03/11/2020 01:30 PM Senate JUDICIARY
| Audio | Topic |
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| Start | |
| SJR13 | |
| Confirmation Hearing(s): | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SJR 13 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 11, 2020
1:37 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Peter Micciche, Vice Chair
Senator Shelley Hughes
Senator Lora Reinbold
Senator Jesse Kiehl
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE JOINT RESOLUTION NO. 13
Proposing an amendment to the Constitution of the State of
Alaska relating to abortion.
- HEARD & HELD
CONFIRMATION HEARING
Public Defender Agency
Samantha Cherot - Anchorage
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SJR 13
SHORT TITLE: CONST. AM: PROHIBIT ABORTION/FUNDING
SPONSOR(s): SENATOR(s) HUGHES
01/21/20 (S) READ THE FIRST TIME - REFERRALS
01/21/20 (S) HSS, JUD, FIN
02/26/20 (S) HSS AT 1:30 PM BUTROVICH 205
02/26/20 (S) Heard & Held
02/26/20 (S) MINUTE(HSS)
03/06/20 (S) HSS AT 1:30 PM BUTROVICH 205
03/06/20 (S) Moved SJR 13 Out of Committee
03/06/20 (S) MINUTE(HSS)
03/09/20 (S) HSS RPT 3DP
03/09/20 (S) DP: WILSON, SHOWER, GIESSEL
03/09/20 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/09/20 (S) Heard & Held
03/09/20 (S) MINUTE(JUD6
03/11/20 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
LISA HART, Staff
Senator Shelley Hughes
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented a PowerPoint on SJR 13.
JEANNEANE MAXON, Attorney, J.D.
Law and Compliance Consultant; Associate Scholar
Charlotte Lozier Institute
Washington, D.C.
POSITION STATEMENT: Testified in support of SJR 13 and reported
on abortion laws in other states.
LOREN LEMAN, representing himself
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SJR 13 and provided
his perspective on legislative and judicial actions in Alaska.
STACIE KRALY, Chief Assistant Attorney General;
Statewide Section Supervisor
Civil Division
Human Services Section
Department of Law
Juneau, Alaska
POSITION STATEMENT: Presented a timeline of court cases on
abortion during the hearing on SJR 13.
SAMANTHA CHEROT, Appointee
Public Defender Agency
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Testified as appointee to the Public
Defender Agency.
ACTION NARRATIVE
1:37:13 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:37 p.m. Present at the call to
order were Senators Hughes, Reinbold, Micciche, Kiehl and Chair
Coghill.
SJR 13-CONST. AM: PROHIBIT ABORTION/FUNDING
1:37:55 PM
CHAIR COGHILL announced consideration of SENATE JOINT RESOLUTION
NO. 13, Proposing an amendment to the Constitution of the State
of Alaska relating to abortion.
1:39:04 PM
SENATOR HUGHES said she would address three areas related to SJR
13: first, she will provide the federal background and
allowances related to abortion and how states have set policy
based on these allowances; second, she will provide a brief
history on the right to privacy amendment in the Constitution of
the State of Alaska; and third, she will discuss the separation
of powers as it relates to SJR 13. She paraphrased from a
portion of the sponsor statement:
Senate Joint Resolution 13 proposes an amendment to
the Alaska State Constitution, adding a new section
that would provide clarity regarding Article 1
(specifically pertaining to the right to privacy and
the right to equal protection) and Alaska's ability to
set public policy related to abortion.
She emphasized that nothing could be construed to secure or
protect a right to an abortion or to require public funding for
an abortion.
1:40:22 PM
SENATOR HUGHES paraphrased from a portion of the sponsor
statement:
Although the U.S. Supreme Court declared in Roe v.
Wade (1973), and reaffirmed in Planned Parenthood v.
Casey (1992), that there is an alleged federal
constitutional right to abortion, the federal courts
have nonetheless held that states can still legislate
related issues in a number of ways e.g., by banning
the use of public funds for abortions, requiring a
parent to consent before abortion can be performed on
a minor, and even disallowing certain abortion
procedures (such as partial-birth abortion or late
term abortion).
She said the Alaska Supreme Court has not allowed what the
federal courts have allowed, and other state legislatures have
determined certain policies regarding abortion and their laws
have been upheld at the state and federal level.
SENATOR HUGHES said that when the Alaska legislature determined
a policy related to abortion, one that would have been permitted
and upheld in other states, Alaska courts have struck down the
policies. This happened when Alaskans determined a policy via a
voter initiative, even though the federal courts would have
upheld it in other states.
