02/18/2004 01:04 PM House JUD
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 18, 2004
1:04 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 29
"An Act relating to real estate licensees and real estate
transactions; and providing for an effective date."
- HEARD AND HELD
CS FOR SENATE BILL NO. 30(JUD) am
"An Act relating to information and services available to
pregnant women and other persons; and ensuring informed consent
before an abortion may be performed, except in cases of medical
emergency."
- HEARD AND HELD
HOUSE BILL NO. 292
"An Act relating to information and services available to
pregnant women and other persons; and ensuring informed consent
before an abortion may be performed, except in cases of medical
emergency."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 29
SHORT TITLE: REAL PROPERTY TRANSACTIONS/LICENSEES
SPONSOR(S): REPRESENTATIVE(S) ROKEBERG
01/21/03 (H) PREFILE RELEASED (1/10/03)
01/21/03 (H) READ THE FIRST TIME - REFERRALS
01/21/03 (H) L&C, JUD
01/20/04 (H) SPONSOR SUBSTITUTE INTRODUCED
01/20/04 (H) READ THE FIRST TIME - REFERRALS
01/20/04 (H) L&C, JUD
02/04/04 (H) L&C AT 3:15 PM CAPITOL 17
02/04/04 (H) Moved CSSSHB 29(L&C) Out of Committee
02/04/04 (H) MINUTE(L&C)
02/05/04 (H) L&C RPT CS(L&C) 6DP 1NR
02/05/04 (H) DP: CRAWFORD, LYNN, GATTO, ROKEBERG,
02/05/04 (H) DAHLSTROM, ANDERSON; NR: GUTTENBERG
02/18/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 30
SHORT TITLE: ABORTION: INFORMED CONSENT; INFORMATION
SPONSOR(S): SENATOR(S) DYSON
01/21/03 (S) READ THE FIRST TIME - REFERRALS
01/21/03 (S) HES, JUD, FIN
03/17/03 (S) HES AT 1:30 PM BUTROVICH 205
03/17/03 (S) Heard & Held
03/17/03 (S) MINUTE(HES)
03/26/03 (S) HES AT 1:30 PM BUTROVICH 205
03/26/03 (S) Heard & Held
03/26/03 (S) MINUTE(HES)
04/03/03 (S) HES AT 5:00 PM BELTZ 211
04/03/03 (S) Heard & Held
04/03/03 (S) MINUTE(HES)
04/09/03 (S) HES AT 1:30 PM BUTROVICH 205
04/09/03 (S) Heard & Held
04/09/03 (S) MINUTE(HES)
04/14/03 (S) HES AT 1:30 PM BUTROVICH 205
04/14/03 (S) Moved CSSB 30(HES) Out of Committee
04/14/03 (S) MINUTE(HES)
04/15/03 (S) HES RPT CS 2DP 1DNP 1NR SAME TITLE
04/15/03 (S) DP: DYSON, GREEN;
04/15/03 (S) DNP: DAVIS; NR: WILKEN
05/02/03 (S) JUD AT 1:00 PM BELTZ 211
05/02/03 (S) Heard & Held
05/02/03 (S) MINUTE(JUD)
05/03/03 (S) JUD AT 9:00 AM BELTZ 211
05/03/03 (S) Moved CSSB 30(JUD) Out of Committee
05/03/03 (S) MINUTE(JUD)
05/06/03 (S) JUD RPT CS 3DP SAME TITLE
05/06/03 (S) DP: SEEKINS, THERRIAULT, OGAN
05/12/03 (S) FIN AT 9:00 AM SENATE FINANCE 532
05/12/03 (S) Moved Out of Committee
05/12/03 (S) MINUTE(FIN)
05/12/03 (S) FIN RPT CS(JUD) 3DP 3NR 1AM
05/12/03 (S) DP: GREEN, TAYLOR, STEVENS B;
05/12/03 (S) NR: WILKEN, HOFFMAN, BUNDE; AM: OLSON
05/16/03 (S) TRANSMITTED TO (H)
05/16/03 (S) VERSION: CSSB 30(JUD) AM
05/16/03 (H) READ THE FIRST TIME - REFERRALS
05/16/03 (H) HES, JUD, FIN
05/17/03 (H) HES AT 1:00 PM CAPITOL 106
05/17/03 (H) Moved HCS CSSB 30(HES) Out of Committee
05/17/03 (H) MINUTE(HES)
05/17/03 (H) HES RPT HCS(HES) 4DP 1NR
05/17/03 (H) DP: SEATON, COGHILL, WOLF, WILSON;
05/17/03 (H) NR: CISSNA
02/18/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE NORMAN ROKEBERG
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SSHB 29.
PEGGYANN McCONNOCHIE, Member
Agency Task Force
Alaska Association of Realtors (AAR)
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of SSHB 29.
PERRY L. UNDERWOOD, Member
Agency Task Force
Alaska Association of Realtors (AAR)
Eagle River, Alaska
POSITION STATEMENT: Assisted with the presentation of SSHB 29.
DAVE FEEKEN, Chair
Legislative Committee
Alaska Association of Realtors (AAR)
Kenai, Alaska
POSITION STATEMENT: Assisted with the presentation of SSHB 29.
KIRK WICKERSHAM, Member
Agency Task Force
Alaska Association of Realtors (AAR)
Anchorage, Alaska
POSITION STATEMENT: Provided a comment during discussion of
SSHB 29.
LINDA S. GARRISON, Broker
AAR #1 Buyer's Agency
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of SSHB
29.
STEVE CLEARY, Executive Director
Alaska Public Interest Research Group (AkPIRG)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of SSHB
29.
DAVID A. GARRISON, Associate Broker
AAR #1 Buyer's Agency
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of SSHB
29.
SENATOR FRED DYSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 30.
JASON HOOLEY, Staff
to Senator Fred Dyson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of SB 30 on
behalf of Senator Dyson, sponsor, and answered questions.
VANESSA TONDINI, Staff
to Representative Lesil McGuire
House Judiciary Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented a proposed committee substitute
for SB 30 on behalf of the House Judiciary Standing Committee.
REPRESENTATIVE NANCY DAHLSTROM
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 30.
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union (AkCLU)
Anchorage, Alaska
POSITION STATEMENT: Testified against the passage of SB 30.
DEBBIE JOSLIN, President
Eagle Forum Alaska
Delta Junction, Alaska
POSITION STATEMENT: Testified in support of SB 30.
SARA CHAMBERS
Juneau, Alaska
POSITION STATEMENT: Spoke in opposition to SB 30.
COLLEEN MURPHY, M.D.
Obstetrician/Gynecologist (OB/GYN)
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 30 and
answered questions.
ROBERT JOHNSON, M.D.
Kodiak, Alaska
POSITION STATEMENT: Testified in opposition to SB 30.
AMY BOLLENBACH
Homer, Alaska
POSITION STATEMENT: Testified in opposition to SB 30.
ROBIN SMITH
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 30.
PAULINE UTTER
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 30.
CATHY GIRARD
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 30.
ROMA KOTTE, Student
University of Alaska Fairbanks
POSITION STATEMENT: Testified in support of SB 30 as part of a
school project.
CAREN ROBINSON, Lobbyist
for Alaska Women's Lobby
Juneau, Alaska
POSITION STATEMENT: Testified on behalf of the Alaska Women's
Lobby in opposition to SB 30.
ACTION NARRATIVE
TAPE 04-17, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:04 p.m. Representatives
McGuire, Anderson, Holm, Samuels, Gara, and Gruenberg were
present at the call to order. Representative Ogg arrived as the
meeting was in progress.
HB 29 - REAL PROPERTY TRANSACTIONS/LICENSEES
Number 0086
CHAIR McGUIRE announced that the first order of business would
be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 29, "An Act relating to
real estate licensees and real estate transactions; and
providing for an effective date." [Before the committee was
CSSSHB 29(L&C).]
Number 0100
REPRESENTATIVE NORMAN ROKEBERG, Alaska State Legislature,
sponsor, relayed that the concept of SSHB 29 was brought forth
by the Alaska Association of Realtors (AAR), and that a task
force - numbering 30 to 40 people - was formed by the real
estate industry to draft the specifics of the legislation. He
went on to say:
I had the fortune to rewrite the entire title under
the real estate code, some eight years ago, and at the
time, this particular section of the law ... [AS
08.88.396] was fundamentally left substantially
untouched because the industry was still struggling
with the current statute and how it applied in the
field and what remedial legislation needed to be done.
So, in a nutshell, I rewrote the entire real estate
law without this section.
REPRESENTATIVE ROKEBERG thanked the task force for all its work
over the last two years in crafting SSHB 29, and said it is an
excellent example of how the public process can work. He said
that the hallmark of SSHB 29 is that industry, in crafting the
legislation, defaulted in favor of the consumer. He opined that
the consumers of Alaska will be substantially more protected by
this legislation than they are by current law, and said he is
proud to bring the bill forward.
Number 0396
PEGGYANN McCONNOCHIE, Member, Agency Task Force, Alaska
Association of Realtors (AAR), thanked Representative Rokeberg
for his work on this issue. She went on to say:
We're very proud to bring to you what we believe is
the best consumer protection statute, or bill, that we
could possibly provide in our area of real estate.
First of all, you must understand that every licensee
in the state of Alaska and all over the U.S.
understands the need for consumer protection. After
all, we're the ones who look in the eyes of the person
buying their first home, or the person who's out to
rent their very first property, or the person who's
out looking at an investment property for the third or
the fourth or the fifth time. We know they place
their trust in us; we want that trust to be well
placed.
To give you a little bit of background, representation
in our industry used to be, we all represented the
seller - the buyer had no representation whatsoever.
That, thank goodness, has gone by the wayside. We've
moved to what the statutes currently allow now, where
one agent may represent the buyer [and] one agent may
represent the seller. But part of the problem with
that process is this ugly thing that is called, within
the statutes, dual agency.
MS. McCONNOCHIE, in response to a request, said:
Up until the law that currently is in place passed,
which was in [the late 80s, early 90s], the law said
that all real estate agents worked for the seller. So
you'd go to a real estate company - say, my firm -
work with an agent in my firm to sell your property,
and no matter what agent out there at every other firm
worked with a buyer who [potentially] wanted to see my
property, they all worked, still, for my seller.
Which, if you think about it, that's a rather
difficult thing to do when you represent a seller who
you've never met [and who] you have no personal
feelings for. So consequently, trying to be a
fiduciary for that seller, who works with somebody at
another agency, was very difficult.
We went away from that, thank goodness. So, if you
and I were at different firms, [and] your firm had a
seller who wanted to sell their house [and] my firm
had buyer who wanted to buy your house - different
firms - each party was equally represented, and that
was better. We still, in our law today, have
something called dual agency, where, in the same firm
you can have one agent dealing with the buyer [and]
one agent dealing with the seller and that buyer wants
to buy that seller's property, ... we have to go to
something called dual agency. The statutes and
regulations we operate under now have a paragraph
"about this long" that explains what the duties and
responsibilities are, of the agents, to that seller
and that buyer, and it's wholly inadequate.
Number 0627
MS. McCONNOCHIE continued:
With the passage of this bill, we will throw out dual
agency. You must understand that we believe if
lawyers can't practice dual agency, surely we can't
either. So consequently, our goal, with this law, is
to make the duties and responsibilities to the
consumer more clear to the consumer and also to the
licensee. To give you just a little bit of
information, ... most of the agents - licensees -
within the state belong to [the] National Association
of Realtors [NAR]; they are, we are, a trade
organization now of almost 1 million people. This is
an organization that has looked at this whole issue of
representation for many years.
