Legislature(1995 - 1996)
04/10/1995 02:06 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 10, 1995
2:06 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Lyda Green, Vice-Chairman
Senator Mike Miller
Senator Al Adams
Senator Johnny Ellis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 132(HES)
"An Act relating to teacher tenure, teacher layoff and rehire
rights, review of decisions of school boards concerning teachers,
and to a retirement incentive program for employees of school
districts and regional educational attendance areas; and providing
for an effective date."
SENATE BILL NO. 105
"An Act relating to a requirement that a parent, guardian, or
custodian consent before a minor receives an abortion; establishing
a judicial bypass procedure by which a minor may petition a court
for authorization to consent to an abortion without consent of a
parent, guardian, or custodian; amending the definition of
`abortion'; and amending Alaska Rules of Civil Procedure 40, 53,
and 79; Alaska Rules of Appellate Procedure 204, 210, 212, 213,
508, and 512.5; and Alaska Administrative Rule 9."
CS FOR HOUSE BILL NO. 115(JUD) am - SCHEDULED BUT NOT HEARD
"An Act relating to settlement and payment of claims for overtime
compensation claims and to liquidated damages and attorney fees for
overtime compensation claims."
CS FOR SENATE BILL NO. 95(L&C) - SCHEDULED BUT NOT HEARD
"An Act relating to automobile liability insurance for uninsured or
underinsured motor vehicles; and providing for an effective date."
PREVIOUS SENATE COMMITTEE ACTION
SB 132 - See Health, Education & Social Services minutes dated
4/7/95.
SB 105 - See Health, Education & Social Services minutes dated
3/20/95 and 3/22/95.
WITNESS REGISTER
Carl Rose
Executive Director
Assn. of Alaska School Boards
316 W. 11th St.
Juneau, AK 99801
POSITION STATEMENT: Supports CSSB 132 (HES)
Jeff Cluteer
National Education Association (NEA)
2920 Hogan Bay Circle
Anchorage, AK
POSITION STATEMENT: Opposed to CSSB 132 (HES)
Rick Cross, Superintendent
Fairbanks North Star Borough School District
P.O. Box 71267
Fairbanks, AK 99707
POSITION STATEMENT: Commented on CSSB 132 (HES)
Vernon Marshall
Executive Director
National Education Association
114 Second St.
Juneau, AK 99801
POSITION STATEMENT: Opposed to CSSB 132 (HES)
Claudia Douglas
NEA President
114 Second St.
Juneau, AK 99801
POSITION STATEMENT: Opposed to CSSB 132 (HES)
Sue Templeton
13410 Baywind Circle
Anchorage, AK 99516
POSITION STATEMENT: Supports CSSB 132 (HES)
Dee Hubbard
Anchorage, Alaska
POSITION STATEMENT: Supports CSSB 132 (HES)
Judy Kohler
Americans United for Life
343 So. Dearborn St., Suite 1804
Chicago, Illinois 60604
POSITION STATEMENT: Supports SB 105
Lisa Penalver, President
Fairbanks Coalition for Choice
1166 Skyline Drive
Fairbanks, Alaska 99712
POSITION STATEMENT: Opposed to SB 105
Senator Loren Leman
Alaska State Legislature
Juneau, Alaska 99811-1182
POSITION STATEMENT: Sponsor of SB 105
Jan Rutherdale
Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Provided information on SB 105
ACTION NARRATIVE
TAPE 95-19, SIDE A
Number 001
SB 132 JUDICIAL REVIEW:TEACHER TENURE DECISIONS
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 2:06 p.m. The first order of business before the
committee was SB 132.
CARL ROSE, Executive Director of the Association of Alaska School
Boards, testified in support of SB 132. He stated the intent of SB
132 was not to repeal tenure, but to provide more latitude to
school managers experiencing funding difficulties. He gave the
following sectional analysis. Section 1 brings former federal
employees in line with the law. Section 2 changes the time
required to attain tenure from the first day of the third year to
the first day of the sixth year.
MR. ROSE discussed Sections 3, 4, and 5. Recent college graduates
spend five years or more getting certified to teach in public
schools. Under current law, management does not have enough time
to evaluate and make decisions that can be career altering. More
observation time is needed, and new employees need more time for
in-service professional development, as well as oversight. Current
law contains four reasons for non-retention: substantial non-
compliance; insubordination; immorality; and enrollment decline.
The intent of including enrollment decline is to speak to financial
emergencies. He suggested striking the enrollment decline
provision from the non-retention section, and creating a new
provision in Section 5 that would provide for layoff provisions.
