Legislature(1995 - 1996)

02/21/1996 09:30 AM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                       February 21, 1996                                       
                           9:30 a.m.                                           
  MEMBERS PRESENT                                                              
 Senator Lyda Green, Chairman                                                  
 Senator Loren Leman, Vice-Chairman                                            
 Senator Mike Miller                                                           
 Senator Johnny Ellis                                                          
 Senator Judy Salo                                                             
  MEMBERS ABSENT                                                               
 All members present.                                                          
  COMMITTEE CALENDAR                                                           
 SENATE BILL NO. 156                                                           
 "An Act requiring mandatory mediation of child custody disputes               
 except in extraordinary circumstances; relating to modification of            
 child custody or visitation rights; amending Alaska Rule of Civil             
 Procedure 100; and providing for an effective date."                          
 SENATE BILL NO. 185                                                           
 "An Act relating to immunization records for children under the age           
 of seven."                                                                    
  PREVIOUS SENATE COMMITTEE ACTION                                             
 SB 156 - See Health, Education & Social Services minutes dated                
          9/21/95, 10/20/95.                                                   
 SB 185 - See Senate Health, Education & Social Services minutes               
          dated 2/12/96, 2/14/96.                                              
  WITNESS REGISTER                                                             
 Mike Tibbles, Staff                                                           
 Senator Green                                                                 
 State Capitol                                                                 
 Juneau, Alaska 99801-1182                                                     
 POSITION STATEMENT:  Discussed SB 156.                                        
 Art Snowden, Administrative Director                                          
 Alaska Court System                                                           
 303 K Street                                                                  
 Anchorage, Alaska 99501-2084                                                  
 POSITION STATEMENT:  Supported the premise of SB 156.                         
 Mary Anne Dearborn                                                            
 308 G Street, #201                                                            
 Anchorage, Alaska 99501                                                       
 POSITION STATEMENT:  Supported SB 156.                                        
 Bill Cotton, Executive Director                                               
 Alaska Judicial Council                                                       
 1029 W 3rd                                                                    
 Anchorage, Alaska 99501                                                       
 POSITION STATEMENT:  Urged the favorable consideration of SB 156.             
 Diana Buffington                                                              
 Children's Rights Council                                                     
 PO Box 92309                                                                  
 Anchorage, Alaska 99509                                                       
 POSITION STATEMENT:  Stated that mediation is not occurring in                
 Carol Palmer, Advisory President                                              
 Victims of Custody                                                            
 PO Box 2402                                                                   
 Palmer, Alaska 99645                                                          
 POSITION STATEMENT:  Offered to make a videotape.                             
 Diane Lo Russo                                                                
 PO Box 2216                                                                   
 Palmer, Alaska 99645                                                          
 POSITION STATEMENT:  Discussed concerns regarding mediation in                
                      cases with a history of domestic violence.               
 Robert Shumaker                                                               
 PO Box 4290                                                                   
 Palmer, Alaska 99645                                                          
 POSITION STATEMENT:  Supported SB 156.                                        
 Jayne Andreen, Executive Director                                             
 Council on Domestic Violence & Sexual Assault                                 
 Department of Public Safety                                                   
 PO Box 111200                                                                 
 Juneau, Alaska 99811-1200                                                     
 POSITION STATEMENT:  Discussed concerns with SB 156.                          
 John Middaugh, MD                                                             
 Chief, Epidemiology Section                                                   
 Division of Public Health                                                     
 Department of Health & Social Services                                        
 PO Box 240249                                                                 
 Anchorage, Alaska 99524-0249                                                  
 POSITION STATEMENT:  Discussed concerns with SB 185.                          
 Dr. Brad Gessner                                                              
 Maternal Child & Family Section                                               
 Department of Health & Social Services                                        
 1231 Gambell Street                                                           
 Anchorage, Alaska 99501                                                       
 POSITION STATEMENT:  Discussed research which has demonstrated a              
              relationship between SIDS and maternal smoking                   
      and SIDS and the child's sleep position.                                 
