Legislature(1997 - 1998)
02/20/1997 08:21 AM House STA
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE
February 20, 1997
8:21 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Ethan Berkowitz
Representative Fred Dyson
Representative Kim Elton
Representative Mark Hodgins
Representative Ivan Ivan
Representative Al Vezey
MEMBERS ABSENT
All members present.
COMMITTEE CALENDAR
HOUSE BILL NO. 65
"An Act relating to partial-birth abortions."
- MOVED HB 65 OUT OF COMMITTEE
* HOUSE BILL NO. 13
"An Act relating to marine safety training and education programs."
- MOVED HB 13 OUT OF COMMITTEE
* HOUSE BILL NO. 50
"An Act relating to the use of broadcasting to promote or conduct
certain classics or sweepstakes; and providing for an effective
date."
- MOVED CSHB 50 OUT OF COMMITTEE
* HOUSE BILL NO. 81
"An Act relating to the members of the board and staff of the
Alaska Permanent Fund Corporation."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 65
SHORT TITLE: PARTIAL-BIRTH ABORTIONS
SPONSOR(S): REPRESENTATIVE(S) KOTT, Kohring, Ogan
JRN-DATE JRN-PG ACTION
01/13/97 50 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 50 (H) STATE AFFAIRS, JUDICIARY
02/06/97 (H) STA AT 8:00 AM CAPITOL 102
02/06/97 (H) MINUTE(STA)
02/07/97 277 (H) COSPONSOR(S): KOHRING
02/18/97 (H) STA AT 8:00 AM CAPITOL 102
02/19/97 408 (H) COSPONSOR(S): OGAN
02/20/97 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 13
SHORT TITLE: MARINE SAFETY TRAINING & EDUCATION
SPONSOR(S): REPRESENTATIVE(S) AUSTERMAN, Ivan, Grussendorf, Dyson
JRN-DATE JRN-PG ACTION
01/13/97 30 (H) PREFILE RELEASED 1/3/97
01/13/97 30 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 30 (H) STATE AFFAIRS, FINANCE
01/22/97 125 (H) COSPONSOR(S): DYSON
02/20/97 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 50
SHORT TITLE: ALLOW BROADCASTING OF RAFFLES AND CLASSIC
SPONSOR(S): REPRESENTATIVE(S) HODGINS
JRN-DATE JRN-PG ACTION
01/13/97 41 (H) PREFILE RELEASED 1/3/97
01/13/97 41 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 41 (H) STATE AFFAIRS, FINANCE
02/20/97 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
REPRESENTATIVE PETE KOTT
Alaska State Legislature
State Capitol, Room 204
Juneau, Alaska 99801-1182
Telephone: (907) 465-3777
POSITION STATEMENT: Sponsor of HB 65.
GEORGE DOZIER, JR., Legislative Assistant
to Representative Pete Kott
State Capitol, Room 204
Juneau, Alaska 99801-1182
Telephone: (907) 465-3777
POSITION STATEMENT: Provided testimony on HB 65.
REPRESENTATIVE ALAN AUSTERMAN
Alaska State Legislature
State Capitol, Room 434
Juneau, Alaska 99801-1182
Telephone: (907) 465-2487
POSITION STATEMENT: Sponsor of HB 13.
RON DEARBORN, Director
Alaska Sea Grant College Program
University of Alaska, Fairbanks
P.O. Box 775040
Fairbanks, Alaska 99775
Telephone: (907) 474-7086
POSITION STATEMENT: Provided testimony on HB 13.
JERRY DZUGAN
P.O. Box 2592
Sitka, Alaska 99835
Telephone: (907) 747-3287
POSITION STATEMENT: Provided testimony on HB 13.
LARRY BUSSONE, Health Program Manager II
Division of Public Health
Department of Social Services
P.O. Box 110610
Juneau, Alaska 99811-0610
Telephone: (907) 465-2349
POSITION STATEMENT: Provided testimony on HB 13.
LAURA MEASLES, Executive Director
Kenai Chamber of Commerce
402 Overland
Kenai, Alaska 99611
Telephone: (907) 283-7989
POSITION STATEMENT: Provided testimony on HB 50.
STEVE HOLLOWAY, Operations Manger/Marketing Director
KSRM Radio
HC 2 Box 852
Soldotna, Alaska 99669
Telephone: (907) 262-9430
POSITION STATEMENT: Provided testimony on HB 50.
ACTION NARRATIVE
TAPE 97-17, SIDE A
Number 001
The House State Affairs Standing Committee was called to order by
Chair Jeannette James at 8:21 a.m. Members present at the call to
order were Representatives James, Dyson, Hodgins, Ivan and
Berkowitz. Members absent were Vezey and Elton.
HB 65 - PARTIAL-BIRTH ABORTIONS
The first order of business to come before the House State Affairs
Standing Committee was HB 65, "An Act relating to partial-birth
abortions."
Number 027
REPRESENTATIVE PETE KOTT, Alaska State Legislature, stated the
intent of HB 65 was clear. There were comments made during the
testimony that needed to be clarified, especially the comments
surrounding the constitutionality of the bill by the attorney
general's staff. He called on George Dozier, Jr., Legislative
Assistant to Representative Pete Kott, to cover the finer points of
the bill.
Number 045
GEORGE DOZIER, JR., Legislative Assistant to Representative Pete
Kott, stated that the House State Affairs Standing Committee took
testimony from two attorneys regarding the constitutionality of the
bill. Janet Crepps, The Center for Reproductive Law and Policy,
indicated that HB 65 was "patentably unconstitutional." Kristen
Bomengen, Department of Law, indicated that the bill was
unconstitutional. "Madame Chair, I am confident that both of these
individuals testified in good faith, and honestly and sincerely
believed that they are correct in their assessment of HB 65." Mr.