The layoff provisions should address the financial problems of
revenue shortfall and enrollment, protect seniority and tenure, and
address rehire provisions. He stated he does not believe school
systems should non-retain employees because of a lack of funds by
using the same provisions that are used to dismiss convicted
felons. If a layoff provision needs to be used, it should be fair
and should provide for rehire rights.
MR. ROSE explained the academic program needs provision of Section
5 was included to direct the Department of Education to move into
subject area endorsements, rather than secondary endorsements, to
ensure that people are certified in the subjects they are teaching.
Regarding rehire rights, the school districts should be able to
look at qualifications before seniority. This would improve
classroom instruction, and require appropriate endorsement in the
workforce.
MR. ROSE discussed the de novo provisions in Section 6. Standard
practice for non-retention of a tenured teacher allows the teacher
the right to a hearing at the local level. If that hearing is not
favorable to a tenured teacher, he/she may apply for a trial de
novo. In such a trial, the case must be recreated, as there is no
record to review. Many times this occurs years after the
infraction and the ability of the school district to recreate the
case accurately is impaired. CSSB 132 (HES) would require the
record to be recognized and reviewed by Superior Court to determine
if either party's due process rights were abridged. This same
system is used for state employees. Mr. Rose explained in one
year, up until March of 1994, over $700,000 of expense was incurred
by the Association in seven trials. Those costs could discourage
a school district from dismissing an employee that was non-
satisfactory or incompetent. He discussed the broad range of
abilities that lie between excellence and incompetence, and
believed that incompetence is too low of a standard to use for non-
retention. Second, many insurance companies encourage out-of-court
settlements in these cases, thereby increasing liability rates.
Regarding other sections of the bill, MR. ROSE stated the AASB is
not opposed to Section 7 as that ability is currently available
with mutual consent. The AASB has not taken a formal position on
the Retirement Incentive Program (RIP). He expressed concern with
Section 18 since it would grandfather in Sections 1-6, which will
prevent school districts from applying CSSB 132 (HES) to all but
new employees. The AASB is adamantly opposed to Section 18 because
school districts need the tools to deal with financial constraints.
MR. ROSE discussed the question of whether school board members are
qualified to address these issues. He commented school board
members are elected locally to represent the people they serve, are
held accountable at the polls, and can, and will be sued.
Number 210
Jeff Cluteer, NEA, expressed concern that a bill that was designed
to save money suddenly contains an axe to attack the teaching
profession. He made the following comments on several sections of
CSSB 132 (HES). Increasing the probationary period for tenure to
five years does a disservice since training courses for
administrators in the state assert the number one job of an
administrator is to evaluate teachers to ensure teacher performance
meets expectations. If administrators cannot adequately assess the
worthiness of the employee, the administrators are not doing their
jobs. Regarding the issue of the difficulty of removing tenured
teachers, it happens in the state almost every year. He discussed
comments made about the costs to school districts for their
representation in de novo trials. Costs to the school board are
approximately ten times that of employees. CSSB 132 (HES) would
assign the superintendent and school board as judge, prosecuting
attorney, and jury, all in one. A de novo trial ensures that does
not occur and that there is independent review of whether the
professional standards were upheld by the charging agency.
Regarding open negotiations, he stated as a practitioner of the
bargaining process for 25 years, bargaining publicly creates
posturing to the audience on both sides. He stated tenured
teachers have greater protection than many other state workers.
That is an expectation one has when one is a professional,
certificated employee in the State of Alaska, just as other
certificated professionals have. To remove those protections
demeans the profession.
Number 300
SENATOR TAYLOR expressed his concern about the sunshine aspect
(Section 6). He believes the public is tired of closed door
negotiations, but will eventually want an executive session
privelege after using an open door policy for awhile. MR. CLUTEER
responded part of the bargaining process is teaching one's
membership about the process.
RICK CROSS, Superintendent of the Fairbanks North Star Borough
School District, discussed the trial de novo aspect of CSSB 132
(HES). He stated he believes tenured teachers are entitled to due
process and just cause protections. The Acevedo case in Fairbanks
completely redefined a trial de novo as a completely new
proceeding, which differed from the existing practice of a board
hearing and judicial review of that record. Now a full hearing
before the school board must occur, complete with cross examination
of witnesses, and recorded. If appealed, a new trial is held at
the court level. The Fairbanks School Board opposes the de novo
trial provision for two reasons: the additional cost of conducting
two trials; and the difficulties created by the delay that occurs
between the two trials. They are also concerned about the impact
on student witnesses, especially when they must return for a court
trial long after they have appeared before the school board. The
Fairbanks School District believes there should be one trial that
could be reviewed, if necessary, in the form of an appeal to the
Supreme Court. He discussed the costs associated with the Tony vs.
