HOUSE JUDICIARY STANDING COMMITTEE
January 24, 1997
1:00 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Jeannette James
Representative Ethan Berkowitz
Representative Eric Croft
Representative Norman Rokeberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
* HOUSE BILL NO. 22
"An Act relating to civil liability for illegal sales of alcoholic
beverages; and providing for an effective date."
- HEARD AND HELD
* HOUSE BILL NO. 9
"An Act relating to the right of crime victims and victims of
juvenile offenses to be present at court proceedings; and amending
Rule 615, Alaska Rules of Evidence."
- MOVED CSHB 9(JUD) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 22
SHORT TITLE: CIV.LIAB.:ILLEGAL SALE OF ALCOHOL/DRUGS
SPONSOR(S): REPRESENTATIVE(S) IVAN
JRN-DATE JRN-PG ACTION
01/13/97 33 (H) PREFILE RELEASED 1/3/97
01/13/97 33 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 33 (H) JUDICIARY
01/24/97 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 9
SHORT TITLE: VICTIMS' RIGHTS/ CRIMINAL LAW CHANGES
SPONSOR(S): REPRESENTATIVE(S) PORTER
JRN-DATE JRN-PG ACTION
01/13/97 29 (H) PREFILE RELEASED 1/3/97
01/13/97 29 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 29 (H) JUDICIARY, FINANCE
01/24/97 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
TOM WRIGHT, Legislative Assistant to
Representative Ivan Ivan
Alaska State Legislature
Capitol Room 418
Juneau, AK 99811
Telephone: (907)465-4942
Position Statement: Prime Sponsor, HB 22
LISA JAEGER, Tanana Chiefs Conference
122 First Avenue
Fairbanks, AK 99701
Telephone: (907) 452-8251
Position Statement: Testified in favor of HB 22.
LINDA O'BANNON, Assistant Attorney General
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, AK 99501
Telephone: (907)269-0971
Position Statement: Testified in favor of HB 22
JAYNE ANDREEN, Executive Director
Council on Domestic Violence & Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, AK 99811-1200
Telephone: (907)465-4356
Position Statement: Provided testimony on HB 9
DEL SMITH, Deputy Commissioner
Department of Public Safety
P.O. Box 111200
Juneau, AK 99811-1200
Telephone: (907)465-4322
Position Statement: Testified in favor of HB 9
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907)465-3428
Position Statement: Testified in favor of HB 9
SARAH MUSGROVE
4203 Wilson Street, Number 10
Anchorage, AK 99508
Telephone: (907)562-1898
Position Statement: Testified in favor of HB 9
MARTI GREESON, Executive Director
Mothers Against Drunk Drivers
618 West 82nd Avenue, Suite B-1
Anchorage, AK 99518
Telephone: (907)562-6233
Position Statement: Testified in favor of HB 9
JANICE LIENHART, Victims of Crime
619 East 5th Avenue
Anchorage, AK 99501
Telephone: (907)278-0971
Position Statement: Testified in favor of HB 9
JANELLE DIXSON
8621 Rebel Ridge
Anchorage, AK
Telephone: (907)333-2461
Position Statement: Testified in favor of HB 9
DAWN SCHERBERT
2910 West Northern Lights, Number 3E
Anchorage, AK 99517
Telephone: (907)562-2324
Position Statement: Ms. Musgrove read Ms. Scherbert's statement in
favor of HB 9
KAREN CAMPBELL
P.O. Box 191001
Anchorage, AK 99519
Telephone: (907)261-7662
Position Statement: Testified in favor of HB 9
CHARLOTTE PHELPS
733 West 4th Avenue
Anchorage, AK 99501
Telephone: (907)566-2204
Position Statement: Testified in favor of HB 9
BARBARA BRINK, Acting Director
Alaska Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, AK 99501
Telephone: (907)264-4400
Position Statement: Provided testimony on HB 9
KEVIN SHORES
Alaska Civil Liberties Union
635 Main Street
Juneau, AK 99801
Telephone: (907)463-2517
Position Statement: Testified in opposition to HB 9
ACTION NARRATIVE
TAPE 97-2, SIDE A
Number 000
The House Judiciary Standing Committee was called to order by
Chairman Joe Green at 1:00 p.m. Members present at the call to
order were Vice Chair Bunde, Representative Brian Porter,
Representative Eric Croft, Representative Ethan Berkowitz and
Chairman Green.