Dozier, Jr. was equally confident that both of these attorneys in
their assessment were incorrect. House Bill 65 was not
unconstitutional either under the federal constitution or the state
constitution.
MR. DOZIER, JR. explained that the Fourteenth Amendment included a
right to privacy, and that this right was broad enough to encompass
a woman's decision to obtain an abortion. The court also held that
the right to decide to have an abortion was not absolute. The
right was limited by the legitimate interest of the state or to
protect potential human life. The Roe v. Wade court indicated tha
the state could not interfere with a woman's decision to obtain an
abortion during the first-trimester. However, after the first-
trimester it could regulate to protect the woman's health, and
after viability the state could regulate or proscribe abortion,
except where necessary for the life or health of the mother. The
Roe court specifically and expressly rejected an argument that "a
pregnant woman is entitled to terminate her pregnancy at whatever
time, in whatever way, and for whatever reason she chooses."
MR. DOZIER, JR. further explained that the court found the state
had a substantial interest in potential human life in the Planned
Parenthood v. Casey case. The interest extends throughout the
pregnancy. The court also found that the opinions subsequent to
the Roe v. Wade case undervalued the state's interest in potential
human life. Consequently, the Casey court rejected the rigid
trimester system established by the Roe court. It instead divided
the pregnancy into two periods: pre-viability and viability. The
Casey court indicated that during the pre-viability period the
states could not place an "undue burden" on a woman's right to
decide to terminate a pregnancy. The Casey court defined the term
"undue burden" as regulations that either had the purpose or the
effect of placing a substantial obstacle in the path of a woman
seeking the abortion of a non-viable fetus. The Casey court
indicated that "subsequent to viability the state in promoting its
interest in the potentiality of human life may if it chooses
regulate and even proscribe abortion, except where necessary, in
appropriate medical judgement for the preservation of the life or
the health of the mother." In summary: First, the state had a
substantial interest in potential human life that extends
throughout a pregnancy. Second, prior to viability the state could
not place an undue burden on the right to pregnancy, which means
placing a substantial obstacle in the path of a woman seeking an
abortion. Third, after viability the state could regulate abortion
or even prohibit abortion, except where necessary for the life or
the health of the mother.
MR. DOZIER, JR. further stated that since partial-birth abortions
span the last part of the pre-viability stage and extended all the
way through the viability stage, HB 65 was designed to cover both
periods. Hence, it must be analyzed with regards to both
standards. He declared, "With all due respect, House Bill 65 more
than meets those standards". House Bill 65 did not place an undue
burden on the right to choose an abortion. It did not place a
substantial obstacle either by intent, or in effect, in the path of
women seeking abortions. It did not proscribe abortion, per say.
It merely made one particular type of an abortion illegal. And, "I
may add, a particularly egregious form." He further stated, "All
other forms of abortion remain open to pregnant women." As the
testimony from Dr. Peter Nakamura, Department of Health and Social
Services, indicated, partial-birth abortions have not been
performed in Alaska and would probably never be performed in the
state. Thus, "Does House Bill 65, which prescribes an abortion
which is not done in Alaska, place a substantial obstacle in the
path of women seeking abortions in Alaska?" The answer by
definition was, "No." The procedure was simply not available
anyway. Was it really a substantial obstacle to require
abortionists to conform to the standards already present and
accepted? he wondered "That to my mind is no obstacle at all, let
alone a substantial one." In short, all of the options presently
available to women to obtain an abortion remain unaffected.
Therefore, the first standard, applied to pre-viability
pregnancies, was clearly satisfied.
MR. DOZIER, JR. further explained the second standard that applied
to viable babies was also satisfied. He reiterated, the Supreme
Court recognized that the state could regulate or even proscribe an
abortion, except where necessary to preserve the life or health of
the mother. House Bill 65 did not ban an abortion during this
period, it merely banned a particular procedure. Therefore, it was
more of a regulation than a proscription. House Bill 65 also
contained an expressed exception applicable to the life of the
mother. It did not mention the health of the mother for the
following reasons: All forms of abortions presently in Alaska
remain in effect, and a ban would not adversely impact the health
of the mother as numerous evidence indicates. There were no
obstetrical situations which require a partial-birth abortion to
preserve the life or the health of the mother. In addition,
Representative Kott indicated that the American Medical Association
(AMA) voted-unanimously-to recommended the endorsement of the
federal partial-birth ban. "In so doing it stated that the
procedure was repulsive and is not a recognized medical technique."
The former Surgeon General, C. Everett Koop, stated that "in no way
can I twist my mind to see the late-term abortion as described, you
know, partial-birth and then destruction of the unborn child before
the head is born is a medical necessity for the mother." He
reiterated partial-birth abortions were not necessary for the
health of the mother.
MR. DOZIER, JR. further stated that the legislature could conclude
that partial-birth abortions were not necessary to preserve the
health of the mother, and indeed could be inimicable to the health
of the mother. Therefore, the pre-viability and the post-viability
standards required by the Casey decision were satisfied. In
addition, there were several permissible and compelling state
interests that were advanced by HB 65. He cited, the cruelty and
the gruesome act of sticking scissors into a baby's head. The
state had a very strong interest in protecting human life from such
cruel and gruesome actions. He also cited, a partial-birth
abortion tended to mix the roles of physician and abortionist. A
physician was considered a healer, while an abortionist was not
considered a healer. He was concerned that in mixing these two
opposing roles there would be a great danger that public confidence
in the medical profession would be undermined. He also cited, a
partial-birth abortion was inherently disrespectful of human life
and dignity. In addition, the state had a vital interest in
drawing a clear distinction between a legal abortion and
infanticide. The partial-birth abortion blurred that distinction.