Fairbanks School Board case.
Number 385
SENATOR TAYLOR asked if the Fairbanks School District received any
Rule 82 attorneys fees for the Tony case. MR. CROSS replied
negatively, but the school district was insured.
Number 401
SENATOR MILLER noted a proposed amendment that resulted from a
meeting between the Interior delegation and the Fairbanks School
Board, which repeals AS 14.97. He asked Mr. Cross' position on the
amendment. MR. CROSS responded current law requires the lunch hour
to be scheduled between 11:00 am and 1:00 pm. The Fairbanks School
Board supports the amendment because there are situations when that
lunch hour is not logical.
SENATOR ELLIS asked for the Fairbanks School District's position on
the Retirement Incentive Program (RIP). MR. CROSS stated they have
taken no position on the RIP.
Number 420
VERN MARSHALL, Executive Director of NEA Alaska, testified. NEA
opposes the idea of extending the probationary window from two to
five years, as less than ten states in the country have such a long
probationary period. A person would not get tenure under this
provision until the sixth year of employment. The NEA also feels
the layoff provision is too broad and general, and leaves the
regulatory discretion to the department to shape the length of the
layoff, the rehire provisions, etc. Lines 1-6 of page 3 create a
situation where a school system could effectively eliminate tenure
altogether. He questioned the provision that allows a school
district to layoff employees to "better meet the academic program
needs of the district." He asked for clarification from the Senate
HESS committee but an explanation was not available. He reiterated
that provision is too broad.
In regard to the judicial review provision in lines 14-20, MR.
MARSHALL discussed the Mat-Su vs. Lumm case. The Supreme Court
found that a school board does not have the expertise to measure
quality relative to a professional teacher. The de novo trial
issue was considered in that case. He hoped the committee would
strive to create a hearing process where an unbiased body could
grant an unbiased decision. The issue of a school board who hires
a superintendent and hearing officer raises questions about bias.
Under CSSB 132 (HES), a record would be created at the school board
level. That record would then go to a Superior Court judge, who
would be restricted to the contents of the particular record. He
asked that the idea of an impartial arbiter, employed by the
district to hear the case, be explored. The arbiter would have no
interest from the management or union perspective. He noted if
this section is enacted, the costs could shift to the
administrative level because the teacher would have only one chance
for defense.
MR. MARSHALL stated the NEA is opposed to using the RIP to get rid
of teachers. NEA feels RIP is not germane to the tenure issue and
believes the RIP should be applied to all city and state employees
if it is going to be applied to school districts.
CLAUDIA DOUGLAS, President of NEA, stated NEA is trying very hard
to figure out ways to help schools and children, and how to make a
difference in classrooms. She questioned whether CSSB 132 (HES)
was motivated by: funding problems; the need to discharge
incompetent teachers; or because due process rights are too
expensive. She stated the bill does not help children and is
demoralizing to teachers. NEA would like to try to work with
school boards and administrators to make the process better. It
does not believe that teacher bashing and changing the law without
establishing an evaluation process that would improve education for
students is fair.
Number 513
SUE GALVESTON testified for Kathy Gillespie of the Anchorage
Council of PTAs. The 12,000 member organization supports CSSB 132
(HES) as it provides a reliable method of quality control over
educators. No other professions give tenure; in the private
sector professionals are maintained only if their performances
indicate they are doing their jobs. While watching the Senate HESS
committee meeting, they were shocked to hear members of the
Anchorage Teachers' Union talk about the lack of effectiveness of
the evaluation system for teachers in the Anchorage School
District. In Anchorage, the PTA was represented on a district
committee to review the evaluation system for teachers. It was
reported to those representatives that the Teachers' Union blocked
every improvement. The committee's work was never completed
because negotiations were starting, and even the evaluation process
was negotiated. The Council is deeply concerned about the issues
of tenure. A resolution on acquisition of teacher tenure was
passed by the Council membership recommending the probationary
period be extended from two to five years. The Council also passed
a resolution recommending public disclosure of public school
employer/employee negotiations. The Council has been concerned
about the lack of parental involvement in the collective bargaining
process of public school employees. Approximately 82 percent of
the Anchorage School District budget is spent on salaries and
benefits negotiated in the collective bargaining process. The
Council is interested in other collective bargaining issues as
well. After contracts are negotiated, they are ratified by the
school board outside of the public hearing process. The ratified
contracts supercede and establish school board policy. The Council
is concerned about the public's inability to have any control over
the district's budget as long as the public is shut out of the
collective bargaining process.