Back in about 1986, the [NAR] put on a survey; they
surveyed people who have bought and sold, using a
realtor, and asked them who they thought the realtor
worked for. At that time, they thought the realtor
worked for them, whether they were buying something or
whether they were selling something; in point of fact,
in 1986, the realtor usually worked for the seller.
You could see how scary it was to get back that
information. There are a couple [of] major lawsuits
that talk about vicarious liability at that time, the
Federal Trade Commission [FTC] got involved and they
said, "You have to start to figure out how you're
going to protect the consumer."
Consequently, the law started changing and allowing,
in fact encouraging, representation of each party. So
[the] buyer had somebody there to help them look after
their best interests, the seller had somebody there to
look after the seller's best interests. In 1990,
Representative Rokeberg worked with the [AAR], with
our first task force, to put in the agency law we
currently have in force today. One of the things you
need to understand is that the laws and how we work
with buyers and sellers throughout the United States
has been in place, in many instances, since 1990, but
in many instances, other states have gone through two,
three, and four changes to their laws, recognizing
that you don't necessarily get it right the first
time.
Number 0772
MS. McCONNOCHIE went on to say:
We at the [AAR] have recognized [that] there need to
be changes in the law since 1990; this, in fact, has
been the third if not maybe the fourth major task
force that we put together in order to try to figure
out how to fix it. In many ways, we looked at this
... [to see if there were] some simple things we could
do to make this better for the consumer, better for
the person coming in, whether they're working with an
agent to buy, sell, rent, or lease. It took us a long
time to realize that we needed to do what many states
- particularly the states of Washington, ... Nebraska,
Montana, and ... Colorado - have done, where we have
to start from scratch; we have to throw everything out
and go from the beginning, saying, "What does a
consumer need and want to know, how can we provide
that information and protect their right for service,
[and] protect their right to have trust?"
Consequently we put together this task force. We had
members from all over the state of Alaska. We had
members from residential real estate - that practice
in big firms and small firms - we had members ... from
the commercial area, [and] from the property
management area. And we looked very, very carefully
at what was happening in Nebraska, for one, for
example, because Nebraska is a state not unlike
Alaska, where you have ... [a few] big towns and lots
of little towns [and] big huge firms [and] very small
firms. And we looked at how their laws have worked
and whether or not the consumer has been protected in
that state. We also looked at Colorado, ... Montana,
and ... the state of Washington.
Number 0869
MS. McCONNOCHIE also said:
When we did, we saw that some of the commonality in
those states, that worked well for the consumer,
[was], for example, something called, "designated
agency within a firm." In the current law and in the
upcoming law, ... the broker will be the owner of the
listings. But one of the things [other states] did to
change it, to help protect the consumer, was when a
consumer came in, and let's pretend that they wanted
to buy something from you, then they were looking [at]
another property that somebody wanted to sell ...
[through] you, that consumer who had a relationship
with you to buy would not need to forego your
expertise to help them negotiate if they wanted to buy
something that was also listed in the office. The
broker could say [to two licensees], "You're
designated to work for the buyer, you're designated to
work for the seller."
The rules and regulations say the [Real Estate
Commission] will establish policy and procedures that
the broker will have to have to prove that there is a
firewall between the two agents, that the broker can
properly supervise both agents [to] make sure that the
two individuals are getting the best possible
representation in that particular instance in that one
office. It's called designated agency. And in the
states that we looked at - Montana, Nebraska,
Washington ..., and Colorado - it has worked extremely
well in making sure that, number one, we get away from
this ridiculous dual-agency thought process, and,
number two, ... that the buyer, the seller, the
landlord, [and] the tenant has an understanding of
what the duties, rights, and responsibilities of the
agent are to them.
The second thing that we thought was incredibly
important about what these other states were doing has
to do [with] informing the public of what's going on.
In each of those states, they have, within their
statutes or regulations, the requirement for one, and
I mean only one, pamphlet - and I hope many of you
have this pamphlet that we worked on as far as a draft
- that would be handed to everyone before they ...
contract with [an] agent to use their services. One
of the problems that you have today - it doesn't
matter where you go, if you go ... from Juneau to
Nome, Fairbanks to Kenai - [is that] every agency,
every agent has a different form that they use.
Imagine how confusing that is, especially when you're
in a state where we all travel around all the time.
Number 0992
MS. McCONNOCHIE relayed:
In all of those [aforementioned] states there is one
form - there is only one interpretation of what the
law is, and it's very specific as far as what it
requires from all of us - and it gives good notice,
reasonable notice, hopefully in plain-English notice,
to buyers, sellers, landlords, and tenants [regarding]
what they can expect from their real estate agent. ...
And we have found in all of those states, the buyers,
sellers, landlords, and tenants found that this
document, the fact it was [the] same everywhere,
helped to protect them; they didn't have to worry
about what was trying to [be] pulled on them ..., they
could spend the time doing what they needed: finding
a property that met their needs.
We as an association, if you should be so kind as to
pass this through, are making a huge commitment to
you, because one of the things that we want to do and
has been worked out through this bill, is we believe
that there's two aspects of education that need to go
on. First of all is the education of our licensees;
they need to understand. We will be working with the
[AAR], through the ... Real Estate Commission, in
order to ... educate the licensees, [and] we ... have
put together a team. Gordon Schadt, who's the
attorney for the [AAR], and myself have volunteered to
go throughout the state to every, what we call local
board, which means every region, and teach all the
licensees, whether they be a member of the [NAR] or
not; if they have a real estate license, we want to
teach them what this law requires of them and how they
are to protect the public by using these forms.
Number 1089
MS. McCONNOCHIE explained:
The second thing we will do is we will also go
throughout the state and train the people who turn
around and train new real estate agents, because we
know that unless a common educational format is put
together and then passed out throughout the state,
there is a chance that people may not necessarily be
teaching other people how to do this correctly.
That's just one part. The other part has to do with a
public relations campaign, because, after all, it's in
our best interest to make sure that we inform the
public as to what this does to them, for them. We
want to make sure the public understands how they're
going to be better protected through this, that we get
away from this ridiculous, antiquated idea of dual
agency that can't work anywhere, that we make sure
that they understand that they have a duty, right, and
responsibility to get this form and it clearly
outlines what the ... licensee can or cannot do when
dealing with them.
This, we believe, will be a campaign waged in a public
relations format, using PSAs - public service
announcements - throughout the state, and we're
committed to help out with that. The other thing that
we're going to be doing is working with the Real
Estate Commission because, after all, there are
several things that [it] ... will need to do. We have
in this bill the requirement that a real estate broker
must have on file, and made available to the Real
Estate Commission and ... to the public,
[documentation] on how they in their office deal with
this idea of designated agency, keeping things
confidential, [and] understanding the protection of
the buyers', sellers', landlords', [and] tenants'
rights.
Number 1174
MS. McCONNOCHIE added:
We don't want them necessarily to develop this in a
vacuum, and we as an Alaska Association of Realtors
are willing to work with the Real Estate Commission,
as we're doing some drafts here, and to put together
some draft policies. Understanding what will work in
my office - my office is comprised of me, myself, and
I - or what will work in Perry Underwood's office,
where he has 80-plus agents, is not necessarily the
same thing. So we will help them by providing some
suggested ideas on how to work with small, medium,
[and] large policies for small, medium, [and] large
offices in small, medium, [and] large locations,
because the Real Estate Commission will need to get
that out to the "licensing public" so that the brokers
will know where to go to get ideas on properly ...
[providing] that firewall in designated licensees.
We're also understanding [that] it is the Real Estate
Commission's responsibility to give direction to real
estate companies as far as supervising. Right now, if
you take a look at [the subject of] supervision in our
current statutes, it has maybe two sentences. And one
of the things that this bill will do [is] it will
direct the Real Estate Commission to more properly
flesh out the supervision requirements, because, after
all, we can put all the laws in the world in place
today, but unless we tell brokers specifically how
they need to supervise the ... licensees underneath
them, we will have failed in our duties to properly
protect the customer. So all those things are a part
of this bill; this bill ..., I recognize, is not
necessarily the easiest thing to digest, but there
[are] several of us here and ... on line to answer any
of your questions.
Number 1277
PERRY L. UNDERWOOD, Member, Agency Task Force, Alaska
Association of Realtors (AAR), relayed that in 2003, the
National Association of Realtors (NAR) conducted a survey of
25,000 households that had recently purchased or sold a home.
He elaborated on the findings from that survey:
When buyers were asked, "How'd you find the real
estate professional that assisted you," 58 percent
responded with, "I had used that professional before,"
or, "I had been referred to that professional by a
friend or relative." When asked the question ...,
"Would you use that professional again," 74 percent of
the respondents said, "Definitely," 15 percent said,
"Maybe." That's an overall customer satisfaction rate
of 89 percent. They also surveyed sellers as well:
83 percent of sellers ... of homes in real estate used
a real estate professional.
When sellers were asked, "How'd you find the real
estate professional that assisted you," ... 67 percent
said that they had used that professional previously
or had been referred to them by a friend or relative.
When asked the question ..., "Would you use this same
professional again," 70 percent of the respondents
said, "Yes," they would definitely use that person
again, and ... 15 percent said, "Maybe," for an
overall satisfaction rate of 85 percent for our
industry. When asked the number one factor in
determining who they would use for assistance in
buying or selling homes, 47 percent of buyers and 62
percent of sellers listed the person's reputation as
the number one criteria in selecting who they would
they use to help purchase or sell their home.
Why do I share these findings with you? It's simply
this: Our [industry] is ... dependant upon repeat and
referral business. We are in the ultimate consumer
protection business. People hire us to take care of
them, and if we don't take care of them, it's the end
of our business. Now, are there people in our
industry who sometimes forget why they're here and who
they're supposed to be taking care of? Yes, there
are. Will this bill eliminate that possibility? No,
it will not. But ... today ... we are shackled with a
14-year-old statute that is burdensome to our industry
and to the public, and it's time that we made a
change. ...
Number 1454
MR. UNDERWOOD continued:
I just want to give you five points on what [SSHB 29]
will do. [Sponsor Substitute for House Bill 29]
requires a more thorough and timely disclosure of a
licensee's relationship with the consumer. [Sponsor
Substitute for House Bill 29] eliminates the implied
requirement that a licensee must act as an agent for
the consumer, while permitting the traditional
client/agent relationship if the parties so choose.
In short, it gives the consumer more options and
choices. ... Third thing - huge - it eliminates dual
agency and the problems inherent in dual agency, yet
it allows licensees to sell their own listings. Dual
agency is an antiquated concept that we need to get
rid of, that, again, we're shackled with in the
exiting statute.
Dual agency - we just came off of the super bowl, and
dual agency is like having a quarterback playing for
both teams - it's just an impossibility that you can
represent both sides [of] the transaction totally
impartially; you just cannot do it. What [SSHB 29]
does [is] it moves the licensee, in those rare
situations where they are selling their own listings
and they have a relationship established with both
sides, away from the quarterback position into the
referee's uniform - they are no longer the
quarterback, they are the referee. So as a referee,
you can be a neutral party, you can make sure that the
game is played fairly and all sides are ... taken care
of and assisted in a proper manner.
The fourth thing that this bill does [is] it moves the
relationship with the consumer to the level of the
licensee actually representing the consumer, rather
than the relationship being with the broker, who may
never meet or have any conversation with the consumer.
