary Committee from the public indicated that they would like to have somebody else to say the decision was wrong and justice was not done. For better or worse, the judicial branch is suppose to have the final say in whether or not justice was done in a case. People may exercise their First Amendment rights to comment on it, but there shouldn't be a government office charged by statute with interjecting his or her judgement into the basic question of whether or not justice was done. This is a small piece of what the advocate would do, but a significant piece. He thinks that about 95 percent of what the advocate would do would be things like oversight of the rights guaranteed by statute or helping the person in court, not second guessing the decision. Last year, there was somewhere between 3,000 and 3,500 felonies filed in the state and 20,000 misdemeanors, of which, about 85 percent end up pleading guilty, and less than 10 percent go to trial. He expects at least half of those that go to trial to be convicted. It is a fairly size of folks who are unhappy with their results. He expects that if there is an avenue to address their unhappiness they would take it. Number 2059 CHAIRMAN GREEN stated the bureaucrat's decision would be an opinion, not a law. MR. CHRISTENSEN stated it would be an opinion. He could not overturn a decision, but he would be charged by statute with saying that the court is wrong when under the constitution it is the court who is the final arbiter of the statute. CHAIRMAN GREEN asked Mr. Christensen whether it would be any different than an attorney filing an appeal. An appeal is also saying that the court is incorrect. MR. CHRISTENSEN replied that is the method that the system provides. This is a government official given a charge very similar to the court's charge. In essence, he would supersede the courts because he would get the final say on whether or not justice was really done. Number 2146 REPRESENTATIVE JAMES asked Mr. Christensen where it says that. MR. CHRISTENSEN replied there is not a specific section. If the bill is read in its whole, it would be within an advocate's jurisdiction. He had submitted an amendment to the Senate Judiciary Committee and would provide a copy of it to the House Judiciary Committee as well. It reads as follows: TO: CSSB 219(FIN) am Page 6, line 19, insert following "state.": "The victims' advocate may not investigate a complaint regarding a judicial act taken or decision rendered by a judicial officer of a jury." REPRESENTATIVE ROKEBERG noted page 8, line 29. Number 2205 MR. HUBER stated he does not know of any place in this bill that the advocate could supplant a judicial decision of a judge. This report is only if the victim's rights in the opinion of the court with the response of the justice agency says a constitutional right has been denied. It is not the intent of the legislation to say that it is the advocate's decision instead of the judge's. Number 2276 MR. CHRISTENSEN replied he appreciates the intent of the bill. Judges make evidentiary rulings all the time. Some of them may go to matters in the constitution - the right to be treated with fairness and dignity. A jury's decision may turn on one particular evidence of ruling made by a judge. An advocate's judgement would supplant that ruling with his judgement as to whether that evidentiary language on which the case hinged was done correctly or not. Number 2324 REPRESENTATIVE BERKOWITZ stated the opportunity for consultation seems hollow as far as the judiciary is concerned. He does not know of an avenue for a judge to reply back to a victim's complaint. Number 2386 REPRESENTATIVE ROKEBERG asked Mr. Christensen whether the presiding judge in the judicial district can make some comments to the public. MR. CHRISTENSEN replied judges are prohibited from commenting on any matters that have been or coming before the court. A decision has to speak for itself. It is something that happens in contested judicial elections, which is why they have caused a lot of problems. Number 2444 REPRESENTATIVE ROKEBERG commented that he would like to see what was rejected in the Senate. Number 2450 REPRESENTATIVE JAMES noted she would like to see what was rejected in the Senate too. It seems that there might be some language to ensure what Mr. Christensen is talking about doesn't happen. She doesn't see the problem, but if there is one it should be looked at... TAPE 98-87, SIDE A Number 0004 REPRESENTATIVE BERKOWITZ stated it is not going to carry the weight of a judicial opinion, but it would carry some weight. Anytime there is a published opinion by a state agency or attorney it is low in the precedential value, but it carries some weight. Number 0036 REPRESENTATIVE JAMES stated it seems that the purpose of the bill is advocacy for victims. If a report is due, it