"In my opinion, partial-birth abortions are fully constitutional
under the guidelines established by the United States Supreme
Court."
MR. DOZIER, JR. turned to the arguments made by Ms. Janet Crepps
and Ms. Kristen Bomengen. Ms. Crepps argued that HB 65 created an
undue burden because partial-birth abortions were the safest
procedure. He called that statement questionable. The committee
members had been provided with an abundance of materials indicating
that partial-birth abortions were not necessary for the health of
the mother and actually presented a risk to her. Ms. Crepps also
argued that the Supreme Court in the Planned Parenthood v. Danforth
case held that the use of saline amniocentesis was unconstitutional
because it forced the doctor to use a more dangerous method. And,
HB 65 involved the proscription of a defined abortion procedure
like in Danforth. However, Danforth he stated, was clearly
distinguishable on three different grounds. First, HB 65 did not
force women to use procedures that were less safe than partial-
birth abortions. Second, the Danforth court emphasized that the
proscribed method was the most prevalent available. In HB 65 the
proscribed method was not even used in Alaska and other safe
methods were available. Third, the Danforth court predated the
Casey court; therefore, the analysis focused on whether the state
advanced maternal health. The Casey court changed all that. Now,
it is recognized that the state's interest could be asserted
throughout a pregnancy. He declared, "House Bill 65 does just
that. And, it may be expected that the right to assert that
interest by the state would be weighed in any constitutional
challenge. Danforth, quite simply, is distinguishable." Ms.
Crepps further argued that the only court to review or ban a
similar procedure in HB 65 invalidated it because for some women
the prohibited procedure would be safer than other available
procedures that was in the Women's Medical Professional Corporation
v. Voinovich court case. The court held that D&X was safer than
other methods and because it was more available than induction
methods, its proscription was a substantial burden and therefore,
unconstitutional. The House State Affairs Standing Committee had
ample evidence to base a decision on safety. "Indeed the only
medical testimony presented suggesting a need for a D&X procedure
or partial-birth was presented by two doctors who clearly were not
talking about partial-birth abortions. They appeared to be talking
about late-term abortions in general." Moreover, the House State
Affairs Standing Committee could not find, given the testimony of
the Public Health Director, that partial-birth abortions were more
prevalent than any other method in the state of Alaska. "In Alaska
partial-birth abortions are simply not being done right now."
Finally, Ms. Crepps argued that the privacy clause of the Alaska
State Constitution would be violated by HB 65. "I don't know how
she can be so certain about this," he declared. The Alaska Supreme
Court had not yet decided an abortion case using this
constitutional provision. The right was broader than the privacy
right found by the court in the U.S. Constitution, but it was not
absolute. And, "Certainly the right to privacy is not violated
when an alleged abridgement is justified by a legitimate and
compelling governmental interest." He stated, the government had
a compelling interest to protect almost-born babies and to protect
public confidence in the medical profession by not blurring the
roles of physicians and abortionists. The government also had a
compelling interest to protect the almost-born from this cruel,
gruesome and undignified death.
MR. DOZIER, JR. stated that Ms. Bomengen argued that the D&X
procedure was the safest method; so, it was subject to
constitutional challenge. He reiterated that there was amble
evidence presented to the committee members that indicated D&X was
not the safest procedure. Ms. Bomengen also argued that the
definition was broad because it could encompass procedures other
than partial-birth abortions. The definition in HB 65 does not
overlap alternative methods. Ms. Bomengen also argued that the
definition was vague. The definition in HB 65 is clear and
precise. It establishes definitively what is proscribed, and
persons of common intelligence can easily understand what is
prohibited. "Thus there will not be a chilling affect. I think
Ms. Bomengen has in mind a definition that was used in the statute
examined by the court in Voinovich back in Ohio." The court, quite
rightly, concluded that there was an overlap and that the statute
was vague. But, the definition employed in the Ohio case does not
resemble the definition in HB 65. "The termination of a human
pregnancy by purposefully inserting a suction devise into the skull
of a fetus to remove the brain, dilation and extraction procedure
does not include either (indisc.--coughing) procedure of abortion
of the suction aspiration procedure of abortion." The court found
that this definition overlapped a normal D&E procedure because both
involved inserting a section devise into the skull. Furthermore,
the absence of the mental component of a criminal statute was
somewhat persuasive. In HB 65 there was no expressed mental
component; the required state of mind was knowingly. Ms.
Bomengen's concerns regarding vagueness were misplaced. House Bill
65 does not resemble, in any respect, the statute considered by the
Voinovich court. House Bill 65 was clear, precise and did not
overlap any other abortion procedure. Finally, because it is clear
there is no danger of arbitrary or discriminatory enforcement.
MR. DOZIER, JR. concluded that in his judgement House Bill 65 would
pass constitutional muster.
Number 465
REPRESENTATIVE ETHAN BERKOWITZ asked Mr. Dozier to distinguish
between a partial-birth abortion and a late-term abortion?
Number 470
MR. DOZIER, JR. replied that a partial-birth abortion could be
either a pre-viable or a post-viable abortion. A partial-birth
abortion could be a late-term abortion also. House Bill 65 did not
proscribe late-term abortions; it only proscribed a certain
procedure.
Number 476
REPRESENTATIVE BERKOWITZ stated that Mr. Dozier, Jr. indicated the
two doctors that testified described a late-term abortion.
Number 478
MR. DOZIER, JR. replied, "Yes." That was what they had in mind.
Dr. Nakamura also indicated that they were referring to late-term
abortions.
Number 486
REPRESENTATIVE BERKOWITZ stated that the doctors who would be
guided by this law were confused thereby satisfying the vagueness
issue. He asked Mr. Dozier, Jr. to respond.