She paraphrased a portion of the sponsor statement to illustrate
some concrete examples:
In Minnesota, both parents must be informed before a
minor can have an abortion. In Illinois, one parent
must be informed. There are 37 states that have laws
requiring parental notification, and 21 requiring
actual parental consent; additionally, 21 states have
laws in effect that prohibit "partial birth" abortion,
and 3 have laws that apply to post-viability (ability
to survive outside of the uterus) abortions. In
Alaska, we are unable to have any provisions in law
related to these matters unless we fix our
constitution.
She said that when Alaska passed a parental consent law, the
Alaska Supreme Court struck it down. The court ruling indicated
that a parental notification law would be acceptable.
Subsequently, Alaskans via a voter initiative passed a parental
notification law, but the Alaska Supreme Court struck it down.
She explained that when she refers to blue states, she is
referring to ones that lean left, or their state house, senate,
or governor is a Democrat. Red states are ones in which states
lean right or are Republican, and gray states are a mix. It is
not partisan, because across the political spectrum, states have
set some of these policies. She provided some examples, noting
that the slide presentation will illustrate her point.
SENATOR HUGHES asked members to fix the constitution so some of
the same parameters could be allowed to stand if it is the will
of the people. She clarified that this is not designed to answer
the question, in terms of abortion, of what a woman may legally
do, or what the legislature may fund. It does not set any
specific parameters. She offered her view that SJR 13 would
allow Alaska to be on par with other states by preventing the
courts from adding something to the Constitution of the State of
Alaska that its framers never envisioned.
1:45:08 PM
SENATOR HUGHES turned to the second point. She provided a brief
history of the right to privacy since it has been the court's
default to overturn abortion related policy in Alaska. In 1972
the legislature put the right of privacy on the ballot, which
had nothing to do with abortion. According to Alaska's
Constitution, a Citizen's Guide [Section 22. Right of Privacy],
she read, "This section was added to the constitution by
amendment in 1972. It was prompted by fear of the potential for
misuse of computerized information systems, which were then in
their infancy." In the early 1970s, the Department of Public
Safety was developing the Alaska Justice Information System, a
computerized database of information on the criminal history of
individuals. Fearful that such a system was the precursor of a
"big brother" government information bureaucracy, legislators
responded with the constitutional amendment which was handily
ratified by the voters. She said that was the beginning of the
concern about data mining.
1:47:03 PM
SENATOR HUGHES turned to the third point, which is about
protecting the separation of powers. She offered her belief that
the state has seen a pattern of obstruction by the courts. Judge
Andrew Kleinfeld, Fairbanks, in a 1995 Ninth Circuit Court of
Appeals case, Compassion in Dying v. State of Washington, made a
statement. She read his remark from [his dissenting decision],
"That a question is important does not imply that it is
constitutional. The founding fathers did not establish the
United States as a democratic republic so that elected officials
would decide trivia, while all great questions would be decided
by the judiciary."
She asked members whether the legislature should hand over the
answering of all great questions to the judiciary or if the
legislative branch should address the great questions. She said
the legislative branch has the duty, obligation, and power to
answer great questions. Justice Craig Stowers commented on a
ruling that struck down a 2014 law passed by the legislature
pertaining to the public funding of abortions. She quoted: "I
believe the court today fails to give respect to the
legislature's proper role, but instead substitutes its own
judgment for that of the legislature." She asked members to
respect the careful balance of power and ensure that the
legislature can fulfill its duty as representatives of the
people, that it not be subjugated by the judicial branch or
relinquish its responsibility to the judiciary. The legislature
has the ability and the right under the U.S. Constitution as a
state legislature to make laws related to abortion.
SENATOR HUGHES said she personally wants unborn babies to be
protected and for abortion to end. She would like babies to be
cared for and cherished by loving parents, including adoptive
families. She offered her belief that one day Americans will
look back on abortions, like slavery, as a barbaric act that
does not have any place in a civil society. However, this
resolution is not about that; it simply will allow Alaskans
rather than the courts to make decisions on policies related to
abortion in Alaska.
1:51:32 PM
LISA HART, Staff, Senator Shelley Hughes, Alaska State
Legislature, Juneau, Alaska, began a slide presentation, "SJR 13
Constitutional Amendment Relating to Abortion," consisting of a
series of color coded U.S. maps illustrating the political
makeup of each state based on the house and senate majority, and
the office of the governor. She said slide 2 shows eight states
with minimal or no timing restrictions for abortions in the
state, including Alaska.
1:52:49 PM
MS. HART reviewed slide 3, which showed 24 states that have
state laws in place to disallow abortions after 24 weeks. She
noted the broad makeup of red, gray, and blue states that have
set this 24-week parameter. She read, "In 1973 the Supreme Court
established that states could prohibit abortion after viability
the point at which a baby can self-sustain life. For reference
purposes, viability is determined on an individual basis - the
standard number of weeks for viability averages around 22-24
weeks."