Number 554
SENATOR SALO responded to comments made by the previous speaker.
Current Alaska law allows open negotiations and is used by some
districts. It is an agreement that is made early in the
negotiation process between the ward and representative of the
employee group. As a teacher involved in open negotiations, she
found little public interest because the process can be boring.
Number 568
DEE HUBBARD, a parent from Anchorage, stated her concern about
provisions in prior contracts, specifically the right of teachers
to bar their classrooms to parents. Currently, the teacher and
principal must agree whether or not a parent is allowed in the
classroom. She noted teacher negotiations in Tenessee are
broadcast on the education network.
SENATOR MILLER moved the adoption of amendment #1, repealing the
requirement for duty-free mealtime for teachers in certain school
facilities. SENATOR ELLIS objected to the motion. The motion
carried with Senators Taylor, Green and Miller voting "Yea," and
Senator Ellis voting "Nay."
SENATOR GREEN moved the adoption of amendment #2, changing line 9
of page 18 to read Sections 1-2, instead of 1-6. SENATOR ELLIS
objected. SENATOR GREEN explained the intent was that Section 18
apply to the first two sections, but during the drafting process,
an error was made. SENATOR ELLIS withdrew his objection and the
motion carried.
TAPE 95-19, Side B
SENATOR ELLIS moved the adoption of amendment #3, that would change
the sections dealing with the de novo trial provision and provide
for arbitration under the Alaska Uniform Arbitration Act.
SENATOR MILLER asked if binding arbitration would be used. SENATOR
ELLIS answered the arbitration methods provided for in AS 09.43.010
-09.43.180 would be used. SENATOR MILLER objected to the motion.
SENATOR ELLIS indicated there would still be a limited judicial
review following the arbitration although an arbitrator's decision
is generally not overturnable.
CARL ROSE stated the Association of Alaska School Boards wants the
same process as is provided for all state employees. SENATOR
TAYLOR noted state employees do not have arbitration available to
them, with the exception of the state troopers. MR. ROSE stated
the AASB is opposed to arbitration.
Number 537
SENATOR ELLIS asked Mr. Rose about an earlier comment regarding a
lack of respect for local school boards, and questioned who Mr.
Rose was referring to. MR. ROSE replied he was responding to
comments made by the other body, and comments attributed to Mr.
Marshall during the Senate HESS hearing that school board members
were not necessarily qualified to make these decisions. SENATOR
ELLIS asked if Mr. Marshall said "qualified" or "unbiased." MR.
ROSE stated he was not at the meeting. SENATOR ELLIS stated
several people commented that considering the school board hearing
the only trial for a tenured teacher may not be an unbiased
approach. MR. ROSE apologized for any misinformation he had, but
pointed out that in a number of arenas, an entire level of local
governance is ignored.
Number 521
SENATOR GREEN stated it is apparent this bill has revealed a "we"
and "they" situation, and a great deal of frustration from parents,
school boards, and PTAs has been expressed. CSSB 132 (HES) is
designed to empower parents.
SENATOR TAYLOR noted amendment #3 is before the committee, and
Senator Miller's objection was maintained. The motion failed with
Senator Ellis voting "Yea," and Senators Green, Taylor, and Miller
voting "Nay."
SENATOR TAYLOR asked teleconference participants to send written
comments to the committee for distribution to committee members.
He apologized for the schedule delay.
Number 372
SENATOR ELLIS moved amendment #4 which gives the judge increased
latitude in deciding whether a case should be reviewed at the
Superior Court level. SENATOR MILLER objected to the motion
because the review would be a factual review rather than a
procedural review. The motion failed with Senators Taylor, Miller
and Green voting "Nay," and Senator Ellis voting "Yea."
Number 472
SENATOR ELLIS stated the committee has not adequately reviewed CSSB
132 (HES) and did not allot enough time to grapple and discuss the
issues. The bill was pre-scheduled in Senate Judiciary before it
passed out of the Senate HESS committee, and is already scheduled
in Finance.