Number 490
MR. DOZIER, JR. referred the committee members to page 1, lines 11-
13, and read "(c) In this section, `partial-birth abortion' means
an abortion in which the person performing the abortion partially
vaginally delivers a living fetus before killing the fetus and
completing the delivery." He asked Representative Berkowitz what
was unclear about that definition?
Number 499
REPRESENTATIVE BERKOWITZ replied that the doctors who were to be
guided by the law and who testified interpreted it as a ban on
their procedures that they had practiced. Yet, Mr. Dozier, Jr.
indicated that the procedures that they practiced did not
constitute a partial-birth abortion. Yet, the fact that they were
confused chilled their actions. Therefore, the bill was void for
vagueness.
MR. DOZIER, JR. wondered if that was a question or a comment.
Number 509
CHAIR JAMES asked Representative Berkowitz if his comment was also
his position?
REPRESENTATIVE BERKOWITZ replied that was his question.
CHAIR JAMES stated that Mr. Dozier, Jr. already answered that
question. He believed it was very clear. She asked Representative
Berkowitz if he believed it was unclear?
Number 512
REPRESENTATIVE BERKOWITZ replied he believed it was unclear. He
believed if the bill was rewritten it could be clearer.
Number 514
CHAIR JAMES asked Representative Berkowitz to explain what was not
clear.
Number 515
REPRESENTATIVE BERKOWITZ replied there were several issues unclear.
First, the legal history that Mr. Dozier, Jr. recited described the
procedures in terms of pre-viability and viability thereby
injecting the new term "living." Second, doctors who were to be
guided by the statute interpreted it in such a way that their
actions would be banned thereby creating a chilling effect.
Number 526
REPRESENTATIVE BERKOWITZ asked Mr. Dozier, Jr. why the term
"living" was not being used and instead the terms "pre-viability"
and "viability?"
Number 530
MR. DOZIER, JR. replied because the term "viability" was irrelevant
to what was being proscribed in HB 65. The bill was constitutional
regardless of whether it was applied to a pre-viable fetus or a
viable fetus.
MR. DOZIER, JR. further stated that there were certain practical
difficulties when applying a partial-birth abortion early on. For
example, the fetal tissue would be too tender to manipulate.
Number 545
REPRESENTATIVE BERKOWITZ asked Mr. Dozier, Jr. if there was a legal
definition of the term "living?"
Number 547
MR. DOZIER, JR. replied he thought Representative Berkowitz was
suggesting that the definition was too vague because the bill did
not define the term "living." A statute passed constitutional due
process muster if it was certain enough so that it would apprise
people of common intelligence of what was being made illegal. "I
don't think that there is a doctor alive, let alone a man, woman,
or child alive in the United States that doesn't know what living
is. I don't think that living is necessary to be defined." For
example, the bill would not apply to a dead fetus in a mother's
womb. But, if the fetus was still alive and partially delivered
vaginally then killed, the bill applied.
Number 565
REPRESENTATIVE BERKOWITZ stated Mr. Dozier, Jr. indicated that the
Voinovich court made finding of fact.
Number 566
MR. DOZIER, JR. replied, "Yes, I did."
REPRESENTATIVE BERKOWITZ further stated that the court indicated
the partial-birth procedure was safe or could be the safest method.
Number 569
MR. DOZIER, JR. replied, "I don't believe that the court actually
made that determination." The case was a request for an
injunction. The court had to decide if it was likely that once
this matter went to a full trial that the plaintiff would prevail
in court. The court issued the injunction. He did not know if the
issue went to full trial, however. The legal history was not
available.
Number 587
REPRESENTATIVE BERKOWITZ said he misunderstood when Mr. Dozier, Jr.
stated, "In all candor the finding of fact." He asked Mr. Dozier,
Jr. for a copy of his testimony.
MR. DOZIER, JR. replied he did not have a copy of his testimony; he
was referring to written notes only.
REPRESENTATIVE BERKOWITZ stated his written notes would be fine.
MR. DOZIER, JR. replied he had private notations written on the
pages.
Number 596
CHAIR JAMES stated she would not compel Mr. Dozier, Jr. to give
Representative Berkowitz his notes. A tape recording of the
meeting was available.
REPRESENTATIVE BERKOWITZ stated he did not care to have his private
notes. A computer print out would be fine.
CHAIR JAMES stated her decision had been made. She reiterated a
tape recording of the meeting was available.
REPRESENTATIVE BERKOWITZ noted for the record the cooperation of
Mr. Dozier.
Number 602
REPRESENTATIVE MARK HODGINS moved that HB 65 move from the
committee with the attached fiscal note(s) and individual
recommendations.
Number 604
REPRESENTATIVE BERKOWITZ objected.
REPRESENTATIVE BERKOWITZ stated that the bill as it was written
constituted an unwarranted governmental intrusion that abridged the
rights of Alaskan women, doctors and families. This was not an
abortion issue, it was a medical issue. In addition, testimony
before the U.S. Congress indicated the medical necessity for this
procedure. And, no one disputed the gruesome fashion of this
procedure. There was no testimony, however, before the House State
Affairs Standing Committee that indicated this was how the
procedure was performed. The sponsor relied on the testimony of
Nurse Shafer, of which, information indicated that her credibility
was questionable. He found it difficult that the committee members
would accept, without question, the testimony given in another
body. Moreover, this issue was also a question of faith. There
were many different position of faith. He read a list of churches
that supported this type of procedure. "For me this was a question
of faith in that I have faith in the constitution. And, I believe
the constitution adequately circumscribes the procedures that are
in question here." He urged the committee members to make a fair
inquiry into what this issue was about. He reiterated this was not
a question of an abortion, but of a medical procedure. He further
stated that if the bill was well written there were ways he could
support it. He also stated that this was a reason why a dialogue
needed to occur between the members of the majority and the
minority; there were middle grounds and alternatives.