  ACTION NARRATIVE                                                             
 TAPE 96-12, SIDE A                                                            
 SHESS - 2/21/96                                                               
       SB 156 MANDATORY MEDIATION:CHILD CUSTODY ISSUES                       
 Number 001                                                                    
 CHAIRMAN GREEN called the Senate Health, Education and Social                 
 Services (HESS) Committee to order at 9:30 a.m. and introduced                
 SB 156  as the first order of business.                                       
 SENATOR MILLER moved to adopt the CSSB 156(HES), Lauterbach version           
 K, in lieu of the original bill.                                              
 SENATOR ELLIS objected for explanation purposes.                              
 MIKE TIBBLES, Staff to Senator Green, read the following statement:           
 SB 156 was introduced to help families involved in child custody              
 disputes resolve their differences through mediation rather than              
 adjudication.  Resolving issues before the courts is often very               
 expensive, confrontational and competitive to the point where a               
 parent will often do anything to "win."  This all or nothing                  
 mentality can lead to decisions which are contrary to the best                
 interest of the child.                                                        
 Mediation, however, leaves the decision making authority up to the            
 parties involved.  In order to win in mediation, the decision must            
 be based upon the cooperation of both parties.  Opening lines of              
 communication are essential to achieving the goal of shared custody           
 and responsibility, which are most often in the best interest of              
 the children.                                                                 
 During the interim the Senate HESS Committee held a public hearing            
 on SB 156.  While most participants were supportive of the concept            
 of mediation, several concerns were raised as to the cost of the              
 bill as written, the punitive nature, the practicality of its                 
 implementation and its effect upon families experiencing domestic             
 In an attempt to address these concerns, the sponsor of the                   
 legislation formed a citizens' work group to analyze the issues and           
 propose a new draft to report back to this committee.  This group             
 included members from the Alaska Dispute Settlement Association,              
 the ADR section of the AK Bar Association, the Supreme Court                  
 Committee on Mediation, AWAKE, Children's Rights Council, Victims             
 of Custody, the Alaska Judicial Council, the Mat-Su Valley Women's            
 Resource Center and Alaska Legal services.  The product of the                
 group's efforts resulted in the proposed committee substitute                 
 included in each of your packets.                                             
 The premise behind this draft is that, to be effective, mediation             
 should be a voluntary process and the role of the state should be             
 to educate the public about mediation as an option already                    
 authorized under the law not to mandate it in every occurrence.               
 The new draft will require the courts to order parties involved               
 with a custody dispute to attend an educational presentation on               
 mediation.  This can be accomplished through viewing a video,                 
 listening to an audio tape, or receiving a vocal presentation                 
 either in person or on the phone.                                             
 Mr. Tibbles offered to answer any questions.                                  
 SENATOR ELLIS removed his objection.                                          
 CHAIRMAN GREEN said that the CS has come a long way from the                  
 original bill.  The meetings were very interesting.                           
 Number 069                                                                    
 ART SNOWDEN, Administrative Director of the Judicial Branch of                
 Government, said the court system supported the premise of SB 156.            
 However, the mandate created by the language "shall" does not leave           
 any discretion to the judges.  This lack of discretion would hurt             
 the court system for many reasons:                                            
 (1) In rural areas of Alaska, many people do not live near a court            
     and these people file their divorce-custody pleas by mail.                
     SB 156 does not excuse these people.                                      
 (2) Some communities do not have mediators.                                   
 (3) SB 156 does not excuse victims of domestic violence.  Mr.                 
     Snowden noted that it is unclear as to whether Civil Rule 100             
     applies to mediation under this section.                                  
 (4) Are those who have previously seen a video going to be required           
     to do so again if they file a modification?  What about those             
     who sought mediation before the divorce?                                  