SENATOR MILLER moved CSSB 132 (JUD) out of committee with
individual recommendations. SENATOR ELLIS objected. The motion
passed with Senators Green, Taylor and Miller voting "Yea," and
Senator Ellis voting "Nay."
SB 105 PARENTAL CONSENT BEFORE MINOR'S ABORTION
The committee took up SB 105. SENATOR TAYLOR announced the bill
would be considered again on Wednesday to give teleconference
participants the opportunity to testify.
JUDY KOHLER, Senior Legislative Counsel for Americans United for
Life (AUL), and a former Illinois legislator, testified in support
of SB 105. AUL drafts and defends legislation and is currently
working in 40 states. She assisted Senator Leman in drafting SB
105. The bill protects parental rights, protects the minor's
health, and will likely reduce teenage pregnancy, teen birth, and
teen abortion rates. AUL believes SB 105 will be litigated
successfully and upheld as constitutional because it has been
drafted with an eye toward Alaska's interest in protecting the
health and welfare of its minors, in fostering family unity, and in
its interest in encouraging parental involvement in the upbringing
of minor children. These three issues have been held to be of
prime concern for state legislatures in Pennsylvania, Ohio,
Minnesota, Mississippi, Utah, and the Dakotas.
MS. KOHLER stated one of the primary reasons the Supreme Court held
that parental involvement legislation is in the interest of states
is because teenagers often have difficulty assessing long term
consequences of difficult decisions. Parental involvement in the
abortion decision is particularly on point because a parent remains
responsible for a minor for many years after an abortion. If a 13
year old girl has an abortion then suffer medical complications,
the parent will be required to give consent to any medical
procedures to repair her injuries and to pay for her care until she
is 18.
MS. KOHLER noted Alaska has over 22 statutes that require parental
consent or parental involvement. Abortions, although legal, are
not always safe. In 1992, the Alan Goodmacher Institute reported
that in Alaska nearly 2500 abortions were performed. AUL research
and experience estimates 10 percent of those females may have
experienced immediate complications, and 22 percent may have
experienced infections. Evidence of breast cancer incidents among
teenage females who have had an abortion without experiencing a
pregnancy first has been demonstrated. Because Alaska does not
have an enforceable parental consent requirement, many parents may
be unaware of the risks imposed on their teenagers.
MS. KOHLER discussed other states' experiences with parental
involvement statutes. Documented evidence from the American
Journal of Public Health (March, 1991) indicates that teenage
pregnancy rates, teenage birth rates, and abortion rates decreased
in Minnesota, after a parental consent law was adopted, and in
Massachusetts after a parental notice law was adopted. Between
1980 (when Minnesota's law went into effect) and 1986, the teenage
pregnancy rate declined by 20.5 percent. The abortion rate for
teenagers decreased by 27.4 percent, and the birth rate fell by
12.5 percent. In Massachusetts the abortion rate for minors
declined by 43 percent in the first 20 months after the law took
effect. The teenage pregnancy rate declined by 16.6 percent.
Nebraska, after the law took effect in 1991, reported a 30 percent
decrease in the number of teenage abortions. They also reported
the parental consent law has not resulted in more teenagers having
babies. Currently 38 states have parental involvement statutes; 70
percent of those are in effect. The remainder are in different
stages of litigation. A poll taken in Texas indicated that 74
percent of adults in Texas approve of parental involvement
legislation. Similarly, the approval rate for the same legislation
in Iowa was over 80 percent this year. SB 105 is designed to
comply with decisions of the U.S. Supreme Court cases that address
parental involvement.
Number 350
LISA PENALVER, Fairbanks Coalition for Choice (FCC), testified in
opposition to SB 105. The FCC believes it is inappropriate and
futile public policy to attempt to legislate family interaction.
It is not the role of government to interfere in private pregnancy
decisions. That should be left up to an individual and her doctor,
even in the case of a minor. Parental involvement laws jeopardize
pregnant teens' health by delaying or blocking their access to
necessary medical care. Proponents of this bill argue that such
laws are responsible for decreases in overall teenage pregnancy
rates in certain states, however similar decreases in teenage
pregnancy have occurred in other states, such as Alaska in 1993.
With so many variables affecting teen pregnancy rates, it is
impossible to show clear cause and effect.
MS. PENALVER stated there is no reason to believe that legislation
is capable of creating parental involvement where none previously
existed. Over 60 percent of teenagers in states without parental
involvement laws do involve their parents, the others have
significant reasons to do so. This bill targets young women from
disadvantaged situations to deprive them of control over their
bodies and of their lives. The threat to physicians implicit in
the bill undermines a physician's ability to treat his/her patient.