HB 22 - CIVIL LIABILITY FOR BOOTLEGGERS
CHAIRMAN JOE GREEN advised members they would first consider HB 22,
"An Act relating to civil liability for illegal sales of alcoholic
beverages; and providing for an effective date." It was sponsored
by Representative Ivan Ivan. His committee aide, Tom Wright would
provide comments on behalf of Representative Ivan.
Number 101
TOM WRIGHT, Legislative Assistant to Representative Ivan Ivan,
provided comments on HB 22 on behalf of the prime sponsor,
Representative Ivan Ivan, who was ill.
MR. WRIGHT advised members that current law appeared to exempt
those who sell liquor without a license from any civil liability
for damages that might be caused by their actions. The basis of
the bill was to remove that exemption and make bootleggers strictly
liable for his or her actions.
MR. WRIGHT pointed out that Christopher Cooke, an attorney in
Bethel, Alaska was responsible for bringing this matter to the
attention of the Attorney General's Office. He noted that there
had been an Alaska Supreme Court decision, Chokwak v. Worley, 912
P.2d 1248 (Alaska 1996), which stated that there might be a problem
as far as civil liability was concerned, for those who sell liquor
without a license.
CHAIRMAN GREEN noted that individuals at two teleconference sites
in Anchorage and Fairbanks were standing by to provide testimony on
the proposed legislation.
MR. WRIGHT advised members that Linda O'Bannon, Assistant Attorney
General, would be able to respond to any technical questions posed
by committee members. Ms. O'Bannon was the Attorney General who
had corresponded with Christopher Cook and Representative Ivan's
office, and also does legal work for the Alcohol Beverage Control
Board (ABC) Board.
CHAIRMAN GREEN requested testimony from Fairbanks.
LISA JAEGER, Tanana Chiefs Conference, Inc. (TCC), advised members
that TCC fully supported HB 22. She offered to fax down a position
paper and also expressed that the TCC had adopted several
resolutions during their annual conventions relating to alcohol
issues. Ms. Jaeger advised members that alcohol was an excessive
problem in the Fairbanks area.
MS. JAEGER stated that not only did the TCC fully support the bill,
but the Elders in the community had declared war on alcohol. She
advised members that they had experienced problems bringing
criminal charges because, basically, everyone's related, which was
a major problem in the smaller villages.
Representatives Jeannette James and Norman Rokeberg arrived.
VICE CHAIRMAN CON BUNDE expressed his support of TCC in dealing
with alcohol related problems. He asked Ms. Jaeger how the
proposed legislation would affect neighbors and relatives if a
criminal charge were imposed.
MS. JAEGER did not know how the legislation would help with respect
to people not wanting to testify against one another. However,
felt it would be a great tool, in terms of waving a flag, that
those people would be civilly liable for activities caused by other
people that they illegally sell alcohol to.
Number 606
VICE CHAIRMAN BUNDE questioned the ability of those being charged
with bootlegging to pay a fine because of the lack of work in the
smaller villages, as well as many people living a semi-subsistence
lifestyle.
MS. JAEGER felt it was known that the bootleggers were the
individuals with money, and other people, in the remote areas, did
have snow machines and property.
REPRESENTATIVE ERIC CROFT referenced the "sell or barter" language
of the proposed legislation and asked if a barter arrangement was
typical.
MS. JAEGER was not familiar with how bartering for alcohol worked.
The transactions she was most familiar with involved money
transactions.
REPRESENTATIVE CROFT asked if it was generally known who, in the
villages, the bootleggers were.
MS. JAEGER responded that it was common knowledge who the
bootleggers were in the villages.
REPRESENTATIVE ETHAN BERKOWITZ asked what the estimated cost of a
bottle of alcohol was that goes through a bootlegging operation.
MS. JAEGER stated that the cost varied depending on the location,
however a bottle of alcohol could range from double the shelf cost
to 25 times the shelf cost.