She turned to slide 4, which identified states that do not allow
any abortions after 18-22 weeks. She pointed out that three of
the 14 states are gray states, including Kansas, Wisconsin, and
North Carolina.
MS. HART reviewed slide 5, which depicted the states that do not
allow any abortion after six to eight weeks, which is commonly
referred to as a "heartbeat bill". Two of the six states,
Louisiana and Kentucky are gray states.
1:54:16 PM
MS. HART reviewed slide 6, "Parental Involvement, Parental
Consent, and Parental Notification." This slide shows which
states have enacted legislation for parental involvement for
abortion for parental consent, parental notification, or both.
She said legislation by the states has opened a much-needed
debate about the role of states, legislatures, and government
with respect to abortion.
1:54:53 PM
MS. HART read slide 7:
The Alaska Supreme Court has determined that the state
constitution provides a broader right to abortion than
that interpreted in the U.S. Constitution
Passing SJR 13 will allow common-sense abortion
policies if we so choose as permitted under the
federal constitution
It will allow elected officials -- or the people
acting through the initiative process -- to determine
the policies on abortion, instead of unelected
justices on the Supreme Court.
1:55:35 PM
MS. HART read slide 8:
Abortion-Related Laws Overturned in Alaska
Hospital Participation:
1970 law passed (no mandatory participation)
1997 courts struck down
Parental Consent:
1997 law passed
2007 courts struck down: court recommended to change
"parental consent" to "parental notification"
Parental Notification:
2010 voter initiative passed
2016 courts struck down
Public Funding:
1998 law passed to limit (to rape/incest, life of
mother)
2001 struck down (but limiting to medically necessary
ok)
2014 law passed (to limit medically necessary)
2019 courts struck down
She said these are examples that show where the Alaska
legislature and a voter initiative have put laws on the books in
the areas of hospital participation, parental consent, parental
notification, and public funding. However, the courts have
struck down these laws.
1:56:10 PM
MS. HART read slide 9, the sectional analysis of SJR 13:
Section 1 Article I, Constitution of the State of
Alaska, Page 1, Lines 3-7 Amends the Constitution of
the State of Alaska by adding a new section, Section
26. Abortion. The amendment states that in order to
protect human life, nothing in this constitution may
be construed to secure or protect a right to an
abortion or require the State to fund an abortion.
Section 2 Article I, Constitution of the State of
Alaska, Page 1, Lines 8-10 Adds that the amendment
proposed by this resolution shall be placed before the
voters of the state at the next general election in
conformity with art. XIII, sec. 1, Constitution of the
State of Alaska, and the election laws of the state.
1:57:07 PM
CHAIR COGHILL thanked the presenter.
1:58:26 PM
JEANNEANE MAXON, Attorney, J.D., Law and Compliance Consultant;
Associate Scholar, Charlotte Lozier Institute, Washington, D.C.,
said she has worked on public policy for over ten years. She
offered her view that SJR 13 will return to Alaska's citizens
and this legislature the constitutionally protected right to
make decisions on abortion. While the U.S. Supreme Court has
routinely affirmed the constitutional right of states to
reasonably restrict or expand their laws on abortion, the Alaska
Supreme Court usurped this right in 1997 with notable
consequences. The rest of the nation saw a seven percent
decrease in abortion rates, but Alaska saw a two percent
increase in abortion while the population was decreasing,
according to recent statistics. She reported that in 2019, 31
states passed laws related to abortion, either restricting or
expanding their abortion policies, which represents a
significant increase from 2018. As previously mentioned,
hundreds of laws have been passed throughout the country in
recent years. Notably absent is Alaska, she said.
1:59:51 PM
MS. MAXON reiterated that SJR 13 does not take a position on
abortion but rather restores to the citizens of Alaska the power
to decide this issue for themselves, which is afforded to most
citizens in other states. In recent years, three states have
approved similar changes to their constitutions: Alabama, West
Virginia, and Tennessee. Louisiana is currently considering an
amendment, as well. The United States Court of Appeals for the
Sixth Circuit upheld the right for Tennessee voters to approve
such ballot measures. The U.S. Supreme Court allowed this ruling
to stand. As a result these legislatures in these states have
been able to enact some very common sense restrictions on
abortion, including post-viability and post-22 week prohibitions
on abortion with exceptions for the life of the mother and
informed consent laws designed to protect the health and safety
when minor girls are seeking abortion.
