HB 92-JURISDICTION OF OMBUDSMAN: VICTIMS RTS  9:30:13 AM CHAIR MCGUIRE announced the consideration of HB 92. 9:30:13 AM REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, said he and Representative Samuels are cosponsors and have been involved with the Office of Victims Rights (OVR) for many years. Representative Samuels was a citizen advocate and Representative Stoltze was on staff with the legislative when the legislation was crafted. It was patterned after the ombudsman office - "as a stand-beside organization." The director of OVR is selected by a bipartisan process that requires a super majority vote. It is a consensus position like the ombudsman. Last year there was a jurisdictional skirmish between the two offices. The intent for the OVR was to have jurisdiction granted by the legislature. HB 92 clarifies that intent to avoid litigation between one branch of the legislature and another. There are many reasons why the two are separate. 9:32:32 AM REPRESENTATIVE RALPH SAMUELS, Alaska State Legislature, concurred, and said the OVR was created as a specialized ombudsman for the victims of crime only. A person can easily see the inherent conflict if one office presided over the other. About 40 percent of complaints to the ombudsman come from jail, and all of the complaints to the OVR come from victims. Creating it was a several-year process, including where to house it. A victim may file against the district attorney, public defender, public safety, or police. He fixed that as a freshman by allowing OVR to look at law enforcement. A complaint from a victim will go against one of the agencies, so the OVR shouldn't be housed in the Department of Law "because you would be complaining against your boss, possibly." "If you put it in the Department of Administration, all roads lead to the commissioner, including the public defender and OPA [Office of Public Advocacy]." It ended up in the legislative branch as a separate ombudsman for victims of crime. The OVR answers to the legislature just like the ombudsmen. There could be a conflict of the same ombudsman representing the rapist and his victim, so he wanted a clear line. It is clearer to the public and the victim to not even have the appearance of a conflict, and that is the purpose of HB 92. 9:35:37 AM REPRESENTATIVE STOLTZE said this was the implementing agency for the constitutionally created Victims Rights Amendment. The people of Alaska overwhelmingly endorsed that amendment to Alaska's constitution. There were the inherent problems of the District Attorney's (D.A.) office - they just have a hard time regulating themselves because they are always working hard. This agency was viewed as very important. The substantive difference between the ombudsman and the OVR is the direct link to the constitution. 9:36:56 AM SENATOR GREEN said she cosponsored the OVR bill and never heard it called an ombudsman's office. It raises the question of institutional competency when the ombudsman lacks that special legal knowledge necessary to investigate. She doesn't think there are any limitations on what the ombudsman can do to get assistance. She would prefer not to see "a sentence like that to denigrate another sister agency." [OVR] was placed under the legislature because no one wanted a new line item in their budget. "If you want to address the issue of what can or what should the ombudsman investigate, because I think the genesis of this problem actually has to do with the representation of prisoners." That is the way to address the problem. There is a system of appeals, courts and internal ways to correct it. "I don't know if the Office of Victims Rights ever reports to us, except for their little report they do." Attempts are made each year for the legislature to exert authority over the ombudsman in the budget process, but she doesn't know if that is done with OVR. She would like to hear from both. 9:39:10 AM KATHERINE HANSEN, Interim Director, Office of Victims Rights, Anchorage, said the OVR has two functions, and one is to act as an ombudsman for victims, and the other is to advocate as a lawyer for crime victims who ask and to provide free legal advice on crime victim issues. SENATOR GREEN asked if OVR actually goes to court. MS. HANSEN said yes, and they file briefs and facilitate communication with the prosecutors and the police. SENATOR GREEN asked if the role is an observer. MS. HANSEN said crime victims have statutory and constitutional rights. Sometimes OVR will speak on behalf of the victim at bail hearings and at sentencing. "We are not a party, but victims do have a special role in the criminal process." SENATOR GREEN asked if the court lists OVR as their attorney. MS. HANSEN said yes. 9:41:25 AM SENATOR BUNDE asked if a criminal can get a public defender and the state pays for the lawyer, and the OVR balances that with a state-appointed lawyer for a victim without substantial means. MS. HANSEN said that is a good way to phrase it. The OVR gathers documents and represent the crime victim. It has certified attorneys with prosecution or substantial criminal law experience. "If they're unhappy with the outcome, then they go to the ombudsman and there is a risk of them getting documents they shouldn't be getting." There also may be confusion of who is making the final decision. When the OVR statutes were drafted, the intent was for a specialized office for crime victims that would have some teeth and would be the final say. 9:43:02 AM MS. HANSEN said there are several things that the ombudsman cannot access that OVR can, such as criminal investigation records from cold cases. If a crime victim later asked the ombudsman for a review, the OVR couldn't statutorily turn over that information. There are things that the OVR gets that the ombudsman doesn't. If the ombudsman were investigating OVR, it would be contrary to statute to turn over information. SENATOR GREEN asked if a person can sign over access to the records. MS. HANSEN said AS24.55 would have to be substantially revised to allow the ombudsman to oversee the OVR. The easiest and best thing to do for the crime victim is to have the specialized knowledge of the OVR looking at the issues and making the final decision on what action is needed to improve the system and the circumstances for that crime victim. The reason this bill came up is a case with an active criminal investigation that OVR looked at to see if it was viable for prosecution. OVR has that expertise and works with the DA's office on helping to explain that determination to the crime victim. To have a non-lawyer without experience in criminal investigation take it and oversee it would be unhelpful. 