Yet the bill maintains the broker's requirements of
supervision. Fifth, [SSHB 29] grants consumer
protection from vicarious liability the consumer would
normally assume [in a] traditional client-agent
relationship.
Number 1591
DAVE FEEKEN, Chair, Legislative Committee, Alaska Association of
Realtors (AAR), offered the following comments:
I was also involved with the 1990 bill. At that point
it's important to understand that the industry was
moving from a point of ... the agent [representing]
the seller only. The point of the 1990 legislation
was to put the seller and the listing agent on notice
that the agent was probably representing the buyer.
That was the whole point of it, that's why it's only a
paragraph long. The industry has moved a long ways in
the last [13] years. ... The task force that was
created to do this ... piece of legislation that's in
front of you has worked, I think, since June of 2001
on this issue; it's reviewed the statutes of 30
states.
In 1990, when we passed that legislation, we were on
the very cutting edge of it; we were the 13th state in
the country to pass agency disclosure laws. The law
that we passed in 1990 was Maine's law - we just took
that bill and introduced it - they were the 2nd state
in the country to pass agency disclosure laws. So
that was at the very infancy of the entire process of
public disclosure of agency. The [AAR] recognized ...
the importance and value of legal input through ...
this entire process; Gordon Schadt has been retained
through all of the Agency Task Force meetings, of
which, at the lower committee level, there were eight
meetings that lasted a minimum of eight hours to come
to this bill. At the end of every one of those
[meetings] the drafts were circulated throughout the
industry for input.
So there's been a lot of chewing on this to get to
this point. There was also input from NAR's legal
staff ... so that we could review agency lawsuits from
around the country to try [to] keynote the issues that
were problems. ... We think we've [come] forward with
a very good bill ... and I would like to conclude my
testimony at this point.
Number 1722
KIRK WICKERSHAM, Member, Agency Task Force, Alaska Association
of Realtors (AAR), mentioned simply that he'd testified in favor
of SSHB 29 in the House Labor and Commerce Standing Committee,
and that he is available for questions.
Number 1754
LINDA S. GARRISON, Broker, AAR #1 Buyer's Agency, opined that
SSHB 29 does not give the consumer a course of action for any
violations of [the bill], and that because of this, the state
will end up getting involved in defending the rights of the
consumer. She relayed that one of the definitions of dual
agency is where, in a single company, one agent represents the
buyer, while another agent represents the seller; in looking at
the definition of designated agency, she pointed out, the broker
appoints one agent to represent the buyer and one to represent
the seller. She opined that the two are the same, and said she
views designated agency as a rehash of "what went on years ago,
and basically a smoke screen so the consumer will get away from
the term, 'dual agency.'" Designated agency is more harmful,
she remarked, because the consumer will not have protections,
adding that she views designated agency as undisclosed dual
agency.
MS. GARRISON offered her belief that under designated agency, if
the broker appoints a new agent to represent one of the parties
and an experienced agent to represent the other party, the party
with the less experienced agent will be at a disadvantage; in
addition, there could be questions regarding whether the records
are being "kept pure." She referred to page 11 of CSSSHB
29(L&C), lines 5-7, which read:
Sec. 08.88.675. Common law abrogated. The common law
of agency related to real estate licensee
relationships in real estate transactions is expressly
abrogated to the extent inconsistent with AS 08.88.600
- 08.88.695
MS. GARRISON opined that the entire bill will abrogate most of
[the common law of agency]. Part of the protection that the
consumer has, she remarked, is established by that common law:
fiduciary duties, confidentiality, accountability, diligence,
loyalty. By abrogating the common law of agency, a course of
action for the consumer is being taken away.
MS. GARRISON, in conclusion, pointed out that although the bill
has a zero fiscal note, the Real Estate Commission is going to
incur costs for creating the aforementioned pamphlet. If SSHB
29 passes, she added, "and we eliminate the rights of the
consumer, I think we're going to have the state defending
consumers against sections of this bill."
Number 1945
STEVE CLEARY, Executive Director, Alaska Public Interest
Research Group (AkPIRG), noted that there are recent newspaper
articles regarding a real estate agent who is going to be
suspended and fined quite a bit of money for failing to disclose
dual agency. He said he is having difficulty determining
whether SSHB 29 will actually get rid of dual agency or is
merely purporting that disclosure of dual agency eliminates any
harm to consumers. He indicated that his concern is that
designated agency might be a way for large brokerages to delude
consumers and ensure a larger commission. He opined that having
two [agents] in the same firm acting for both the buyer and the
seller would not be representing consumers to the fullest extent
that they should be.
MR. CLEARY said he is not sure that SSHB 29 puts back in the
consumer protections inherent in [the common law of agency],
pointing out that the legislative findings language purports
that application of the common law of agency has resulted in
misunderstandings and consequences that are contrary to the best
interest of the public. He indicated that this language causes
him to question whether all of the consumer protections inherent
in the common law of agency - including the fiduciary
responsibilities of agents - are going to be put back into
effect by the bill. He remarked that a bill developed by a task
force comprised solely of industry professionals might be tilted
towards the side of industry and may not actually include the
best interest of consumers. In conclusion, he said he would be
happy to work with the sponsor and interested parties in order
to see some of his concerns addressed.
Number 2078
DAVID A. GARRISON, Associate Broker, AAR #1 Buyer's Agency,
characterized designated agency as dual agency with "sheep's
clothing on." He turned attention to page 11, lines 15-26,
proposed AS 08.88.685, and opined that this language allows each
company to come up with its own plan of how to implement "their
agency." He remarked that this sort of activity is already
occurring in Anchorage and offered an example. He said he
believes that an agent should disclose whom he/she represents in
much the same way that an attorney is required to disclose whom
he/she is representing. He opined that better guidelines need
to be developed so as to prevent each individual company from
coming up with its own method of identifying and describing its
relationships with consumers. "As we go further away from
common law, we're getting more confusing for the consumer, and I
think that we should stick with the common laws of agency," he
concluded.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on SSHB 29.
REPRESENTATIVE GARA said it seems to him that the problem is
that in almost every circumstance, "you want an agent to
represent one side, and one side exclusively."
REPRESENTATIVE ROKEBERG interjected to explain that it has been
his intention to remove the word "agent" from all of AS 08.88
and replace it with licensee and/or broker. He said it is
important to do this because the agency relationship is between
a broker, as the principal, and a licensee, as an agent of the
broker, not of the client, but there is a common
misunderstanding regarding who a real estate agent is an agent
of. The proper term should be licensee or broker, he concluded.
REPRESENTATIVE GARA opined that it's not a simple matter of
"just not calling them agents anymore." He elaborated:
If you are an agent, you owe all these fiduciary
duties to somebody. Once we stop calling you an
agent, you don't owe them anymore. So it's not a
simple matter of semantics - and that's going to be
one of the issues I'd like to discuss - but right now,
they're still agents. ... There is a problem that the
folks who support this bill are trying to address, and
I guess my question is, why couldn't it be addressed
in a much more simple fashion, like this: Generally
we want an agent to do what agents have historically
done throughout the history of agency relationship,
which is represent one party, exclusively, with due
care, without hiding conflicts of interest. That's
what we want them to do.
Number 2311
In the real estate world, as it turns out, in some
circumstances you will have an agent who works for a
company where they represent both sides, and so we've
got to come up with a fix for that problem. And at
times you might want to have a real estate agent who
sort of works as a mediator, as a neutral licensee who
represents both sides. Why can't we just simply
retain the [common] law of agency, say ... your
ultimate obligation is to your client, and say that
within big brokerages, where one broker within the
brokerage might represent one party and another
[broker] within the house might represent another, ...
as long as there's a firewall between those two
agents, it's okay. So, that solves the problem within
big brokerages.
And then why not say, very simply, [that] at times we
will abrogate the duty of agency that the agent has to
the client because you might want to hire a neutral
agent. With a one-page document, you could sign
something - both sides could sign something - saying
we're hiring this [person] as a neutral .... So why
couldn't the bill just be: you can sign this one-page
piece of paper so [that] you can have a neutral in the
circumstance where somebody wants a mediating agent.
In a big brokerage you can have one broker who
represents one side and the other broker who
represents the other side, as long as there is a
firewall between the two, and just be on with it, but
then preserve all of these fiduciary duties that
agents owe to the public, without abrogating them.
Why couldn't we ...
MR. UNDERWOOD, in response, said:
I would ask each of you here to ..., in your mind,
identify who you're insurance agent is. ... Now that
you have someone in mind, let me spring the news on
you: that agent is not your agent. That agent is an
agent for [the] insurance company for whom he sells
policies - travel agents, same thing. ... Because of
the common use of the agent term, [the whole thing has
gotten way out of line, and now we're getting our
industry and the consumers saddled with the
responsibility, and the vicarious liability, that goes
along with the common law of agency.] [The previous
bracketed portion was taken from the Gavel to Gavel
recording on the Internet.]
TAPE 04-17, SIDE B
Number 2393
MR. UNDERWOOD continued:
... It's important to understand what an agent is. An
agent is someone who has been hired by a principal to
act on behalf of the principal. We in the real estate
industry have never been able to act on behalf of a
principal, to make decisions for them; that would
require us to have a power of attorney. Under the
common law of agency, we could make those decisions
for people. That's why it's bad for the consumer to
have this agency situation. Who does the agent act on
behalf of? Who is the ... principal for the agent?
The agents are empowered to act on behalf of someone.
That someone is their broker. They can take listings
on behalf of their broker, they can take earnest money
checks, they can handle closings, they can negotiate
transactions - all on behalf of their broker.
But because of the use of the term "agent" over many,
many years, it has gotten to the point where the
public perceives that the agent is their agent. Now,
I beg you to look at the other professions out there:
... attorneys, doctors, accountants. They represent
people without becoming an agent for the parties they
represent. They have a fiduciary duty to these
clients; they have ... obligations of accountability,
to protect their interests, to act on their behalf.
That's what this law does; it says ... [that] when
you're representing someone, these are your
responsibilities: to act on their behalf, to
represent them, to take care of their interests.
Number 2324
MR. UNDERWOOD concluded:
That's what this is all about, is to identify the
responsibilities when people are ... representing
another party. ... That's exactly what this bill does.
It creates three different areas, or ways, in which we
can serve the public. It creates that firewall, under
the designated agency; it creates the ... opportunity
for someone to serve as a neutral licensee; and it
requires full disclosure and consent of all parties
prior to them going into the transaction. ... Also,
... the default position is that they represent the
person. ... [If someone] is working with a buyer or
... working with a seller, the default position is
that they represent that person and have all these
responsibilities - fiduciary and otherwise. You only
move outside of that default position when you have
informed consent.
CHAIR McGUIRE asked Mr. Underwood to walk the committee through
a hypothetical residential real estate transaction under SSHB
29.
MR. UNDERWOOD indicated that the first step is when someone
approaches a licensee to provide what's called, in SSHB 29,
specific assistance; that person wants the licensee to find
him/her a piece of property. At that point, the licensee
becomes the person's representative and has full fiduciary duty
to that person. He offered an alternative: the same person
walks into an "open house." The licensee in that situation is
responsible for letting that person know, right up front, when
he/she walks in, that the licensee represents the seller or the
builder. In the latter situation, he could not, in clear
conscience, portray that he is a neutral party or is able to
work for the buyer, nor would a jury believe him, he added. He
explained that in such a situation, a licensee is required to
disclose, right at that time, that he/she is representing the
seller. The buyer in that situation may still choose to work
with that licensee, or he/she may choose to seek out a licensee
that can fully represent him/her as a buyer.