REPRESENTATIVE CROFT asked what types of efforts the TCC would make
to publicize and alert the public of the legislation if it passed.
MS. JAEGER felt they would run front cover stories in the local
newspapers, as well as utilize the local radio stations to
publicize the enactment of the legislation.
LINDA O'BANNON, Assistant Attorney General and representative of
the Alcohol Beverage Control Board (ABC) and their staff, pointed
out that the proposed legislation would make clear that bootleggers
are civilly liable for the harm they cause by the illegal sale of
alcohol. She added that under the particular version, a bootlegger
would be subject to strict liability.
MS. O'BRANNON advised members that after the Alaska Supreme Court
decision in Chokwak v. Worley concerning civil immunity, the ABC
Board and staff felt it should be clarified in statute that civil
immunity was not, and should not be extended to persons who
unlawfully traffic alcohol. She noted that the ABC Board
recommended a change to AS 04.21.020 by adding a paragraph to make
clear that bootleggers were held responsible for damages they cause
to other persons. Ms. O'Brannon noted that as the bill was
currently written, it might include someone who purchased alcoholic
beverages from the bootlegger and then was injured, or someone
injured by the person who purchased alcoholic beverages from the
bootlegger, such as an innocent victim of an automobile accident.
Number 1270
REPRESENTATIVE NORMAN ROKEBERG advised members that he had a
suggested amendment that he had received from the Alcohol Beverage
Control Board and asked if the language had been drafted by Ms.
O'Brannon.
MS. O'BRANNON responded that she did draft that language, although
that had been done some time ago and was slightly different than
the language of HB 22.
REPRESENTATIVE CROFT referenced the difference between a negligent
standard and a strict liability standard and asked Ms. O'Brannon
what the difference and practical effect would be between a
negligent and strict liability standard. He questioned how someone
would prove negligence in an act that was already criminal.
MS. O'BRANNON agreed, pointing out that what they were talking
about would be a criminal violation, and therefore, negligence per
se.
REPRESENTATIVE BRIAN PORTER recommended adding a new subsection to
HB 22 which would read as follows: "(b) Notwithstanding (a) of
this section, a person who sells or barters an alcoholic beverage
to another person in violation of AS 04.11.010 is strictly liable
for civil damages FOR PERSONAL INJURIES, DEATH, AND PROPERTY
DAMAGES, resulting from the intoxication of the person receiving
the alcoholic beverage IF THE INTOXICATION SUBSTANTIALLY
CONTRIBUTED TO THE PERSONAL INJURIES, DEATH AND PROPERTY DAMAGES."
MS. O'BRANNON advised members she did not see a problem with that
language. She stated that AS 04.21.020 provides immunity to social
hosts and people who hold liquor licenses if they do certain
things. Ms. O'Brannon explained that by amending AS 04.21.020 that
bootleggers would be responsible, no matter what, in a civil
liability situation.
REPRESENTATIVE JEANNETTE JAMES spoke in favor of the proposed
language because it made more perfectly clear what an individual
would be civilly liable for.
Number 1980
REPRESENTATIVE BERKOWITZ preferred the more simple language over
specifying certain incidences because a broader statement would
more likely result in a civil liability case.
REPRESENTATIVE ROKEBERG asked if a community or a law enforcement
agency would be able to bring a cause of action against an
individual for the illegal sale of alcoholic beverages.
MS. O'BRANNON stated that for a criminal prosecution under the
bootlegger statute, AS 04.11.010, the district attorneys office
would have to prove the allegations beyond a reasonable doubt.
However, in a civil context, the people who could bring civil law
suits would be those who had actually been injured or were in some
type of relationship with the injured party. In a civil liability
case the standard of proof would be a preponderance of the
evidence, as opposed to beyond a reasonable doubt, which is a much
easier standard of proof. Ms. O'Brannon also pointed out that a
criminal prosecution of the bootlegger would not be needed in order
to bring a civil law suit against that person.
VICE CHAIRMAN BUNDE asked if what was being said, was that a
bootlegger could be acquitted on a criminal charge, but a civil
suit could be brought because of certain results of his illegal
selling of alcoholic beverages.
