Legislature(1993 - 1994)
02/01/1994 01:32 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
February 1, 1994
1:32 p.m.
TAPE HFC 94-21, Side 1, #000 - end.
TAPE HFC 94-21, Side 2, #000 - end.
TAPE HFC 94-22, Side 1, #000 - 234.
CALL TO ORDER
Co-Chair Larson called the House Finance Committee to order
at 1:32 p.m.
PRESENT
Co-Chair Larson Representative Martin
Vice-Chair Hanley Representative Navarre
Representative Brown Representative Parnell
Representative Foster
Representative Grussendorf
Co-Chair MacLean and Representatives Martin and Therriault
were not present for the meeting.
ALSO PRESENT
Senator Dave Donley; Representative Brian Porter; Janice
Lienhart.
SUMMARY INFORMATION
HJR 43 Proposing an amendment to the Constitution of the
State of Alaska relating to penal administration.
CS HJR 43 (FIN) was reported out of Committee with
a "do pass" recommendation and with a fiscal
impact note by the Office of the Governor, dated
1/13/95; and with two zero fiscal notes by the
Department of Public Safety and the Department of
Corrections, dated 1/13/94.
Members were provided with a proposed committee substitute
work draft 8LS1056\D, dated 1/28/94 (copy on file).
REPRESENTATIVE BRIAN PORTER explained that CSHJR 43 (JUD)
would provide specific constitutional rights for victims of
crime. He observed that families and spouses of the
individual that has been victimized would be included. He
emphasized that most of the rights contained in CSHJR (JUD)
have been defined in statute. He stressed that victim's
rights would be raised to the same level as the criminal
defendant.
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Representative Grussendorf noted that constitutional law
generally protects individuals from abuses by the
government. He observed that CSHJR 43 (JUD) would protect
victim's rights from other individuals. He asked if other
states have adopted constitutional rights for victims.
Representative Porter replied that fourteen states have
adopted constitutional rights for victims. He maintained
that the government has control of the criminal defendant in
the criminal justice system.
Representative Brown addressed the fiscal impact of CSHJR 43
(JUD). She asked if the right to be reasonably protected
would increase the State's liability.
Representative Porter noted that the right of timely
disposition already exists in law. Current law requires
that a case be addressed within 120 days. A defendant can
petition for a suspension of the right for timely
disposition in order to delay a case. He pointed out that
CSHJR 43 (JUD) would allow a victim to request that the case
not be delayed. Courts would have to weigh the interests of
the defendant and the victim if the legislation is enacted.
Representative Hanley expressed concern that the right for
timely disposition would result in dismissal of cases due to
court backlogs. Representative Porter doubted that the
Supreme Court would interrupt that timely disposition would
occur in less time than current law allows (120 days).
JANICE LIENHART, VICTIMS FOR JUSTICE testified on behalf of
CSHJR 43 (JUD). She stressed that defendant's rights are
protected by the Constitution of the State of Alaska. She
asserted that victim's rights need to be equally protected.
She listed other states that have passed or have legislation
pending in regards to victim's constitutional rights. She
maintained that the rights of victims of violent crimes must
be balanced with defendant's rights.
Representative Parnell raised the question of restitution.
Representative Porter explained that current law allows the
court to render restitution in a criminal case for a
conviction, over a period of probation. A victim also has
the option of pursuing restitution through civil
proceedings.
Representative Porter clarified that an accusation does not
automatically make an individual responsible for
restitution. Restitution is awarded only upon a conviction.
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Representative Parnell raised the question of the right to
be informed and present. Representative Porter noted that
it is not the intent of the legislation that the State pay
for a victim's travel. He noted that victims could utilize
telecommunications.
Representative Hanley expressed concern that the State's
responsibility to inform victims of proceedings be clear.
Representative Porter clarified that "proceeding" is defined
by the presence of a judge or jury. Psychological
evaluations would not be included. Motions determining
guilt or innocence would be included in the definition of
"preceding" in cases involving juveniles.
Representative Grussendorf echoed the previous concerns
regarding notification of proceedings. He asked if a delay
would occur to protect the rights of victims unable to
attend a proceeding. He questioned the need to raise the
issue to a constitutional level. Ms. Lienhart assured
Representative Grussendorf that victims would not choose to
prolong their cases.
Representative Grussendorf asked what the State's
responsibility would be to inform victims when their
whereabouts are unknown. Representative Porter assured him
that the process would follow the normal confines of the
court's schedule.
Representative Porter added that a victim could attempt to
show that a defendant has manipulated the court schedule to
prevent the victims appearance.
Representative Martin pointed out that the victim's rights
issue is not new. He asked if statutes defined reasonable
attendance. Representative Porter stressed that existing
statute requires that victims supply the court with current
addresses. Current statutes would not be altered.
Representative Brown expressed concern that the State's
responsibility not be increased by raising statutory law to
the constitutional level, in regards to the right to be
reasonably protected. She observed that there are villages
without a village public safety officer or state trooper.
She wondered if the State would incur extra liability in
areas where there is not sufficient protection.
Representative Porter pointed out CSHJR 43 (JUD) states the
right to be "reasonably" protected. It does not guarantee
protection.
In response to a question by Representative Larson,
Representative Porter assured members that the intent of the
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legislation is not to add further liability to the State.
Representative Brown suggested that the right of restitution
be moved from page 1, line 11 of the proposed committee
substitute, to page 1 line 14, in order to clarify that
restitution would occur after conviction.
Representative Porter had no objections but was concerned
that the victim's right to seek restitution in civil court
not be changed.
Representative Hanley MOVED to ADOPT work draft 8LS1056\D,
dated 1/28/94. There being NO OBJECTION, it was so ordered.