Number 2193
CHAIR McGUIRE said it is important for a licensee to know that
in the example of the open house, he/she should not attempt to
encourage or sway the buyer toward going through him/her under
the guise of perhaps getting a better deal. She said that she
hopes the training for licensees includes that information. She
relayed that she knows of instances in her district where the
licensee has said something along the lines of, "You're free to
go with somebody else, but I know the seller [or builder] pretty
well ... and I can get you a good deal."
MR. UNDERWOOD reiterated that from time to time, there will be
licensees who "forget who they're here to serve and they forget
why they're here." He said that although SSHB 29 will not cure
that problem, it clearly sets forth what a licensee's duties to
the consumer are.
REPRESENTATIVE GARA, referring to the example of the licensee
representing the buyer, asked why the common law of agency,
along with its inherent fiduciary duties, should be abrogated.
It's the [common] law of agency that establishes fiduciary
duties, he added, so once that law is abrogated, so too are the
fiduciary duties. He went on to say: "I understand that you
put some back in, in this bill, but if the goal is to say, for
you people who represent only one party, the law of fiduciary
duties still applies, why take it out in this bill? Why not
just leave it in place?"
MR. UNDERWOOD replied: "It doesn't .... If you read, it says
the common law of agency is specifically abrogated only where it
is in conflict with this. So, if it's not addressed in this
bill, then the common law of agency would then still apply."
CHAIR McGUIRE noted that that language is on page 11, lines 5-7.
REPRESENTATIVE OGG pointed out that language on page 11 [lines
11-14] limits recovery to actual damages. He asked whether the
sponsor or the AAR would have any problems with adding language
that allows recovery of more than actual damages in instances
where the licensee acts with reckless disregard or behaves in a
manner that is fraudulent or grossly negligent.
MR. UNDERWOOD opined that such is not necessary because that
language merely pertains to cases in which the licensee fails to
make timely and proper disclosure regarding the licensee's
relationship with the consumer; in any ensuing [civil] case,
recovery is limited to actual damages. If, however, the
licensee sold a home and didn't make proper disclosures about a
physical condition of the property and it causes tremendous
damage, he added, then there is the potential for the consumer
to recover punitive damages in addition to actual damages. He
noted that the language on page 11 [lines 11-14] does not limit
a person's ability to take any other action or pursue any other
remedy to which the person may be entitled under other law.
Number 1953
REPRESENTATIVE OGG suggested, however, that there might be
instances wherein the licensee intentionally fails to disclose.
MR. UNDERWOOD remarked that such would be very difficult to
prove, but if such is proved, then the licensee could be subject
sanctions from the Real Estate Commission, which still maintains
authority over licensees.
REPRESENTATIVE OGG indicated that he would prefer to see
language in the bill that provides for punitive sanctions
against those who intentionally fail to disclose.
REPRESENTATIVE ROKEBERG noted that actual damages are intended
to make the consumer whole, and suggested that a separate cause
of action could be brought in instances where a licensee's
actions warrant it, for example, if there is fraudulent activity
"under a different theory of law." He, too, noted that the Real
Estate Commission can still place sanctions against a licensee
in addition to the bill's allowing the consumer to recover
actual damages. He opined that SSHB 29 contains adequate
consumer protection. In response to a further question, he
relayed that licensees already know the possible sanctions that
could be placed against them by the Real Estate Commission; thus
there is no need to place additional language in the bill
reminding them of those possibilities.
REPRESENTATIVE OGG noted, however, that in addition to serving
as punishment, the award of punitive damages can also serve as a
deterrent.
REPRESENTATIVE ROKEBERG offered his belief that the punishment
should fit the crime, and suggested that current statutory and
regulatory sanctions sufficiently address a licensee's failure
to disclose his/her relationship in a timely manner.
Number 1675
REPRESENTATIVE GARA offered his belief that current statutory
language does provide for the recovery of punitive damages when
a licensee engages in reckless disregard of another person's
rights or in intentional misconduct, but that SSHB 29 seeks to
remove that current right. He added that he did not see how
taking that right away protects the consumer. Turning attention
back to the issue of fiduciary duties, he said:
I've looked at the bill more closely and I don't agree
that we're preserving fiduciary duties. Fiduciary
duties only exist if you're an agent. On page 1 of
the bill, it says, on line 7, the application of the
common law of agency is "... contrary to the best
interests of the public". Then you go to page 11 and
it says the common law of agency is expressly
abrogated to the extent inconsistent with this new
statutory scheme. Well, this new statutory scheme,
essentially, makes most of the common laws of agency -
the fiduciary duties - inconsistent. We've come up
with a new scheme that's inconsistent with the old
common law scheme.
So the two statements, that the common law of agency
is against the public's interest and that the common
law of agency is expressly abrogated to the extent
inconsistent with the thirteen pages of this bill, I
guarantee you probably takes away most the duties of
agency unless they're put back in, in this bill. And
so that's the question. Are they put back in some
other way in this bill? And I'm going to run through
some of the common law rules of agency that I'm
concerned we need to retain. ...
The Restatement of Agency ... is a book that ...
compiles the rules that apply in the law of agency.
Alaska law follows them pretty closely; maybe there
are a few extra duties that agents have under Alaska
law that aren't in the Restatement of Agency and visa
versa, but largely Alaska law follows the Restatement
of Agency. ... The general principal is that unless
otherwise agreed, an agent is subject to a duty to act
solely for the benefit of the principal in all matters
connected with his agency. That's the current duty;
you act solely for the benefit of the person who hires
you. I think that's an important duty. ...
Number 1541
REPRESENTATIVE GARA continued:
Section 389 of the Restatement of Agency [says] you're
not allowed to act for an adverse party without the
principal's express consent; unless otherwise
expressly agreed, you work for one party - the person
who hires you. ... I guess I do have trouble with
saying that you can work for both parties if you give
the consumer a seven-page document, that they may or
may not read, that says, somewhere within the text of
that seven-page document, that I'm going to represent
two parties. I'd be much more comforted if it was a
one-page document that was really express that hit the
consumer over the head. But a seven-page ... form
document worries me.
Section 391 of the Restatement of Agency [speaks to]
another fiduciary duty: unless otherwise agreed, an
agent is subject to a duty to the person who hires him
not to act on behalf of an adverse party in a
transaction connected with his agency without the
principal's knowledge. Section 392 [says] you can
only act for an adverse party with principal's express
consent - same concept. ... Section 394 [says] you
can't act for somebody who's got conflicting interests
to the person who hired you, again, unless otherwise
agreed. Section 395 [says] you can't disclose
confidential information, that the person who hires
you gives you, to somebody else. And then there are a
list of remedies that are retained.
REPRESENTATIVE GARA concluded:
The concern that I have with this bill is that a lot
of those duties can be waived by a consumer by signing
this sort of "form" five- or seven-page document that
will be provided to consumers. And it will, in truth,
be regarded as a form document that the consumer will
sign. ... As I look through this document, nothing
really hits me over the head that I'm letting somebody
represent both sides of the transaction, [but] I'm
much more comfortable with the current law that says
the presumption is you're only representing one side.
Number 1429
CHAIR McGUIRE remarked that a recent case in Anchorage has
highlighted that under current law, there is some confusion for
both consumers and licensees. In other words, she indicated,
the points listed by Representative Gara have not been
recognized. The purpose of SSHB 29, she opined, is to come up
with a solution to the current state of confusion, and suggested
that members bring specific amendments addressing their concerns
to the bill's next hearing. She thanked the Agency Task Force
members for their work on this issue.
REPRESENTATIVE ROKEBERG, in conclusion, opined that the aspects
of the Restatement of Agency that Representative Gara referred
to are included in SSHB 29, and suggested that any "holes"
created by the partial abrogation of the common law of agency
are being filled via the bill. One of the practical problems,
he remarked, is that neither consumers nor licensees know what
the Restatement of Agency says. However, licensees are required
to know the law as it pertains to them, and SSHB 29 is intended
to codify the duties, obligations, and responsibilities of
licensees, and doing so will also allow consumers to know what
to expect from licensees.
REPRESENTATIVE ANDERSON noted that restatements are not codified
laws; they are simply "professorial statements."
REPRESENTATIVE GARA pointed out, however, that most of the
duties outlined in the Restatement of Agency are part of Alaska
case law; "these aren't just sort of arcane things." He also
remarked that one does not have to be a lawyer to recognize the
basic fiduciary duty to exercise the utmost care to represent
one party, and that most people who have duties under the
[common law of] agency aren't lawyers but follow the duty of
agency anyway.
CHAIR McGUIRE referred to Mr. Underwood's comments regarding
travel agents and insurance agents, and remarked that she agrees
that there are still common misperceptions regarding "agency."
She reiterated her request for members to bring amendments
addressing their concerns to the bill's next hearing.
Number 1141
REPRESENTATIVE ROKEBERG noted that in members' packets is
[Amendment 1], labeled 23-LS0189\X.1, Bannister, 2/18/04, which
read:
Page 4, line 19:
Delete "a pamphlet issued by the commission"
Insert "a copy of the pamphlet established under
AS 08.88.685(b)(2) and produced under AS 08.88.685(c)"
Page 11, line 23, following "contents":
Insert "and format"
Page 11, lines 23 - 24:
Delete "issued by the commissioner and provided"
Insert "provided by a licensee"
Page 11, following line 26:
Insert a new subsection to read:
"(c) Based on the content and format for the
pamphlets established under (b)(2) of this section, a
real estate broker shall produce and pay the costs to
produce the actual pamphlets to be provided by
licensees in the broker's business under
AS 08.88.615(a)(6)."
REPRESENTATIVE ROKEBERG remarked that [Amendment 1] would ensure
that the private sector, rather than the state, pay for the cost
of producing the aforementioned pamphlet.
Number 1106
REPRESENTATIVE GRUENBERG remarked that Alaska is a common law
state as opposed to a code state like California or New York,
where everything is codified by the legislature. Accordingly,
it is very unusual to have a provision in law such as proposed
AS 08.88.675, which abrogates the common law. He characterized
having such as very dangerous because of the potential for
unintended consequences. There are so many different decisions
on so many different points, and so many of these cases are
factually driven, that the law is a different result because the
facts are slightly but crucially different. He said:
I have concern about that section. I don't have
concern about codifying stuff, but I do have concern
about throwing out the common law if its not exactly
codified, because you can have all kinds of
[problems]. So I would like us to be thinking about
something in place of [proposed AS 08.88.675] so
[that] you can have this stuff codified, and it's
probably excellent material, don't get me wrong, but I
don't want to throw out the common law that may be
absolutely vital given a slightly different set of
facts, because these judges actually, in some ways,
are mini legislatures in the sense that they look at
the best policy given the framework of the historical
law and the statutory law and how it should be applied
in a given circumstance.
I'm very reluctant to throw out hundreds of years of
[common law]; I don't have a problem with the bill,
but I do have a problem with throwing out hundreds of
years of [common law]. And that's kind of a general
statement, and I'd like us to keep that in mind. We
have immense power, in this legislature, and ... I'd
want us to think carefully because ... if we're not
really careful, we can do too much, and that can have
serious problems on the development of the law, and
I'd just urge us to be conservative.
