Legislature(1997 - 1998)

01/21/1998 01:30 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                SENATE JUDICIARY COMMITTEE                                     
                     January 21, 1998                                          
                         1:30 P.M.                                             
MEMBERS PRESENT                                                                
Senator Robin Taylor, Chairman                                                 
Senator Drue Pearce, Vice-Chairman                                             
Senator Mike Miller                                                            
Senator Sean Parnell                                                           
Senator Johnny Ellis                                                           
MEMBERS ABSENT                                                                 
All Members Present                                                            
COMMITTEE CALENDAR                                                             
SENATE BILL NO. 234                                                            
"An Act extending the termination date of the Board of Governors of the        
Alaska Bar Association."                                                       
    - HEARD AND HELD                                                           
SENATE BILL NO. 219                                                            
"An Act relating to establishing an office of crime victims' advocacy; and     
amending Rule 16, Alaska Rules of Criminal Procedure, Rule 9, Alaska           
Delinquency Rules, and Rule 501, Alaska Rules of Evidence."                    
- HEARD AND HELD                                                               
PREVIOUS SENATE COMMITTEE ACTION                                               
SB 234 - No previous action to consider.                                       
SB 219 - No previous action to consider.                                       
WITNESS REGISTER                                                               
Ms. Deborah O'Regan, Executive Director                                        
Alaska Bar Association                                                         
510 L Street                                                                   
Anchorage, AK 99501                                                            
  POSITION STATEMENT: Supported SB 234.                                        
Mr. Steve Vangoor, Bar Council Alaska Bar Association                          
510 L Street                                                                   
Anchorage, AK 99501                                                            
  POSITION STATEMENT: Supported SB 234.                                        
Mr. Chris Christensen, General Council                                         
Alaska Court System                                                            
303 R Street                                                                   
Anchorage, AK 99501                                                            
  POSITION STATEMENT: Commented on SB 219.                                     
Senator Rick Halford                                                           
State Capitol Building                                                         
Juneau, AK 99811-1182                                                          
  POSITION STATEMENT: Sponsor of SB 219.                                       
Ms. Janice Lienhart                                                            
Victims For Justice                                                            
619 E 5th Ave.                                                                 
Anchorage, AK 00501                                                            
  POSITION STATEMENT: Commented on SB 219.                                     
Ms. Karen Johnston                                                             
5040 E 98th Ave.                                                               
Anchorage, AK 99516                                                            
  POSITION STATEMENT: Supported SB 219.                                        
Mr. Harley Sudsbury                                                            
16906 Riddell St.                                                              
Eagle River, AK 99577                                                          
  POSITION STATEMENT: Supported SB 219.                                        
Mr. Paul Sweet                                                                 
Palmer, AK                                                                     
  POSITION STATEMENT: Supported SB 219.                                        
Ms. Jayne Andreen                                                              
Council on Domestic Violence and Sexual Assault (CDVSA) P.O. Box 111200        
Juneau, AK 99811-1200                                                          
  POSITION STATEMENT: Supported SB 219.                                        
Ms. Janice Conger                                                              
Victims For Justice                                                            
619 E 5th Ave.                                                                 
Anchorage, AK 99501                                                            
  POSITION STATEMENT: Supported SB 219.                                        
ACTION NARRATIVE                                                               
TAPE 98-1, SIDE A                                                              
Number 001                                                                     
              SB 234 - BOARD OF GOVERNORS OF AK BAR ASSN                       
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at       
1:30 p.m. and announced SB 234 to be up for consideration.                     
MS. DEBORAH O'REGAN, Executive Director, Alaska Bar Association, said the      
legislative audit recommended that the Board of Governors be continued and     
also recommended that they consider mandatory continuing legal education       
(CLE) and more information provided to the public about the existence of       
the discipline system of the Bar and things like that.                         
MR. STEVE VANGOOR, Bar Council, Alaska Bar Association, said he                
administers the attorney discipline process in Alaska. He met with the         
Legislative Budget and Audit committee and participated in the exit            
interviews and heard their preliminary recommendations. He didn't recall       
hearing any objection to the continued existence or function of the Bar        
SENATOR MILLER moved to pass SB 234 out of committee with individual           
recommendations.  There were no objections and it was so ordered.              