The safest abortion is an early abortion, and even at later stages,
abortion is safer than teen pregnancy. She questioned Ms. Kohler's
statements about complications and felt they were speculative. She
stated young women in remote areas are most likely to be hurt by
consent requirements. Confidentiality in this issue is the big
concern, and the judicial bypass option cannot promise anonymity.
Substantial costs to the state to enforce this law are likely as it
requires the appointment of both an attorney and a guardian ad
litem, and the time of a judge. SB 105 shows a callous disregard
for the privacy rights of minors and for their health and well
being. In times of severe budget cuts it is not in the interest of
the state to enact legislation that will be both costly to enforce
and costly to defend in court. Nor is it in the state's interest
to force teens to bear children against their will, especially when
welfare reform is likely to eliminate support for these children.
Alaska has one of the highest teen pregnancy rates as well as two
and one-half times the national average for rape. She urged the
committee to oppose the bill.
Number 294
SENATOR TAYLOR asked Ms. Penalver if she had any statistical
information from any of the other 22 states that have a consent or
notice law in effect, that would substantiate her statements that
this law forces teens into back alley abortions. MS. PENALVER
replied she did not have any information immediately available,
however the American Medical Association opposes parental
notification laws and believes the number of deaths from illegal
abortions are directly related to a young woman's desire for
privacy.
SENATOR TAYLOR asked Ms. Penalver if she had any information in the
form of statistics that would counter MS. KOHLER'S statement that
the number of teens giving birth had decreased in several states
after parental consent/notice laws went into effect. MS. PENALVER
replied the 1993 teen pregnancy rate in Alaska declined without
enforcement of the parental notification law.
Number 264
SENATOR LEMAN, sponsor of SB 105, stated the bill was introduced to
help pregnant teens to seek parental guidance for one of the most
important decisions they will make. The issue comes down to
parental rights, and who is responsible. Parents are responsible
for so many other things, and to not have the same rights for
something as serious as an abortion is incongruous. SB 105 does
not provide for parental consent in the State of Alaska; that is in
existing statute. SB 105 provides for judicial bypass, which will
enable the existing statute to be enforced. The Attorney General's
Office has chosen to not enforce the law, rather than enforce it
and litigate it. SB 105 is crafted carefully to create a judicial
bypass procedure that has already withstood the scrutiny of the
U.S. Supreme Court. The Attorney General's Office has argued that
SB 105 will not withstand the scrutiny of the Alaska Supreme Court
because of the issue of privacy. He disagreed and stated his
belief that minors should be treated differently than adults in
many circumstances. In regard to privacy rights, parental rights
should supercede a minor's right to privacy.
SENATOR LEMAN indicated 22 states now enforce parental involvement
laws, and polling shows 74-80 percent support of such rights. He
added a recent polling of Texas democrats show 65 percent in favor,
28 percent opposed, and 7 percent undecided. SB 105 is a step in
how the issue of abortion is dealt with in the State of Alaska,
however it is not a cure-all for the devastating impacts of
abortion on demand. He estimated the bill may save 100 lives this
year, yet if it only saved one it would be worth it.
SENATOR TAYLOR asked for an explanation of the changes made in the
proposed committee substitute. SENATOR LEMAN replied the changes
were proposed by the Alaska Court System. The main change is on
page 5, lines 4-5 of SB 105, and allows the court to refer the case
to a juvenile master. The second change removes references to
Court Rule 53, which deals with the juvenile master. The third
change is the addition of the identification of the Office of
Public Advocacy as the agency that provides the guardian ad litem
and the attorney.
Number 129
SENATOR MILLER moved to adopt the proposed CSSB 105 (Lauterbach,
4/7/95) version in lieu of the original bill. There being no
objection, the motion carried.
SENATOR ELLIS commented that Senator Leman referred to SB 105 as
"parental involvement" legislation. He asked if that was the
terminology used in the public opinion surveys conducted, as he
would expect 99.9 percent support among all parties for parental
involvement in young peoples' lives. He clarified the bill
requires parental consent, not merely parental notification.
Number 052
SENATOR LEMAN stated the measure provides for a judicial bypass
procedure to activate the existing parental consent provision,
therefore, after passage, it will require one-parent consent with
judicial bypass. Different states have used several approaches:
one-parent notification with judicial bypass; two-parent
notification with judicial bypass; one-parent consent with judicial
bypass; and two-parent consent with judicial bypass. All four
approaches have been found to be constitutional. The approach in
SB 105 would keep the existing one parent consent provision with a
judicial bypass. Regarding the polls he referred to, the Texas
poll asked the question, "Do you favor or oppose parental
notification of abortions to minors?" He has found the results
from polls referring to parental consent are very similar and only
differ by two or three percent.