Number 2245
MS. O'BRANNON fully agreed with Vice Chairman Bunde's
understanding, noting that there was a very famous case being
argued currently where that same type of situation occurred.
REPRESENTATIVE BERKOWITZ asked if the state would have the ability
to recover investigation costs as an economic damage in a
bootlegging case.
MS. O'BRANNON did not feel the proposed legislation would provide
for that. She explained that the state or city would not be the
directly injured party and specific language would be necessary to
include that ability. Ms. O'Brannon went on to say that the
proposed legislation would cover a situation even where an
investigation had not been conducted by a governmental entity.
REPRESENTATIVE PORTER felt that the cost of prosecution to a city
or state should be added to personal injuries, death and property
damages.
Number 2430
LISA KIRSCH, Committee Aide to Chairman Green, referenced the
language of, "substantially contributed" in the proposed amendment,
and wondered if that would cause a problem with the causation
standard in Title 9.
TAPE 97-2, SIDE B
Number 000
MS. O'BRANNON stated that the way the tort laws were currently
written, she did not know if it was necessary to say "substantially
contributed", because she felt the courts would automatically
provide jury instructions that would apportion fault among the
parties based on their percentage of the fault.
REPRESENTATIVE PORTER requested that HB 22 be held over to further
consider the ability of the state or city being able to recover
monetary damages from acts of bootleggers and the need to
investigate those types of cases.
TOM WRIGHT, Committee Aide to Representative Ivan, advised members
the sponsor would not object to holding the bill over for the
purpose of considering additional amendments addressing the
concerns voiced at the present hearing. Mr. Wright offered to work
with the Chairman's staff, Representative Porter's staff and
Representative Berkowitz staff to arrive at language that would
accommodate their concerns.
REPRESENTATIVE CROFT declared a possible conflict of interest
advising members that he had worked with Christopher Cooke, the
attorney from Bethel, Alaska, although it involved nothing to do
with the proposed legislation, HB 22.
REPRESENTATIVE ROKEBERG expressed his support of a community or
state having the ability to file action.
CHAIRMAN GREEN advised members that HB 22 would be held over for
the purpose of considering additional language, and brought back
before the committee at a later date.
Number 660
HB 9 - VICTIM'S RIGHT TO BE PRESENT AT TRIAL
CHAIRMAN GREEN announced that the next item of business was HB 9,
"An Act relating to the right of crime victims and victims of
juvenile offenses to be present at court proceedings; and amending
Rule 615, Alaska Rules of Evidence."
REPRESENTATIVE PORTER, Prime Sponsor of HB 9, noted that the
legislature passed a constitutional amendment that would provide
victims the same rights, in criminal proceedings, as the defendant
has. He advised members that there were at least two judges in the
state that felt the wording of the constitutional amendment allowed
them to refer back to the statute that would allow the exclusion of
witnesses prior to their court testimony, and interpreted that
language to mean victims as well. Representative Porter pointed
out that that was not the intent of the constitutional amendment,
and was the reason for amending the statute that those particular
judges were relying on by specifically stating victims could not be
excluded whenever the accused has the right to be present.
JAYNE E. ANDREEN, Executive Director, Council on Domestic Violence
and Sexual Assault, Department of Public Safety advised members
that the Council was overseen by a seven-member board that
establishes the policy of the council and directions it takes. She
advised members that the council, itself, had not had the
opportunity to review the proposed legislation. Ms. Andreen noted
that the comments she would be making would be based on positions
the council had taken in the past on similar issues, and comments
and feedback the council had received from grantees at the local
level.
MS. ANDREEN advised members that the council highly supported the
constitutional amendment and were also supportive of the efforts at
the federal level for passage of a similar type of constitutional
amendment. Ms. Andreen stated that the council felt that the
public was making a strong statement that victims do need to have
equal access to the criminal justice system and procedures, as do
the defendants.
MS. ANDREEN noted that the council had heard from some of their
grantees around the state that there was a fairly significant
number of circumstances where victims were denied access to
criminal proceedings because of the fact that they are victims and
could be required to testify in the future. She advised members
that the council was concerned that the intent of the
constitutional amendment was not being followed through. It was
her understanding that the proposed legislation would assist in
alleviating those concerns to a large extent.