Number 654
CHAIR JAMES asked Representative Berkowitz if he was insinuating
that the dialogue did not happen?
Number 655
REPRESENTATIVE BERKOWITZ replied, "I just caution that when the
minority is silenced it tends to result in a tyranny of the
majority."
Number 658
CHAIR JAMES asked Representative Berkowitz if he was suggesting
that the minority was silenced?
Number 660
REPRESENTATIVE BERKOWITZ replied, "I fell that I have been silenced
in this committee." And, he also felt that given proper time he
could have elicited testimony that would have helped him to rewrite
the bill.
CHAIR JAMES replied let's get back to the point. Let's get back to
Representative Berkowitz's distress of the bill.
REPRESENTATIVE BERKOWITZ further stated that the bill was void for
vagueness. It would not pass constitutional muster. It endangered
the health and well being of Alaskan women unnecessarily. It was
not even practiced here in Alaska. "I think this is an exercise in
political grand standing that we ought not be engaged in."
The record reflected the arrival of Representative Al Vezey at 9:00
a.m.
Number 664
CHAIR JAMES stated that she would vote to pass the bill out of the
committee because it prohibited a gruesome procedure that was
available when the life of the mother was at stake. The bill only
prohibited the procedure when it was elected by the mother. It did
not necessarily involve a threat to life of the mother.
CHAIR JAMES called for a roll call vote. Representatives James,
Dyson, Hodgins, Ivan and Vezey voted in favor of the motion.
Representative Berkowitz voted against the motion. House Bill 65
was so moved from the House State Affairs Standing Committee.
HB 13 - MARINE SAFETY TRAINING & EDUCATION
The next order of business to come before the House State Affairs
Standing Committee was HB 13, "An Act relating to marine safety
training and education programs."
TAPE 97-17, SIDE B
Number 001
CHAIR JAMES announced for the record that Representative Kim Elton
was attending a sub-committee meeting today.
CHAIR JAMES called on Representative Alan Austerman, sponsor of HB
13, to present the bill.
Number 010
REPRESENTATIVE ALAN AUSTERMAN, Alaska State Legislature, explained
HB 13 was a remake of a bill that he introduced two years ago. It
was passed out of the House of Representatives, then died in the
Senate.
REPRESENTATIVE AUSTERMAN stated in 1988 the United States Coast
Guard took a strong look at what was going on as far as safety was
concerned in the marine industry. Consequently, the Commercial
Fishing Vessel Safety Act of 1988 was passed. The Act took effect
in 1991 and required the minimum in safety training and equipment
for commercial fishing vessels. The Alaska Marine Safety Education
Association (AMSEA) also helped Alaskans by providing marine safety
instructor training some of whom teach drill instructor courses.
Other marine safety instructors train the Alaska boating and
fishing public, including many children and adults in marine
safety. Of the 7,300 people AMSEA trained in 1995, 2,000 were from
the commercial fishing industry and 3,700 were children. According
to a study conducted in 1995 by the Native Health Service, AMSEA
training significantly reduced fatalities among commercial
fisherman. This coincided with a 50 percent drop in fishing
fatalities in Alaska in the last four years. Moreover, AMSEA was
a nonprofit, community-based information and training network
supported by many volunteers. Its annual budget had ranged from
$100,000 to $250,000 in the past five years. It had received 100
percent of its funding from the federal government, of which, the
funding fell to $50,000 last year. And, this year it would fall to
$0. The number of people training also fell to an all time low.
The organization deserved the intervention of the legislature to
ensure long-term stability. Moreover, the Fishermen's Fund was
created before statehood and 100 percent of it was funded by
commercial fishing license fees. Sixty percent of all license fees
were dedicated to the fund. Since commercial fishermen were often
the beneficiaries of the required marine safety training, it was
appropriate to allow part of the interest of the fund to be used to
fund some of AMSEA's marine safety programs. It was estimated that
the Fishermen's Fund generated approximately $300,000 in interest
a year. The bill requested up to approximately one-half of the
interest earnings a year. The current interest earnings, he
explained, of the Fishermen's Fund went into the general fund.
Number 099
REPRESENTATIVE AUSTERMAN also stated that he had lived on or around
water most of his life. Therefore, "The need to have education and
training, particularly starting with our children, is to me very,
very important." His office would be willing to provide a package
of information from last year that included testimony from all over
Alaska illustrating the need and benefits of AMSEA. He cited the
decline in the death rate in the Interior of Alaska on the rivers
was directly related to the Act. He reiterated the all time death
rates had also decreased over the last four years. National
publications also illustrated the direct benefit of survival as a
result of the training received from the program. The state of
Alaska did not have a water boat safety program. The AMSEA program
was the nearest the state had, and probably the nearest it would
get to one with the funding reductions. He concluded that the bill
was passed out of the House of Representatives last year with a
vote of 34 to 4.
Number 145
CHAIR JAMES asked Representative Austerman what types of problems
did he see if the bill did not pass in regards to the issue of
dedicating funds? Was the legislature authorized without the bill
to give 50 percent of the interest income to a safety training
program or an amount from the general fund that was comparable?
Number 158
REPRESENTATIVE AUSTERMAN replied that the Fishermen's Fund was a
pre-statehood dedicated fund. The interest earnings that went into
the general fund were not part of the dedication. If the stream of
interest earnings were interrupted, it would not touch to
dedication itself. If the bill proposed money from the fund
itself, however, then the dedication would be destroyed.