SENATOR TAYLOR commented existing law is more conservative than it
will be if SB 105 passes. SB 105 allows the juvenile the
opportunity to bypass parental consent and have a court order for
consent issued by a judge. SB 105 allows a greater level of choice
than existing law.
SENATOR LEMAN agreed, but stated in order to accomplish the greater
good of saving lives, the opportunities have to be liberalized.
SENATOR TAYLOR questioned the fiscal impact on physicians'
malpractice insurance rates since SB 105 allows people to sue
doctors for this practice. SENATOR LEMAN replied that opportunity
already exists.
TAPE 95-20, Side A
JAN RUTHERDALE, Assistant Attorney General with the Department of
Law, stated it is the position of the Attorney General's Office
that it is highly likely that SB 105, if enacted, would not be
upheld by the Alaska Supreme Court, because it violates the Alaska
Constitution privacy clause. Unlike the U.S. Constitution, the
Alaska Constitution contains a privacy clause.
SENATOR TAYLOR believed the question would focus on the rights of
privacy between the child and the child's parent. MS. RUTHERDALE
replied there is case law on the right of privacy issue in Alaska.
Number 030
SENATOR TAYLOR asked Ms. Rutherdale to cite the case. MS.
RUTHERDALE stated the case is Raven v. State. SENATOR TAYLOR
commented the case was about the legalization of marijuana.
MS. RUTHERDALE explained the right to make procreative decisions,
which includes the right to have an abortion, has been determined
to be a fundamental right. When that fundamental right kicks in,
the next question is whether a compelling state interest exists to
justify intruding on that fundamental right. If the compelling
state interest is determined to exist, then a nexus between the
means and the ends must be determined, the ends in this case would
be the goal of furthering parental involvement.
Number 056
SENATOR TAYLOR asserted Ms. Rutherdale's argument would pertain to
adults, but the Supreme Court has upheld repeatedly the right of
the state to establish an age for consentual activity, which is age
13 in the State of Alaska. If that is a legitimate function of
government, he asked why, if a minor cannot choose to get pregnant,
she would have a greater right to abort the pregnancy.
MS. RUTHERDALE clarified that under criminal law, the age for
consentual sexual activity is 16, and there is no law that says
people of any age have to ask their parents for permission to
engage in sexual activity. The law specifies that a person three
years older than a partner under the age of 16 is committing a
prosecutable crime. That does not apply if the partner is between
the ages of 16 and 18.
MS. RUTHERDALE explained there are two other states with privacy
clauses in their constitutions: California and Florida. Both have
struck down similar statutes. They did find compelling state
interests almost identical to those listed in SB 105. It was
determined that the statute did not further those compelling state
interests as there was no fit between what the statute accomplished
and what the compelling state interests were trying to achieve.
She added that Ms. Kohler specifically referred to states that do
not have a privacy clause in their constitutions, therefore the law
in those states was upheld by the U.S. Supreme Court. Because of
Alaska's Constitution, a similar case would not get to the U.S.
Supreme Court.
MS. RUTHERDALE discussed Ms. Kohler's comment about the decrease in
the pregnancy rate in states that enacted similar legislation. She
cited an Appendix attached to the California decision, which found
that although the pregnancy rate had dropped in Minnesota,
Missouri, and Massachusetts, it had also dropped in other states
and other factors contributed to that decrease. The drop in the
number of abortions in those states was due to the fact that minors
had abortions in other states. In states without a parental
consent statute, the teenage pregnancy rate also dropped. The
Appendix also listed other less restrictive ways to reduce teen
pregnancies less injurious to the right of privacy, such as birth
control education and counseling. Other evidence found credible by
the Court was that adolescents by the age of 14 or 15 are capable
of making medical decisions, including abortion. A minor must
consent to counseling and information requirements before an
abortion will be performed. Also evidence was presented that
showed most minors do consult with their parents when deciding
whether to have an abortion, therefore the enactment of such a
statute had no effect on the consultation. They found that ten
percent of the minors might be in danger if they consulted with
parents because of problems such as physical and/or sexual abuse.