She said the need for this legislation is important because of
the strong possibility that Roe v. Wade could soon be
significantly curtailed or overturned. Last week the U.S.
Supreme Court heard June Medical Services v. Russo. This case
presents the first opportunity for the new court with a majority
of five justices poised to do so. A decision in that case is
expected no later than June 30, 2020. If Roe v. Wade is
overturned, states will be afforded the opportunity to make
broader decisions on their abortion policy without interference
from the federal government. In anticipation of this, half of
the states have passed laws that will automatically define the
legality of abortion in their states, including bans or
legalization, with most states falling somewhere in between.
2:02:06 PM
MS. MAXON said that because of the Alaska Supreme Court's
decision, Alaska's citizens have not been afforded the
opportunity to prepare for this possibility. Considering these
developments, she offered her belief that it is critical that
Alaskans also have a voice on abortion policy, either through
ballot initiatives or through their elected officials. If this
resolution fails to be brought before the voters, a majority of
three individuals on the Alaska Supreme Court will hold the
absolute power of determining abortion policy in Alaska.
Alaska's citizens deserve their rights on this issue. She urged
members to support SJR 13.
2:02:50 PM
CHAIR COGHILL thanked the presenter.
2:03:07 PM
LOREN LEMAN, representing himself, Anchorage, Alaska, said he
previously served 14 years in the legislature and for four years
as lieutenant governor of Alaska. He spoke in support of SJR 13
because it will give the state the ability to set policy on
abortion, which has been usurped for more than 20 years by the
courts.
He stated that for over 23 years he has defended the rights of
parents to be involved in their children's lives with respect to
abortion. Although his effort has been disrupted and delayed, he
is not defeated or giving up. In 1997, he sponsored Senate Bill
24 to enable the state to enforce a 1970 law that required a
doctor to obtain parental consent before performing an abortion
on a girl under the age of 18. A 1970 attorney general opinion
stated that law was unenforceable because the U.S. Supreme Court
had subsequently ruled that state parental involvement laws must
allow minors the option to seek a waiver in court, which is
commonly known as a judicial bypass. In his view, the state
effectively ignored the parental consent law.
MR. LEMAN explained that Senate Bill 24 included a judicial
bypass provision in full compliance with the rulings of the U.S.
Supreme Court. At the time, [1997] that court had recently
issued a 9-0 decision in a case from Montana that effectively
signaled to states not to send any cases related to parental
consent since it had provided guidance. He remarked that even
Ruth Bader Ginsberg joined in that decision.
2:06:01 PM
MR. LEMAN reported that Senate Bill 24 passed the legislature
with super majority support. However, before the law could take
effect, Planned Parenthood challenged it and it took ten years
to resolve. He said he was extremely disappointed when the
Alaska Supreme Court issued a 3-2 decision to strike it down.
Highly respected Justice Carpeneti said in a dissenting opinion
that, "This court's rejection of the legislature's thoughtful
balance is inconsistent with our own case law and unnecessarily
dismissive of the legislature's role in expressing the will of
the people." This statement encompassed his view, too, he said.
In the majority opinion, Justice Fabe wrote that a law that is
less restrictive than parental consent, such as one requiring
parental notification would be acceptable.
He said the legislature introduced a bill to do so, but it did
not move. He helped sponsor an initiative in 2010, Ballot
Measure 2, gathering more than 45,000 signatures to place it on
the ballot. Ballot Measure 2 received more than 56 percent
approval by voters.
2:08:10 PM
MR. LEMAN said Planned Parenthood v. Alaska challenged the law,
which was upheld by superior court, relying on the Alaska
Supreme Court's assurance that a parental notification law would
be considered constitutional, but it was struck down 4-1 by the
court. Some felt that the court lied to them, he said. In the
sole dissenting opinion, Chief Justice Craig Stowers said, "I
cannot see how the court can reach these results under our
standard of review for constitutional questions, adopting the
most persuasive rule of law in light of precedent, reason, and
policy."
He offered his view that Justice Stowers was correct. He said he
also believes that many of the Alaska Supreme Court justices'
decisions are not driven by the law or constitution, but by
personal ideology, which is a problem. He stated that
legislators make decisions based on their values and life
experiences. However, legislators earn their right to make
decisions as elected officials. Unelected judges have not earned
that right so if judges exceed their authority, these judges
deserve an aggressive response from the people. He said SJR 13
will allow the public to weigh in again. He reiterated that this
resolution does not ban abortion or change abortion law, but it
will restore to Alaska's leaders the right to set policy related
to abortion. That power has been taken away from Alaskans who
must live with the bad results. SJR 13 is a step in the right
direction. It will help Alaskans decide the type of society in
Alaska.