            SB   219 - OFFICE OF VICTIMS' ADVOCACY                             
CHAIRMAN TAYLOR announced SB 219 to be up for consideration and announced      
a brief recess.                                                                
MR. CHRIS CHRISTENSEN, General Council, Judicial Branch, had two concerns      
with the legislation as it's drafted. He explained that it is a further        
legislative implementation of the Victim's Rights Amendment to the State       
Constitution, approved in 1994. Some of the things it does that he's not       
concerned about are the creation of an Office of Victim's Advocacy, the        
authority of a victim's advocate to appear in court in lieu of the victim      
to make an impact statement and the ability of the advocate to obtain          
court records or to investigate administrative matters in the Judicial         
Branch. He would not comment on the sections of the bill that directly         
affect the Executive Branch, the Office of the Prosecutor, or the Office       
of Corrections. He was concerned with two things that are perhaps              
unintended which go right to the heart of the justice system.                  
Number 184                                                                     
The way it's drafted in relation to juries there's a strong argument that      
this bill will allow the advocate to subpoena jurors and then question         
them about the basis for their decision and then, perhaps issue an             
investigatory report critical of what they've done. For instance, under        
the Constitution a victim has a right to be treated with dignity and           
respect. When a jury decides that a victim is a liar, they're not being        
treated with dignity or respect. He said most people don't like standing       
in judgement of other folks, but do it because it's a civic duty.              
Juries have been vilified in the press for decisions the public didn't         
like. They can't do anything about the press, but he thought it important      
that a State agency not have the authority to bring jurors in after the        
fact and question them.                                                        
The second matter relates to judicial acts. As drafted, SB 219 would allow     
an advocate to subpoena a judge, ask him what he was thinking when he          
issued his decision, and then issue a decision on whether or not the           
judge, the Court of Appeals, or the Supreme Court was wrong. He clarified      
that he was not referring to a judge when he acts as an administrator.         
Judges have a sweeping form of immunity for their judicial acts, he            
explained, and this has existed in this country for the 200 years we've        
existed. It goes back to English common law. The rationale is that it's in     
the public interest to have judges who are at liberty to exercise their        
independent and impartial decision about the merits of something without       
having to worry about personal consequences. An element of this immunity       
is that a judicial decision speaks for itself much as a law of the             
legislature speaks for itself.                                                 
MR. CHRISTENSEN explained that we have a system of government which places     
final decisions on justice matters in the hands of judicial officers in        
the judicial branch which works pretty well. This part of the legislation      
has the effect of turning the system on its head. It says essentially that     
a mid-level bureaucrat in another branch of government actually gets the       
final say on whether or not justice is done in a particular case. He may       
not get to overturn a case, but he gets to tell the public that the Court      
of Appeals, for instance, was wrong on a point of law. He thought this         
would decrease the public's trust and confidence in the justice system         
rather than increasing it as the rest of the bill would do.                    
MR. CHRISTIANSON submitted suggested amendments to the committee.              
CHAIRMAN TAYLOR said he thought the two amendments could be combined to        
say ,"rendered by a jury or by a judicial officer". MR.CHRISTENSEN agreed.     
Number 265                                                                     
SENATOR HALFORD, sponsor of SB 219, said he thought Mr. Christianson's         
comments were valid, but he thought the amendment goes away from what the      
bill would do. We spend $30 million in prosecution and defense and we          
spend almost nothing in representing the people who were harmed by the         
whole thing and they are overwhelmed.                                          
There have been numerous cases where the constitutional rights of victims      
have been trampled and they haven't been able to do anything about it.         
This system sets up some sort of a dialectic, but the court is the             
eventual arbitrator of it anyway. He didn't think they would reverse 200       
years of juries' or judges' reasons, particularly when the court is where      
the final case will be decided. The advocate cannot reverse the decision;      
but he can say whether it's right or not, if someone wants to proceed on       
that basis.                                                                    
The real development of the rights of victims will be by building case law     
to help define the constitutional amendment.                                   
SENATOR HALFORD said the fiscal note looks at 1/60th of what we spend on       
the other side of the case, more than half of which is spent on people who     
are guilty.                                                                    
CHAIRMAN TAYLOR asked what he thought about the amendment.                     
SENATOR HALFORD responded that he didn't think it was necessary. Saying        
that the victim's advocate may not investigate a complaint regarding an        
act taken or a decision rendered by a jury is broader than saying that         
you can't second guess a juror that doesn't want to be involved.               