9:45:27 AM SENATOR FRENCH said he has been thinking about the institutional competence argument. There may be a legitimate issue about whether one agency should oversee another one, but that particular argument is very unpersuasive to him. The DA's office is ultimately the one that decides on whether to prosecute or not, "and … if you're unhappy with that decision, go complain to an ombudsman." Ombudsmen aren't experts in any single field. They are good at looking at both sides and they tend to make good judgments. They will almost always have to defer to the institutional competence of the agency they are overseeing. The idea that there is a decision too complex for someone else to review is not something he embraces. LINDA LORD-JENKINS, Ombudsman, Alaska Office of the Ombudsman, Anchorage, said she appreciates Senator French's comments on institutional competence. There are two attorneys on staff that have been involved in criminal defense issues. The matter that brought this to a head was characterized as whether or not a sexual assault of a young woman was viable for prosecution. The complainant said it had to do with how the police treated the victim. She was fully aware that it wasn't a viable matter because both the alleged victim and the alleged perpetrator were mentally handicapped. Her office assured her that it wouldn't be prosecutable, but she was more concerned about how the victim was handled by the police. Her allegation was that OVR did not go beyond talking to the police. She wanted them to look at how handicapped victims are treated, which is important in today's society. There is a movement to get better treatment for the handicapped and disabled from police officers and the court system. The ombudsman wanted to know from OVR who the investigator talked to. All the accounts are that the victim was re-victimized and kept up almost 24 hours being interrogated, and she had very limited communication capabilities and she was not allowed to have a family member with her. The interrogation started at three a.m. The complainant alleged it was not reasonable treatment of a handicapped victim. "We wanted to know what the non-attorney investigator looked at and talked to. We do understand that there are records that we don't have statutory access to, but we also do not provide records that we acquire from any agency to any complainant." 9:50:05 AM MS. LORD-JENKINS said that is a longstanding policy. If they want records from agencies her office directs them to file an open record request, but it does not act as a conduit. "We mark the records that we get from complainants and agencies, so that simply does not happen." OVR was modeled after the ombudsman statute. Her concern is that OVR statute does not allow OVR to provide specific information about its investigations to the legislature. The statute provides for confidentiality, and she believes OVR does have access to that statute. If her office doesn't have oversight over OVR, then who does? SENATOR BUNDE asked about other cases where the ombudsman felt a need to review the activities of OVR. MS. LORD-JENKINS said there was one other case dealing with a person who felt he was a crime victim. Her office referred him to OVR and he said that OVR had not responded reasonably. He alleged that he was turned over to the troopers by OVR. "He did not provide sufficient information. There were a lot of issues there, but we did ask the questions. We have not conducted any formal investigations of OVR as defined in our statutes." Since HB 92 was filed the ombudsman has been referring complainants to the director and to the bill sponsors. "We said if you have a problem with how OVR is responding, these two people are very interested in OVR and they would be good people for you to also talk to. But we route them through the process first." 9:53:00 AM SENATOR BUNDE said he encouraged her to do that. The legislature has an ombudsman role for their constituents. He asked about the ombudsman having the perpetrator and the victim under its jurisdiction and working at cross purposes. MS. LORD-JENKINS said 25 percent of the ombudsman caseload is inmates complaining about the Department of Corrections. Less than 0.5 percent might be filed against a prosecuting attorney. It is possible that the ombudsman would get a defendant and a victim, but that has never happened. If there were a conflict, she would assign one to one office and the other to another office and put up a wall between them. When the ombudsman gets complaints, the people have attorneys and there is a court process, "and we route them to their attorneys." If there is a complaint that the attorney is not adequately representing them, the ombudsman has no jurisdiction over a private attorney and a limited review of a public defender. The ombudsman has no access to attorney/client records, but the client can waive that privilege. The allegation would have to be incompetence and abuse of discretion. "We do route people to the court process if they believe that their attorney is not representing them adequately. We