 (5) What about the sick or disabled or those who cannot take time             
     from work to view the video?                                              
 (6) Professional mediators would not be excused from watching the             
 (7) SB 156 does not address those persons whose first language is             
     not English.                                                              
 (8) What about those who move out of Alaska?                                  
 Number 118                                                                    
 Mr. Snowden mentioned that if there are not any copyrighted videos,           
 a great deal of money would be needed in order to create the video.           
 If there is a copyrighted video available for use, then a number of           
 videos would need to be purchased since such videos could not be              
 copied.  He pointed out that most courtrooms do not have room to              
 show the video; would people be required to drive to the nearest              
 available courtroom showing the video?  No fiscal note has been               
 created because if the final language will determine the fiscal               
 impact of the bill.  With "may" the fiscal note could possibly be             
 lower than $20,000 while "shall" would increase the cost                      
 significantly.  Mr. Snowden assured the committee that judges want            
 people to see the video and the Alaska Court System supports the              
 concept of SB 156.  The judges should be afforded the discretion to           
 excuse people from attendance for the reasons previously stated.              
 Number 157                                                                    
 SENATOR LEMAN related his experience in serving jury duty in which            
 he was required to watch a video discussing how to serve on the               
 jury.  The video was helpful.  Senator Leman felt that it would not           
 hurt people to see the video more than once.  Moreover, airplane              
 seatbelt demonstrations, fire drills, and many others are performed           
 on a regular basis.  Senator Leman felt that the process should be            
 the least burdensome.                                                         
 ART SNOWDEN agreed with Senator Leman.  In an area, such as                   
 Anchorage, viewing the video would occur in 99 percent of the                 
 cases.  Anchorage is already showing a video in practically all               
 cases.  The court system has every intention of showing the video,            
 however, making it mandatory in all cases creates a problem.  He              
 reiterated that judges should have some discretion in this area.              
 Number 192                                                                    
 SENATOR LEMAN asked if there had been any discussion about this               
 problem with the language.  CHAIRMAN GREEN replied no.  She                   
 explained that Civil Rule 100 addresses mediation.  Chairman Green            
 believed that very little mediation is recommended, requested or              
 even discussed in the courtroom.  SB 156 merely allows a                      
 conversation about mediation whether by telephone, video, or audio.           
 This can be done.                                                             
 ART SNOWDEN reiterated that this would happen in most cases, but              
 there are problems in various areas in Alaska which need to be                
 addressed.  Mr. Snowden suggested that the language could be                  
 changed from "shall" to "shall where practical" or "may excuse                
 individually" in order to give the judge some discretion.                     
 CHAIRMAN GREEN asked how the strength of the language could be                
 maintained with discretionary language.  ART SNOWDEN explained that           
 if a judge can individually excuse a person, that person must come            
 into court in order to be excused which would mean mediation.  Even           
 with some narrow discretion to the judge, the bill still maintains            
 its intent.  Currently, there is a local order mandating that those           
 involved in divorce cases view a video regarding the children.  The           
 court system does not have a problem with doing this, but it is not           
 possible in every case and the language does not allow any                    
 Number 225                                                                    
 SENATOR SALO believed that the variety of circumstances in Alaska             
 is dealt with in subsection (c) on page 1, lines 13-14 which                  
 specifies the manners in which the presentation could be achieved.            
 She asked if adding "or written presentation" on line 14, page 1              
 would alleviate Mr. Snowden's concerns.  ART SNOWDEN said that it             
 would be helpful.  That language would allow foreign language text            
 for those needing such.                                                       
 CHAIRMAN GREEN informed the committee that Senator Salo's language            
 had been discussed in the work group.  The work group was concerned           
 that it would be interpreted as a pamphlet and would be used first            
 rather than as a last resort.                                                 
 SENATOR LEMAN believed that there is a manner in which to deal with           
 these concerns.  Perhaps, the language could indicate that the                
 court could substitute, with good cause, the in-person educational            
 presentation by mailing the appropriate materials.                            