CHAIRMAN TAYLOR commented that the example that comes to his mind is the       
O.J. Simpson case, and asked what happens to the families of the two           
victims in that case who say they didn't get justice. Does the advocate        
subpoena the jury and grill them?                                              
SENATOR HALFORD said he didn't think so, but if someone has written a book     
about why they decided the way they did then it was probably open to           
questioning. He thought that would get determined by the court system          
itself. He did not intend that the judges decisions be revisited or to go      
against eight of the two century-old precedents.                               
SENATOR ELLIS asked him to define "victim" and asked how far it extended       
from the actual person injured.                                                
Number 354                                                                     
SENATOR HALFORD answered that a lot of that would be decided by the case       
load of the victim's advocate and the definition in existing statute AS        
12.55.185, "a person against whom the offense has been perpetrated, one of     
the following not the perpetrator, if the person specified in (a) this         
paragraph is a minor, incompetent or incapacitated, individual of a            
spousal relationship, parent, adult child, guardian, custodian...one of        
the following not the perpetrator if the person specified in this              
paragraph is dead... a person living in a spousal relationship, adult          
child, parent, brother, sister, grandparent, grandchild, to the deceased       
or any other interested person as may be designated by a person having         
authority in law to do so."                                                    
He noted when you have $30 million on one side and a half million on the       
other side, the victim's advocate has to allocate their resources where        
the cases show the most harm and most aggrieved victims.                       
SENATOR ELLIS asked how many resources $464,000 buys.                          
SENATOR HALFORD answered that it's parallel with the Ombudsman's Office to     
insulate it in the Legislative Branch.                                         
SENATOR ELLIS asked if they considered alternative approaches that             
wouldn't necessitate the creation of an independent office.                    
SENATOR HALFORD responded that they considered other alternatives, but         
they didn't seem to be workable because the advocate would have to be in       
an adversarial position dealing with the court system.                         
Number 402                                                                     
SENATOR PEARCE asked why do this in the first place and asked for an           
SENATOR HALFORD said the Victims' Rights Amendment which included notice,      
presence, and opportunity to be heard in the process hadn't been               
implemented. For instance, if someone's daughter is murdered, the              
investigation finds a person who is charged with murder, and right before      
this case is going to trial it pleads out and there's a manslaughter case;     
and the family is told about it after the fact and never get a chance to       
say what really happened because they never get in front of the court.         
SENATOR PEARCE asked if this office would intervene in a case like that        
whether or not the victim asked them to.                                       
SENATOR HALFORD answered no. This Office responds to the victim but            
because the victim is incapable of understanding the system in most cases,     
they are basically unrepresented. This tries to give them an avenue to         
monitor the system and to participate; if necessary, to make their             
disagreement known.                                                            
It puts a little bit of backward pressure against a system that responds       
with economic considerations because of things like case loads, with less      
than adequate prosecution, less than adequate information. This would          
allow the victim to get on with the healing process instead of being left      
out and for the rest of their lives feeling that the State was negligent       
in its duty.                                                                   
      SENATOR PEARCE asked if there was weak evidence, she would expect the    
advocate to come back to the victim.                                           
SENATOR HALFORD responded that's exactly it.                                   
SENATOR PEARCE asked what the advocate would do if he found a violation.       
SENATOR HALFORD replied that they can't reverse the criminal justice           
system, but they can make public what has happened and acknowledge that        
something is wrong.                                                            
SENATOR PEARCE asked if he thought this would push the court system into       
looking more closely at the information.                                       
SENATOR HALFORD answered that it was more the Department of Law and            
prosecutor who would have to make a lot more decisions as they go through      
this process.                                                                  
CHAIRMAN TAYLOR said he thought a greater level of frustration occurs at       
the sentencing level and leading up to the trial. Notification to the          
victims by the Corrections Department as to when the person is going to be     
coming out of jail and the conditions of release may or may not be             
important. He was concerned with the right of a prosecutor not to charge       
which would make the victims angry. He used the example of a woman who         
perpetrated the biggest fraud scheme in Alaska, writing $2.5 million worth     
of bad checks to 1,100 victims. Not one single State charge or prosecution     
was brought.                                                                   
CHAIRMAN TAYLOR asked how this would impact the right of a prosecutor to       
make a decision about whether or not to prosecute and to what degree.          