Number 170
CHAIR JAMES said Representative Austerman misunderstood her
question. The effect of HB 13 was to draw attention to the
legislature and the relationship between the interest of the fund
and the need for training.
CHAIR JAMES further stated that the bill did not compel the
legislature to do this, the wording only said "may." But, if the
bill did not pass the legislature would probably never fund it.
Therefore, the effect of this piece of legislation was not binding,
it was only suggestive.
Number 183
REPRESENTATIVE AUSTERMAN replied, "That is correct." A source of
funding had been identified that was generated by the fishermen
themselves.
Number 190
CHAIR JAMES thanked Representative Austerman. She agreed that was
the message that the legislature wanted to send. It could be
argued that this was not necessary; the legislature could already
do this. The act was the message.
Number 194
REPRESENTATIVE FRED DYSON stated he had been trained under the
program himself. He was certified to conduct vessel safety
equipment inspections and man-over-board drills. He believed he
could also charge a fee for his services and profit from the
results of the program. He never had, however.
CHAIR JAMES stated that the committee members appreciated his
disclosure.
REPRESENTATIVE DYSON stated that much of this legislation came from
the loss of a seiner in Marmot Bay, and the efforts of the
influential parents of one of the victims. He agreed with
Representative Austerman that the rate of survival had decreased
precipitously in Alaskan waters. This Act and the training had a
profound affect on marine disasters in Alaska. "I will certainly
encourage us to pass this bill and commend the author for his
relentless pursuit of keeping this training available."
Number 231
REPRESENTATIVE HODGINS asked Representative Austerman if the bill
placed an economic burden on Alaskans living remotely? How was the
training conducted and certified?
Number 235
REPRESENTATIVE AUSTERMAN replied the majority of the people
involved were volunteers. A little bit of money was used for
travel and equipment. The program reached out to 7,300 people with
only a budget of $150,000.
Number 250
RON DEARBORN, Director, Alaska Sea Grant College Program,
University of Alaska Fairbanks, was the first person to testify via
teleconference in Fairbanks. He worked with faculty throughout the
university of Alaska system on research, education and marine
extension efforts. The program was one of the original partners of
the AMSEA. The relationship continued, proudly. The AMSEA had
received national awards. The one critical partner missing was the
Alaska State Legislature. He urged the committee members to
support HB 13.
Number 281
JERRY DZUGAN was the next person to testify via teleconference in
Sitka. He cited that drowning was the number 2 cause of accidental
death in Alaska. And, Alaska had the highest drowning rate in the
nation. The rates were starting to fall, however. He asked the
committee members to expedite the passage of the bill so that
Alaskans of all ages could continue to take advantage of this
program and reduce the needless loss of life due to drowning.
Number 298
LARRY BUSSONE, Health Program Manager II, Division of Public
Health, Department of Social Services, was the first person to
testify in Juneau. He announced the department's support of the
bill.
Number 313
REPRESENTATIVE HODGINS moved that HB 13 move from the committee
with the attached fiscal note(s) and individual recommendations.
There was no objection, HB 13 was so moved from the House State
Affairs Standing Committee.
HB 50 - ALLOW BROADCASTING OF RAFFLES AND CLASSIC
The next order of business to come before the House State Affairs
Standing Committee was HB 50, "An Act relating to the use of
broadcasting to promote or conduct certain classics or sweepstakes;
and providing for an effective date."
CHAIR JAMES called on Representative Mark Hodgins, sponsor of HB
50, to present the bill.
Number 333
REPRESENTATIVE MARK HODGINS, Alaska State Legislature, explained HB
50 was an act relating to the use of broadcasting to promote or to
conduct certain classics or sweepstakes; and to provide for an
effective date.
REPRESENTATIVE HODGINS further stated that the intent of the bill
was to remove the prohibition on broadcast advertising for
legislatively established non-profit classics within the state.
REPRESENTATIVE HODGINS cited the following classics: Canned
Salmon, Deep Freeze, Goose, Ice, King Salmon, Mercury, Mushing
Sweepstakes, and Salmon.
REPRESENTATIVE HODGINS further explained the only non-profit
classics that could advertize, currently, were the fishing derbies.
Therefore, by providing this advertising vehicle the legislature
would assist these organizations by increasing the public awareness
of each event. The bill did not include the ability of pull-tabs,
bingo or raffle events to broadcast.
REPRESENTATIVE HODGINS further explained there was an amendment to
the bill, of which, he did not have a problem with it. The
amendment added another non-profit classic to the bill that was
moving through the House of Representatives now.
Number 379
REPRESENTATIVE KIM ELTON wondered if the expansion of the ability
to broadcast would take up more of the existing pie. He was
concerned it would harm other non-profits that were also trying to
raise money.
Number 388
REPRESENTATIVE HODGINS replied the non-profits explicitly referred
to in the bill were legislatively established. Therefore, there
was a restriction on how much of their funding could be used for
advertizing. House Bill 50 called for a restriction of 12 hours of
total advertizing. In addition, most of the non-profits would
receive community support from radio and television stations. The
classics used the money for the good of the community-scholarships
and social activities, for example. "I believe that with the
restrictions that they have on with the amount of revenue that they
can dedicate to advertizing or broadcasting, I don't think that
that would be a concern, Representative Elton."
Number 406
REPRESENTATIVE BERKOWITZ referred the committee members to page 2
of a memorandum dated December 23, 1996 from Gerald P. Luckhaupt,
Legislative Counsel, Division of Legal and Research Services, and
read, "If this limited authorization was challenged a court would
have to accept the justification advanced by Senator Torgerson
during our conference call the other day." He asked Representative
Hodgins if he knew what that was about?
Number 413
REPRESENTATIVE HODGINS replied he was with Senator John Torgerson
when it was decided a remedy was needed for the exclusion of
broadcasting for the legislatively established non-profit classics.