 ART SNOWDEN pointed out that in communities that do not have                  
 mediators and cannot get mediators, this is not practicable.  Mr.             
 Snowden indicated that copyrighted videos would be expensive.                 
 Hopefully, the audio portion could be created by the court system.            
 He said that the preferred method could be stated in the                      
 legislation, but the other rare situations in which the preferred             
 method would be impractical could be allowed to provide other                 
 SENATOR LEMAN asked if the copyright laws for videos were similar             
 to those of music copyrights.  Would there be a fee for each time             
 the video is shown?  ART SNOWDEN clarified that the video cannot be           
 duplicated, if more copies are needed then they must be purchased.            
 There is not a fee for each time the video is shown.  Mr. Snowden             
 indicated that the court system could produce a audio tape for                
 rural areas, however, there are no translations for certain terms             
 in other Native languages and often there is no mediator available.           
 Perhaps, it would be better to send the video regarding the                   
 children of divorce rather than on mediation.                                 
 Number 294                                                                    
 SENATOR SALO offered the following amendment:  page 1, line 14,               
 delete "or"; insert a "," after "vocal presentation"; and insert              
 "or where necessary written materials".                                       
 SENATOR LEMAN suggested that Senator Salo's amendment be a                    
 conceptual amendment.  The bill drafter could develop language to             
 achieve the intent of Senator Salo's amendment.                               
 In response to Senator Salo, CHAIRMAN GREEN said that SB 156 goes             
 to Senate Judiciary next and then Senate Finance.                             
 ART SNOWDEN appreciated the cooperation of the committee.                     
 SENATOR SALO clarified that her amendment was intended to address             
 Chairman Green's concern that the material not become merely a                
 pamphlet on mediation.                                                        
 Number 323                                                                    
 MARY ANNE DEARBORN, testifying from Anchorage, appreciated the                
 committee's work on SB 156.  She supported SB 156.  In response to            
 one of Mr. Snowden's comments, Ms. Dearborn believed that rural and           
 bush communities do have mediators and conflict resolution is more            
 prevalent in those communities than in more urban settings.  Tribal           
 court mediators and elders in community are well qualified and able           
 to be deal with conflict.                                                     
 BILL COTTON, Executive Director of the Alaska Judicial Council,               
 explained that one of the Council's responsibilities is to research           
 ways in which the court system can do its job better and cheaper.             
 Mediation and SB 156 are good steps in that direction.  He urged              
 the committee to favorably consider SB 156.  There are mediation              
 videos and tapes on the market that are not expensive.  Mr. Cotton            
 suggested that attorney's could also purchase these videos and make           
 them available for their clients.  Furthermore, Blockbuster has               
 public service videos such as these for rent.  The Council offered            
 to work with the court system to buy videos.                                  
 DIANA BUFFINGTON, Children's Rights Council, disagreed with Mr.               
 Snowden.  Ms. Buffington informed the committee that two of her               
 clients were recently denied court order mediation because the                
 judge felt that it was a waste of time.  Mediation is not being               
 widely used in Alaska courts; currently, Alaska ranks 50 nationwide           
 in the use of mediation.  Ms. Buffington said that bush communities           
 have poor education and written communication would not be helpful            
 in these areas.  The Children's Rights Council is willing to                  
 provide free weekend programs in the major communities as well as             
 some of the bush communities.                                                 
 Number 371                                                                    
 CAROL PALMER, Advisory President of Victims of Custody, agreed with           
 Ms. Dearborn regarding the ability of the Tribal Council to act as            
 mediators.  Victims of Custody is in the process of making a                  
 brochure.  Ms. Palmer offered to make a videotape.  She informed              
 the committee that she had seen a videotape entitled, Mediation:             
 It's Up to You which was suggested to be used in the courts.                 