2:11:11 PM
SENATOR REINBOLD commended on his relentless effort on this
issue. She related her own experience listening to the Alaska
Supreme Court decision on the initiative related to parental
consent. She wondered what efforts he has made to remove any
judges.
MR. LEMAN said the voters can vote on retention of judges during
elections. He said he has voted against retaining judges when he
believes they have not followed the constitution or have not
correctly interpreted the law. He was unsure if there will be an
organized effort, but individuals have the right to vote and to
speak up.
2:14:56 PM
CHAIR COGHILL agreed that SJR 13 would allow the right to speak
up and give the voice back to Alaskans.
2:16:18 PM
STACIE KRALY, Chief Assistant Attorney General; Statewide
Section Supervisor, Civil Division, Human Services Section,
Department of Law, said the committee received testimony
providing an overview of litigation in Alaska. She said she
would provide a broad overview of the Alaska Supreme Court and
U.S. Supreme court cases related to abortion.
2:17:52 PM
MS. KRALY said that in 1973, the U.S. Supreme Court, in Roe v.
Wade, found a constitutional right to abortion. Previous
testifiers have provided an overview of cases for the past 40
years in Alaska and her focus will be on Alaska Supreme Court
cases. She reiterated that in 1973, the U.S. Supreme Court ruled
that there was a constitutional right to abortion in Roe v.
Wade. In 1976, the federal government enacted what is commonly
referred to as the Hyde amendment that prohibits use of federal
funds for abortions under Medicaid. The Hyde amendment was
challenged at the federal level in 1980 under Harris v. McCrae.
The U.S. Supreme Court ruled that the legislative enactment was
constitutional, affirming the limitation on federal funds except
under narrow circumstances, including a threat to the health and
welfare of the mother or for victims of rape or incest. That
legislative enactment has been the law of the land since 1980,
she said.
2:18:57 PM
MS. KRALY said that in 1977, the Alaska Supreme Court ruled in
Valley Medical v. Mat-Su Coalition that there was a
constitutional right to abortion in Alaska. The Alaska Supreme
Court ruled that it does not rely on the Roe v. Wade analysis,
that it is not looking at federal case law when evaluating
constitutional rights, but it uses the Constitution of the State
of Alaska, which provides much broader protections than the U.S.
Constitution does. This means that when case law in Alaska is
evaluated, the Alaska Supreme Court does not rely on federal
case law in its analysis. The primary basis for the right to an
abortion under Valley Medical v. Mat-Su Coalition rests in the
constitutional right to privacy in the Constitution of the State
of Alaska, Article 1, Section 22.
2:20:21 PM
MS. KRALY said Senator Hughes provided several restrictions on
the right to an abortion, which were predicated in the 1992
Planned Parenthood v. Casey decision. She indicated that the
U.S. Constitution provides states with the ability to regulate
abortion so long as it does not create an undue burden on access
to services. She stated that the court departed from a viability
argument to an undue burden analysis. Anything a state does or
any regulation or statute that it enacts is evaluated under an
undue burden analysis, she said.
In 1997, the Department of Health and Social Services (DHSS)
adopted a regulation, 7 AAC 43.140, that followed the Hyde
amendment, which indicated that the state would not permit
public funds for abortion. At the same time Senate Bill 24
formalized parental consent provisions in AS 18.16.020. Both
cases were appealed to the Alaska Supreme Court.
MS. KRALY turned to the 2001 State v. Planned Parenthood public
funding case. The Alaska Supreme Court again affirmed that there
is a constitutional right to an abortion under the Constitution
of the State of Alaska relying upon Article 1, Section 22,
related to the right to privacy. However, the Court also looked
at equal protection, relying on the 1997 Valley Medical v. Mat-
Su Coalition ruling regarding the restriction on public funding.
The Court ruled that the regulation adopted by DHSS was
unconstitutional, and therefore the state must cover publicly
funded abortions with the distinction that it meant using state
funds, not federal funds for abortions.
2:22:44 PM
MS. KRALY said that in 2001, the Alaska Supreme Court took up
the first parental consent case, which she referred to as
Planned Parenthood 1 (PP1). This case challenged whether the
parental consent act was constitutional. First, the Court
affirmed the constitutional right to an abortion under the right
to privacy provided by the Constitution of the State of Alaska.
Second, the Court held that minors have a constitutional right
to privacy, which extended the right to an abortion to a minor.