The court was concerned that the bill would open broadcasting up to
everything. As a result, the specific classics that the bill would
cover were listed in the bill.
Number 424
REPRESENTATIVE BERKOWITZ replied he just wanted to be clear because
any sort of court interpretation would hinge on that conversation.
Number 427
REPRESENTATIVE HODGINS replied, as a common person, I could not
answer that.
REPRESENTATIVE BERKOWITZ replied, "There's no such thing as a
common person."
Number 429
CHAIR JAMES stated that the classics listed were community based
funding mechanisms as opposed to special interests. She asked
Representative Hodgins if her statement was correct?
Number 435
REPRESENTATIVE HODGINS replied, "I would believe so, Madame
Chairman." Some of the funds were used for scholarships and
community events. He did not know of anything that would be
targeted to a small group within the community. Generally, it was
a community based effort.
Number 443
REPRESENTATIVE IVAN IVAN moved that Amendment 1, 0-LS0288/A.1,
Luckhaupt, 2/19/97, be adopted.
REPRESENTATIVE IVAN suggested the amendment because there was a
bill before the House of Representatives that allowed for another
permitted activity. This would also prevent future legislatures
from amending the provision. Specifically, the amendment would
allow dog mushing contests to participate in broadcast advertizing.
In addition, he believed the amendment allowed for future
participation by groups without having another hoop to jump
through.
Number 463
REPRESENTATIVE ELTON objected to the motion.
REPRESENTATIVE ELTON stated he saw this as an expansion of gaming
and as another way to redivide the pie. He was concerned about the
effect on the "true charities" rather than some of the "for fun"
kind of activities. He announced he also objected to the bill.
CHAIR JAMES stated the committee members remembered his first
statement made on this issue; his Calvinistic background.
CHAIR JAMES called for a roll call vote. Representatives James,
Berkowitz, Dyson, Hodgins, Ivan and Vezey voted in favor of the
motion. Representative Elton voted against the motion. The
amendment was adopted.
Number 482
REPRESENTATIVE BERKOWITZ asked if he could make a friendly
amendment to the amendment?
CHAIR JAMES stated it was too late now. A new amendment would be
needed.
REPRESENTATIVE BERKOWITZ moved that the word "permitted" be
inserted between the words "activity" and "under."
REPRESENTATIVE ELTON stated that was language that was being
deleted.
REPRESENTATIVE BERKOWITZ withdrew his motion.
Number 497
LAURA MEASLES, Executive Director, Kenai Chamber of Commerce, was
the first person to testify via teleconference in Kenai. She
explained the Kenai Chamber started the Snow Goose Classic in 1994.
To date, the chamber had spent approximately $20,000 to promote the
classic, of which, was also matched by the local media. In
addition, the classic's major sponsor, Tesoro Alaska Petroleum,
also contributed a total of $30,000 to help build the classic. The
chamber was concerned about the legality of adding a gaming entity
and for allowing one media type of coverage versus another. The
proceeds from the classic funded scholarships and various community
events. Moreover, every non-profit was required to file a
financial statement with the Charitable Gaming Division each year,
of which, check numbers and bank statements were required to prove
that the intent had been accomplished. It was legal to broadcast
on the airways or television provided that it was conducted as a
news item. However, the Goose Classic was not as visible and the
pot was not as large as the Iditarod Sled Dog Race and the Nenana
Ice Classic, for example, which had received a lot of coverage.
The chamber tried desperately to receive the same coverage, but to
no avail. The chamber was also concerned about the financial
impact on the local radio station. She thanked Representative
Hodgins for sponsoring the bill.
Number 536
STEVE HOLLOWAY, Operations Manger/Marketing Director, KSRM Radio,
was the next person to testify via teleconference in Kenai. The
money that the chamber would spend with the radio station would not
make or break the station. "But, it is a little frustrating when
you open up the paper every other day and there's a big ad for it.
And, here we are giving away free time to them; trying in an
indirect way with news stories to promote this just to keep our
chamber going and help out." The Federal Communication Commission
(FCC) required that it give away time to charities. And, now that
requirement went by the wayside. However, radio and television
continued to give away much of their product to promote the local
community. Here was a chance to help the chamber raise money and
"to put a little money into our coffers. And, now the legislature
said radio and television could not, but the newspaper could, and,
for some reason that doesn't seem fair. Maybe it seems fair to
you, but it sure doesn't to me." Studies indicated that people
were reading less newspapers, and watching more television.
"Whether that's good or bad, you know, that's not for us to say."
The station had always given a two for one special for non-profit
rates. In addition, this was not an expansion of gaming. It was
a chance to successfully promote current fund raisers a little
better. The station reached 10,000 to 15,000 people every day,
while the local paper reached 3,000 to 4,000 people. "I don't why
they wouldn't want these charities promoting their products more
successfully that way they're not begging the legislature for more
money every time you turn around." It would be fun to promote this
the way it should be promoted. "I'm sure the Iditarod people would
feel the same way as well."
Number 572
CHAIR JAMES announced Dennis Poshard, Director, Charitable Gaming
Division, Department of Revenue, was here to answer any questions.
Number 574
REPRESENTATIVE BERKOWITZ moved that HB 50, as amended, move from
the committee with the attached fiscal note(s) and individual
recommendations.
Number 576
REPRESENTATIVE ELTON objected.
REPRESENTATIVE VEZEY stated for clarification, that if the bill was
passed out of the committee without the amendment, the amendment
would also go to the next committee of referral. He asked Chair
James if she meant to pass the bill as a committee substitute?
CHAIR JAMES replied, at this point, "I think we'll just move it on
with the amendment."