tell them they have the option of filing an ineffective assistance of council motion." But the ombudsman doesn't go in and address whether or not in-court representation is adequate. She has questions whether the bar association does that. MS. LORD-JENKINS said she has a legal opinion that was generated by in-house council asking if the bar association actually does respond to ineffective assistance complaints. The conclusion is that they generally don't respond well because of limited staff time. If there was a complaint from a defendant that OVR was acting inappropriately, "and I think that's what we might be getting at here. I think that I would probably decline that because OVR has a statutory obligation to represent crime victims." There are a lot of in-court solutions to defendant complaints of OVR acting improperly. She can't fathom an instance where that might happen. 9:57:09 AM SENATOR BUNDE asked if this disagreement evolved out of one incident. MS. LORD-JENKINS said that is her assessment. Prior to this disagreement the ombudsman office requested records from OVR regarding a complaint against the DA's office. OVR was unable to resolve the questions that a burglary victim had, but OVR had documents on the case. The victim authorized the ombudsman to obtain the documents, and OVR initially declined and then sought a legal opinion. Legislative Legal Services opined that the ombudsman did have the right to request the documents. OVR then provided them. It was evidence at that point; it wasn't criminal records, but it was information that her office needed. The ombudsman didn't have a complaint against OVR. "We periodically get comments/complaints about OVR, and generally, like we do many complaints, we route people into their process, and frequently they don't come back because their process has resolved their complaints." 9:59:13 AM SENATOR BUNDE said he is confused because she said she cannot have complete access to information at OVR, but she can if the victim provides a release? MS. LORD-JENKINS said she believes that attorney-client privilege belongs to the client, and the client can waive that. If OVR has records of active criminal complaints, OVR has argued that it cannot provide the records to the ombudsman. She won't argue with that, but there are some records that she could get, like OVR records of contact with the complainant - notes from interviews with complainants. In her view, those would not be classified as criminal investigation records. "I believe that we have access to those." SENATOR BUNDE asked if she would like to have oversight of OVR even though she cannot get complete information. MS. LORD-JENKINS said she believes she has oversight over OVR. All agencies should have oversight. If the ombudsman is removed, OVR will have no oversight. That is why she is opposing HB 92. 10:01:16 AM CHAIR MCGUIRE said the OVR is staffed with attorneys that have a professional code of conduct. The bar oversees that system. REPRESENTATIVE SAMUELS said he sees there being two ombudsman offices. If a victim doesn't like an OVR decision, the ombudsman is saying they will make a decision, but where does it stop if that decision is unacceptable? There is no oversight over the ombudsman. He gets complaints about the ombudsman all of the time. "And quite frankly I look at most of them, and it's sour grapes - they did the investigation and you didn't get your way." It is similar at the OVR and he views them as sister agencies. HB 92 is simply saying they are separate agencies. If it is set up that the ombudsman gets complaints about OVR, then there will have to be something set up for complaints about the ombudsman. He wholeheartedly agrees with Senator Green's remark. 10:03:08 AM SENATOR GREEN said it did not sound like the ombudsman was questioning the work of OVR, but just what was observed at the police station. "Maybe they don't consider that their purview." Are we addressing a problem that doesn't exist? CHAIR MCGUIRE said there is the ombudsman investigating the victim's ombudsman, and who investigates them? It is circular. REPRESENTATIVE SAMUELS said he has had legislation that would give in-court standing to OVR but couldn't get past the legal tangling of evidentiary rule. He was constantly trying to get access for the victims into the system. He was [personally involved] in the system before there was OVR, and he didn't go to the ombudsman; he would yell at Susan Parks. There was no avenue of where a victim could go to get legal advice without hiring an attorney. SENATOR GREEN said that problem is solved. 10:05:23 AM REPRESENTATIVE SAMUELS said it was solved, but now we allow people to bypass OVR's decisions. "You will end up, over time, deteriorating that. And maybe it will never happen again … but I think we're better safe than sorry with drawing the line right now and saying we've got two agencies." SENATOR GREEN asked when OVR began to be called an ombudsman. REPRESENTATIVE STOLTZE said the term was used frequently, and it was modeled after the ombudsman statute. That was the intent. The constitutional amendment was passed in 1994, and the ombudsman office wasn't effective implementing it because it didn't have the expertise. OVR was not only an ombudsman but almost a foreign language translator for victims. The defendant had an attorney, "and certainly the prosecutor was there, but they were on a roll of -- sometimes dealing a lot with a victim was counterproductive in many ways." But it is important, given the constitutional amendment. "This was really to bring the victim out of the shadow of justice." Creating the separate agency was the only way to do that. 10:07:53 AM SENATOR BUNDE said it is a turf battle, and he moved to report HB 92 from committee with individual recommendations and attached fiscal note(s). There being no objection, HB 92 passed out of committee.