REPRESENTATIVE ROKEBERG remarked that Representative Gruenberg
has made his case as to why the legislature should adopt the
current version of SSHB 29, adding that there has been past
discussion regarding whether to totally abrogate [the common law
of agency] or abrogate only those aspects of it that are being
codified via CSSSHB 29(L&C). He suggested that the judiciary
will still have the flexibility to make allowances for
unintended consequences.
REPRESENTATIVE GRUENBERG said, "You have to be very, very
careful or they'll feel they can't."
CHAIR McGUIRE announced that SSHB 29 would be held over.
SB 30 - ABORTION: INFORMED CONSENT; INFORMATION
[Contains mention that HB 292 might be incorporated into SB 30,
companion bill to HB 292.]
Number 0812
CHAIR McGUIRE announced that the final order of business would
be CS FOR SENATE BILL NO. 30(JUD) am, "An Act relating to
information and services available to pregnant women and other
persons; and ensuring informed consent before an abortion may be
performed, except in cases of medical emergency." [Before the
committee was HCS CSSB 30(HES)].
CHAIR McGUIRE noted that SB 30 is the companion bill to HB 292,
which has been heard previously by the House Judiciary Standing
Committee. She relayed that individual testimony on SB 30 would
be limited to 3 minutes, and asked that those who've spoken
previously on HB 292 limit their testimony to new points rather
than repeating their previous comments.
Number 0701
SENATOR FRED DYSON, Alaska State Legislature, sponsor, relayed
that since the last House Judiciary Standing Committee meeting
he'd had a committee substitute (CS) created to address the
concerns brought forward by a letter from the attorney general.
He offered his understanding that Chair McGuire is also
preparing a CS for SB 30, and remarked that because of the
modifications in the committee substitutes, a title change was
necessary.
CHAIR McGUIRE shared that there was a title change resolution
coming from Legislative Legal and Research Services, and it was
her intent to further discuss SB 30 after the title change
resolution had arrived.
SENATOR DYSON suggested that both he and Chair McGuire explain
the changes that their respective offices are proposing to SB
30. He said that some of the concerns from the testifiers may
already be addressed in those changes.
The committee took an at-ease from 2:30 p.m. to 2:32 p.m.
CHAIR McGUIRE brought attention to the proposed House CS for SB
30, Version 23-LS0193\N, Mischel, 2/18/04. She asked Senator
Dyson to explain the changes in Version N.
Number 0201
JASON HOOLEY, Staff to Senator Fred Dyson, Alaska State
Legislature, sponsor, explained, on behalf of Senator Dyson,
Version N. He referred to the concerns brought forth from the
attorney general's letter dated February 11, 2004. The first
change in Version N deals with the concern stated on page 2 of
the letter. Under Section 1 of [HCS CSSB 30(HES)], the letter
points out that there are inconsistencies with the immunity
language within the bill; Mr. Hooley stated that Version N has
addressed this concern by adding immunity language to Section 4.
MR. HOOLEY referring again to the attorney general's letter, he
noted that it raises some concern about the potential
psychological damages that might be incurred to women that are
pregnant from rape or incest. He stated that on page 6,
subsection (d), of Version N, the language has been added to
exclude the requirement of informed consent to women that are
pregnant due to rape or incest. He also relayed that because of
the concern raised in the attorney general's letter, language
has been added to page 3, lines 4-5, that addresses the issue of
obtaining child support.
REPRESENTATIVE GRUENBERG asked if the text concerning child
support in [HCS CSSB 30(HES)] had been changed, adding that he
felt that that language looked pretty good.
Number 0324
MR. HOOLEY stated that the intent hadn't changed, but the
language had been streamlined to say the same thing more
clearly. He then referred to the attorney general's
recommendation that the provision in [HCS CSSB 30(HES)]
regarding showing pictures of unborn children in two-week
gestational increments may be too graphic and burdensome. He
stated that on page 3, paragraph (6), of Version N the provision
has been changed from showing photos at two-week increments to
showing photos at four-week increments, and the access to these
photos would be by a link on the web site rather than on the web
site itself.
CHAIR McGUIRE clarified that the description of the fetal
development is presented on the web site, but the photographs
were available by a link if someone wanted to see them.
MR. HOOLEY said that the attorney general pointed out in his
letter that that the information relaying the risks and benefits
of having an abortion, carrying a pregnancy to term, and
contraceptives, may be found to be unconstitutionally vague. He
said that because of this, the language had been aligned with
the informed consent requirements in AS 18.16.060.
CHAIR McGUIRE said that part of the attorney general's concern
has been addressed in a CS that she will be proposing, in that
it removes the section that refers to contraception and
psychological or other harm. She said she felt that that
information didn't need to be a part of SB 30, and relayed that
on page 2, line 23, of Version N there is new language which she
feels better handles the contraceptive options issues.
TAPE 04-18, SIDE A
Number 0001
MR. HOOLEY referred to the concerns raised on page 4 of the
attorney general's letter that deals with the specific
informational requirements that a doctor has to provide a woman
before she has an abortion. He said that because of these
concerns, language has been added that gives the doctor the
ability to tailor the information provided to the woman based on
the specific circumstances of her pregnancy. He offered that
the doctor has the flexibility to use the information presented
on the web site, or use appropriate information specific to the
circumstances of the pregnancy if the web site information is
not used. He pointed out that this new language is found on
page 5, in subsection (b), paragraphs (1) and (2).
CHAIR McGUIRE commented that she felt that this was a good
addition to the bill, that doctors may have more information
based on certain situations that they have witnessed and which
the web site might not have access to.
MR. HOOLEY noted that the attorney general mentioned that the
provisions for parental consent and judicial bypass have
recently been found unconstitutional. He stated that the
sections dealing with these issues have been left in Version N,
but a severability clause has been added if those things are
found to be unconstitutional by the Alaska Supreme Court. He
said that if those provisions need to be stricken from SB 30, it
will have no effect on the rest of the bill.
MR. HOOLEY again referred to page 4 of the attorney general's
letter, the portion which raises the concern about the
imposition of a 24-hour waiting period. He said that this
concern is addressed in Version N on page 6, subsection (c),
where the language has been changed to allow the information to
be distributed by other means including fax, email, Internet,
and standard mail. He stated that there is usually a one to
three week time period between the initial contact and the
actual procedure. He said that all the rural public health
facilities have Internet access, which would enable those
communities to access this information as well.
Number 0279
CHAIR McGUIRE stated that the 24-hour waiting period seems to be
one of the parts of SB 30 that is controversial. Stating that
based on testimony that the House Judiciary Standing Committee
has heard that there are no cases that an abortion has been
performed within 24-hours of the initial consultation, Chair
McGuire asked if this requirement is really solving a problem.
SENATOR DYSON responded that he has received the same
information regarding the amount of time that lapses between the
initial consultation and the actual procedure. He said that it
is his belief that the 24-hour grace period imposes no burden on
the patient, provider, or process. He said that because no one
knows what the future will bring, and based on the medical
records and what people have seen over the last 40-50 years, he
believes that this is a serious medical procedure. He said that
with the current process, where there is a time lapse between
the initial consultation and the procedure, that waiting period
has proven to be beneficial.
SENATOR DYSON stated that this issue has engaged him all of his
adult life. He shared a story about when he was a member of the
Anchorage Assembly and participated in protests and went to jail
two separate times. He stated that one night while
participating in the Anchorage Assembly meeting, a woman
testified during the public comment section of the meeting that
six months previous to that date, she was going to get an
abortion. She'd told them that she saw the people protesting
and getting arrested, and that some nice ladies came and talked
to her. She'd said that those ladies informed her of the
alternatives that she had available to her, and told her that
she would have sources of support if she decided to carry her
pregnancy to term.
SENATOR DYSON stated that the woman had the baby with her while
she was testifying. He stated that [the legislature] doesn't
want to make laws based on anecdotes, but the time lapse that
happened before this woman got an abortion proved to be
extremely valuable. He commented that he found it hard to argue
with the point that having a minimum amount of time to consider
the information pertaining to [pregnancy options] would be
beneficial. He stated that the child that the woman chose to
carry to term was now 17 years old and goes to school in Alaska.
Number 0547
SENATOR DYSON stated that [the legislature] doesn't know what
technological advances in medical science will enable doctors to
do in the future. He emphasized that because of the potential
risks and consequences that could occur, he feels that having a
waiting period is valuable. He said that he believes what makes
abortion different than other medical procedures is that there
is a human rights issue involved. He said that when human
rights and life are involved, [the legislature] has an added
burden and must be careful and be thoughtful of the decisions
that are made, particularly about irreversible procedures.
REPRESENTATIVE ANDERSON stated that he held the same concerns as
Chair McGuire in regard to the 24-hour waiting period. He said
his initial concern with passing SB 30 and maintaining the 24-
hour waiting period was that very rarely, if ever, were there
times when a woman could get an abortion within 24-hours of her
initial visit. He noted that the attorney general stated that
there is no other procedure where there is a mandatory waiting
period, and that brings up equal protection issues. He said he
wonders if it is necessary to keep that language in the bill,
and if it is kept, would there be [equal protection] cases in
the near future. He acknowledged the point, however, that in
the future there may be advancements in technology that would
speed up medical procedures and so it might be possible for a
woman to receive an abortion within 24-hours of her initial
consultation.
SENATOR DYSON relayed that there were other states where a
mandatory waiting period has been enacted, and it has stood up
to legal challenge.
MR. HOOLEY referred again to the attorney general's letter,
stating that Version N addresses concerns raised about medical
emergencies. He noted that on page 6, subsection (d), the
language has been changed to clarify this issue.
REPRESENTATIVE GARA asked about waiving the 24-hour waiting
period requirement when the harm relates to a major bodily
function of a woman. He stated that he thought it should be
waived if there were any substantial risks to the health of a
woman.
Number 0868
SENATOR DYSON surmised that people who are familiar with the
abortion issue will understand the subjective nature of the
issues and that the language can be interpreted in more than one
way. He said that language in Version N is attempting to be as
objective as possible when talking about the physical problems
that would allow waiving the 24-hour waiting period. He stated
that there is language in the bill that also waives the
mandatory 24-hour waiting period to get an abortion in cases of
rape, incest, or if there is a medical necessity.
REPRESENTATIVE GARA asked if Senator Dyson would be open to
broadening the language to include a risk of significant injury
[to the woman].
SENATOR DYSON stated that he would have to think about it, but
he feels that would be agreeable. He stated that he doesn't
want anyone to get hurt.
CHAIR McGUIRE said she felt that Representative Gara made a good
point, though she understands the balance that Senator Dyson is
trying to achieve. She also said she felt that the language [in
Version N] is a little too specific.
REPRESENTATIVE ANDERSON suggested taking out "of a major bodily
function of" from page 6, line 18, and inserting "to".
CHAIR McGUIRE said that was a good suggestion and asked for a
written version to be presented at the next hearing on SB 30.
SENATOR DYSON stated that he wanted to go back and look at the
history of that particular phrase, and the specific reasoning
behind choosing it.
CHAIR McGUIRE, after ascertaining that there were no immediate
questions for Senator Dyson and Mr. Hooley, asked them to stay
at the meeting to address issues later.
SENATOR DYSON noted his appreciation for the cooperation that he
has received from the attorney general's office, Legislative
Legal and Research Services, and Representative Dahlstrom's
office. He predicted that the final version of SB 30 will be
excellent, adding that he appreciates all the effort put forth
in its formation.
Number 1048
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature, relayed
that she would be further explaining the changes in Version N.