Number 945
DEL SMITH, Deputy Commissioner, Department of Public Safety,
advised members the department was in support of HB 9.
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, advised members the department was in support
the proposed legislation. She noted that the Constitution, Article
I, Section 24 guaranteed victims the right to be present at all
phases of a proceeding where the defendant has a right to be
present.
MS. CARPENETI felt the Constitution was fairly clear, however the
proposed legislation might be necessary to convince all judges of
the right for victims' participation in court proceedings.
REPRESENTATIVE ROKEBERG asked what judges appeared not to be
adhering to the language of the constitutional amendment.
MS. CARPENETI felt it involved a couple judges in the Anchorage
area that, based on the language in the amendment which states,
"crime victims, as defined by law, shall have the following rights
as provided by law", were basing the fact that there was not a
statute in Title 12 or Title 11 on that language. Ms. Carpeneti
explained that presently Title 47 allowed victims to participate in
juvenile proceedings at every stage where the charged juvenile
could be present.
REPRESENTATIVE CROFT referenced Section 24 of the Alaska
Constitution and asked Ms. Carpeneti if it would violate the
federal right to a fair trial in situations where the witness was
listening to trial testimony and alter their testimony to fit what
they had heard.
Number 1550
MS. CARPENETI did not believe that would take place. She pointed
out that victims of crimes, typically, have given statements to the
police, which are transcribed, and have also testified at grand
jury proceedings and the defense attorney would have the right to
cross examine the witness or victim on any changes that might
arise, if the victim had altered their testimony. She felt the
right of cross examination of the victim's testimony would take
care of a possible argument that there might be any due process
concerns.
REPRESENTATIVE CROFT asked if there was a definition of victim in
the Constitution. Ms. Carpeneti advised members there was a
statutory definition, AS 12.55.185. The Constitution makes
reference to the term "victim", as is defined by law.
REPRESENTATIVE CROFT asked if it would be possible to change the
constitutional definition of victim by changing the statutory
definition of victim.
MS. CARPENETI felt that could be done because the Constitution
states, as defined by law.
REPRESENTATIVE CROFT felt there could be a conflict of two
constitutional provisions; a defendant's right to a fair trial, and
the victim's right to be present, which could result in the victim
changing their testimony because of testimony they heard while
sitting in on a proceeding. He questioned if what was provided in
statute would change the conflict of those two constitutional
rights.
MS. CARPENETI did not feel those two constitutional rights would
present a conflict in the Constitution. She felt if there was any
due process issue, in terms of a defendant, that it could be easily
addressed through cross examination of the victim or witness.
CHAIRMAN GREEN requested testimony from the two teleconference
sites, Anchorage and Fairbanks, Alaska.
Number 2000
SARAH MUSGROVE testified via teleconference from the Anchorage
Legislative Information Office (LIO). As a victim of the crime of
murder, Ms. Musgrove testified in favor of HB 9. She stated that
as a victim, she did not feel that the state, or anyone else, had
the right to deny her the right to listen to all court proceedings,
as does the defendant. Ms. Musgrove expressed the need to be
allowed to participate in all court proceedings for healing
purposes and the right and need to know the truth.
MARTI GREESON, Executive Director of Mothers Against Drunk Drivers,
(MADD), advised members she had worked in victim services for over
22 years, primarily through law enforcement agencies. She pointed
out that over that time span, victims' rights had become recognized
throughout the nation. Ms. Greeson expressed that victims were
consistently excluded from the criminal justice process.
MS. GREESON stated that the rights of victims should be protected
at least to the extent that the defendants rights are protected and
supported HB 9.
JANICE LIENHART, representing Victim's for Justice, advised members
she had been working with victims of crime for the past ten years.
Ms. Lienhart felt the most important component of the healing
process was receiving information about the alleged crime. She
pointed out that police would not provide information to the victim
because it could contaminate the case. Ms. Lienhart felt laws
should be made for the purpose of providing victims answers, and
provide equal rights in the court room as the defendant has.