SENATOR HALFORD said he didn't agree with that concern. He thought the         
victim's advocate could point it out to everyone. He said a victim could       
sue and that is the way a lot of law is established in terms of who's          
right and who's wrong in a civil case. This provides a little tool so          
victims can establish some of the case law that would be on their side for     
their rights for the future as opposed to all the case law that exists for     
the perpetrators rights.                                                       
SENATOR HALFORD said he intended for there to be countervailing                
constitutional rights in conflict and for them to be weighed against each      
other as part of the process.                                                  
Number 582                                                                     
MS. JANICE LEINHART, Victims For Justice, said it sounds like people don't     
really know what's going on in the victim's arena. The whole system is         
made for the defendants and not for the people offended. She said one of       
the biggest problems victims go through is lack of information and they        
need in order to heal. She didn't think that jurors are that intimidated.      
In Anchorage people are a little more in tune with the constitutional          
amendment, but it's a different story out in rural Alaska.                     
MS. KAREN JOHNSON said her husband was murdered in a triple homicide in        
their Fairbanks home three years ago and she was never informed of her         
rights as a victim by the D.A.'s Office there. The murder was a shock to       
her and the whole community and she struggled with the system for six          
months to get a little bit of information. She was told she couldn't get       
any information until the case was closed. Her sister was told she didn't      
have a right to any information and they would find things out by seeing       
it on T.V.  Prior to sentencing of the murderer she was allowed an             
interview with the D.A. which is within the realm of the law, but it           
should never have taken seven months of agonizing over why her husband was     
killed. She should have been read her rights immediately just as a             
criminal is.                                                                   
MS. LEINHART said that she was not treated with dignity, respect and           
fairness. She wasn't able to confer with the prosecuting attorney and          
wasn't informed of her right to do so. She and her family had a right to       
be present at any hearing where the defendant was present and even though      
she was notified that a plea change was coming, she was not told that she      
could be present.                                                              
She said these are the things that are being addressed in SB 219. She          
understands that the attorney who is appointed as advocate is not there to     
reverse the outcome of the trial, but to address violations of victims         
rights and give the victims an opportunity to affect the outcome.              
TAPE 98-1, SIDE B                                                              
Number 661                                                                     
SENATOR PEARCE said prosecutors who ignore the Victim's Rights amendment       
to the Constitution that was overwhelmingly voted for by Alaskans should       
be fired. This is a management problem and not a good reason to set up         
another office to fix. The Department should be fixing this, not the           
legislature. However, she thought it was a good idea to have someone for       
the victims to call to help them weave their way through the legal system.     
CHAIRMAN TAYLOR commented that the Attorney General said the reason the        
State had not prosecuted any of the cases is that too many of his own          
prosecutors and judges were involved in it.                                    
CHAIRMAN TAYLOR agreed with her.                                               
MR. HARLEY SUDSBURY, Eagle River builder, told the committee that his son      
was killed two years ago on the South Birchwood Exit in Eagle by a man who     
was under the influence of cocaine, marijuana, and alcohol. He stated thatthe i
any point whether they intended to charge the individual or what the           
process was. The man was found guilty and sent to prison for six years,        
but got out in 13 months. He found out when his wife ran into the              
individual in Carrs Grocery Store. No one in his family was notified of        
any actions taken by the Department of Corrections. He understands that        
the Constitution allows him the right to be notified of any proceedings in     
regards to the release or the actual release of an individual. He was          
informed of none of those things. The message he and his neighbors get         
from this is that it's o.k. to violate victim's rights and that there are      
minimal consequences when you do drugs and drive and take a human life.        
MR. SUDSBURY said he would do anything to help pass this bill. He thought      
the focus has always been on the rights of criminals and there is zero to      
none for the victims of the crimes.                                            
MR. PAUL SWEET, Palmer resident, said he really feels for the people who       
are victims and don't get any answers. He asked if the funding for this        
office would be subject to being cut at any time or would they continue        
funding it.                                                                    
CHAIRMAN TAYLOR said the Judiciary Committee didn't do the funding. He was     
sure the somewhat large fiscal note would be discussed at length in            
Finance Committee. He thought if an office was established and had an          
advocacy group, that there would be some form of continued funding.            
MR. SWEET asked if this advocacy carried on to appeals courts, too.            