She said that there were two sections taken out of HCS CSSB
30(HES), one of them being on paragraph (9) on page 4. She said
that that paragraph had been removed because Chair McGuire felt
that the contraception information had been adequately addressed
on page 2, subparagraphs (B) and (C) of Version N. She then
relayed that the dated, time-stamped signature form described on
page 4, paragraph (10), of HCS CSSB 30(HES) had been removed.
She also noted that the only other changes were to Section 4 of
HCS CSSB 30(HES) dealing with civil liability.
CHAIR McGUIRE added that she felt that the changes regarding the
civil liability provision were necessary because she has never
seen a cause of action created without an ensuing harm. She
stated that with the changes that have been made, there has to
be some type of harm in order to warrant a civil action.
MS. TONDINI clarified that in order for a doctor to prove that
he/she obtained informed consent, instead of using the dated,
time-stamped signature form, the doctor would have to present
the written certification that is required under the bill.
Number 1213
REPRESENTATIVE NANCY DAHLSTROM, Alaska State Legislature,
testified in support of SB 30. She said that she has been
working extensively on the companion bill, HB 292, and
appreciates the effort that has gone into the development of
these two bills. She asked the committee to move forward and
pass SB 30 out of the House Judiciary Standing Committee.
REPRESENTATIVE GRUENBERG asked Representative Dahlstrom if she
was going to suggest any amendments for SB 30.
REPRESENTATIVE DAHLSTROM stated that she and her staff have been
going through Version N and haven't found anything thus far that
would necessitate an amendment. She relayed, however, that she
hasn't finished that process, but will continue to go through SB
30 and suggest any needed amendments.
Number 1365
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties
Union (AkCLU), stated that she'd just recently received a copy
of Version N, so she hasn't been able to go over it as
thoroughly as she'd like, though at this point she did have some
concerns that she would like to present to the committee. For
example, the AkCLU believes that Version N is still
unconstitutional. She said that it is unfair to single out this
one constitutionally protected choice and place hurdles in front
of women who are seeking to exercise that choice. She referred
to page 1, paragraph (1), where it states that this is a
critical area of medical practice. She said that the AkCLU
believes that this is where the bill is attempting to single out
this procedure. She shared that she felt that this phrase is
legally insufficient, and stated that the language should be
removed to avoid privacy and personal protection problems.
MS. RUDINGER noted that Version N removes language from the HCS
CSSB 30(HES) that referenced circumstantial criteria - page 2,
paragraph (3) - and said that the AkCLU wondered why that
section was removed. Next, she cited page 3, paragraph (5), of
Version N, where providing information regarding child support
is mentioned, and noted that there are difficulties that exist
in the reality of the process of collecting or enforcing child
support; she indicated that this provision is necessary if the
intention is to give women full information. She moved onto
page 3, paragraph (6), where the information provided describes
the fetal development of a typical, healthy fetus in two-week
gestational increments. She stated that this information is not
necessarily relevant to women who may have problem pregnancies.
She also stated that although the graphic photographs would be
accessible by a link instead of on the web site, there might be
information at that link that is not relevant to the woman who
is looking at it.
Number 1537
MS. RUDINGER shared her concern with the removal of the
requirement that all the information presented had to be
reviewed by obstetricians and gynecologists designated by the
State Medical Board. She opined that doctors are certainly in
the best position to ensure the accuracy and objectivity of this
information. She mentioned that on page 3, paragraphs (7) and
(8), there are references to psychological effects, but opined
that there has been no proof that psychological harm is incurred
because of an abortion. She cited a 1987/1988 investigation by
the former United States Surgeon General, DR. C. Everett Koop,
whom she said was no champion of [pro-choice issues], and she
cited a study from the World Health Association. In each of
these cases, it was determined that there is no medical evidence
that abortions cause psychological injury. She said that when
women undergo a voluntary abortion, relief is the most common
reaction.
MS. RUDINGER said that the information provided to patients who
want to have an abortion should be determined by doctors who are
in the best position to assess the risks involved and the
specific circumstances that are relevant. She then pointed out
some incorrect definitions contained in SB 30. Specifically
gestational age and the term "unborn child", which she said
isn't even a medical term. She stated that she would let the
doctors who are testifying speak more about these incorrect
terms and definitions.
MS. RUDINGER cited page 4, Section 4, and stated that the
information dealing with liability and immunity is very vague.
She pointed out that the only way for physicians to protect
themselves is to use the information from the web site which has
information that hasn't been reviewed for accuracy by
obstetricians and gynecologists or by the State Medical Board.
She said that the AkCLU feels that this liability section is
very problematic.
MS. RUDINGER shared that the AkCLU has the biggest issue with
the 24-hour waiting period required by SB 30. She stated that
the waiting period is unconstitutional, and emphasized that the
attorney general and the AkCLU have pointed out to the
legislature, every time an issue like this has been before it,
that the waiting period is unconstitutional. She opined that
the waiting period is a violation of equal protection, and noted
that there is no other medical procedure for which a mandatory
waiting period is imposed. She said this concludes her
testimony, and thanked the committee for their latitude.
Number 1656
CHAIR McGUIRE thanked Ms. Rudinger for her testimony, and
explained that the State Medical Board had asked to be removed
from reviewing the information on the web site. She said that
the State Medical Board did not feel that reviewing the
information was the appropriate purview for them mainly because
it isn't their duty to review information. She clarified that
the State Medical Board's duty is to spend time managing those
doctors who do good and bad, and, if the doctors are doing bad,
to protect the public from them. She further explained that the
State Medical Board is voluntary, they only meet quarterly for a
few days, and the members do not have enough time as it is to
address the negligent doctor cases that exist.
MS. RUDINGER stated that to avoid a future lawsuit, it will be
important that the information on the web site be medically
accurate. She stated that there is language within [Version N]
that is medically inaccurate and that could create some problems
in the future.
Number 1728
DEBBIE JOSLIN, President, Eagle Forum Alaska, shared that she
has been in a situation where she was pregnant and encouraged to
get an abortion. She stated that she did have an abortion in
1976 and it was her experience that abortionists will see a
patient, go through preliminary discussion, and within a half
hour perform an abortion. She expressed her concern that the
House Judiciary Standing Committee has suggested waiving the 24-
hour waiting period for something as ambiguous as impairment to
a women. Ms. Joslin stated that impairment could mean just
about anything. She referred to her pregnancy in 1999, where
she was encouraged to have an abortion and stated that it would
be easy for a doctor to use any reason to waive the 24-hour
waiting period and the informed consent and say that there was
an impairment to the woman.
MS. JOSLIN stated that setting up the law as proposed isn't
taking into consideration what is happening to women in Alaska.
She said that she feels that the legislature is aligning itself
on the side of the abortion industry and not on the side of
women. She shared that she believes that women do undergo
psychological effects when they have an abortion. She referred
to the comments from Ms. Rudinger where she referred to the
investigation by Dr. C. Everett Koop. Ms. Joslin stated that
although the investigation done in the late '80s found no
medical evidence of psychological damage to a woman that has an
abortion, there have been numerous studies since that do show
psychological aftereffects in women after they have an abortion,
adding that those effects aren't known immediately.
MS. JOSLIN shared her concern regarding the removal of the
photographs of the fetal development. She noted that there was
discussion that a woman whose fetus had anomalies might look at
a photo of a normal fetus and that would have no relevance to
her situation. She stated that she had a child that had very
serious fetal anomalies and seeing the photographs of a healthy
fetus was very relevant to her. She said that by looking at the
healthy fetal development, she could better grasp the status of
the fetus developing inside of her. She felt that it was unfair
for women to be denied access to these pictures just because
there might be an abnormality in fetal development.
MS. JOSLIN urged the committee to uphold the 24-hour waiting
period and the requirement of informed consent for women who
want to have an abortion in cases of rape or incest. She stated
that the psychological effects of rape and incest are great, and
to compound those effects by a woman undergoing an abortion,
another traumatic experience where she is really being violated
again, would be the wrong thing to do. She shared her concern
that in the future, if these requirements are waived, that a
woman will come back after an abortion and say "I wish you had
told me the options, and I wish you had told me what the
immediate and long term effects were of having an abortion, even
though this wasn't by any means a planned pregnancy." Ms.
Joslin thanked the committee.
Number 1898
SARA CHAMBERS spoke in opposition to SB 30. She stated that she
is a voter, a mother of a 16 week old son, and that as a woman
of child-bearing age, she has given a great deal of thought to
the pro-choice/pro-life debate. She shared that during her
consideration of each side of the issue, one constant has
remained: the belief that if a woman is informed of the medical
consequences of her decision to terminate her pregnancy, she
will make the decision against abortion. She stated that this
belief is predicated by the concept of free, unforced access to
unbiased information developed and governed by professional
medical science. She stated that SB 30 and HB 292 do not meet
these two criteria. She said that passing these bills would be
dangerous because it would place the Alaska State Legislature in
ultimate control over the medical information provided to the
public. Ms. Chambers commented that the medical staff selected
to serve on the governing board put forth by this legislation
will ultimately be beholden to the legislature, and more
disturbingly, the party that holds the majority at any given
time. She stated that most of those people are not medical
doctors. She said that she is further disturbed that there is
no medical oversight in Version N. She shared her concern that
enacting this legislation will coerce one small segment of the
population into listening to this potentially biased advice.
MS. CHAMBERS relayed that when she became pregnant a year ago,
she had the opportunity to choose to receive medical care or
not. She said that she could choose the level of medical care
provided during her child's birth, at home, birthing center, or
hospital. She pointed out that the state never contacted her to
discuss her options, her prenatal care, or the health of the
fetus. She stated that she was free to learn about her medical
condition, just like every American. She said that she had the
opportunity to consult a doctor, a free clinic, web sites, or
books. She also stated that she had the option to do none of
these things. She declared that SB 30 and HB 292 propose to
discriminate between classes of pregnant women, which is an
offensive, if not unconstitutional, practice. Ms. Chambers
inquired why the state would want to spend funds to create a
medical web site when many already exist.
MS. CHAMBERS emphasized that these bills were redundant and a
wasteful use of much needed public funds, especially in these
times of fiscal crisis within Alaska. She conveyed her belief
that there were more efficient ways to help Alaskan families
than to create another web site offering government control
[and] pseudo-medical advice. Ms. Chambers expressed her concern
with the statement by any legislator supporting this legislation
that he/she believes it is acceptable for government to force
its citizens to receive biased government advice on any medical
procedure. She stressed that this is not the role of
government, and she finds it frightening that there are
legislators who want to place what should be a private
discussion between a doctor and patient under public duress.
Number 2035
MS. CHAMBERS commented that this is a slippery slope, and she
urged the legislators to think about the message and
consequences of these bills before they vote. She stated that
SB 30 and HB 292 are dangerous proposals because they would
force Alaskans to listen to biased information that isn't rooted
in science, but party politics. She reiterated that these bills
were a waste of public funds, and they place the legislators
between a patient and a doctor or other freely chosen medical
professional. She then urged the committee to vote against SB
30 and HB 292.
REPRESENTATIVE GARA commented that the pro-life/pro-choice
debate is one that doesn't involve industries that would come in
and try to garner support by spending money. He pointed out
that it was a debate with public citizens on both sides, and
that it was a wrenching debate. He stated that he took
exception to the comment made be Ms. Joslin referring to the
"abortion industry"; he reiterated that the people who
participate in the abortion debate tend not to be people that
are throwing money at the issue. He offered his belief that the
people who align themselves with the pro-choice side do not make
a lot of money [on this issue].