JANELLE DIXSON, testified as a victim of a violent crime. She
explained that her husband had been murdered in 1995. Ms. Dixson
pointed out that the trial had been rescheduled numerous times for
various reasons. Ms. Dixson advised members that the defendant was
allowed to attend all court proceedings, while she was prohibited
from attending the evidentiary hearing, as well as the trial.
TAPE 97-3, SIDE A
Number 000
Although Ms. Dixson had told the same story many times, she was
told that should she hear other testimony during trial, that it may
result in her swaying her testimony. Ms. Dixson felt the system
treated criminals like victims, and victims like criminals.
SARAH MUSGROVE, spoke on behalf of Dawn Scherbert because she had
to leave. Ms. Scherbert was also a victim of the crime of murder.
Ms. Scherbert felt it was her right to be present during all court
proceedings, however was denied access to those proceedings. Ms.
Scherbert also spoke in favor of HB 9.
KAREN CAMPBELL, a victim of the crime of murder, explained her
experience with the criminal justice system. Her daughter, 18
years old, was found murdered in 1994. She advised members that
her daughter was the victim of a brutal murder, and that she,
herself, was a victim of justice and state laws. Ms. Campbell
pointed out that a jury is responsible for determining whether a
defendant is telling the truth, and asked if state lawmakers felt
that same jury was incapable of determining whether a victim was
being truthful.
MS. CAMPBELL pointed out that victims were always being excluded
and left in the dark at a time when they were desperately seeking
answers.
Number 670
CHARLOTTE PHELPS testified in support of HB 9 noting that the
proposed legislation would give victims, and families of victims,
the opportunity to participate more fully in the criminal justice
process. She felt the state's criminal justice system was overly
protective of the rights of the accused, and often ignored the
rights and needs of victims.
CHAIRMAN GREEN recognized the presence of Senator Dave Donley.
BARBARA BRINK, Acting Director, Public Defender Agency, Department
of Administration advised members she had served as a public
defender throughout the state for the past 14-1/2 years.
MS. BRINK explained some unintended consequences that could result
with the enactment of HB 9. Ms. Brink advised members that the
rule that allowed certain witnesses to be excluded from trial was
a tool designed to improve the accuracy of the fact finding
process. A victim, who was not a witness to the event, would never
be excluded under the exclusionary rule. Ms. Brink stated that if
it was a case where the victim was also a witness whose
perceptions, observations and memory of such an event would assist
the jury in finding facts that the rule could promote accuracy by
keeping witness/victim's testimony untainted by the testimony of
other witnesses.
MS. BRINK advised members that the exclusionary rule attempts to
make it possible for a judge to hear recollections, perceptions and
impressions of each witness separately. She further stated that
the rule allows a judge to determine when it is critical that a
witnesses testimony be unclouded and unaffected, which was the
reason they are asked not to participate in the court room until
after they had testified.
MS. BRINK noted that the exclusionary rule in the federal system
operated in the same manner. She reiterated that if a victim was
not actually a witness to a criminal event, they would not be
excluded under the rule, and if they were a witness, the prosecutor
could solve that problem by calling them to testify first.
MS. BRINK explained that the two Anchorage judges were trying to
balance the victim's constitutional right to be present, along with
their concern that the jury receive accurate information.
Number 1066
REPRESENTATIVE PORTER expressed that the judges who were excluding
victims were saying that the exclusionary statute was the law that
was being provided by the state, and that was the reason that they
could exclude a victim witness from being present during various
court proceedings. If that were the fact situation in front of the
committee, he asked Ms. Brink if the correction to amend that would
be to amend the statute those judges were referring to.
MS. BRINK stated that if she understood the question correctly,
that the answer would be yes. However, she did not feel that would
necessarily preclude those judges from attempting to make the
balancing test, not between the rule and a constitutional right,
but a balance between two competing constitutional rights.
REPRESENTATIVE PORTER did not disagree with Ms. Brink's response,
although noted that if that had been the case, he would have been
happy to make some suggestions about a subsequent retention
election. He continued noting that the two judges were actually
using the statutory language as the rationale for their rulings.
KEVIN SHORES, Representative of the Alaska Civil Liberties Union,
(ACLU), noted that he had only recently been apprised of the
proposed legislation. He expressed that the ACLU opposed HB 9,
adding that he felt one of the other witnesses who testified on the
proposed legislation was accurate when she stated that what victims
were seeking was the truth.