 DIANE LO RUSSO, testifying from Palmer, informed the committee that           
 she had been working with domestic violence victims for 10 years.             
 She expressed concern that there is no language in SB 156 which               
 addresses the danger of mediation in cases where domestic violence            
 is present in the relationship.  She echoed Mr. Snowden's                     
 consideration of Civil Rule 100.  The National Battered Women's Law           
 Project and the National Association of Women and Family Law have             
 produced information cautioning the use of mediation in such cases.           
 She asked what type of qualifications were necessary to become a              
 mediator in Alaska.  Not so long ago, anyone could call themself a            
 CHAIRMAN GREEN said that SB 156 merely makes the video available to           
 those involved in child custody disputes.  DIANE LO RUSSO                     
 emphasized that most of the mediation information does not address            
 nor caution those who have relationships with a history of domestic           
 violence that mediation may not be the appropriate venue.                     
 Number 416                                                                    
 CHAIRMAN GREEN clarified that SB 156 makes the information                    
 available, the bill does not require confrontation.                           
 ROBERT SHUMAKER thanked the committee for their work on this bill.            
 He was sorry that the bill was no longer mandatory.  If the current           
 system was working, this bill would not be up for consideration.              
 He said that children should be the focus.  He hoped that the                 
 mandatory aspect of this would return next year.  He said that a              
 skilled mediator would not allow domestic violence to be a problem.           
 Mr. Shumaker supported the bill as well as making mediation                   
 JAYNE ANDREEN, Executive Director of the Council on Domestic                  
 Violence & Sexual Assault, appreciated the committee's work.  She             
 expressed concern that there is no opportunity for the courts to              
 exclude people from the education program when a history of                   
 domestic violence is present.  Furthermore, the education does not            
 address the dangers of mediation in domestic violence cases.  Could           
 cautions regarding domestic violence in the mediation education be            
 added?  Victims want to use the most non-threatening way to deal              
 with their offender which leads to the attractiveness of mediation.           
 Even with a skilled mediator, the imbalance of power still exists             
 in the majority of cases.                                                     
 Number 456                                                                    
 SENATOR SALO did not believe that anyone would be harmed by                   
 education and information.  Perhaps, the content of the education             
 materials could address this domestic violence concern.  She                  
 indicated that the council could work with the material in order to           
 influence its content so as to address their concerns.  Senator               
 Salo hoped that Ms. Palmer and the Victims of Custody would share             
 the development of mediation materials with the court system in               
 order to receive suggestions on the content of the materials.                 
 CHAIRMAN GREEN informed the committee that the Victims of Custody             
 focuses on the child support enforcement and non-custodial parents            
 and the abuses that occur during the divorce, the court proceedings           
 and afterwards.  Domestic violence was not an issue until the                 
 citizen's work group met.  She reiterated that viewing these                  
 materials is not harmful or threatening.                                      
 JAYNE ADREEN explained that the victims want to end the abuse and             
 a third party mediator is very enticing.  She related her                     
 discussions with about a dozen victims who had voluntarily utilized           
 mediation in child custody and support issues.  After about six               
 months to a year, most of these victims realized that the abuse had           
 effected the proceedings and an equal process did not result.                 
 SENATOR SALO indicated that such a scenario could also happen in              
 court.  The mediation is not mandated.  She reiterated that Ms.               
 Adreen's concerns could be addressed in the materials.                        
 JAYNE ADREEN said that the council would be happy to work with the            
 court system in ensuring that domestic violence concerns are                  
 addressed in the materials.                                                   
 SENATOR SALO agreed to her amendment being conceptual.  Therefore,            
 without any objection, the conceptual amendment was adopted.                  