CHAIR McGUIRE mentioned that reference to the State Medical
Board ought to be put back into SB 30 because she wasn't sure if
there was a way to have unbiased, medically accurate information
if it just came from the government.
Number 2103
COLLEEN MURPHY, M.D., Obstetrician/Gynecologist (OB/GYN), shared
that she has been a doctor since 1981, came to Alaska in 1987,
and is an abortion provider. She stated that she had performed
three abortions today and a follow up, so she knows the
procedures that are involved with abortions. She commented that
SB 30 represents an anti-privacy movement. She said that she
doesn't use the terms pro-life or pro-choice anymore because the
real issue deals with privacy. She emphasized that she is a
multi-year member of the Alaska State Medical Association's
Legislative Subcommittee, and relayed that this subcommittee
examines different bills that are of medical interest. She
stated that the subcommittee has taken an opposing position to
SB 30 because of the manner in which it disrupts the
patient/provider relationship and inserts the government into
that care.
DR. MURPHY shared that she had recently been discussing a bill
that the Alaska State Medical Association and Alaska Physicians
and Surgeons, Inc., are working on in effort to produce caps on
non-economic damages as it relates to medical malpractice. She
stated that she isn't too familiar with that bill, but she does
know that there is information pertaining to informed consent.
She emphasized that SB 30 is redundant, and it focuses on a very
specific aspect of health care. She expressed her view that SB
30 was discriminatory against women seeking a particular health
care option. She suggested that SB 30 was a very exhaustive
exercise that would be challenged in the court system to a
considerable extent because of the repetitive parallels that are
present in the bill that have been involved in previous court
cases and been struck down.
DR. MURPHY indicated that she would be available for any
questions and expressed that the 24-hour waiting period for an
abortion proposed by SB 30 has no medical basis. She commented
that she thought the 24-hour waiting period is obstructive and
she felt that SB 30 is an attempt to create barriers for women
attempting to have an abortion. In conclusion, she reminded the
committee that the number one cause of death relating to
maternal mortality, before Roe v. Wade in 1973, was illegally
performed abortions.
CHAIR McGUIRE thanked Dr. Murphy for her testimony and pointed
out that she has included [in a forthcoming proposed CS] the
exact language from the bill dealing with medical malpractice
that Dr. Murphy had mentioned. Chair McGuire relayed that a
previous version of SB 30 created a cause of action without
having any harm done at all, just failing to provide informed
consent, and that has been changed in Version N.
Number 2251
DR. MURPHY stressed that SB 30 is totally inappropriate for a
woman that comes in for new OB care. She referred to a woman
who came in at nine weeks of pregnancy and was diagnosed with
twins. She stated that what she should do, according to the
concept embodied in SB 30, is wait 24 hours and confirm that the
woman wants to continue with her pregnancy because the woman
with twins has a 40 percent chance of pre-term labor, a higher
risk of malformations, twice the risk of genetic abnormalities,
twice the risk of preeclampsia, and a much higher rate of
caesarian section. Dr. Murphy remarked that despite all of
these potential risks, she didn't wait 24-hours to treat her
patient. She used this example as a reason that the 24-hour
waiting period makes no sense for any form of health care.
DR. MURPHY commented that access to health care in Alaska is
horrendous, and in particular, access to abortion clinics is
only available in major population centers. She observed that
women who seek abortions must now take time off work and
displace themselves. She stated that an additional 24-hour
waiting period is not necessary or cost-effective. She
reiterated that enacting the waiting period is discriminatory
because there is no other medical procedure that is subject to
the travails that are suggested by SB 30. She pointed out that
these steps are only applied to women and there are parallels
between this proposition and contraceptive equity and health
care needs that women require.
DR. MURPHY referred to tort reform, stating that this issue is
much larger than abortion. She stated that informed consent
needs to be guaranteed for every type of health care need and
consultation that is delivered. She expressed that this issue
should not be micromanaged, especially by people that are not
involved with health care.
CHAIR McGUIRE asked Dr. Murphy if there are situations when a
woman will decide to have an abortion, come in for her initial
consultation, and have the abortion on the same day.
DR. MURPHY stated that the majority of abortion procedures can
be offered on the same day. She shared that this is how she
currently offers her health care. She explained that generally
patients will call a hotline or look up the information about an
abortion online. She noted that she asks every woman who comes
into her clinic how they heard about her services. [Not on
tape, but taken from the Gavel to Gavel recording on the
Internet, was: She stated that usually they have used one of
these outside resources and thought long and hard about their
decision to either follow through with the pregnancy, adopt the
child out,] or terminate their pregnancy.
TAPE 04-18, SIDE B
Number 2393
DR. MURPHY commented that the amazing thing about women seeking
abortion services is that the woman is thinking about what she
needs. She shared her opinion that in this society, a woman is
not allowed to consider her own needs first. She hoped that
this was a sobering thought for the audience to think about, for
a woman to actually think about what she needs [when she is
pregnant] for the next nine months to one year in terms of what
she is able to tolerate in her life and what she can do. Dr.
Murphy stated that this is a psychosocial issue, where women are
not allowed to put their needs first. Dr. Murphy stated that by
the time a woman presents, there is no benefit to waiting; by
such time, a woman is already feeling the effects of her
pregnancy and wants to move on and use an effective form of
family planning.
REPRESENTATIVE GARA asked if one of the burdens of the 24-hour
waiting period is that it forces women who come from rural areas
to stay an extra day away from their home.
DR. MURPHY stated that was absolutely true. She said that 88
percent of all counties in the United States do not have
abortion services available, so women must travel anywhere from
50 to 150 miles to seek termination services.
REPRESENTATIVE GARA asked Dr. Murphy, based on the informed
consent section in SB 30, what information she would provide to
women who decide to carry their pregnancy to term.
DR. MURPHY responded that she alluded to this when talking about
the woman that had conceived twins. She went on to add that the
woman already has two children, ages one and two, and one of
those children has neurofibromatosis, also known as elephant
man's disease, and that there is concern that the twins she is
carrying may have the same condition. Dr. Murphy stated that in
Afghanistan the average woman has eight children and the
mortality rate for those children is 50 percent. She stated
that the United States takes [infant mortality] for granted
because it has a relatively low "parity state".
DR. MURPHY also noted that in Ethiopia, 1 in 25 women die during
childbirth. She commented that there are complications that
could happen with carrying a pregnancy to term in the United
States, and she talks with her patients as a conscientious board
certified professional medical provider and doesn't need
legislation to tell her how to take care of pregnant women. She
added that Cuba has a lower infant mortality rate than the
United States and they spend a lot less money on their medical
system. She opined that lay people can trust the medical
community because it has a lot of oversight.
Number 2193
REPRESENTATIVE GARA ascertained that one of the consequences of
SB 30 would be that medical practitioners would have to discuss
all of these issues with every woman that decides to carry her
pregnancy to term. He then asked for some documentation that
would illustrate the explanations that those women will receive
from the doctors under SB 30.
DR. MURPHY stated that many people expect the "perfect child"
with every pregnancy, that technology will save all. She
commented that even in the best instances, that possibility is
not reasonable. She shared that a lot of lawsuits originate
because people expect to have no complications during their
pregnancy. She relayed that she has 40-45 books related to
healthcare and isn't sure how she could distill it into a short
document.
REPRESENTATIVE GARA responded that he would like to get
something that is about a page and a half long, but if she
couldn't create something like that, then not to worry about it.
DR. MURPHY referred him to the American college of OB/GYN web
site that would provide the information that he was inquiring
about and the standards that she has to adhere to.
CHAIR McGUIRE thanked Dr. Murphy for her testimony.
Number 2139
ROBERT JOHNSON M.D., began his testimony with his definition of
the task of the legislature. He said that the legislature's
task is to protect the right of the individual to engage in
whatever activity he/she pleases, as long as there is no harm to
anyone else. He added that it is not the business of
legislators to restrict or limit individual choice, or to
determine what is or isn't morally right or wrong. He said that
abortion bills do both of these things.
DR. JOHNSON stated that he felt the issue of abortion was an
important enough subject for each of the committee members to
consider his expert opinion. He added that the committee has
been exposed to a number of lay opinions. Dr. Johnson explained
that he is retired and has nothing to gain from his testimony
against SB 30. He clarified that his purpose for testifying is
to prevent obstacles being placed before women who, for a
variety of reasons, need an abortion.
DR. JOHNSON said that SB 30 would not only limit the options for
women who seek an abortion, but also the physicians who would
choose to provide the service. He commented that use of the
term "unborn child" is declaring the fetus a person, and pointed
out that this has not yet been determined.
DR. JOHNSON explained that he was a physician in Kodiak before
the passage of Roe v. Wade, and that at that time, women who
became pregnant and did not want children had no alternative.
He said that unwanted children faired poorly, many were abused,
and most became wards of the state. He shared that he applauded
the passage of Roe v. Wade, and noted that it was quickly
adopted by the state, which, he opined, indicated that it was
sorely needed.
DR. JOHNSON informed the committee that he has done
approximately 700 abortions, and his experience does not support
many of the problems that many of those who oppose the procedure
would lead others to believe occur. He said that his experience
with abortion is not exceptional, and each of his patients was
presented with options available to them in addition to the
abortion. He stated that each patient was told as much as they
wanted to know about the procedure, including the risks and the
outcome. He noted that each patient had a follow up visit two-
weeks after the procedure.
DR. JOHNSON disclosed that only two of his patients developed
post-abortion depression that required treatment, noting that
this was less than the incidents of post-partum depression. He
stated that both of those patients recovered from their post-
abortion depression. He shared that none of his patients lost
enough blood during the abortion to require a transfusion; only
two patients had minor post-abortion infections and those
responded promptly to treatment. Dr. Johnson emphasized that
those women who had an abortion and later desired to have a
child went on to have normal pregnancies. He said that he found
no fertility problems associated with having an abortion.
Number 2061
DR. JOHNSON shared his opinion that there is no indication for
this type of legislation. He said that legislators have no
business telling patients what they must know, what advice they
receive, or from whom they receive the advice. He stated that
it is an insult to the intelligence of a woman who, in his
opinion, knows exactly what she wants to have information about
and will make sure that her physician provides her with that
information. He offered the question, "Do you think that
physicians are not familiar with their responsibility to explain
the options, risks, benefits, and procedures of any treatment?"
He stated that SB 30 would place more obstacles in the path of
those who need an abortion. He expressed that this bill, along
with the issue of cost, complicates the decision and is intended
to make women who elect to have an abortion feel guilty. Dr.
Johnson cited that there are occasional suicides after a woman
has an abortion and he felt that they were directly related to
this point.
DR. JOHNSON asked the committee if they felt that anyone had the
right to make a decision for others regarding their choice. He
asked if anyone should have the right to set up rules and
procedures to serve as an impediment for another's exercise of
choice. He asked if anyone should have the right to determine
what is, or is not, morally right for someone else. In the name
of compassion for women who cannot manage to bear or raise a
child for whatever reason, Dr. Johnson implored the committee to
reject SB 30 and any legislation that has to do with abortion.