The Court held that the trial court failed to engage in a more
robust evaluation of the equal protection analysis, relying
solely on the Valley Medical v. Mat-Su Coalition right to
privacy argument. The Court remanded the case back to superior
court for a trial to determine if an equal protection issue was
present. In 2009, after the superior court heard the case,
Planned Parenthood v. Casey, was back before the Alaska Supreme
Court, referred to as PP II. In that case the Court affirmed its
prior ruling related to the right to privacy and the right to an
abortion, but ruled that it violated equal protection such that
the parental consent act was not constitutional. She recalled
that Senator Hughes and Mr. Leman both indicated that the
decision was lengthy, and it outlined the possibility of
parental notification being constitutional in the majority and
minority opinions. As a result, the voter initiative took place
[in 2010 with Ballot Measure 2] and the parental consent act was
amended to require a parental notification component.
2:24:59 PM
MS. KRALY said that in 2013, DHSS adopted a regulation related
to public funding and medical necessity, which goes back to the
original public funding case. In 2014, the legislature passed AS
47.07.068, related to medical necessity for abortion. She
pointed out that under PP 1, the Court did not distinguish
between medically necessary and elective abortions, but it made
it clear that the Medicaid program does not cover non-medically
necessary services. The Court left open the question of what
would be covered under a medically necessary analysis. When the
statutes and regulations were amended to define what would
constitute medical necessity, those enactments were also
challenged.
She turned to the last two cases. In 2016, in State of Alaska v.
Planned Parenthood, referred to as PP III, notwithstanding the
prior judicial language about notification, the Court went
through the same analysis related to the constitutional right to
privacy and equal protection and found that the parental
notification provision was also unconstitutional because it was
not narrowly tailored to achieve the state's interests.
2:27:00 PM
MS. KRALY said that in 2019, in State v Planned Parenthood, the
state had its last public funding litigation over the definition
of medical necessity. The Court held that there was a
constitutional right to an abortion, but under an equal
protection analysis, the statutory and regulatory framework were
unconstitutional because it treated individuals differently. It
treated women seeking non-abortion services differently than it
did women who were seeking abortion services.
2:27:41 PM
MS. KRALY offered that the common theme is that women in Alaska
have a constitutional right to an abortion under the privacy
clause, Article 1, Section 22, of the Constitution of the State
of Alaska. The analysis goes through to the 1992 Planned
Parenthood v. Casey, which does not apply to Alaska. The attempt
to regulate an abortion in Alaska is examined in the
Constitution of the State of Alaska framework of equal
protection. She reiterated that in Alaska, the Court has always
looked through a state lens and does not rely upon the federal
framework for a right to an abortion.
2:28:27 PM
CHAIR COGHILL said the committee will consider the case law
related to the right to privacy and the equal protection issues
and consider how that interacts with the constitutional issues.
He suggested that the constitution will allow a public
discussion, but it still must go through a series of tests. The
committee must go through the equal protection and right to
privacy least restrictive means alongside something that might
be passed under SJR 13.
2:29:38 PM
MS. KRALY said that is correct; if SJR 13 passed the legislature
and went through an initiative process it would create a stand-
alone provision in the Constitution of the State of Alaska
related to abortion. While that would provide a constitutional
right to regulate or make adjustments on how that right is
exercised in the state, it would be necessary to make sure it is
framed and crafted so that the state would not run into
additional roadblocks related to other constitutional
provisions.
CHAIR COGHILL said he anticipates that other constitutional
concerns would arise because natural tensions exist in laws on
criminal justice issues and fish and game management or other
natural resource management.
SENATOR HUGHES said that Cori Mills, Legislative Legal could
also assist the committee with constitutional issues. She asked
if any laws that the courts ruled as unconstitutional were ever
fixed. She related her understanding that if this resolution
passed the state would have a blank slate and would need to
revisit previous laws.
CHAIR COGHILL related his understanding that if SJR 13 passes
and an initiative passes, it needs to be clear that the courts
would need to consider the language.
2:32:47 PM
MS. KRALY agreed it would open new discussions on the issue.
2:32:59 PM
SENATOR KIEHL said he has numerous questions on SJR 13.
CHAIR COGHILL suggested that the committee should hold
discussions before public testimony it taken. He said that
public testimony would be held open.
2:34:07 PM
CHAIR COGHILL said SJR 13 would be held in committee.
^CONFIRMATION HEARING(S):
CONFIRMATION HEARING:
Public Defender Agency
2:34:36 PM
CHAIR COGHILL announced that the next order of business would be
the confirmation hearing for Samantha Cherot to the Public
Defender Agency.