CHAIRMAN TAYLOR replied yes, the committee thought it would and they           
intend it to.                                                                  
MR. SWEET said he thought there might not be so many appeals if there          
could be repercussions from the victims.                                       
Number 52                                                                      
MS. JAYNE ANDREEN, Council on Domestic Violence and Sexual Assault             
(CDVSA), said she is not taking a position at this point, but applauded        
the legislature's work on victim's rights and thanked Senator Halford for      
sponsoring the bill. They are concerned that this bill is limited to           
felonies; and sexual assault is usually a felony, but domestic violence is     
usually a misdemeanor. There is more of a tendency for victims to not be       
involved in the process at the misdemeanor level rather than the felony        
level.    Also, currently there exists a structure of advocates who are        
paraprofessionals, responsible for these duties sometimes due to               
understaffing. The Ombudsman is also available.                                
Number 486                                                                     
CHAIRMAN TAYLOR said he thought if a victim's advocate goes out and does       
something that is damaging to someone, they should be accountable for it.      
This immunity has been given to all kinds of people and he thought it was      
time to review whether or not they want to continue to give blanket            
immunity to State employees for various types of conduct.                      
SENATOR HALFORD responded that the problem is that the demand and the need     
is much higher than can be enforced. The question will be not an immunity      
from action, but immunity from being held in part responsible for the          
consequences for inaction. He agreed with Senator Pearce that the              
prosecutors should follow the Constitution; the advocate is the referee        
that makes sure they do it.                                                    
CHAIRMAN TAYLOR said he would like to see this bill move next week.            
SENATOR ELLIS said he wanted to know how far out the definition of victim      
extends as he was a bit troubled by the demands on such an office once         
it's created. He also asked if they would consider an amendment or any         
discussion expanding this to cover certain classes of misdemeanors that        
ought to be covered as suggested by Ms. Andreen. He also noted that he was     
not trying to raise the fiscal note.                                           
SENATOR PEARCE asked how the Constitutional amendment had been implemented     
in the judicial system and if we would be seeing any changes.                  
MR. CHRISTENSEN replied that everything that has been mandated today is        
mandated of the prosecutors, not the courts. The things the courts are         
involved in need to be decided on a case law basis. He noted that the          
reason the burden is on the prosecutor is because they usually know where      
the victims live because they are usually the number one witness.              
SENATOR PEARCE asked if it was unrealistic to expect a judge during            
proceedings to ask if the victims have been involved.                          
MR. CHRISTENSEN said he would ask around and see what the practice is. He      
has heard complaints from people who weren't given the chance to speak         
because the judge didn't know they were in the room because the prosecutor     
forgot to tell him.                                                            
MR. CHRISTENSEN explained that a lot of different opinions come from the       
prosecutorial discretion which is not something courts can interfere with      
to any great extent. It is a source of frustration for some judges.            
CHAIRMAN TAYLOR informed them that once the threshold of guilt has been        
passed, a judge can with impunity enquire about notification, etc.             
SENATOR PEARCE reiterated that she has a problem with hiring more people       
to watch people do something they are supposed to be doing in the first        
CHAIRMAN TAYLOR said he thought a process for notification had to be set       
up so people could be in compliance with this law.                             
SENATOR HALFORD said there were two sources of funding that he could see;      
the Department of Law and advocates for the Defense Attorneys who are paid     
by the State. He noted there is a murder case going on right now in            
Anchorage where the State is paying for two contracted outside high-price      
attorneys to defend somebody. He didn't think this should be a                 
constitutional right. Too much is being spent on the perpetrators and          
nowhere near enough for the victims.                                           
SENATOR ELLIS asked if Mr. Christensen could think of a more artful way to     
address his concern. MR. CHRISTENSEN replied that he would be happy to         
work with them on this and that 90% of the bill was good, but it wouldn't      
establish case law. There is no precedential value to this. It will just       
confuse the public about who is in charge of determining what justice is       
in specific cases.                                                             
Number 328                                                                     
MS.    JANICE CONGER, Victims for Justice, said they had a family              
member who was murdered a few years ago in a triple homicide. She said the     
victims needs something like this law. Most victims are ignorant and           
should be read their rights, also. She added that she was testifying for       
a lot of people who couldn't attend due to illness.                            
CHAIRMAN TAYLOR thanked everyone for their testimony and adjourned the         
meeting at 2:55 p.m.                                                           

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