Members continued to discuss restitution. Representative
Porter stated that courts cannot award restitution without a
conviction. Representative Navarre stressed that civil
proceedings are separate from criminal proceedings.
Members discussed language to clarify that restitution would
not be awarded by the defendant, if the defendant were
acquitted of the offense. Representative Hanley reiterated
that restitution is dependent upon conviction.
Representative Porter pointed out that the legislation was
drafted based on laws existing in other states.
SENATOR DAVE DONLEY observed that state statutes have been
expanded to include victim's rights since 1987. He
suggested that constitutional law will take statutory law
into consideration but noted that it is impossible to
guarantee how the court will interpret the law without
legislative mandate.
(Tape Change, HFC 94-21, Side 2)
Senator Donley noted that the victim's rights movement has a
strong national base. He maintained that the legislation
will help those who have not yet been victimized.
Senator Donley referred to CSSJR 2 (STA). He observed that
CSSJR 2 (STA) contains language to allow constitutional
interpretation to follow existing statutory law. He
asserted that this allows existing law to be codified and
clarifies that constitutional law and statutory law are not
in conflict.
Senator Donley discussed restitution. He noted that
restitution is commonly addressed in civil law. He
maintained that restitution as applied in criminal law is
reserved for cases that are simple to prove. He gave the
example of a robbery where it is demonstrated that a certain
item or item has been withdrawn from the victim. He
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maintained that the real issue is the balance between civil
and criminal law.
Representative Porter observed that the intent is that
restitution be issued by the defendant not the State.
Senator Donley clarified that constitutional rights do not
have to exist in statute to be implemented, even if a
mandate exists for legislative implementation of the law.
He observed that the Court has upheld the constitutional
right to privacy without implemented statutes.
Representative Grussendorf expressed concern that the fiscal
notes do not reflect the fiscal impact of the legislation.
He pointed out that there will be administrative
responsibilities for notification.
Representative Brown asked if CSHJR 43 (FIN) would change
current law. Senator Donley replied that without language
instructing the legislature to implement the law, the court
would have discretion on interpretation of the
constitutional amendment.
Representative Parnell observed that the court would take
statutory law into consideration.
Representative Brown questioned if juvenile proceedings
would be open to victims. Senator Donley noted that federal
law provides baseline protection for juveniles which could
not be removed. He pointed out that juvenile proceedings
are not generally considered as criminal proceedings. He
stressed that some rights do not apply to juveniles.
Representative Parnell expressed further concern that
restitution not be limited in civil proceedings by the
proposed constitutional amendment. Representative Porter
assured him that the intent of the legislation is to raise
existing law to a constitutional level. It is not the
legislation's intent to change existing law. He added that
grand juries would not be effected. Victims do not have the
right to be present during grand jury deliberation.
Representative Parnell MOVED to delete, "to restitution from
the accused" on page 1, line 11; and insert, "to restitution
from the accused," on page 1 line 14, after "considered,".
There being NO OBJECTION, it was so ordered.
Representative Brown MOVED to add on page 2, "The
legislature may provide by law for the enforcement of this
section."
Representative Parnell suggested that existing
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constitutional language be substituted. He stated that
Article I (3) states: "The legislature shall implement this
section."
Representative Brown WITHDREW her MOTION. There being NO
OBJECTION, it was so ordered.
Representative Parnell MOVED that, "The legislature shall
implement this section," be added on page 1, line 15. There
being NO OBJECTION, it was so ordered.
Representative Brown emphasized that more information is
needed in regards to how the legislation would effect
juvenile proceedings. Representative Porter and Senator
Donley were unable to find statutes regarding juvenile
proceedings but recalled that some proceedings are closed to
victim participation and some are open. Representative
Porter assured Representative Brown that it is not the
intent to change existing law in regards to juvenile
proceedings.
Representative Brown suggested that language be added to
clarify the "opportunity" to be present at proceedings is
provided for the victim. She noted that "to have the
opportunity to be," could be added before "present" on line
12, page 1; and "have an opportunity" could be added after
"to" on line 13, page 1 of CSHJR 43 (FIN). Representative
Navarre agreed with Representative Brown's attempt to
further clarify that the State's responsibility to provide
the victim with the opportunity to attend proceedings.
(Tape Change, HFC 94-22, Side 1)
Senator Donley assured members that the interpretation of
constitutional law would be that the government cannot
prevent victims from attending proceedings not that the
government must provide the means to attend. He stressed
that the amendment adopted stating that the legislature
would implement the law would safe guard that the
legislature's intent be upheld.
In response to a question by Representative Martin,
Representative Porter noted that the defendant has the right
to request a change in venue. Under the proposed
legislation the victim's right to maintain venue would also
be considered by the court. He maintained that the court
would be able to balance the rights of victims and
defendants.
Representative Larson reiterated that it is not the intent
of the legislation that the State be responsible for
transportation of victims to attend proceedings in which
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they are involved.
Representative Hanley suggested that a Letter of Intent
accompany the legislation.
Representative Navarre observed that the court would
interpret the constitutional amendment from the point of
view of those voting for adoption of the amendment.
Representative Martin MOVED to report CSHJR 43 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal notes.
Representative Navarre OBJECTED for purpose of discussion.
He suggested that the legislation needs further discussion.
He emphasized the importance of a constitutional amendment.
He WITHDREW his OBJECTION.
CSHJR 43 (FIN) was reported out of Committee with a "do
pass" recommendation and with a fiscal impact note by the
Office of the Governor, dated 1/13/95; and with two zero
fiscal notes by the Department of Public Safety and the
Department of Corrections, dated 1/13/94.
ADJOURNMENT
The meeting adjourned at 3:16 p.m.
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