is due to the victim. She doesn't understand making a report on screw ups by the process. Certainly, there are screw ups on the decision when it has violated a right in some way. Number 0115 CHAIRMAN GREEN asked Mr. Huber whether the language would alter the concept of the sponsor of what the office would do. MR. HUBER replied the amendment was discussed in the Senate Judiciary Committee and the sponsor did not support it. He stated he is confused by Mr. Christensen's testimony because the judge makes the decision. He agrees that the decision should stand on its own face, but the court just like the legislature serves the public. He is not certain of the fear of the public taking a look at how the court system works. Aren't all branches of the government subject to scrutiny by the public? he asked. Number 0204 CHAIRMAN GREEN stated the issue is not the public. The issue is the bureaucracy. An individual complaint would not have the same weight as a bureaucracy. MR. HUBER stated the reports are an opportunity to review the problems. It would be valuable information to the legislature to determine whether they are reoccurring problems that need a statutory fix, for example. Number 0277 REPRESENTATIVE ROKEBERG stated the sponsor is representing the denial of constitutional rights. It does not speak to decisions. There is no denial of constitutional rights as to decisions. He is troubled by the very broad term "judicial act" in the bill and asked Mr. Christensen to respond to his concern. Number 0326 MR. CHRISTENSEN replied the term "judicial act" has been defined extensively in both federal and state case law. It is used to distinguish it from administrative acts. There is a formula used to determine when a judge is acting judicially versus administratively. The formula has been set by the Supreme Court of the United States and the Alaska Supreme Court. He cited moving a court room without telling so that court dates are missed. That is an administrative decision, not a judicial act. REPRESENTATIVE ROKEBERG asked Mr. Christensen whether a constitutional denial could be a judicial act. MR. CHRISTENSEN replied judicial acts are repealable. The bill says that the final decision on the constitutionality of the law rests in the hands of the advocate. He might not be able to act on it, but he can make a public statement. Number 0474 REPRESENTATIVE BERKOWITZ noted that an intentional interference of a constitutional right is a misdemeanor. If a victim feels that a judge has intentionally abrogated his or her rights, the victim can bring a criminal complaint forward under the normal process of a criminal charge. That protection is already there for victims. Number 0517 REPRESENTATIVE JAMES asked whether a victim would have to create a case to repeal an action to challenge a decision. MR. CHRISTENSEN replied the prosecution would repeal a case. Number 0560 REPRESENTATIVE ROKEBERG stated after hearing the arguments, he is still not convinced about the term "judicial act." He thinks it is too broad. Unless there is another term, he would amend it out. Number 0597 MR. HUBER stated the concern of the term "judicial act" was also brought up in the Senate Judiciary Committee. Another term is "or decision rendered" or "may not investigate." It is not talking about investigating a decision, but how broad it "may not investigate" if a decision has been rendered. Does that mean if a decision has been rendered that all investigatory authority is precluded? MR. CHRISTENSEN replied that is not the intent. Number 0640 REPRESENTATIVE JAMES stated an advocate can't make a report if the advocate can't investigate a complaint first. Yet there is another avenue for a victim - the appeals process. She wondered whether an advocate would need to investigate a complaint in order to get to that decision or just make a complaint. Number 0721 MR. HUBER noted that the sponsor's office would be more than happy to work with Mr. Christensen further on this issue. The bill has another committee of referral. If the amendment had been brought to the sponsor yesterday rather than this committee he would have been willing to run it by the bill drafters and discuss the issue with Mr. Christensen. CHAIRMAN GREEN asked Mr. Christensen whether the concern is about the investigation or making it public. MR. CHRISTENSEN replied once a report is released there is no way to guarantee that it would not be made public. CHAIRMAN GREEN asked Mr. Christensen whether there could be some type of confidentiality between the advocate and victim like an attorney-client relationship. MR. CHRISTENSEN replied while there is a way to keep the advocate from releasing things there is no way to keep the victim from publicly releasing things. He would fully expect, however, the victim to say publicly, "this is what the advocate says." CHAIRMAN GREEN said, "Well no. I think that you--maybe the public that way, but it certainly--if you prohibit the investigation that's a lot different than saying you're not going to make it public. Now, I understand your problem with the victim making it public, but to prohibit the advocate from even investigating these things it seems like it--it--it in effect makes (indisc.)