2:35:08 PM
SAMANTHA CHEROT, Appointee, Public Defender Agency, Department
of Administration, Anchorage, Alaska, stated she has been
serving as the director of the Public Defender Agency since
September 2019. She said she grew up in Alaska, primarily raised
by a single mother who instilled a strong work ethic,
independence, and a commitment to give back to others. She
attended undergraduate and law school in California and entered
private law practice representing public entities and employment
law litigation in California. She represented sheriff
departments, cities, counties, and school districts. She trained
public employees in employment law compliance. Like many
Alaskans, she was pulled back to Alaska. In 2009, she and her
husband returned to Alaska where she worked primarily as a
public defender. She said her interest was to work with clients,
participate in trials and serve those in need. She spent three
years serving in the [Department of Law] criminal division where
she gained extensive trial experience. She supervised support
staff, law office assistants and paralegal staff. She returned
to private practice with Cashion Gilmore LLC, in Anchorage. She
continued with criminal and civil litigation, including divorce
and custody cases. In 2015, she returned to the public defender
agency because of her desire to assist those in need and to help
families reunite. She primarily represented parents or children
in the child in need of aid (CINA) cases. She also worked on
mental health cases, including involuntary commitment, and
forced medication proceedings. Through her work, she observed
many people find stability in their communities. She observed
people obtain substance abuse treatment and sobriety, manage
their mental health challenges, become more empowered, and
become safer parents who could be reunited with their children.
2:37:51 PM
MS. CHEROT said it was a difficult decision to return to the
public defender. She still represents clients, but that aspect
of her work is minimal. She is tasked with overseeing the public
defender agency's 13 offices, with over 100 attorneys and 70
support personnel when fully staffed. She said she has found
that her employment law background and training experience has
been valuable. Her primary focus has been on recruitment and
retention and how to best use the agency's resources to be
effective and efficient while not compromising the
constitutional mandates and ethical obligations to their
clients. She acknowledged that the agency turnover requires
substantial training. She related that the agency has high
vacancies and attorneys have substantial workloads. She said she
has one regional office with one applicant in three months.
2:39:35 PM
CHAIR COGHILL thanked Ms. Kraly for her willingness to serve.
2:39:55 PM
SENATOR REINBOLD said she would like to put some important
issues on the record.
CHAIR COGHILL acknowledged that she had questions. He informed
Senator Reinbold he would not distribute materials to committee
members until after the meeting.
2:41:01 PM
SENATOR REINBOLD emphasized that public safety is government's
most important mandate. She indicated that the public defender
agency should be focused on safety for Alaskans. She said she
has done her due diligence on appointees, including Ms. Cherot.
She indicated issues she had with the previous public defender,
Quinlan Steiner, during work on the comprehensive crime bill.
CHAIR COGHILL reminded members to keep questions brief.
2:42:06 PM
SENATOR REINBOLD referred to an April 12, 2019 letter of
resignation from Quinlan Steiner. She asked if he has been hired
on contract.
MS. CHEROT expressed concern about discussing employees due to
the confidentiality provided by the personnel act. She said she
would need to seek an advisory opinion before responding.
SENATOR REINBOLD remarked that she has valid proof that Mr.
Steiner is currently a state employee. She expressed concern
that a conflict of interest could occur if a defendant who was
unhappy with the public defender could potentially be defended
by Mr. Steiner. She considered this a red flag.
CHAIR COGHILL related that the question is if defendants report
any ethics concerns to her and to identify her superior.
2:44:20 PM
MS. CHEROT answered that ethics matters or concerns about an
attorney would be reported to the Alaska Bar Association. She
said what is public information is who is employed by the
agency. She indicated that the State of Alaska does not
currently employ Mr. Steiner. The agency has the statutory
authority to use contractors during times of retention and
recruitment challenges and crisis.
CHAIR COGHILL agreed that retaining and hiring is a challenge
for public defenders, prosecutors, and police.
2:45:15 PM
SENATOR REINBOLD referred to her resume and questioned her
ability to manage 13 public defender offices since she lacks
managerial experience. She said she understood the agency has
significant backlogs. She reiterated her concern that Mr.
Steiner could represent a defendant who is unhappy, which she
viewed as a conflict of interest.
CHAIR COGHILL indicated that her concern is with Mr. Steiner.
2:46:12 PM
SENATOR REINBOLD asked her to describe her management
experience.
MS. CHEROT answered that she hired and supervised staff in
California, and trained staff on employment compliance laws. She
agreed that she has not managed an office of this size, which is
challenging, but she is committed to do so.
2:46:58 PM
SENATOR REINBOLD reviewed the public defender agency staff,
which includes supervising over 100 attorneys and 72 staff. She
expressed concern that Ms. Cherot lacks enough management
experience.
CHAIR COGHILL said Ms. Cherot answered the managerial experience
question.
2:47:16 PM
SENATOR REINBOLD asked her to elaborate on the December 2019
hiring request for Summer Rife.