It also found that most of that ten percent choose to go through
the judicial bypass procedure and an infinitessimal number of
petitions are denied by the courts. It found the judicial bypass
procedure to be costly, unwieldly, and an essentially pointless
procedure which achieves no purpose other than to cause stress to
the minors and delay the implementation of their decision to abort.
Number 200
SENATOR TAYLOR stated, according to previous testimony, there are
22 provisions in Alaska statutes that require parental consent of
minors, most of which involve medical procedures. If a minor is
injured in an automobile accident, parental consent is required
before a physician will treat the minor. He asked how that would
be more invasive of the minor's privilege of privacy than an
abortion. He added there is a whole series of statutes enforced by
the Attorney General's Office which involve medical procedures, but
because this one has a measure of political correctness about it,
the privacy issue has been risen.
MS. RUTHERDALE replied the difference between abortion and other
medical procedures is that the right to procreative decisions
invokes the right to privacy, whereas other medical procedures do
not have the same privacy rights attached. SENATOR TAYLOR asked if
Ms. Rutherdale had any case law to support that opinion. She
offered to provide committee members with case law at a later date.
SENATOR TAYLOR asked at what age such a medical procedure would not
be an invasion of a child's right to privacy. He asked if a child
cannot privately make the decision to procreate with another
person, how can the child make the decision to have an abortion.
MS. RUTHERDALE replied the law is directed toward criminal
prosecution of the perpetrator, rather than the child.
MS. RUTHERDALE explained that often in criminal prosecutions of
sexual abuse of a minor cases, there is consent on the part of the
minor, but the fact that the child does not have the ability to
consent in those cases is not a defense to the crime.
Number 290
SENATOR TAYLOR asked if his 15 year old child gave consent to a
medical or dental procedure, without consulting him, whether he
would be unable to sue the physician or dentist for performing the
procedure without parental consent. He asked whether the Attorney
General's Office would defend the physician based on the child's
right to consent based on privacy. MS. RUTHERDALE replied it would
be a tort case. SENATOR TAYLOR felt the case would be assault and
battery, and that certain religious groups would be extremely
upset.
SENATOR TAYLOR noted the issue is at what age does the right to
privacy apply. MS. RUTHERDALE responded she has reviewed how the
Alaska Supreme Court would rule on SB 105, based on the analysis of
other cases. She added Ms. Lauterbach from the Division of Legal
Services has written an opinion on the issue.
Number 311
SENATOR ELLIS asked Ms. Rutherdale to research any existing case
law for cases in which a lawsuit was brought against a physician or
clinic for the treatment or screening of a minor for a sexually
transmitted disease without parental notification or consent.
Number 325
SENATOR MILLER asked for the name of the material cited by Ms.
Rutherdale. She responded it is the appendix to the decision by
the California Supreme Court, the American Academy of Pediatrics v.
Lundgren, 1994.
SENATOR MILLER commented Ms. Rutherdale's testimony alludes to a
reason not to defend SB 105 should it be enacted. He expressed his
concern that the Administration may decide not to defend a law
passed by the Legislature if challenged, because it might not be
the politically correct thing to do.
MS. RUTHERDALE noted all of the Administrations have not enforced
the existing law because of the judicial bypass issue.
SENATOR TAYLOR indicated Ms. Rutherdale said that if SB 105 is
enacted and resolves the judicial bypass issue, the law would still
violate the right of privacy. He asked how she would redraft SB
105 to accommodate the right to privacy concern. MS. RUTHERDALE
replied the bill has been drafted well, and she did not think a
better job could be done.
Number 368
SENATOR GREEN discussed a recent situation in which a minor was
convicted of driving without a license and caused damage of under
$1,000 in an accident. The parents accompanied the minor to court
for the sentencing. MS. RUTHERDALE responded the parents are not
required to attend the court hearings, but many parents do.
SENATOR ELLIS noted the judicial bypass procedure would allow the
child to appear in court without parental participation.
SENATOR TAYLOR stated SB 105 would be held in committee and heard
next Wednesay. He asked Ms. Rutherdale to review the other 22
sections of law that require parental consent, and give the
committee her opinion of why each of those statutes are not
violative of the same right of privacy issue. He discussed the
Raven case and added reliance upon it is weak at best since it was
based on incorrect information.
MS. RUTHERDALE commented the Supreme Court did rule on a similar
case in which cocaine was found in the defendant's home and found
the state to have a compelling interest.
SENATOR TAYLOR announced SB 105, HB 115, and SB 95 will be held
over until Wednesday's meeting. He adjourned the meeting at 4:10
p.m.
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