 Number 509                                                                    
 SENATOR MILLER moved CSSB 156(HES) as amended out of committee with           
 individual recommendations.  Hearing no objection, it was so                  
 SHES - 2/21/96                                                                
        SB 185 IMMUNIZATION RECORD UPON CHILD'S DEATH                        
 CHAIRMAN GREEN introduced  SB 185  as the next order of business              
 before the committee.                                                         
 DR. JOHN MIDDAUGH, Epidemiology Section of the Department of Health           
 & Social Services, pointed out that SB 185 does not specify for               
 what purpose the information would be collected.  He assumed that             
 the information would be collected in SIDS cases and other                    
 unexplained deaths of children which could be related to                      
 vaccinations in order to illuminate these potential connections.              
 Dr. Middaugh expressed concern about the logistics of the bill as             
 well as the science and value of collecting such information.  Many           
 studies reviewing the association of vaccinations with SIDS and               
 unexplained deaths in children have been performed, particularly              
 reviewing the relationship between the administration of DPT and              
 SIDS.  Those studies have demonstrated that there is no causal                
 relationship between a child receiving a vaccination and                      
 subsequently dying of SIDS.                                                   
 The logistics of collecting this information is difficult and                 
 possibly even unworkable.  Dr. Middaugh informed the committee that           
 there are 11 different standard vaccines children receive 23                  
 separate times in their first seven years.  He pointed out that               
 children move around and go to multiple providers.  Also some of              
 the information to be collected under SB 185 is not routinely                 
 recorded on a child's vaccination record.  Therefore, the ability             
 to collect the information is questionable.  Even if the                      
 information could be collected, Dr. Middaugh questioned the                   
 scientific value of the information because it would not review               
 other important considerations.  Dr. Middaugh informed the                    
 committee that Dr. Gessner was present and could discuss some                 
 research being done with SIDS.  Dr. Middaugh noted that work is               
 being done to understand and improve the prevention activities.               
 Number 557                                                                    
 DR. BRAD GESSNER, Maternal Child & Family Section of the Department           
 of Health & Social Services, said that he was a pediatrician and an           
 epidemiologist.  He viewed the issue as mainly in children less               
 than one year of age.  The majority of children dying under the age           
 of one die from prematurity and congenital anomalies which normally           
 happens in the first 28 days of life.  Generally, SIDS' deaths                
 occur after that period, around the 90th day of life.  Dr. Gessner            
 agreed with Dr. Middaugh that there is no evidence in the                     
 scientific literature that there is a relationship between SIDS or            
 unexplained infant deaths and vaccine delivery of any type.                   
 Current literature suggests that placing an infant on its back to             
 sleep can reduce the SIDS rate.  Also an increased SIDS rate has              
 been found when smoking occurs during pregnancy and post-pregnancy.           
 Dr. Gessner pointed out that the Infant Mortality Review Committee            
 was established in order to review the causes of infant death in              
 order to address SIDS in Alaska.  SIDS rates in Alaska are higher             
 than other states.  Three years of data confirms that there is a              
 relationship between infant deaths and maternal smoking and sleep             
 position.   Dr. Gessner stated that the data does not illustrate              
 any relationship between infant deaths and vaccine delivery.                  
 SENATOR LEMAN asked if the information requested last time was                
 available; the information regarding the number of deaths of                  
 children under seven which were unexplained.                                  
 TAPE 96-12, SIDE B                                                            
 In response to Senator Leman, CHAIRMAN GREEN said that she had                
 received some information, however it did not exactly answer the              
 question.  There is a list of the unknown causes of death, but                
 there is not a list of the other causes of death of children under            
 seven.  She informed the committee that on average, 29 deaths                 
 annually were listed as resulting from SIDS and three deaths                  
 annually from unknown causes.  Those numbers come from an average             
 of 151 each year.                                                             
 SENATOR LEMAN said that he would review the information and be                
 prepared to continue this discussion in the next committee of                 
 Number 577                                                                    
 SENATOR LEMAN moved that SB 185 be moved out of committee with                
 individual recommendations.  Hearing no objection, it was so                  
 There being no further business before the committee, the meeting             
 was adjourned at 10:17 a.m.                                                   

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