MR. SHORES explained that the ACLU was interested in preserving the
constitutional right to due process and having a fair, truth-
finding process. Mr. Shores supported the comments provided by Ms.
Brink of the Public Defender Agency, and agreed that when in a
trial situation, memory was affected by talking to people by what
is said and heard. He noted that the memory changes over time,
pointing out that psychologists had conducted studies on that
concept to find it to be so.
MR. SHORES advised members that the ACLU was interested in the
integrity of the fact finding process. He pointed out that the
proposed legislation would apply to all criminal cases, not just
murder cases. Mr. Shores explained that through his experience as
a criminal defense practitioner, it was rare for a victim to come
into court, even to exercise their rights at sentencing. He stated
that victims, in his experience, most often attend court
proceedings in domestic violence cases. Mr. Shore noted that often
times in those cases, the victim wants to support the person who
had plead out to the offense, and ask that charges be dropped.
MR. SHORES asked that members consider all of the types of cases
the proposed legislation would affect.
REPRESENTATIVE PORTER quoted the language in the Alaska State
Constitution as follows: "The victims have the right to obtain
information and to be allowed to be present at all criminal or
juvenile proceedings where the accused has the right to be
present". He advised members that that was a guaranteed right of
the Alaska State Constitution. Representative Porter pointed out
that there was a conflicting right, in the Constitution, which
states that the defendant has the right to a fair trial. As the
sponsor of HB 9 and the victim's rights legislation, Representative
Porter felt a judge would lose in the court of public opinion if he
or she said that the defendant's rights superseded the victim's
rights.
REPRESENTATIVE PORTER noted that the two particular judges were not
allowing victims in the court room because of the specific wording
of the constitutional amendment and the inclusion of that right by
statute.
REPRESENTATIVE PORTER moved to amend HB 9 on page 2, line 6,
following the word "witness", insert, In this section, "victim" has
the meaning given in AS 12.55.185., and on page 2, line 27,
following the word "present;" insert "victim" has the meaning given
in AS 12,55,185. There being no objection, amendment number one,
HB 9, passed unanimously.
REPRESENTATIVE BERKOWITZ stated that when there was a conflict of
constitutional rights, he felt it was incumbent on members to
consider the consequence and felt uncomfortable proceeding further
with the proposed legislation prior to receiving some type of legal
analysis as to what the constitutional conflict was, and a likely
resolution of that conflict.
REPRESENTATIVE PORTER responded that there was no definitive
resolution to Representative Berkowitz question, which was the
whole point. He pointed out that one of the first questions that
arose, and was still unresolved, was the conflict between the
amendment's provision that the defendant, too, has a right to a
speedy trial. Representative Porter noted that case law had
determined what that meant on the defendant's side to 120 days,
however, there was no conflict when that case law was developing.
REPRESENTATIVE PORTER continued stating that now, through the
constitutional amendment, the victim would have a right to request
the right to a speedy trial, should the defendant attempt to delay
trial proceedings, for whatever reason.
REPRESENTATIVE BERKOWITZ stated that in his opinion as both a
prosecuting attorney and a defense attorney, that to take a step as
was being proposed, he felt it was important to proceed cautiously.
He agreed that there was a lot of pressure and sympathy for people
who had been victimized by crimes. However, he felt it was also
important to assure that the protections afforded under the
Constitution, not only to defendants, but to the entire process and
the integrity of that process remain intact.
CHAIRMAN GREEN advised Representative Berkowitz that he would have
ample time to review and address the issue again, either on the
House floor, or when the bill goes over to the Senate.
VICE CHAIRMAN BUNDE moved to report CSHB 9(JUD) out of committee
with individual recommendations.
REPRESENTATIVE BERKOWITZ objected.
A roll call vote was taken. In favor: Representatives Bunde,
Porter, James and Chairman Green. Opposed: Representative Croft
and Berkowitz. CSHB 9(JUD) was reported out of committee.
Number 1932
ADJOURNMENT
There being nothing further to come before the committee, Chairman
Green adjourned the meeting at 3:07 p.m.