." REPRESENTATIVE BERKOWITZ stated there is an interesting ethical dilemma for the advocate who is an attorney. As an attorney representing the victim, he has a certain set of ethical responsibilities. He cited a report as an example. The victim asks for a report, the courts give it to the victim, but it can't be divulged. The victim says he wants to divulge it. What does the lawyer do? he asked. REPRESENTATIVE ROKEBERG stated a dentist should be hired instead to solve the problem. REPRESENTATIVE BERKOWITZ stated according to the bill a lawyer has to be hired. REPRESENTATIVE ROKEBERG replied that's the problem. Number 0958 REPRESENTATIVE JAMES suggested changing the language of the amendment to read as follows: "The victims' advocate may not investigate or challenge a decision rendered by a judicial officer or a jury." REPRESENTATIVE JAMES noted it would delete the complaint regarding a judicial action. There is another avenue to pursue when a constitutional right has been violated. She is concerned about the resulting reports. They seem to be reports on procedures, not decisions. The decision rendered by a judicial officer should not be investigated or challenged. CHAIRMAN GREEN wondered whether it would give rise to a problem with the concept of the bill. If it can't be challenged. Number 1036 MR. HUBER stated certainly the intent is for a victim or somebody involved in the proceeding to go out and say whatever he or she wants to about a decision. The concern, therefore, is about the bureaucracy, the power of the office questioning the judicial authority or a final decision. He suggested allowing the advocate to investigate a complaint, but disallow publishing the specifics that deal with the decision rendered by the judicial officer or jury in the report. Thus, a state agency would not publicly challenge a decision that has to stand on its face. It would leave the court free to make a decision without an agency's challenge, and a victim free to complain. Number 1108 REPRESENTATIVE ROKEBERG suggested adopting the amendment and moving the bill to the House Finance Committee given the time of day. If there isn't satisfaction, it can be killed there. The committee needs to move along and take up other bills. Number 1155 REPRESENTATIVE JAMES stated she would like to include this amendment before moving it forward and take the word of Mr. Huber who said the sponsor would work with Mr. Christensen. This is a judicial issue and needs to be fixed in the House Judiciary Committee. CHAIRMAN GREEN noted that there are three versions of the amendment. Number 1185 REPRESENTATIVE BERKOWITZ noted that he likes the first version. REPRESENTATIVE JAMES agreed to use the first one. Number 1194 CHAIRMAN GREEN called it repugnant for a finance group to deal with a judiciary issue. Number 1207 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 3. It reads as follows: Page 6, line 19, insert following "state.": "The victims' advocate may not investigate or challenge a decision rendered by a judicial officer or a jury." Number 1240 MR. CHRISTENSEN stated the decision portion of this amendment is significantly more important than the judicial act. The decision is the ultimate finding on the case. Number 1256 CHAIRMAN GREEN asked whether there is any objection to Amendment 3. There being no objection, it was so adopted. Number 1280 REPRESENTATIVE ROKEBERG made a motion to move CSSB 219(FIN) am, as amended, from the committee with individual recommendations. CHAIRMAN GREEN noted there is still one more amendment. There has been a request to change "five" years to "three" years on page 4, lines 1 and 4 (Amendment 4). Number 1324 MR. HUBER stated five years comes from the qualifications for being a judge. REPRESENTATIVE ROKEBERG noted that the bill does not hire a judge. REPRESENTATIVE BERKOWITZ stated there is no objection. CHAIRMAN GREEN asked whether there is any objection to adopting Amendment 4. There being none, it was so adopted. Number 1360 REPRESENTATIVE ROKEBERG made a motion to move CSSB 219(FIN) am, as amended, from the committee with individual recommendations and the attached generous fiscal note. UNIDENTIFIED SPEAKER objected. A roll call vote was taken. Representatives Berkowitz voted against the motion. Representatives Rokeberg, James and Green voted in favor of the motion. Representatives Bunde and Porter were absent. The motion failed.
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