REPRESENTATIVE VEZEY replied, "Pass the bill out with the
amendment?"
CHAIR JAMES replied, "Yes, that's what we'll do."
CHAIR JAMES called for a roll call vote. Representatives James,
Berkowitz, Dyson, Hodgins, Ivan and Vezey voted in favor of the
motion. Representative Elton voted against the motion. House Bill
50, as amended, was so moved from the House State Affairs Standing
Committee.
REPRESENTATIVE DYSON asked Chair James if there was a meeting
scheduled for Saturday, February 22, 1997?
CHAIR JAMES replied the committee would not be meeting on Saturday.
Number 619
CHAIR JAMES further commented on the rules of operation of the
House State Affairs Standing Committee meetings. As chairman, she
had the authority to make the rules and regulations. She explained
her rule to not question testifiers was based on two decisions.
The first was due to the massive number of testimony and the
interchange between the committee members and the testifiers. In
many cases it was advisable, especially when there was a testifier
who was more knowledgeable than the committee members. She
personally felt, however, that it was stagnating the committee. It
also appeared that there were statements to question the
credibility of the testifier. "In this committee, where we have
the general public coming out to testify of their personal belief
or personal situation on a piece of legislation that's before us,
I do not want there to be any intimidation of that person that
would make them squirm or feel uncomfortable." She wanted to
encourage more people to testify. The committee had a right to
discount something that was heard. And, if there was an "expert"
witness an interchange was possible. She cited the distress of
Representative Berkowitz and Representative Elton. She appreciated
them coming forward and telling her about their distress. She
would also appreciate it if the matter was put to rest. She did
not want to hear about it again. It was disruptive to the
committee and to her position as chairman. She apologized if
anyone had been insulted by her actions. The legislative process
was not like a court of law so there was not the opportunity to
question a testifier's integrity, position or belief. She
reiterated her intention was to run a fair and equitable committee,
to treat every member the same, and to not make any priority
decisions based on the minority or majority position. "My full
faith and philosophy is on fairness and respect. And, I believe
that the best part of the political decisions comes from the honest
and open debate. I will struggle and try harder to make that be
more evident. If it has been decided by some people that I am not
doing a good job, I am only human, and I can make mistakes, and
I'll admit those." That was her purpose, meaning, thrust and the
way she planned to operate the committee meeting in the future.
Number 671
REPRESENTATIVE BERKOWITZ thanked Chair James for taking the time to
talk with himself and Representative Elton. He also appreciated
the clarification of the rules. He hoped that she would take the
opportunity to protect other witnesses from assaults from the
testifiers as well to protect the integrity of the process. It was
important to maintain respect. "I think that we can engage in
good, civil discussion and produce some substantive legislation."
Number 682
REPRESENTATIVE DYSON stated at times it would be helpful to ask a
witness if he or she had a vested interest. He asked Chair James
if that would be an antagonistic type question?
Number 686
CHAIR JAMES replied, "Yes. Because, where do you start and where
do you stop?" Any citizen had the right to testify before a
committee meeting without the feeling of intimidation. She
reiterated this was not a court of law, it was a public process.
"We are citizen legislators and those people out there are
citizens. And, the way law is made and the way government works is
by public opinion whether you like it or not."
TAPE 97-18, SIDE A
Number 001
REPRESENTATIVE IVAN commented that many of his constituents spoke
a native language, of which, an interpreter would be needed to
testify. He was not asking for an interpreter, however.
Number 008
CHAIR JAMES commented that Representative Ivan was in full power to
do such a thing. "We have in this committee the intention to hear
from the public on the issues that are here before us. That is the
goal and that is what I'm going to be here to provide."
Number 014
REPRESENTATIVE ELTON expressed his appreciation of Chair James for
taking the time to discuss this issue with him yesterday. He also
thanked her for clarifying the rules. He further commented that he
understood how difficult it was to be a chair, and that if he was
ever out of line that she should jerk him back. "I do believe that
any ruling that precludes asking any question, whether or not it
would be termed by you as harassment or non-harassment, without
giving us the ability to ask a question or to clarify something
that we've heard, your also precluding good questions. And, I
fully agree with you. I would like to think I have never harassed
a witness in any of my public life or pressured one because I know
how difficult it is to come before any kind of a body and testify."
He believed, however, that the net affect was to narrow the
committee's intellectual curiosity.
Number 054
CHAIR JAMES replied that if everyone understood the type of
questions that could be asked she would take it under
consideration. Such as, a point of clarification or a statement of
"as I understood you to say this...." Those were the only two
kinds of questions that she would allow.
CHAIR JAMES further stated the other part of the issue was that
committee chairmen were under fire for getting all the witnesses to
testify. The general public believed that the committee members
ragged on too long. These were the types of fairness questions
that needed to be measured. And, in any type of a fairness issue
there were winners and looser. A distressed type of interchange
was not needed. The opportunity for the people to testify were two
fold - to listen to their testimony and to help the committee
members make a decision. In addition, there were bills where there
were no witnesses. "We should have the initiative and the
obligation to get the sufficient information that we need to pass
a piece of legislation with or without public testimony." The
testimony was for the public's good and not for the committee's
good.
Number 142
REPRESENTATIVE ELTON stated that Chair James had removed herself as
a traffic manager and from any ability to determine if the question
was abusive or dilatory. "And, so it may have made you job easier,
it has made my job more difficult, if I am not allowed to clarify,
if I am not allowed to ask questions of witnesses." He further
stated, "That when I feel I am not allowed to be a full member of
the committee, I'll leave because I've got other things to do."
ADJOURNMENT
Number 160
CHAIR JAMES adjourned the House State Affairs Standing Committee
meeting at 10:00 a.m.
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