Number 1937
AMY BOLLENBACH stated that she agrees with both Dr. Johnson and
Dr. Murphy and doesn't think that SB 30 is needed. She said
that if the legislature is going to pass SB. 30, the term
"unborn child" needs to be removed because it is not a medical
term. She said that the 24-hour waiting period needs to be
removed as well. She pointed out that transportation is very
difficult in Alaska and so adding the 24-hour waiting period is
an attempt to put another obstacle before women who want to have
an abortion. She stated that if a minor wants to get an
abortion, she must first get a judicial review, parental
consent, and take other steps just to be permitted to have it.
She said she feels that sometimes abortions need to be done
quickly, and when someone is staying in a hotel for that
specific reason, that is one of those times.
MS. BOLLENBACH reminded the committee that many of the women and
girls who are going to have an abortion will be living in remote
villages, and noted that there are girls who need to get an
abortion because they have been abused in their home. Many of
these girls may not have a telephone in their home, and the only
access they may have to a computer will be at school. She added
that many have to travel long distances to Anchorage or another
city just to be able to get the procedure done. She asked the
committee not to add another hurdle to women seeking an
abortion.
Number 1865
ROBIN SMITH spoke in opposition to SB 30 and HB 292. She
referred to the letter from the attorney general dated February
11, 2004, where he stated that HB 292 and SB 30 will have legal
problems and may not be able to survive a constitutional
challenge. She stated that the way she understood it now is
that SB 30 failed to address the 24-hour issue and continued to
include the parental consent judicial bypass issue. She added
that according to the attorney general, there are also other
issues beyond that. She observed that because of these issues,
the bill before the committee still raises several
constitutional concerns.
MS. SMITH shared her opinion that over the last decade the
legislature has insisted on passing bills that they know are
unconstitutional. She stated that these laws end up getting
challenged in court and eventually get turned down. She stated
that four court cases have resulted in hundreds of thousands of
dollars of state money being wasted. She commented that in this
time of major financial cutbacks and a huge fiscal gap, the
people of Alaska will be very upset to have more money wasted in
this way.
MS. SMITH urged the members to keep SB 30 and HB 292 within the
committee until they have an opinion from the attorney general
that the bills will survive constitutional scrutiny.
CHAIR McGUIRE thanked Ms. Smith for her testimony and informed
her that the committee would be asking the attorney general to
look over Version N and any forthcoming proposed committee
substitutes.
MS. SMITH thanked Chair McGuire and said that it is really
important to her that the committee not move the bill out if it
thinks the bill is unconstitutional, adding that it is a waste
of the people's money. She stated that [wasting money on
unconstitutional bills] has happened time and time again and she
would hate to see it happen again with the current financial
crisis facing Alaska.
Number 1735
PAULINE UTTER urged the committee to not pass SB 30 or HB 292.
She opined that Dr. Johnson and Dr. Murphy eloquently stated the
reasons for not allowing the passage of these bills.
CHAIR McGUIRE stated that she was going to close testimony
today, but the committee would take written testimony; written
testimony could just be e-mailed and will get distributed to the
committee. She stated that the next time the committee hears SB
30, the new letter from the attorney general with his
recommendations for the bill will also be available as well.
She reiterated that after today, she will be limiting public
testimony to written testimony. She also reiterated that there
is a title change resolution forthcoming.
Number 1653
CATHY GIRARD stated that it is unethical for the legislature to
interfere in such a private and personal matter regarding a
woman's decision to bring a pregnancy to term. She added that
imposing a schedule on the choice to terminate a pregnancy is
insulting to Alaskan women, Alaskan families, medical
professionals, and spiritual communities; all of the
aforementioned will undoubtedly have a role in that woman's
ultimate decision regarding whether or not to bring a pregnancy
to term. She related her own decisions regarding reproductive
issues, stating that she never considered that the legislature
would participate in her decision making process. She noted
that she is an Alaskan woman, and is testifying that she does
not need the legislature's help in making her own reproductive
decisions.
MS. GIRARD said that SB 30 does not address the values and
morality of all Alaskan woman, and certainly does not address
her own personal values or her morality whatsoever. She
commented on some of the previous testifiers' statements
focusing on the psychological impact of abortion on women. She
stated that SB 30 is quite misguided and insulting to women
because it presumes that women have not given significant
thought to the entire situation in the first place. She shared
that the women that she has known that have had abortions are
definitely saddened at the thought that they have put themselves
in the position of needing an abortion. She said that when she
asked these women if they wished that they had made a different
choice, the answer is very clear; abortion was absolutely the
right choice given the situation that they were in at the time.
She said that everyone makes decisions that they look back and
reflect upon with sadness, but to think that women have been
psychologically scarred by an abortion is certainly not true of
all women.
MS. GIRARD referred to the assertion that doctors are misguiding
their patients by having a lack of information about all of the
options available. She stated that patients often follow up
with doctors because the patients have used the information that
the doctors have provided. She referred to a shoulder surgery
that she'd recently had, acknowledging that shoulder surgery is
in no way like having an abortion, and stated that she got a
second opinion because she didn't feel the information that she
received from the first doctor was adequate for her to make an
informed decision on what she wanted to have done with her
shoulder. She said that she struggled with whether or not she
wanted to have this invasive surgery, but ultimately she made
her own decision as to what she wanted to happen to her body.
She emphasized that this decision should be private regardless
of whether it is something as unemotional as a shoulder, or as
emotional as it can be when dealing with an abortion.
MS. GIRARD stated that the access to information is a two-way
street; if a patient is not getting information, and there
certainly is a lot of information out there, then he/she needs
to be more forthcoming in asking the doctor to provide more
information. She said that the patient could also move on to
other doctors until satisfied with the information received.
She opined that doctors already know about their legal
obligations to provide a full-scope of information before a
procedure of any type is offered to a patient. She referred to
Dr. Murphy's testimony that SB 30 would only get in the way of a
practice that is already in effect. Ms. Girard opined that
passing SB 30 is redundant and unnecessary.
MS. GIRARD then pointed out to the committee that the [Alaska
State Medical Association (ASMA)] is also against SB 30 because
it believes that the services it provides are already adequate,
and said she feels that to be true. She stated that if a
patient feels that they are not receiving adequate information,
they need to find a practitioner that is right for them. Ms.
Girard added that an unplanned pregnancy is an extremely
emotional experience that cannot be characterized by stereotyped
feelings.
MS. GIRARD said she accepts that the woman that Senator Dyson
referred to in his earlier testimony is glad that she made the
right decision for herself. However, Ms. Girard expressed that
a 24-hour waiting period is no guarantee that a light bulb is
going to go off in a woman's head and totally change her
decision-making process. She explained that a long, hard
decision-making process has already occurred before a woman
shows up in a doctor's office, and it isn't up to the
legislature to make that decision for a woman anyway.
Number 1411
ROMA KOTTE, Student, University of Alaska Fairbanks, testified
in support of SB 30 as part of a school project. She said that
SB 30 made good sense because it encourages people to thoroughly
think out a decision that will (indisc.) Turning attention to
Section 5, subsection (d)(2), of Version N, and the suggested
change to remove "of a major bodily function of" and replace it
with "to", she opined that this change would open up [the
definition of] impairment to include any psychological and
emotional impairment that could come from not being able to have
an abortion.
MS. KOTTE, contrary to Representative Gara's comment that people
who align themselves with the pro-choice side do not make a lot
of money by performing abortions, offered her belief that the
abortion industry is a multi-million dollar industry and does
make a considerable amount of money by performing these
services.
MS. KOTTE referred to Dr. Murphy's testimony. She said that Dr.
Murphy was encouraging the thought that it was okay to be
selfish in America. She stated that it is a very scary society
when people encourage others to be selfish and to not think
about the common good of others. She continued to refer to Dr.
Murphy's testimony and stated that Dr. Murphy used extreme
examples, such as women in Afghanistan who die during
childbirth, and the woman who had twins with elephant man's
disease. Ms. Kotte stated that anyone could use extreme
examples but, in truth, many of the abortions that are occurring
today are being done to healthy babies.
Number 1297
CAREN ROBINSON, Lobbyist for Alaska Women's Lobby, stated that
the Alaska Women's Lobby is strongly opposed to SB 30. She said
that the bill may be rewritten or redrafted, but it is currently
unconstitutional. She said the best way to ensure that women
get good information is to continue with the education process
through doctors and web sites, but not need to this extreme.
Ms. Robinson shared that she moved to Juneau from Texas in 1976,
when abortion services were not readily available. She stated
that the legislature doesn't understand the consequences that
women in rural areas and places that do not have abortion
services have to go through. She stated that in order to get an
abortion, a woman must first go to a doctor in her area before
she can go to a place where abortion services are provided.
MS. ROBINSON said that after that initial doctor visit, women
have to take their information to yet another doctor to get an
abortion. She stated that many times women have to buy tickets
to Seattle or Anchorage, and that is very costly. She used
these examples to illustrate that women have already evaluated
their situation and made a decision before they have left their
home to seek out abortion services. She stated that adding an
extra 24-hour waiting period to this process makes no sense.
MS. ROBINSON referred to her growing up in Texas when abortion
was not legal, stating that women had to go to California or
Mexico, where the situation was dangerous, to get an abortion
done. She commented that she doesn't think that this is the
direction that the legislature is trying to go towards, but the
information should be left up to the doctors, nurses, and other
professionals that women go to, to obtain the information that
they desire before making their decision. Ms. Robinson stated
that [in situations like these], very few women make their
decision on a whim. She noted that she has friends that are
coming in contact with the children that they had put up for
adoption years ago. She stated that it was important for women
to have the right to make those kinds of choices, and not be
burdened by the types of decisions that SB 30 would put in
place. She expressed her appreciation for all the time and
effort that has gone into forming SB 30, but added that she
feels the committee should table the bill and allow the current
process to continue.
Number 1103
CHAIR McGUIRE thanked Ms. Robinson for her testimony and added
that she was not around when abortions were illegal, but her
father was a physician that practiced medicine during that time.
She stated that abortion was definitely an emotional issue, and
assured Ms. Robinson that the committee was not proposing to go
back to that time period. She clarified that the committee is
trying to decide if there is an appropriate role the legislature
should take in providing women with information. She stated
that there are well meaning people on both sides of the issue,
but there is also misinformation on both sides. She
acknowledged that one of the arguments against SB 30 is that
doctors are already providing the information and are already
required, by medical malpractice [insurance] providers, to
obtain informed consent from patients. She stated that there is
a regulation on the books that requires informed consent before
providing an abortion, and noted that the State of Alaska has
treated abortion differently than other types of procedures.
She then thanked Ms. Robinson for her very personal and
thoughtful testimony.
MS. ROBINSON stated that she was a member of the House Judiciary
Standing Committee in 1996, so she understands the difficult
decisions that the committee has to grapple with. She expressed
that she was very fortunate to have a son and grandchildren, and
stressed that it is very important that both men and women get
good information and help to be good parents. She shared that
it is important to put money into programs like the Denali Kid
Care program, which she feels is extremely successful, and said
programs like that are worth investing in because they truly
give people choices.
Number 0939
CHAIR McGUIRE, noting that there were no further witnesses,
closed public testimony on SB 30. She stated that she would be
happy to take any written testimony that anyone has to offer as
a result of the changes that would come about with the new
version of SB 30. She reiterated that the committee is still
awaiting the attorney general's opinion on Version N, and that
she expects some further amendments to be made. She said that
the committee is moving slowly so that the people that are
interested could keep in touch. She then thanked everyone for
his/her testimony.
[SB 30 was held over.]
ADJOURNMENT
Number 0906
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:05 p.m.
| Document Name | Date/Time | Subjects |
|---|