CHAIR COGHILL asked how that is relevant.
SENATOR REINBOLD answered that Ms. Cherot hired Summer Rife who
was married to Peter Seda.
CHAIR COGHILL asked how that is relevant.
SENATOR REINBOLD replied Ms. Rife's husband has ties to
terrorism, according to at least six articles that she printed
from the internet.
CHAIR COGHILL said he understood her concern is that Ms. Cherot
hired someone whose husband has ties to terrorism.
SENATOR REINBOLD reiterated her concern.
2:49:39 PM
MS. CHEROT answered that the personnel act prevents her from
speaking about specific employees. According to the employee
directory, Summer Rife is not currently employed with the public
defender agency. She said she cannot withhold an appointment
based on discrimination of a protected class or for classified
employees based on their political views. She looks for people
who are committed to the work the agency performs, including
representing clients and trying cases. The public defender takes
great lengths to train attorneys to be objective and act as
strong advocates for clients. Many new hires are also new
attorneys. She said that if she had a concern about any
employee's conduct that negatively impacted the individual's
ability to perform his or her duty as a public defender, she
would take action to remedy the matter in the best interest of
their clients.
2:50:58 PM
CHAIR COGHILL suggested that Senator Reinbold could take her
concern to the Department of Law if she had a specific
complaint.
2:51:22 PM
SENATOR KIEHL expressed an interest in the public defender's
role vis-a-vis the executive branch and how she interacts given
that the state has a strong executive branch. The legislature
established the public defender separately.
MS. CHEROT stated that the public defender agency falls under
the Department of Administration. The agency's statutes clearly
indicate its independence, identify the director's role in
hiring and termination decisions, ensure that it is not being
impacted by undue political influence or influences that would
negatively impact the agency's ability to meet its
constitutional and ethical obligations to its clients.
2:52:55 PM
SENATOR KIEHL asked her to discuss the appropriate role when the
executive branch and the public defender differ on what
constitutes an adequate budget for the agency's mission.
MS. CHEROT stated that she had good rapport when she worked with
Commissioner Tshibaka and the Department of Administration
during the last budget cycle. She related that the agency's
budget meets its needs, given that it has great vacancies and
challenges with retention and recruitment. The agency is not
currently asking for additional positions and funding, but that
could change in future budget cycles, she said.
2:53:59 PM
SENATOR KIEHL said he did not have concerns about the current
commissioner, but he hoped to get a sense of the overall dynamic
since the public defender could likely serve several
administrations.
MS. CHEROT answered that if any issue arose it would be put
forward to the legislature. She indicated that the role of the
public defender and the director relates to the agency's
independence and ensuring that the agency has enough resources
to meet its ethical and constitutional mandates to its clients.
2:55:13 PM
CHAIR COGHILL asked testifiers to send written comments to
senatejudiciary@akleg.gov. He indicated that public testimony
will be left open.
2:56:31 PM
SENATOR REINBOLD said she would like to hear from testifiers.
She indicated that she had materials to pass out to the
committee. She remarked that terrorism is not a political view;
it is a threat to citizens, and the legislature must protect
Alaskans.
CHAIR COGHILL said he would make the materials available to
members and the appointee.
SENATOR REINBOLD noted that she met with Ms. Cherot previously.
2:57:31 PM
CHAIR COGHILL expressed appreciation for Ms. Cherot's
willingness to step forward. He remarked that the criminal
justice system finds people innocent until found guilty.
Defendants are entitled to a defense. People who are innocent
but charged as guilty are entitled to an appeal. The system
provides the state with a means to prevent victimization but
also to hold people accountable who victimize people.
He held the name Ms. Cherot, appointee, Public Defender Agency
in committee.
2:59:03 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 2:59 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Corrected- TIMELINE OF FEDERAL AND STATE LEGISLATIVE ACTIONS AND COURT CASES.pdf |
SJUD 3/11/2020 1:30:00 PM |
|
| Maxon Testimony Alaska SJR 13.2-26-20.pdf |
SJUD 3/11/2020 1:30:00 PM |
SJR 13 |
| 2020.2.21 Cherot Samantha Resume.pdf |
SJUD 3/11/2020 1:30:00 PM |
Samantha Cherot Resume |
| Ashburn and Mason Letter of Support for Samantha Cherot.pdf |
SJUD 3/11/2020 1:30:00 PM |
Ashburn and Mason Letter of Support for Samantha Cherot |
| 2020.03.10 Cashen Letter of Support for Sam Cherot.pdf |
SJUD 3/11/2020 1:30:00 PM |
Cashen Letter of Support for Samantha Cherot |